Raza v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 27

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Raza v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 27

File number:

SYG 2390 of 2019

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

17 January 2025

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Student Visa (Subclass 573) cancellation under s 116(1)(b) – whether the Tribunal committed jurisdictional error by disregarding or failing to give due weight to family and medical considerations – whether the limitations of the terms, scope and policy of statute were sufficiently regarded and reasonably exercised – no jurisdictional error occurred – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 116(1)(b), 140.

Migration Regulations 1994 (Cth) sch 8, cls 8202(2), (a).

Cases cited:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 72; 225 CLR 88

CDD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1283

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

Manebona v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 402

Minister for Immigration & Citizenship v Li [2013] HCA 18

Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203

Division:

Division 2 General Federal Law

Number of paragraphs:

56

Date of hearing:

16 December 2024

Place:

Parramatta

Counsel for the Applicant:

Mr King

Solicitor for the Applicant:

Mr Malik (Malik Lawyers)

Solicitor for the First Applicant:

Mr Pinder (Mills Oakley)

Solicitor for the Second Applicant:

Submitting appearance, save as to costs.

ORDERS

SYG 2390 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ALI RAZA

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:	17 JANUARY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the First Respondent's costs in the fixed amount of $2,500.00.

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

1. This is an application for reinstatement of an application for judicial review. The originating application was dismissed on 27 November 2024, when the applicant’s legal representatives failed to appear at a relisted final hearing.

   THE LAW IN RELATION TO REINSTATEMENT

2. The following was said by Stewart J in CDD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1283 at [17]:

   [17] I respectfully adopt what was said by Davies J in DAE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 79 at [8] with regard to the principles applicable to the exercise of the power under r 16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order that has been entered in the absence of a party:

   Generally a court will have regard to three factors in exercising the power and consider whether, on balance, those factors tend for or against the reinstatement. Those factors, as explained by Ryan J in MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 (MZYEZ) at [7] are:

   (a)    whether there was a reasonable excuse for the applicant’s absence from the hearing in which the proceeding was struck out;

   (b)    the existence and nature of any prejudice that might flow to the respondent from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and

   (c)    whether the applicant has a reasonable chance of success on the substantive application. As North J said in MZKAJ v Minister for Immigration & Multi‑Cultural and Indigenous Affairs [2005] FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.

   (Ryan J’s emphasis)

   However, as the Full Court observed in FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [55] and [58], the discretion in r 16.05(2)(a) of the FCC Rules is a broad discretion and there are no statutorily prescribed matters that must be taken into consideration when deciding whether or not it is in the interests of justice to exercise that discretion. Factors commonly cited in case law, such as those listed by Ryan J in MZYEZ, are to be taken as a guide to what may be considered when exercising the discretion in r 16.05 of the FCC Rules, and the statutory discretion should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list.

3. To the above the Court would add the length of the delay between the dismissal of the matter and the application for reinstatement. The longer the delay, the more persuasive the reason needs to be for the Court to exercise its discretion to reinstate a matter.

4. In relation to the reason for the nonappearance, the applicant relies upon an Affidavit of his solicitor, who acknowledges that he received an email from the Court advising there had been a change in the listing time from 2 PM to 10 AM on 27 November 2024. The solicitor states that “I was very busy that day and missed the change of hearing and have overlooked the notice”.

5. Changes to listings occur on a regular basis for various reasons. It is incumbent upon legal representatives when sent emails from the Court to read them, understand them, and then act on them. Some credit must be given to the applicant solicitor in acknowledging that the nonappearance was entirely his fault. However, the Court does not consider this to be a particularly good excuse. This weighs slightly against the matter being reinstated.

6. Further, the Court notes the application for reinstatement was made promptly. This slightly favours reinstatement.

7. The Minister quite properly acknowledges that no prejudice flows to him other than in relation to costs which can be properly dealt with. The only other prejudice relates to the need for this matter to be promptly concluded. The Court regards this consideration to be neutral in relation to reinstatement.

8. The last matter relates to whether or not the substantive proceedings have a reasonable prospect of success. This requires a consideration of the merits of the application, albeit at an impressionistic level. The applicant need only show he has an arguable case. This requires a consideration of the background, the Tribunal decision as well as the grounds of judicial review.

9. The Court is of the view, for the reasons set out below, that the grounds of judicial review are arguable and that the other considerations favour the matter being reinstated. On that basis the Court now deals with the substantive application on the basis that the application is reinstated.

   BACKGROUND

10. The applicant is a citizen of Pakistan and arrived in Australia on 18 August 2015 on a Student (class TU) (subclass 573) Visa (“the visa”). A delegate of the Minister for Immigration and Border Protection (“the delegate”), as it then was, cancelled the applicant’s visa on 20 March 2017 pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”). The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2)(a) of his visa, in that the applicant was not enrolled in a registered course of study.

11. The applicant completed two ELICOS courses. However, his registration in a Bachelor of Business (Accounting) course was cancelled by his education provider on 20 April 2016.

12. On 21 February 2017 the Department issued a Notice of Intention to Consider Cancellation (“NOICC”) on the basis that the applicant had not been enrolled in a registered course of study. On 8 March 2017, the applicant through his legal representative, sought an extension of time to respond to the NOICC, due to the applicant’s illness which was claimed to be “actually the reason he could not comply with the visa conditions”.

13. On 15 March 2017, the applicant provided through his legal representative, a complete response to the NOICC, which attached a statutory declaration from the applicant and some medical evidence. On 20 March 2017, the delegate cancelled the applicant’s visa on the basis that the applicant was not enrolled in a registered course of study, and that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

14. The applicant then applied for merits review of the decision on 27 March 2017. On 3 September 2019 the Administrative Appeals Tribunal (“the Tribunal”) affirmed the decision under review. On 13 September 2019 the applicant sought judicial review in this Court.

    ADMINISTRATIVE APPEALS TRIBUBAL’S DECISION

15. The Tribunal decision sets out the background of the matter at paragraphs [1] – [6], going on to correctly consider condition 8202 at [8].

16. At paragraph [8] of its decision, the Tribunal noted 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 Act, the visa may be cancelled.

17. Condition 8202(2) of sch 8 of the Regulations required the applicant to be enrolled in a registered course of study or training.

18. At issue was whether the applicant’s visa had been cancelled due to the breach of condition 8202 by not being enrolled in a registered course. The Tribunal noted at [25] – [28] the applicant had provided a number of explanations in response to the NOICC concerning his circumstances and how he came to breach his visa conditions. The applicant struggled after his father became ill and his father’s business subsequently collapsed. As a result, he did not receive the financial support expected and claimed to have come near destitution.

19. All explanations provided to the delegate prior to the visa cancellation were again repeated before the Tribunal. The Tribunal accepted the explanations as truthful at [29] but considered the circumstances did not adequately explain the applicant’s noncompliance or justify that circumstances were out of his control.

20. The Tribunal accepted at [30] it was unlikely the applicant immediately sought medical assistance upon falling ill given his severe financial constraints. It also accepted at [31] the applicant’s financial circumstances were immobilizing and distressing and were a significant contributing factor to his poor psychological state.

21. However, the Tribunal considered at [33] it was reasonable to have expected the applicant to apply to defer his studies with his education provider for compassionate or compelling circumstances. Further or in the alternative, he could have returned to his home country rather than remain in Australia in continued non-compliance of his visa conditions.

22. It considered at [34] it was the responsibility of the student visa holder to contact the department before significantly changing their circumstances such as ceasing studies without alternative enrolment. The applicant did not contact the department at any time for this purpose.

23. At [37] the Tribunal did not accept that the applicant’s circumstances that led to his non-compliance and the grounds for cancellation were beyond the applicant’s control.

24. The Tribunal was not satisfied at [39] that there would be any consequential cancellations under s 140 of the Act if the applicant’s visa was cancelled.

25. Further, the Tribunal took account of the fact that the applicant may become an unlawful non-citizen and that he may face difficulties in obtaining further visas in Australia and could be subject to a three-year exclusion period. The Tribunal did not give these issues significant weight.

26. Cancellation would not engage any of Australia’s any international obligations. Nor would any children be affected as the applicant was single, has never been married and does not have any children.

27. At [48] – [49] of its decision, after considering all the circumstances as a whole, the Tribunal found the grounds in favour of cancellation outweighed those that did not. It affirmed the decision under review at [50] to cancel the applicant’s visa.

28. Noting the applicant’s claim to the Court, as advanced by his Counsel, that he was in fact enrolled in a course of study according to the Provider Registration and International Student Management System (“PRISMS”) record, the Minister produced a copy of the transcript of the Tribunal hearing. First, it is appropriate to note that the applicant was represented at the Tribunal by the same legal representative who instructed Counsel for the hearing before the Court. Second, the requirement to be enrolled in a registered course of study as at the time of the Tribunal decision, is a basic concept that should have been known to the applicant’s legal representative.

29. The Tribunal hearing was held on 3 April 2019. At page 9 of the transcript, the following exchange appears via an interpreter:

    Member: And could you ask him, when was his last, when did he last attend a course?

    Applicant: December, in December 2015.

    Member: December 2015. And when did you start working with the (unintelligible)?

    Applicant: One and a half years ago when I get the visa cancellation form.

30. Later on, at page 12 of the transcript, the following further exchange occurs:

    Member: According to the record that I have he completed two, two courses in English, is that right?

    Applicant: Yes.

    Member: Yes, okay. And you, did you commence your Bachelor course?

    Applicant: No sir.

    Member: You didn’t commence your Bachelor course, I see. And you haven’t enrolled in anything since then?

    Applicant: No, no.

    GROUNDS OF JUDICIAL REVIEW

31. The applicant’s four grounds of judicial review are contained in an Amended Application lodged on 24 April 2024. They are as follows (less particulars):

    1.The Second Respondent committed a jurisdictional error in respect of a migration decision being the decision under review that is not a privative clause decision within the meaning of Migration Act 1958 [Cth], and/or with respect to the reasons for the decision, the circumstances of the decision and the procedures concerned with the making of the decision.

    2.The Second Respondent engaged in jurisdictional error in not accepting the applicant's claim about the circumstances under which the ground for cancellation of the higher education student visa first arose.

    3.The Second Respondent erred and in so doing committed a jurisdictional error in not giving any or any sufficient weight to the legal consequences of the decision and the wishes of the applicant to complete his studies in Australia.

    4.The Second Respondent erred and in so doing committed a jurisdictional error in not having any or sufficient regard to the limitations imposed by the requirement of legality arising from the terms, scope and policy of the statute, the fundamental values anchored in the common law and the consequences of these considerations where decisions might and in this case did have devastating  consequences visited upon the applicant, and the obligation of real consideration of the circumstances of what is being done to people and the applicant in particular.

    THE APPLICANT’S SUBMISSIONS

32. The applicant filed his written submissions on 24 April 2024 raising several grounds suggesting jurisdictional error in light of the Tribunal’s decision. These arguments can be summarised in that they predominantly deny a breach of condition 8202(2) of the Regulations and contend the Tribunal’s discretion of s 116(1)(b) of the Act to cancel the applicant’s visa on the grounds of a failure to consider several mitigating factors.

33. Ground one suggests the Tribunal disregarded his family circumstances in favour of solely relying on the information provided by focusing on PRISMS. During the hearing, the Tribunal noted that it was the applicant’s responsibility to either defer their studies or contact the education department before taking any action to significantly change their study circumstances, which would have been subsequently reflected in the information provided by PRISMS. However, the applicant argues that this reliance on PRISMS disregarded and/or failed to give due weight to his family considerations, particularly the hardship he endured which would have prevented him from notifying his education provider.

34. The second ground infers more jurisdictional error in that the Tribunal did not take the applicant’s medical diagnosis into consideration. The applicant provided medical evidence of psychiatric illness including mixed anxiety and depression and adjustment disorder, which he claims affected his ability to notify the education provider. The applicant claims this medical evidence, which evinces valid reason for not being able to contact his educational provider, was disregarded in its entirety.

35. Ground three relates to the applicant’s stronger ability and desire to study henceforth, as opposed to their previous time spent in Australia. The applicant claims that since the initial hearing at the Tribunal, his father’s illness has significantly improved, and he now has the funds ($40,000.00 in his bank account) and emotional capacity to properly resume his studies in Australia, stating he would have a “positive future” in Australia if allowed to do so.

36. Finally, the applicant’s fourth ground is that there were issues with the “legality arising from the terms, scope and policy of the statute” and the “fundamental values” of common law, specifically regarding the Tribunals reliance on Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 72; 225 CLR 88 and Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203. In the Tribunal’s reference to these cases, it was noted that they do not have to take into account the applicants family. The applicant refers to the case Manebona v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 402, which states that it would be unfair to ‘transpose the language and mindset of litigation to inquisitorial decision-making of the kind in question in this case’; referring to his own case.

37. In his oral submissions, Counsel for the applicant submitted that in matters involving issuing constitutional writs, there was a discretion in the Court to issue writs where circumstances included unreasonableness in relation to the decision under review. This included significant time periods that had elapsed since the Tribunal decision, and the matter coming on for hearing within the Court.

38. This submission can be dealt with briefly at this point. A discretion is vested in the Court where jurisdictional error is found, but for other reasons, such as futility or that the jurisdictional error found is not material, to refuse to issue writs. The same cannot be said, when a jurisdictional error is not found. If there is no jurisdictional error, writs cannot issue.

39. The delay in the matter coming onto hearing is to be regretted but is a result of the significant backlog of the migration matters awaiting hearing in Court. The Court notes that there have been recently additional appointments to the Court by government which will allow the backlog over time to be addressed.

    THE RESPONDENT’S SUBMISSIONS

1. The respondent filed their written submissions on 22 May 2024. The respondent summarises the applicants claims into four grounds, dealing with each one individually. 

2. Ground one relates to the Tribunals disregard for the applicant’s psychiatric illness and the “emotional pressure and disturbance” this illness subsequently caused the applicant. However, the Tribunal did take this into consideration, but gave more weight to the applicant failing to take action defer his studies or notify his educational provider. The respondent relies on Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] (“Lee”) in that it is a well-established rule that Tribunals can assign weight as it considers appropriate.

3. Ground two relates to the applicant’s assertion that there was a lack of regard for the applicant’s medical diagnosis. The respondent submits that the medical diagnosis was taken as evidence towards his personal circumstances in addition to all other factors. However, upon evaluating all factors, in accordance with Lee, more weight was ultimately placed on the applicant’s lack of action towards his education provider.

4. Ground three relates to legal ramifications of the Tribunal failing to consider the “wishes of the applicant” to study, stating that he now has the funds and emotional capacity to study, and would have a “positive future” if allowed to do so. The respondents argue that in the four years he resided in Australia prior to the hearing, he only undertook one English course totalling 30 weeks. On the authority of Lee, more weight was placed on the inaction of the applicant to notify his educational provider. 

5. Ground four relates to the legal errors raised by the applicant, particularly the legality arising from the “terms, scope and policy of the statue”, the “fundamental values” of common law and ultimately the “devastating consequences” this would impose on the applicant. The respondent argues that these assertions do not identify any specific areas of jurisdictional error, or specific law to exist as a valid ground. Taken as a valid ground however, the respondent denies these on a factual basis, stating that they did expressly consider the hardships their decision would impose on the applicant. Relying on the power to exercise reasonable statutory discretion in Minister for Immigration & Citizenship v Li [2013] HCA 18 the applicant argued that it would be harder for them to find employment in Australia without the completed qualification. However, the respondent argues that the applicant could re-establish themselves in their home country given his connection to his family business.

6. Surprisingly, given that the issue was not flagged in either the grounds of judicial review or the applicant’s written submissions, the applicant submitted that based on the PRISMS record, he was in fact enrolled in a registered course of study as at the time of the Tribunal decision. This was based on a date which appeared in the PRISMS record, which the Court interpreted to be the date upon which the applicant would have finished his course had he maintained enrolment.

7. Given the respondent and the Court for that matter, was caught by surprise with this submission, the Court adjourned the hearing to enable further evidence to be produced on the matter. It was on this basis that the transcript of the Tribunal hearing was produced. It was submitted it was open to the Court to find that the applicant, while legally represented at the Tribunal hearing, conceded that he was not enrolled in a registered course of study as at the time of the Tribunal hearing and its subsequent decision. Further the reference by the Tribunal member to “the record that I have” was a reference to the PRISMS record.

   CONSIDERATION

8. Clause 8202(2) of sch 8 of the Regulations deals with the conditions of a visa and requires that the holder of a student visa, such as the applicant, must be enrolled and maintain enrolment in a registered course of study (cls 8202(2)(a) and (b)). The Court is satisfied based on the applicant’s admissions to the Tribunal, as set out in the transcript of the Tribunal hearing, that the applicant conceded that as at the date of the Tribunal hearing he was not enrolled in a registered course of study and had not been so enrolled for some considerable period of time. That being the case, it was open to the Tribunal to find that grounds existed for the cancellation of the applicant’s visa.

9. What follows then, is an orthodox consideration by the Tribunal of matters relevant to whether or not the applicant’s visa should in fact be cancelled.

   Ground one

10. Ground one is a claim that the Tribunal failed to give sufficient regard to the degree of hardship caused by the applicant’s father’s illness, his own illness and the medical evidence and the humanitarian bases for the claim. The Court does not accept this assertion. The Tribunal set out at [25] – [28] the circumstances surrounding the applicant’s father’s illness, together with his medical evidence. The Tribunal was not satisfied that the circumstances which led the applicant to not comply with the condition attached to his visa, of maintaining enrolment in a registered course of study. The Tribunal did not accept this was due to circumstances that were beyond the applicant’s control, noting he never sought to defer his course.

11. This is a finding that was open to the Tribunal, based on the evidence that was before it, and for the reasons it gave. The complaint that the Tribunal failed to give these matters sufficient weight cannot be accepted. The Court agrees with the respondent it is for the Tribunal to assign weight; (see: Lee at [27]). The matters were considered and evaluated. Ground one has no merit.

    Ground two

12. Ground two is similar in nature. It argues the Tribunal “failed to have sufficient regard” to his medical diagnosis and changes to his circumstances. These were expressly evaluated and considered by the Tribunal at [25] – [38]. As set out above the weight to be given to each factual matter is a matter for the Tribunal. The findings by the Tribunal were open to it based on the evidence before it and for the reasons it gave. There is nothing legally unreasonable in these findings. This ground is simply an invitation to the Court to undertake impermissible merits review. Ground two has no merit.

    Ground three

13. Ground three is a variation of a similar nature submitting the Tribunal did not give “sufficient weight” to the wishes of the applicant to continue his studies. The Tribunal was alive to the consequences to the applicant of the decision to cancel the applicant’s visa as set out at [40] – [43]. It simply found that the reasons to cancel his visa, noting the length of time he had not been enrolled in a course of study, outweighed the reasons not to cancel the visa. Again, this finding was open to the Tribunal and is not tainted by legal unreasonableness, illogicality or irrationality. Gound three has no merit.

    Ground four

14. Ground four is curious in the manner in which it is framed. It submits the Tribunal failed to give “any or sufficient regard to the limitations imposed by the requirement of legality arising from the terms, scope and policy of the statute”, the “fundamental values” in common law, the “devastating consequences visited upon the applicant” and the “obligation of real consideration of the circumstances of what is being done to people and the applicant in particular”. This ground can be best described as more being philosophical in nature, in that it does not identify any particular ground of jurisdictional error.

15. As noted by the respondent, the ground might appear to take issue with the statutory requirements imposed by the regulations. If this is the case, it cannot succeed.

16. The Court is satisfied that the Tribunal clearly considered the consequences to the applicant as a result of its decision. The impact of the decision to cancel his visa was clearly considered. There was nothing unreasonable, irrational, or illogical in the manner in which the Tribunal carried out its analysis of the factual matters before it. At its highest, this ground again merely invites the Court to undertake impermissible merits review. Ground four has no merit.

    DETERMINATION

17. As none of the grounds of judicial review have any merit, the application must be dismissed.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate: SS

Dated:       17 January 2025