Quadri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2003
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Quadri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2003
File number(s): SYG 107 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 26 August 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a student visa – applicant not enrolled – Tribunal confirming visa cancellation – whether the Tribunal’s discretion miscarried considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth) s 116 Cases cited: Inderjit v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2019] FCAFC 217 Number of paragraphs: 22 Date of hearing: 26 August 2021 Place: Sydney Solicitors for the Applicant: Mr M Najem of Najem Lawyers Solicitors for the Respondents: Ms K Gawidziel of Australian Government Solicitor ORDERS
SYG 107 of 2020 BETWEEN: GHULAM HAIDER QUADRI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The application filed on 15 January 2020 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicant, Mr Quadri, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 11 December 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Quadri’s class TU student visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions, filed on 2 August 2021, which I adopt.
Mr Quadri is a 25 year old citizen of Pakistan. On 7 March 2015 he was granted a student (Temporary) (Class TU Subclass 573) higher education sector visa (the visa).
On 4 September 2017 the Minister’s Department sent Mr Quadri a Notice of Intention to Consider Cancellation (NOICC) which states that Mr Quadri had breached condition 8202, as he had not been enrolled in a registered course of study between 20 January 2017 and 31 August 2017 (the period).[1] Mr Quadri responded to the NOICC, explaining that the period of non‑enrolment was caused by his, and his mother’s, ill health.[2]
[1] Court Book (CB) 8-13
[2] CB 15–20
On 3 October 2017 the delegate cancelled the visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) as she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.[3]
[3] CB 27-38
On 9 October 2018 Mr Quadri lodged an application for review of the delegate’s decision in the Tribunal.[4] He provided further documents in support of his application before and after the hearing, which was held on 21 October 2019.[5]
[4] CB 39-40
[5] CB 57–69; CB 73-77
On 11 December 2019 the Tribunal affirmed the decision under review.[6]
[6] CB 78–93
The Tribunal’s decision
The Tribunal identified the issue in the present case as whether the ground for cancellation of the visa had been made out and, if so, whether the visa should be cancelled.[7]
[7] CB 84 [2], [6]
The Tribunal found, based on Mr Quadri’s concession, that he had not been enrolled from 20 January 2017 to 31 August 2017.[8]
[8] CB 87 [24]-[25]
The Tribunal then considered whether, in the exercise of its discretion, the visa should be cancelled. It took into account the circumstances of the case, including the matters raised by Mr Quadri, and the matters in the Minister’s Department’s policy.[9] The Tribunal decided that the visa should be cancelled for the following reasons:
[9] CB 87 [26]
(a)first, while the Tribunal accepted that Mr Quadri had a genuine intention to study, it only placed marginal weight on this matter because he not been enrolled for the period and has failed to pass any courses since April 2015;[10]
[10] CB 88 [32]
(b)secondly, the Tribunal considered that Mr Quadri was not enrolled for a period of seven months, which involved a breach of the visa condition for a substantial period of time;[11]
[11] CB 88 at [33] and CB 90 [51]
(c)thirdly, the Tribunal did not accept that Mr Quadri was not responsible for the substantial breach of his visa conditions, and so this did not ameliorate its concerns about the substantial period of non-compliance.[12] The Tribunal considered and rejected each reason advanced by Mr Quadri as follows:
[12] CB 88-90 [33]-[51]
(i)the Tribunal did not accept his claims that he was not enrolled because in January 2017 he returned home as his mother was having an operation, which resulted in her being in a threatening situation causing Mr Quadri distress and depression.[13] The Tribunal rejected this evidence because Mr Quadri gave conflicting evidence about (a) the date of his mother’s operation (ie 2015 and 2017); (b) the nature of the operation; (c) the harm which followed from that operation; and (d) the lack of supporting documentary evidence;
(ii)the Tribunal considered but did not accept Mr Quadri’s claims not to be enrolled because of housemates and living arrangements, because he conceded that these were not an impediment to him enrolling from April 2017;[14]
(iii)the Tribunal considered that Mr Quadri’s claims concerning his relationship with his fiancée, his pain in his hips and the death of his grandfather were not relevant, because they post-dated the period during which he was not enrolled;[15]
(iv)finally, the Tribunal was not satisfied that Mr Quadri’s psychological issues were so severe as to prevent him from enrolling in a course.[16] The Tribunal did not rely on the findings in a psychological report of Mr Couch because it (a) was not prepared by a qualified psychologist or psychiatrist; (b) was based on one consultation; (c) made findings in relation to Mr Quadri’s mental health in 2015, which significantly pre-dated the consultation; (d) was somewhat inconsistent with Mr Quadri’s evidence in relation to his ability to re-enrol after the period. The report also did not conclude that Mr Quadri’s condition caused his inability to study, enrol, or defer.[17]
(d)fourthly, the Tribunal considered Mr Quadri’s claims to face hardship because he had not obtained qualifications to gain employment on return to Pakistan. However, it found that based on his previous academic record there was no guarantee that he would obtain any qualifications if given more time to study.[18] Further, the Tribunal considered these hardships would arise consequences of the cancellation of his visa, but it did not consider those matters would constitute an overwhelming degree of hardship.[19] The Tribunal therefore gave only some weight to the evidence concerning hardship;[20]
(e)fifthly, the Tribunal did not consider that the circumstances of the breach were outside of Mr Quadri’s control or that such circumstances were a reasonable explanation for not being enrolled for the period.[21] The Tribunal gave this very substantial weight towards the visa being cancelled;
(f)sixthly, the Tribunal considered that there were no other matters of relevance in Mr Quadri’s past and present behaviour towards the Minister’s Department and found that weighed marginally in favour of him;[22]
(g)seventhly, the Tribunal noted the legal consequences for Mr Quadri should the visa be cancelled (ie that he would be liable to be removed from Australia and may be unable to obtain further visas), and placed marginal weight in favour of Mr Quadri because his evidence was that he would voluntarily return to Pakistan if the visa were cancelled;[23] and
(h)finally, the Tribunal noted that there was no indication that international obligations would be breached as a result of cancelling the visa, or that there were any other relevant matters to be considered.[24]
[13] CB 85-86 [13]-[19]
[14] CB 88-89 [37]
[15] CB 89 [38]-[40]
[16] CB 89 [42]
[17] CB 89 [43]-[47]
[18] CB 90 [56]
[19] CB 90 [57]
[20] CB 90 [58]
[21] CB 91 [64]
[22] CB 91 [65]
[23] CB 91-92 [66]-[71]
[24] CB 92 [72]-[74]
THE PRESENT PROCEEDINGS
These proceedings began with a show cause application filed on 15 January 2020. As was pointed out by the Minister, the application had a technical defect in that although certiorari was sought, mandamus or an injunction or a declaration were not. At the trial today, the solicitor for Mr Quadri accepted that mandamus was sought in addition to certiorari, and I corrected the application accordingly.
An affidavit was filed with the application, which set out the factual submissions and legal arguments advanced by Mr Quadri. I received the affidavit as a submission. I have before me as evidence the book of relevant documents filed on 12 March 2020. Both Mr Quadri, and the Minister have also filed an outline of written submissions.
As was explained by the solicitor for Mr Quadri, he does not take issue with the Minister’s submissions, other than to say that, based on the material before it, the Tribunal should have accepted that the visa should not have been cancelled. As I noted in oral argument, that can be interpreted in two ways. If the proposition is that the correct or preferable decision would have been not to cancel the visa, the difficulty is that it leads the Court into merits review which is, of course, unavailable. If, on the other hand, the proposition is that only one outcome was available on the material before the Tribunal, namely, not to cancel the visa, then, if established, that would be a jurisdictional error. The short answer is, however, that that proposition could not be established.
It is plain that the material before the Tribunal did not necessarily lead to a favourable outcome for Mr Quadri. The Tribunal considered the arguments and evidence put to it, but was not persuaded to exercise its discretion in his favour. I reject the proposition that only one outcome was available to the Tribunal.
In other respects, Mr Quadri does not cavil with the Minister’s submissions. I also agree with those submissions and adopt them.
The grounds of the application refer to an “Annex1, submission of my grounds of appeal”. There does not appear to be any such document annexed to the application or found in Mr Quadri’s affidavit of 15 January 2020.
Mr Quadri appears to allege that the Tribunal failed to consider:
(a)all paperwork and facts;
(b)his intention as a genuine student and the reason for the cancellation of enrolment;
(c)his mother’s ill health; and
(d)his own depression and other health issues.
Contrary to Mr Quadri’s assertions, the Tribunal considered all of his evidence and claims. It found that some of these weighed in favour of the cancelling the visa and that other evidence weighed against cancelling the visa. The Tribunal is entitled to reject or accept or give such weight to the evidence proffered as it thinks appropriate in all the circumstances: Inderjit v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs.[25]
[25] [2019] FCAFC 217 at [41]
In terms of the four matters raised by Mr Quadri, the Tribunal’s analysis was as follows:
(a)the Tribunal specifically referred to the documentary evidence which was before it.[26] It is not correct to say that it failed to consider “all paper work and facts”. Without particulars of specific paperwork which was ignored, this ground must fail;
(b)the Tribunal accepted that Mr Quadri may have travelled to Australia intending to study and that he does intend studying in the future. However, it gave this marginal weight in light of his long period or non-enrolment and his failure to pass a single class;[27]
(c)for the reasons explained above, the Tribunal did not accept Mr Quadri’s evidence of his mother’s ill health; and
(d)finally, the Tribunal found that Mr Quadri’s mental and other health issues were not a reason for his failure to be enrolled during the relevant period.[28]
[26] CB 88 [33] and [34]
[27] CB 88 [32]
[28] CB 89 [39] and [40] and CB 90 [48]
To the extent that Mr Quadri contends that the Tribunal failed to consider the matters raised in his application for judicial review, those grounds must fail.
I conclude that Mr Quadri is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,000. The solicitor for Mr Quadri referred to his client’s difficult financial circumstances and the likely financial burden of having to return to Pakistan. The issue for the Court, however, is not the capacity of Mr Quadri to pay the costs but whether they have been reasonably and properly incurred. The costs sought are modest and I accept that they have been reasonably and properly incurred on behalf of the Minister.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 30 August 2021
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