Nawaz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 447
•28 April 2022
FEDERAL COURT OF AUSTRALIA
Nawaz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 447
Appeal from: Nawaz v Minister for Immigration & Anor [2019] FCCA 2962 File number: NSD 2011 of 2019 Judgment of: NICHOLAS J Date of judgment: 28 April 2022 Catchwords: MIGRATION – appeal against order dismissing application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the delegate of the Minister to refuse to grant the appellant a student visa – where the primary judge was correct in holding that the Tribunal’s decision was not legally unreasonable and not affected by jurisdictional error
Held: appeal dismissed
Legislation: Migration Act 1958 (Cth) s 359A
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 32 Date of hearing: 27 April 2022 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms A Wong of Mills Oakley Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 2011 of 2019 BETWEEN: MUHAMMAD SHAH NAWAZ
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal assessed and fixed in the sum of $2,220.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
Before the Court is an appeal against the judgment of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the delegate of the first respondent to refuse to grant the appellant a Student (Temporary) (Subclass 500) visa (“Student visa”).
BACKGROUND
The appellant is a citizen of Pakistan who arrived in Australia on 12 August 2014.
On 30 August 2016 the appellant applied for a Student visa. At that time he was enrolled in a Bachelor of Commerce degree at the University of Canberra which was due to have commenced on 8 August 2016 and to conclude on 30 June 2019. He enrolled in this course after changing from a Bachelor of Business Administration also at the University of Canberra. The appellant did not complete either of those courses.
In March 2017 the appellant was diagnosed with Hodgkin’s lymphoma for which he received treatment and continues to be monitored.
It was a criterion for the grant of the Student visa that the appellant satisfy the primary criteria including cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth). Clause 500.212 required:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii)if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
On 4 November 2016 a delegate of the Minister refused to grant the appellant a Student visa. The delegate was not satisfied the appellant genuinely intended to stay temporarily in Australia and found that he did not meet the requirements of cl 500.212.
THE TRIBUNAL’S DECISION
On 30 January 2018 the appellant attended a hearing before the Tribunal with his migration agent. By that time he was no longer enrolled in any course.
On 11 February 2018, the appellant provided to the Tribunal an offer of enrolment from the Universal Business School Sydney (“UBSS”) for a Bachelor of Accounting course to run from 7 May 2018 to 23 April 2021. On 27 June 2018 the Tribunal issued an invitation to the appellant pursuant to s 359A of the Migration Act 1958 (Cth). Among other matters, the appellant was invited to comment on information which indicated that his enrolment in the Bachelor of Accounting course was cancelled for non-payment of fees. The invitation also noted that there was also no other evidence that he had undertaken any other approved course of study since January 2018.
The appellant responded on 11 July 2018 stating that he had ceased studies on medical advice, that he was enrolling in a new course, and that he was meeting his doctor that day and having more medical tests. He sought an extension of time to respond to the invitation.
The appellant was invited to attend a further hearing before the Tribunal scheduled for 31 July 2018. On that day he provided the Tribunal with a new confirmation of enrolment for a Bachelor of Accounting course at UBSS. He did not provide the Tribunal with any additional medical evidence relating to his condition.
On 1 August 2018 the Tribunal allowed the appellant until 3 August 2018 to provide it with any additional medical evidence he wished to rely on. On 2 August 2018 he submitted a report of Dr Young dated 1 August 2018 stating that the appellant had completed treatment for Hodgkin’s lymphoma and was in remission. Dr Young also stated the appellant was fit to resume full time studies. Another medical certificate of Dr Shahnaz dated 29 May 2018 was provided to the Tribunal on 4 August 2018. The certificate stated that for the period 29 May 2018 to 4 June 2018 (inclusive) the appellant “will be unfit to continue his usual occupation”. The certificate said nothing about the appellant being hospitalised during that period.
On 3 September 2018 the Tribunal affirmed the delegate’s decision.
In its reasons the Tribunal referred to the evidence given by the appellant concerning his diagnosis and treatment for Hodgkin’s lymphoma. It outlined in some detail the medical evidence and noted that it did not explain why he could not continue with the course he enrolled in at UBSS or why he did not seek compassionate leave from his education provider. The Tribunal also noted that the appellant’s enrolment was cancelled for non-payment of fees, and that it was not satisfied that it was cancelled, as the appellant claimed, due to his admission to hospital in May or June 2018.
The Tribunal drew attention to a number of matters relevant to the likelihood of the appellant not returning to Pakistan. The Tribunal said at [33]-[34]:
33.The applicant gave evidence about his circumstances in his home country. Prior to arriving in Australia in 2014 the applicant said he had been studying a Bachelor of Business Administration in Islamabad, Pakistan but his brother in Australia convinced him to study here both in order to obtain a better education and because he is innovative in business. The applicant's parents, one brother and the applicant's wife, who he married in December 2017, continue to live in his home country. The applicant declared he had started a business with a cousin in Pakistan although no details or independent evidence was provided to support this claim. He also claimed in his written statement in 2016 that he has a house in Pakistan that is still in his father's name and promised to him but did not provide evidence of this. He stated there was no military service, or civil or political issues preventing him from returning. The Tribunal gives some weight to the applicant's parents and his wife providing ongoing personal ties to Pakistan but is not satisfied this is a significant incentive for him to return to his home country.
34.The applicant has two brothers in Australia and from his evidence; his mother has spent time here and intends to apply for another visa to continue looking after the applicant. According to the applicant's evidence, he requires his mother to prepare food for him which she has been doing, and apparently will continue to do until March 2019, after which a further visa will be sought for her to come back to Australia. At the time of the second hearing, the applicant said both his parents are in Australia and he had returned to Pakistan for just over three months between October 2017 and January 2018 to be with his wife. The applicant said he is supported by a brother in Australia and the applicant himself established his own business here that he said provided him with an income greater than he could obtain from a job. The Tribunal considers these factors are strong incentives for him to prolong his stay in Australia and is not satisfied he is a genuine temporary entrant.
The Tribunal said at [37]-[38] of its reasons:
37.The applicant's enrolment to re-commence study in May 2018 was cancelled for non-payment of fees which is not related to his ill-health. The applicant said he had paid for three subjects and was awaiting approval for a fourth to be exempted but his enrolment was unexpectedly cancelled. No independent evidence was provided to support the applicant's claim of having substantially paid for his course. He claimed if he knew his enrolment would be cancelled, he would have told the college where he was, that is, in hospital for a week. According to the offer letter from Group Colleges Australia, the course the applicant enrolled in began on 7 May 2018. The applicant said he went to his college orientation then became ill after attending classes for three days. He said he suffered night sweats and back pain so his doctor told him he had to be observed in hospital for a week. As stated, the evidence provided by the applicant in support of these claims was a Medical Certificate from a General Practitioner stating the applicant was receiving medical treatment from 29 May 2018 to 4 June 2018. He also provided a NSW Health Attendance Certificate for an Outpatient appointment on 1 August 2018 and a letter of the same date addressed to Group Colleges Australia stating the applicant is fit to resume full-time studies. The Tribunal cannot be satisfied on the evidence provided that the applicant was admitted to hospital for a week in May or June 2018. Since the applicant's course began on 7 May and his medical treatment covered the period 29 May to 4 June (as well as 5 or 6 June for a PET scan), the applicant had ample time to finalise his enrolment matters and make arrangements with his college to take leave for his medical treatment. Having considered the evidence, the Tribunal is not satisfied the applicant's enrolment was cancelled for the reasons he claimed.
38.The applicant has said he needs to attend two monthly and six monthly appointments with his doctors. Although the applicant submitted a copy of a letter from his doctor to Group Colleges Australia stating he is now fit to study, the Tribunal is concerned the applicant will not continue to study or maintain enrolment, as has occurred in the past. The Tribunal accepts the applicant suffered from a serious illness which had an impact on his health and well-being. However, after the Tribunal hearing on 30 January 2018 when he claimed he was cleared to study, the applicant enrolled again in a Bachelor's degree but it did not commence until 7 May 2018. He then went back to Pakistan for two months from February to April 2018. When the course started, the applicant had not paid the fees and his enrolment was cancelled. The Tribunal wrote to the applicant about his cancelled enrolment on 27 June 2018 and it was only after receiving that letter that the applicant re-enrolled and provided a new [confirmation of enrolment] for a course commencing on 27 August 2018. The Tribunal is not satisfied this is the behaviour of a genuine student whose only purpose in Australia is to study.
After considering certain evidence given by the appellant regarding his employment which the Tribunal regarded as misleading, the Tribunal said at [43] of its reasons:
In conclusion, the Tribunal accepts the applicant was ill with Hodgkin's lymphoma, that he received treatment and is required to undergo periodic monitoring and assessment through regular outpatient appointments. The Tribunal has also taken into account that the applicant has re-enrolled once more in a Bachelor degree. However, having considered all the evidence, the Tribunal is not satisfied the applicant is likely to maintain enrolment, pass the requisite course units, complete his studies and return to Pakistan. The Tribunal is also not satisfied the applicant is undertaking the course for genuine purposes and considers he is seeking to maintain residency in Australia.
The Tribunal said that it was not satisfied the appellant intends genuinely to stay in Australia temporarily and that he therefore does not meet the requirements of cl 500.212(a).
PROCEEDING BEFORE THE PRIMARY JUDGE
Before the primary judge the appellant, who was legally represented, contended that the Tribunal’s decision was legally unreasonable. The primary judge rejected this contention. His Honour found that the Tribunal’s reasoning demonstrated an intelligible justification for its decision. In particular, the primary judge noted that the Tribunal considered the appellant’s illness, that it accepted that it had an impact on his health and well-being, but that his behaviour suggested that he was not a genuine student. As his Honour noted, after the appellant said he was cleared to study in January 2018, he enrolled in a course that did not commence until May 2018 and, rather than studying, he returned to Pakistan for two months. When the course commenced his enrolment was cancelled for non-payment of fees. His claim that this was due to his hospitalisation for a week was not supported by other evidence which his representative had suggested would be forthcoming.
The primary judge went on to hold that there was no legal unreasonableness evident in the manner in which the Tribunal exercised its power in the appellant’s case and that its conclusion was open to it and fell within the area of “decisional freedom”.
THE APPEAL
The appellant’s notice of appeal identifies three imprecisely expressed grounds. First, it contends that the Tribunal took into account irrelevant considerations and misconstrued the facts. Second, it asserts that the appellant satisfied all relevant requirements for the visa he sought, but that the Minister (sic) overlooked or mistook the facts. Third, it suggests that the Tribunal overlooked that the appellant had a serious medical condition which caused him to abandon his studies until he was able to resume them.
The appellant was not legally represented and did not file any written submissions in accordance with the Court’s directions. At the hearing of the appeal he was informed that it was necessary for him to identify some error in the primary judge’s reasons for dismissing his application for judicial review. The oral submissions made by the appellant did not do so, but merely addressed the merits of his circumstances, focusing on the fact that he had previously suffered from a serious medical condition.
The Minister submitted that the primary judge’s decision was correct for the reasons given by his Honour.
CONSIDERATION
The appellant has not identified any error in the primary judge’s reasons. It was, as his Honour found, open to the Tribunal to conclude that, notwithstanding the appellant’s serious illness, it was not satisfied that he was likely to maintain his enrolment, pass the requisite course units, complete his studies, and return to Pakistan, or that he was undertaking the course for genuine purposes.
In order to succeed before the primary judge, it was necessary for the appellant to establish that the Tribunal committed a jurisdictional error. The Tribunal commits a jurisdictional error relevant to the grounds relied upon by the appellant if its decision to affirm the decision of the delegate was legally unreasonable. A decision of this nature may be characterised as legally unreasonable if it is illogical, irrational or arbitrary or capricious or lacking an evident or intelligible justification.
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained at [11] that when reviewing a decision for legal unreasonableness:
… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …
A finding of legal unreasonableness is not available where the decision is within the area in which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] per Hayne, Kiefel and Bell JJ. It is not enough that reasonable minds might differ as to whether or not the Tribunal’s decision to affirm the delegate’s decision was appropriate in the circumstances.
In this case, in coming to its decision, the Tribunal was particularly influenced by various matters including those referred to at [33]-[34] and [37]-[38] of its reasons. These included the appellant’s connections with family members living in Australia (either permanently or temporarily), the fact that he had started a business here, and the fact that his most recent enrolment had been cancelled due to non-payment of fees which, in the Tribunal’s view, was unrelated to the appellant’s alleged hospitalisation. The Tribunal’s reasons show that it weighed the evidence before it and drew what it considered to be appropriate inferences and conclusions from it. There does not appear to be anything illogical or irrational, or lacking in any evident or intelligible justification, with respect to either the inferences drawn, or the conclusions reached. In my opinion the Tribunal’s decision was not unreasonable in the legal sense.
So far as the appellant contends that the Tribunal overlooked some relevant material or adopted some mistaken view of the facts, it is not apparent to me what the appellant is referring to. As to overlooking relevant material, the argument before the primary judge seems to have been that the Tribunal overlooked the evidence indicating that the appellant had suffered from a serious medical condition. However, as the primary judge noted, and as is apparent from the Tribunal’s reasons, the Tribunal referred to the evidence concerning his diagnosis and treatment for Hodgkin’s lymphoma. The Tribunal also noted that the appellant claimed at the 30 January 2018 hearing that he was cleared to study.
With regard to the suggestion that the Tribunal took some mistaken view of the facts, the complaint seems to be based on the appellant’s view that the Tribunal should have accepted that the appellant satisfied the requirements for a Student visa because he intended genuinely to stay and study in Australia temporarily. However, for the reasons stated above, the Tribunal’s conclusion that it was not so satisfied was not legally unreasonable and was open to the Tribunal on the material before it.
In my view the primary judge’s decision was correct for the reasons given by his Honour.
DISPOSITION
The appeal will be dismissed. The appellant must pay the Minister’s costs of the appeal which I assess and fix in the amount of $2,220.
Orders accordingly.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 28 April 2022
0
3
2