Nawaz v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 663
•25 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nawaz v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 663
File number: MLG 1521 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 25 July 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants student visas – whether the Tribunal failed to consider all the facts and circumstances of the applicants’ case – no jurisdictional error – application dismissed Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth), Sch 2, cll 572.223, 572.322
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 19 July 2024 Place: Melbourne Applicants: The first applicant appeared in person Counsel for the First Respondent: Mr R O’Shannessy Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1521 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD NAWAZ
First Applicant
HAFZA MEMOONA ILYAS
Second Applicant
AHMAD NAWAZ
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants are non-citizens who applied for student visas. A delegate of the Minister refused to grant the applicants visas and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. By this application, the applicants seek judicial review of the Tribunal decision.
The applicants raise a sole ground of application alleging that the Tribunal failed to consider all the facts and surrounding circumstances of their case, did not look properly at the facts and made an ‘error in judgment’.
For the reasons explained below, I have found that the applicants have not established that the Tribunal made any jurisdictional error in reaching its decision. The application for judicial review must therefore be dismissed.
VISA HISTORY AND ADMINISTRATIVE DECISIONS
The first applicant arrived in Australia in December 2007 on a student visa and has since held subsequent student visas or associated bridging visas.
The applicants applied for Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visas, the student visas the subject of this judicial review application, on 13 March 2015. The first applicant was the primary visa applicant. The second applicant is the wife of the first applicant and the third applicant is their child. The second and third applicants were included in the application as members of the same family unit as the first applicant.
On 24 June 2015 a delegate of the Minister refused to grant student visas to the applicants. The delegate was not satisfied that the first applicant met the genuine temporary entrant criterion in cl 572.223(1)(a) in Sch 2 to the Migration Regulations 1994 (Cth) and the delegate was not satisfied that the second and third applicants met the criteria in cl 572.322(b) as they were not a member of the family unit of a person who was a holder of a student visa.
The applicants applied to the Tribunal for merits review of the delegate’s decision on 25 June 2015.
On 17 November 2016 the Tribunal purported to make an oral decision affirming the delegate’s decision not to grant the applicants student visas. That decision was quashed by the Federal Circuit Court on 23 October 2017 by consent and a writ of mandamus was issued requiring the Tribunal to redetermine the review application according to law. The Consent Order reflects that the Minister accepted that the Tribunal decision was affected by jurisdictional error on the basis of apprehended bias, based on the manner in which the hearing was conducted.
The Tribunal sent correspondence to the applicants acknowledging the remittal on 24 October 2017.
On 13 April 2018 the Tribunal sent to the applicants an invitation to attend a hearing on 15 May 2018. The applicants attended the hearing on 15 May 2018 and the first applicant gave evidence and presented arguments in relation to the review. The Tribunal made an oral decision on 15 May 2018 affirming the delegate’s decision.
SUMMARY OF TRIBUNAL DECISION
The Tribunal identified that the main issue for its consideration was whether the first applicant met the time of decision criterion in cl 572.223(1), which required the Minister (or Tribunal on review) to be satisfied that the applicant intends to genuinely stay in Australia temporarily, having regard to the applicant’s circumstances, the applicant’s immigration history, the applicant’s intentions and any other relevant matter. In considering whether the first applicant met this criterion, the Tribunal had regard to Ministerial Direction No 53.
The Tribunal considered the first applicant’s study history, noting that the first applicant arrived in Australia in 2007 with the purpose of obtaining a Master of Information Technology. The Tribunal accepted that the first applicant did not have satisfactory progress in relation to an English course he was required to undertake before his Master course, and was not troubled by this or the applicant’s decision not to undertake a Master course. The Tribunal noted that the first applicant then completed a Diploma in Hospitality Management, a Diploma of Business Management, a Diploma of Information Technology Networking, a Diploma of Marketing and an Advanced Diploma of Marketing and that he had since enrolled in an Advanced Diploma of Hospitality Management, which was due to commence on the day of the Tribunal hearing. The Tribunal accepted the first applicant’s explanation for the change in his proposed study and the Tribunal accepted that career changes were possible, occurred frequently in life and this, of itself, did not pose concerns for the Tribunal.
The Tribunal considered the first applicant’s stated career plan to open a 100 seat restaurant upon his return to Pakistan. The Tribunal accepted that the first applicant’s plan was genuine, although it was not particularly well-developed. The Tribunal considered that some of the courses the first applicant had undertaken were relevant to this plan and found that the skills learned in his Diploma of Hospitality Management, Diploma of Business Management and Diploma of Marketing would benefit him in this future career plan.
The Tribunal, however, considered that the first applicant had already undertaken sufficient study to achieve his career goals and considered that the first applicant would have been able to return to Pakistan at the end of 2017 armed with the Advanced Diploma in Marketing and his earlier qualifications, which would have enabled him to fulfil his ambition and his dream. The Tribunal considered that the Advanced Diploma that the first applicant was enrolled in at the time of decision added only limited additional value to the applicant’s future plan. The Tribunal took into account the timing of the latest enrolment as well as the nature of the course and considered that the first applicant was using the Advanced Diploma course as a means of supporting the grant of a further student visa for the purpose of prolonging his already long stay in Australia.
The Tribunal considered the first applicant’s circumstances in his home country and in Australia and had regard to his part-time jobs and his family in both countries. The Tribunal noted there was no adverse information to suggest the first applicant would be unable to return to Pakistan based on potential military service, economic or political circumstances, civil unrest or other situations. The Tribunal considered the first applicant’s immigration history, including that he had not studied at the university level in Australia but had studied at the Vocational Education and Training (VET) level, and the Tribunal understood the applicant’s reasons for not studying at the university level.
The Tribunal found the first applicant’s evidence to generally be straightforward and reasonable and accepted that course changes are possible. The Tribunal bore in mind that the first applicant had been in Australia since 2007, some 11 years prior to its decision.
The Tribunal summarised its findings and reasoning in [32]-[33] of its reasons, where it said:
32.The findings: having consideration of all the factors in direction 53 overall, the applicant had every personal and business reason to cease his residence Australia by the end of 2017. Regarding his conduct in enrolling in an Advanced Diploma of Hospitality Management, the tribunal finds this superfluous to the applicant’s stated future plan, and makes the suggestion that he will not yield to incentives that he has to leave Australia, and his desire to start a business.
33.The above factors accumulatively indicate that the applicant is not a genuine student; rather, the applicant appears to be using the student visa program as a means of prolonging residence in Australia and does not genuinely intend to stay in Australia temporarily. Overall given the study history and the potential circumstances in Australia and the immigration history and value of the future course to the applicant’s future, the tribunal finds the applicant is utilising the student visa program to circumvent permanent migration programs, and the tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student, and that he intends to stay in Australia temporarily. On the basis of the above information and having considered the applicant’s circumstances, immigration history and other matters as considered relevant, the tribunal is not satisfied the applicant genuinely intends to stay in Australia temporarily. Accordingly, the applicant does not meet clause 572.223(1)(a).
The Tribunal found that the applicants did not meet the criteria for a grant of the student visa, and therefore affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 31 May 2018 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act 1958 (Cth) (Migration Act).
In their application as filed, the only relief sought by the applicants was an order that the Tribunal decision be quashed. This is insufficient to invoke the Court’s jurisdiction in this matter. Pursuant to s 476(1) of the Migration Act the Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. That paragraph applies where a person seeks a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth. At the hearing, I granted leave to the applicants to orally amend their application to seek a writ of mandamus. I am satisfied that the Court now has jurisdiction to consider the application.
The applicants raise the following ground in their application:
I believe that the decision has not been made by the respectable Member taking all facts and surrounding circumstances in my case. They would have been an error by the member or the matter has been over looked. I believe, I am satisfying all the conditions (500.212)(a) of The Genuine Temporary Entrant. Even though there was a ground for refusal. The Member did not properly look at the fact and made an error in judgement. During my stay in Australia, I was fully complying with terms and conditions of my student visas, I was completely focusing on my studies and have a plan for my career. I highly request to Ownerable Court to accept my application on ground of fair justice, as my whole career and future depends on the dicision. If this application will not be accepted, I will not be able to achieve my career objectives, and it will be hard for me to continue a career with incomplete skillset and continuingly bearing a heavy cost.
Pursuant to an Order made by a Judge of the Court on 7 October 2019, the applicants were required to file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions 28 days prior to the hearing. The applicants did not file any documents in accordance with this Order. The Minister filed and served written submissions in accordance with the Order.
The evidence before the Court comprises the court book filed by the Minister on 29 March 2019 and an affidavit of the first applicant filed on 31 March 2018 annexing a copy of the Tribunal decision. The first applicant sought to tender documents relating to his studies at the hearing before the Court. Counsel for the Minister viewed these documents and confirmed that they were already included in the court book. I explained to the first applicant that the documents are therefore already in evidence before the Court.
When the matter came before me for hearing on 19 July 2024, only the first applicant appeared at the hearing. The first applicant requested that the Court provide him an opportunity to seek legal advice. I declined to adjourn the hearing to give the applicant an opportunity to seek legal advice, noting that the application had been on foot since 2018 and he therefore had six years to seek legal advice if he wished to do so. After explaining to the first applicant the role of the Court and what the Court can and cannot do, I stood the matter down briefly to give the first applicant an opportunity to consider what he wished to say to the Court in his oral submissions.
CONSIDERATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The applicants’ ground
In his oral submissions, the first applicant submitted that he continues to rely on the points raised in the ground of his application. He further submitted that when his matter was before the Tribunal, he provided all his relevant diplomas and degrees and explained about his study and career to the Tribunal. He showed the Tribunal member what he had achieved and what he wanted to do and thought he would get a decision in his favour. He was very excited at the time because he thought the Tribunal understood him and agreed. However, the Tribunal did not make a decision in his favour.
The Minister submitted that the first applicant’s complaint misconceives the basis for the Tribunal decision. In considering the first applicant’s study history, the Tribunal did not find that the first applicant failed to comply with his visa conditions at any point and the Tribunal accepted that the first applicant planned to open a 100 seat restaurant in Lahore. The Minister submitted that, given the first applicant’s extended stay in Australia and the courses he had undertaken and the courses he proposed to undertake in the future, the Tribunal was ultimately concerned that the timing of the first applicant’s enrolment and nature of the course suggested he enrolled in his Advanced Diploma course as a means of supporting the grant of a further student visa or continuation of a student visa for the purposes of prolonging his already long stay in Australia.
The Minister submitted there was nothing in the Tribunal’s decision to suggest that it failed to consider any relevant factors put forward by the first applicant and it was open to the Tribunal to give weight to the evidence before it as it considered appropriate. The Minister submitted that the Tribunal’s decision record otherwise revealed that it carefully assessed the first applicant’s claims and evidence against the requirements in Ministerial Direction No 53, and the Tribunal’s findings were open to it on the available material and for the reasons it gave.
The Minister submitted that, to the extent the ground takes issue with the finding that the first applicant was not a genuine temporary entrant, the complaint is inviting the Court to undertake impermissible merits review and cannot succeed in establishing jurisdictional error on the part of the Tribunal.
In response to the first applicant’s oral submissions, Counsel for the Minister submitted that the Tribunal did not appear to have any qualms about the first applicant’s evidence but, on the basis of the period of time the first applicant had already spent in Australia, and his failure to return to Pakistan upon the completion of his courses, the Tribunal was not satisfied that the first applicant would ever return to Pakistan. Counsel for the Minister submitted that the first applicant’s oral submissions might be seen as raising some sort of procedural fairness complaint, such as that the first applicant had a legitimate expectation that he and his family would be granted visas. In response, the Minister submitted that there can be no doubt, based on the Tribunal’s extensive recount of the hearing in its decision, that the first applicant was on notice that he needed to show that he was a genuine temporary entrant and not simply a genuine student.
In circumstances where one of the matters raised by the applicants in their ground was whether the Tribunal had taken into account that the first applicant complied with previous visa conditions, I asked Counsel for the Minister at the hearing whether the Tribunal had considered this issue and whether the applicants had squarely raised it. Counsel for the Minister acknowledged that the Tribunal had not expressly addressed whether the first applicant had complied with previous visa conditions and submitted that it was addressed within the Tribunal’s findings on the first applicant’s immigration history at [29] of its reasons. Counsel for the Minister also submitted that there was no evidence before the Court to show that the applicants had raised with the Tribunal that the first applicant had complied with all previous visa conditions.
Having considered the submissions of both parties and the documents before the Court, I am not satisfied that the applicants’ ground, or the first applicant’s submissions, establish jurisdictional error in the Tribunal decision. I interpret the applicants’ ground as raising the following issues:
(a)whether the Tribunal failed to take into account all facts and circumstances, with the particular facts and circumstances referred to in the applicants’ ground being that the first applicant:
(i)fully complied with the terms and conditions of his student visas;
(ii)completely focused on his studies; and
(iii)had a plan for his career;
(b)whether the Tribunal ‘properly’ considered the facts or whether the Tribunal made an ‘error in judgement’.
Having regard to the information in the court book that the first applicant provided to the Tribunal and the description in the Tribunal’s reasons in relation to the matters raised in the first applicant’s oral submissions and evidence at the Tribunal hearing, I am satisfied that the Tribunal has considered the relevant facts and circumstances raised by the first applicant.
In particular, I am satisfied that the Tribunal has had regard to the specific factors identified in the applicants’ ground.
In relation to whether the first applicant complied with his past visa conditions, I consider that this is addressed at [29] of the Tribunal’s reasons. In this paragraph, the Tribunal said:
The tribunal has considered the applicant’s immigration history and has considered that the applicant has not studied at a university level in Australia but has studied at a college VET provider level and has not envisaged a higher education level, but nonetheless the Tribunal understands the reasons for not doing so.
While this paragraph is not articulated as clearly as it could have been, it should be interpreted in the light of the Tribunal’s reasons as a whole, including the Tribunal’s earlier acknowledgement that the first applicant had come to Australia to study at a university level and that it took into account the factors referred to in Ministerial Direction No 53.
Pursuant to paragraph 14(b)(i) of Ministerial Direction No 53, in considering the first applicant’s immigration history, the Tribunal was required to have regard to, ‘if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control’.
As I read [29] of the Tribunal’s reasons, considered in the context of the matters referred to in the two preceding paragraphs of this judgment, it appears to me that the Tribunal implicitly found that the first applicant did not comply with his previous visa conditions, because he did not study at the level required for the purpose of the visa he was granted, but that the applicant had a reasonable excuse for this. It was therefore not a factor that weighed against the applicants in any way. If this interpretation of [29] of the Tribunal’s reasons is correct, it follows that the Tribunal did consider whether the applicant had fully complied with the terms and conditions of his past student visas.
If, however, my interpretation of [29] of the Tribunal’s reasons is not correct, I would still not find that the failure to expressly refer to the first applicant’s compliance or non-compliance with the conditions of his past visas amounts to jurisdictional error. There is no evidence before the Court to show that the applicants expressly made any submissions to the Tribunal about whether the first applicant had complied or not complied with past visa conditions and I am unable to locate any direct evidence in the materials before the Court in relation to whether or not the first applicant had complied with his past visa conditions. The Tribunal is not required to refer in its reasons to each and every matter in Ministerial Direction No 53. As Derrington and Thawley JJ said in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 at [108]:
The primary judge was correct not to draw the inference that those or any paragraphs of Direction 53 were overlooked. There was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no submission had been made, and which were not the subject of evidence, less still to make express findings about those factors.
Insofar as the first applicant asserts that the Tribunal did not consider that he was completely focused on his studies, the assertion is misconceived. The Tribunal had regard to the first applicant’s study history and his explanations about the value of the proposed course to his future. The Tribunal did not make any adverse findings against the first applicant based on any assessment of his commitment to his studies or as a result of the difficulties he had with his English language course when he first arrived in Australia or his failure to pursue a degree at a Master level. Rather, the Tribunal was concerned that the course of study that the first applicant proposed to undertake, reflected in the confirmation of enrolment that he provided to the Tribunal at the hearing, would only be of marginal benefit to his future career goals.
The Tribunal also considered the first applicant’s career plan and accepted that his plan to open a 100 seat restaurant was a genuine goal, even if the plan was not well developed. It cannot be said that the Tribunal did not have regard to this factor.
To the extent that the applicants assert that the Tribunal did not properly look at the facts and made an error in judgement, this appears to be an invitation to engage in impermissible merits review and an expression of disagreement with the Tribunal decision. The applicants’ disagreement with the Tribunal decision cannot, of itself, give rise to jurisdictional error. Nor does the first applicant’s belief that he would be successful before the Tribunal, of itself, demonstrate that the Tribunal made a jurisdictional error in affirming the delegate’s decision. The Court does not have any power to decide for itself whether the applicants meet the criteria for the grant of student visas and cannot review the factual merits of the Tribunal decision.
While the Minister submitted that the first applicant’s submission that he believed he would be successful before the Tribunal, and that the Tribunal member believed him, might be interpreted as an assertion that the Tribunal denied him procedural fairness, this submission appeared to be based on the concept of legitimate expectations, which the High Court has moved away from: see, for example, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [65]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30]. The first applicant’s genuine belief that he would be successful, only to then have the Tribunal affirm the delegate’s decision, does not give rise to any denial of procedural fairness in this matter. There is no suggestion in the submissions of either party to the Court, nor is there anything in the court book to suggest, that the Tribunal did not comply with its procedural fairness obligations in Division 5 of Part 5 of the Migration Act. Further, the dispositive issue before the Tribunal was the same as the dispositive issue before the delegate and therefore the applicants were aware of the dispositive issue. I do not consider that the Tribunal failed to afford the applicants procedural fairness.
The ground in the applicants’ application does not establish jurisdictional error in the Tribunal decision.
CONCLUSION
In circumstances where I have found that the applicants have not established the Tribunal decision is affected by jurisdictional error, it follows that the application to this Court must be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 25 July 2024
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