Rabbani v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 500
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rabbani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 500
File number: SYG 2154 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 June 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student Visa (Subclass 573) - jurisdictional error and materiality – no merit – application dismissed Legislation: Migration Act 1958 (Cth) ss 48, 116, 140, 348, 477
Migration Regulations 1994 (Cth) schedule 8, reg 2.12
Convention on the Rights of the Child article 3
Refugees Convention, Refugees Protocol, International Covenant on Civil and Political Rights
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 28 May 2024 Date of hearing: 28 May 2024 Place: Parramatta Solicitor for the Applicants: Appearing in person Solicitor for the Respondents: Mr Knuckey ( Mills Oakley)
Table of Corrections 17 June 2024 In paragraph 3 the words “was previously” have been corrected to read “has been”. ORDERS
SYG 2154 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAFEES RABBANI
First Applicant
LUBNA FAROOQ
Second Applicant
MARYAM SHAZADI (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The application for an extension of time is granted.
2.The application is dismissed.
3.The First Applicant is to pay the First Respondent’s costs fixed in the sum of $4000.00
THE COURT NOTES THAT:
A.The Orders made on 5 June 2024 are amended pursuant to r 17.05(h) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 to include Order 1.
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 D HUMPHREYS
INTRODUCTION
The applicants are citizens of Pakistan. The first applicant, Mr Rabbani (“the applicant”) was granted a Student Visa (Subclass 573) (“the visa”) on 25 June 2015, with a stay period until 23 August 2017. The second applicant is Mr Rabbani’s wife, and the third, fourth and fifth applicants are their children. Their visas are dependent upon Mr Rabbani having a valid visa as they form part of his family unit.
Mr Rabbani’s visa was subject to conditions that included, condition 8202(2)(a) which required that he remain enrolled in a registered course of study. The delegate of the Minister for Immigration and Border Protection (“the delegate”), as it was then known, cancelled the applicant’s visa on 4 April 2017, on the basis that the applicant had not complied with his visa conditions, primarily that he was not enrolled into a full-time registered course.
The Court notes that the application for judicial review was filed out of time. By consent, an extension of time has been ordered.
BACKGROUND
The applicant was enrolled in a Master of Business Administration (“MBA”) in an institution in Sydney from 13 July 2015, however his course was cancelled on 18 August 2016 for non-payment of fees. The applicant had completed one semester of the course before he claimed family circumstances arose that prevented him from enrolling in the second semester.
The visa that is the subject of this decision is the applicant’s third student visa. He first arrived in Australia in 2011 after he was encouraged by his family to build on his qualifications and skills after already studying a Bachelor of Arts and a Master of Arts degree in Pakistan. The applicant has started several courses since arriving in Australia, but has only completed one, being a course in English for Academic Purposes which he finished in November 2011.
The applicant then commenced a Graduate Diploma of Management in November 2011, a Master of Professional Accounting in March 2013, and a Diploma of Marketing in August 2014, all of which he did not complete. The applicant then enrolled in an MBA in July 2015.
On 23 March 2017, the Minister notified the applicant of their Notice of Intention to Consider Cancellation (“NOICC”) of the visa and invited him to respond in writing. The applicant responded to the NOICC on 29 March 2017 by email. In his response, the applicant summarised and provided reasons for why he had not complied with the conditions of his visa. Notably, the applicant did not dispute that there were grounds for cancellation. Inter alia, the applicant provided the following reasons:
·He had experienced grief and stress after his mother’s death in 2016.
·His father’s illness and subsequent death in 2017.
·As a result of his parents’ deaths, he lost the support of his parents which he had always relied upon.
·He was still in grief and did not expect to fully recover.
In his response, the applicant apologised to the Department and requested a two-week extension to complete his studies. At the time of the delegate’s decision, the applicant had not been enrolled in a registered course of study since 18 August 2016, resulting in the delegate considering that the extent of the applicant’s non-compliance with his visa conditions was significant. The delegate was not convinced that the reasons provided by the applicant demonstrated an intention to study.
The delegate cancelled the applicant’s visa. As a result of this cancellation, the second, third, fourth, and fifth applicants’ visas were cancelled.
The applicant then sought merits review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). On 20 June 2019, the Tribunal affirmed the decision under review.
The applicants now seek judicial review of that decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
Paragraphs [1] to [8] of the decision summarise the application.
At paragraph [3], the Tribunal found that under s 348 of the Migration Act 1958 (Cth) (“the Act”) the Tribunal only had jurisdiction to consider the decision regarding the first applicant, as the other visas were automatically cancelled as a consequence of the cancellation of his visa, by force of the operation of s 140(1) of the Act.
At paragraph [2] of its decision, the Tribunal noted that the issue in the case was whether the applicant, as the holder of a Student Visa, had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”). If the applicant had breached that condition, under s 116(1)(b) of the Act, the visa may be cancelled.
Condition 8202 of the Regulations requires that the applicant be enrolled in a registered course of study or training pursuant to cl 8202(2)(a). The applicant had been enrolled in a MBA from 13 July 2015, but his course was cancelled on 18 August 2016 for non-payment of fees.
In this case, the issue was that the applicant’s visa had been cancelled on the basis that the applicant was not enrolled in a registered course. At paragraph [12], the applicant told the Tribunal that he had suffered personal issues relating to his parents’ respective deaths and that he was struggling with the course he was enrolled in, as he no longer had the support of his parents, which he had always relied upon. The applicant also told the Tribunal that after August 2016, when he became unenrolled, he did not approach anyone regarding his change in circumstances.
The applicant also told the Tribunal at paragraph [12] that after the visa cancellation, he was not aware that he had to apply for a Bridging visa, as he had been told by a Migration Agent that when he sought judicial review, it would be automatic. Instead, the applicant submitted that he discovered he did not have a Bridging visa when he went to enrol his daughter into school.
The applicant submitted that when he realised his Bridging visa had not been issued, he had followed up with the delegate, and went to the delegate in Canberra who told him to check online via his Migration Agent. His agent then told the applicant again that the grant of the Bridging visa was automatic upon an application for judicial review. Until two days prior to the Tribunal hearing the applicant had not been issued a Bridging visa, until the applicant’s Migration Agent discovered that they could apply for one online. The Bridging visa was then issued the day prior to the hearing. At that point, his daughter had not been enrolled in school for two years. The applicant worked part-time during this period.
The Tribunal at [12] raised a concern with the applicant that he and his family had been residing in Australia unlawfully for a period of two years. The applicant submitted that he had been misled by his agent, as stated above, and that he was just waiting for his review. It should be noted that the particular Migration Agent did not assist Mr Rabbani at the Tribunal hearing. Regarding this, the Tribunal found at paragraphs [28] – [35] that although the applicant had initially been misled by his agent, he had not taken sufficient steps to rectify the issue and was not convinced that the applicant was not entirely unaware that he did not hold a valid Bridging visa.
Further, the applicant stated in paragraph [12] that he did not believe that his wife and children would follow him back to Pakistan, asserting that his wife had been told that she could seek asylum in Australia. He was not sure how she would do so. The applicant also submitted that he was unsure of his economic future in Pakistan as he has spent “eight years of his prime youth here and he was not competitive now he was 40 years of age”. Nonetheless, he expressed that he could provide for his children if he were to return to Pakistan.
At paragraphs [13] and [14], the Tribunal correctly set out the requirements of condition 8202 of the Regulations and s 116(1) of the Act. It found at [17] that the applicant was not enrolled in a registered course of study after 18 August 2016, and thus had not complied with condition 8202(2).
The Tribunal at paragraphs [18] – [41] went on to consider its discretion as to whether the visa should be cancelled. The Tribunal considered:
•The Purpose of the visa holder’s travel and stay in Australia;
•Circumstances in which the ground for cancellation arose;
•The extent of the compliance with visa conditions; behaviours towards the department;
•The degree of hardship that may be caused by the cancellation to the applicant and his family;
•Whether there would be consequential cancellations under s 140;
•Whether there are mandatory legal consequences, such as whether cancellation would result in visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Ministers intervention;
•Whether any of Australia’s international obligations, including non-refoulement and best interests of the children is a primary consideration, would be breached as a result of the cancellation.
Although the Tribunal considered several issues, the Tribunal found the primary issue in this case was whether the applicant was enrolled in a registered course of study at the time of the delegate’s decision.
At paragraph [39], the Tribunal considered the consequential cancellations pursuant to s 140 of the Act being that the applicant’s wife and children’s secondary visas would also be cancelled. The Tribunal considered the claim made by the applicant that his wife and children had expressed that they will not move back to Pakistan and would instead seek asylum in Australia. This inferred that the family unit would be broken up and separated if the applicant’s visa was cancelled. The Tribunal concluded there was no supporting evidence provided to the Tribunal to support this assertion. The Tribunal found that it would be unlikely that such scenario would unfold as described. The Tribunal gave this consideration slight weight in favour of the applicant.
At paragraph [40], the Tribunal took into account the fact that the applicant may become an unlawful non-citizen and that he may face difficulties in being granted further visas in Australia and could be subject to a three-year exclusion period. The applicant did not raise any legal consequences arising from the cancellation other than stating that his wife and children would seek asylum in Australia.
The Tribunal reiterated that it has no jurisdiction in relation to the applicant’s wife and children’s visa, and that the applicant had been living in Australia without a visa from the date of cancellation until the day prior to the hearing. The Tribunal then considered both ss 48 and 116 of the Act and reg 2.12 of the Regulations, finding that without any successful visa application, the applicant would not have the authority to remain in Australia. If the applicant did not depart, it would eventually result in his detention or being removed. The Tribunal did not give these issues any weight.
At [41] the Tribunal assessed whether Australia would breach any of its international obligations relating to the Refugees Convention, Refugees Protocol, International Covenant on Civil and Political Rights, and Article 3 of the Convention on the Rights of the Child (“CRC”). Other than claiming that his wife and children would seek asylum in Australia should his visa be cancelled, noting there was no supporting evidence of this, there was no evidence to suggest that the applicant and his children would be separated should the Tribunal affirm the delegate’s decision. The Tribunal gave this consideration no weight.
At paragraphs [42] – [44] the Tribunal, after considering all the circumstances as a whole, was of the view that even with all of the applicant’s evidence and the individual elements, there were not sufficient evidence to justify setting aside the delegate’s decision.
Accordingly, the Tribunal affirmed the delegate’s decision to cancel Mr Rabbani’s visa.
GROUNDS OF JUDICIAL REVIEW
Two grounds of judicial review are contained in an Initiating Application filed with the Court on 19 August 2019, some 25 days outside the time limit prescribed by s 477(2) of the Act. They are as follows (less particulars):
1.The Tribunal failed to take into account a mandatory relevant consideration being hardship facing the children of the primary visa holder in the event the children were returned to Pakistan.
2.The Tribunal made a jurisdictional error by making a legally unreasonable finding with respect to the Convention on the Rights of the Child (Convention).
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books, and he had an opportunity to read the respondent’s written submissions. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wished to do so.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that his grounds were set out in the application for judicial review. He asked the Court to consider his children’s future due to the economic and financial conditions in Pakistan. He was asked if he wished to state anything in relation to the first respondent’s written submissions to which he replied “No”.
At the conclusion of the first respondent’s oral submissions, Mr Rabbani was asked if he wished to state anything in reply. He again answered “No”.
THE FIRST RESPONDENTS’ SUBMISSIONS
In respect to ground one, the first respondent submitted that firstly, on the applicant’s own evidence this ground is not supported. It was submitted that the cited paragraph simply suggested that his children preferred living in Australia. Secondly, at paragraph [12] (xxxii) of the Tribunal decision the applicant claimed that he would be able to provide for his family and support his children’s schooling if he were to return to Pakistan. It was submitted that the Tribunal’s decision simply reflects how the applicant put his case. Consequently, there is no error in the Tribunal’s consideration of whether his children would experience hardship.
In respect to ground two where the applicant alleged that the Tribunal’s decision made legally unreasonable finding that the CROC was only engaged if his children were separated from him. Citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [68] and [76], the Minister submitted that legal unreasonableness may be found where a decision-maker comes to a conclusion no reasonable decision-maker would come to or make a decision that is “devoid of an “evident and intelligible justification””. Even then, “extreme illogicality must be demonstrated”. This will not be present where two reasonable minds may come to different conclusions on the same question of fact (see: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]).
As with ground one, the Tribunal based its decision on the evidence provided by the applicant, and found that there was not sufficient evidence to suggest that his wife and children would remain in Australia if he were to return to Pakistan. In coming to its conclusion the Tribunal did consider the CRC and other international obligations. The cancellation of Mr Rabbani’s visa would not result in Australia breaching its international obligations.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, [2024] HCA 12 at [2] – [7], the High Court said the following in relation to jurisdictional error and materiality (citations 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. Though a decision affected by jurisdictional error is a decision in fact,] it is "in law ... no decision at all" and is in that sense "void".
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 can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. 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.
4. A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition.] Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).
5. Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors.] There are no bright lines to be drawn – "[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute".
6. In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
7. In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non‑compliance.
Ground one is an assertion that the Tribunal failed to take account of a mandatory consideration, being the hardship facing Mr Rabbani’s children if he were returned to Pakistan. The Tribunal dealt with this issue comprehensively at [36], [39] - [41] of the decision record. The Tribunal found there was no evidence to support the claim that Mr Rabbani’s wife and children would stay in Australia if he were returned to Pakistan. In the absence of some clear evidence to the contrary, noting Mr Rabbani’s wife and children’s lawful status in Australia depends upon him holding a valid visa, the claim that the family will be separated is simply not tenable.
The Court is satisfied that the Tribunal properly considered the impact of Mr Rabbani’s visa cancellation on his family, including his children. The Tribunal was entitled to come to the conclusions it came to based on the evidence before it and for the reasons it gave. Ground one has no merit.
Ground two is a claim of legal unreasonableness in respect of the CROC. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a 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 to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
At [41], the Tribunal expressly considered Australia’s obligation under the CROC. The Tribunal found there was no evidence that the family would be separated as a result of Mr Rabbani’s visa being cancelled. The conclusion reached by the Tribunal that the family would return to Pakistan if Mr Rabbani’s visa was cancelled was open on the evidence before it and for the reasons given. There is nothing legally unreasonable, illogical or irrational in this conclusion. Ground two has no merit.
CONCLUSION
None of the grounds of judicial review have merit. The application must be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 June 2024
SCHEDULE OF PARTIES
SYG 2154 of 2019 Applicants
Fourth Applicant:
ALINA SHAZADI
Fifth Applicant:
EMAN SHAZADI
0
7
4