Shuvo v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 2
•9 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shuvo v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2
File number(s): SYG 1985 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 9 January 2025 Catchwords: MIGRATION – judicial review – Student (Temporary) (class TU) (subclass 500) visa – cancellation decision for non-compliance with condition 8202 – whether the Tribunal’s decision was vitiated by jurisdictional error on the ground of legal unreasonableness in considering whether to cancel the visa – whether the Tribunal misunderstood condition 8202(2)(a) – no jurisdictional error disclosed – application dismissed Legislation: Migration Act 1958 (Cth) ss 116 and 476 Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submissions: 15 November 2024 Date of hearing: 6 November 2024 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Brett Slater Solicitors Counsel for the First Respondent: Mr M Cleary Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1985 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD OMAR FARUQ SHUVO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
9 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.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 Kaur-Bains
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 27 July 2020. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s Student (Temporary) (class TU) (subclass 500) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The following issues arise for determination:
(a)Whether the reasons of the Tribunal were legally unreasonable in the consideration of the discretion to cancel the visa.
(b)Whether the Tribunal misunderstood condition 8202(2)(a), such that it failed to make a decision in accordance with law.
For the reasons set out below, I find the applicant has not demonstrated jurisdictional error.
BACKGROUND
The applicant is a citizen of Bangladesh who arrived in Australia on 11 July 2017, as the holder of the visa. On 15 January 2020, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the visa pursuant to s 116(1)(b) of the Act. By that notice, the delegate informed the applicant it appeared he had breached condition 8202(2)(a) attached to the visa, which required him to be enrolled in a full-time registered course of study (Court Book (CB) 3).
On 21 January 2020, the applicant responded to the NOICC, stating that he had failed his Diploma course which resulted in him suffering mental anguish, which worsened after the passing of his aunt and uncle. The applicant also said his course from Macquarie University was cancelled due to non-enrolment and apologised for this "unintended breach” (CB 8).
On 6 February 2020, a delegate of the Minister cancelled the applicant's visa due to his failure to comply with s 116(1)(b) of the Act (CB 11). The delegate found the applicant had not complied with condition 8202(2)(a) of the visa, as he had not been enrolled in a registered course of study since 7 October 2018 (CB 17).
On 13 February 2020, the applicant applied to the Tribunal seeking review of the delegate's decision (CB 21).
TRIBUNAL’S DECISION
On 27 July 2020, the applicant appeared before the Tribunal by telephone. At the Tribunal hearing, the applicant was assisted by a migration agent and an interpreter in the Bengali language.
The first issue before the Tribunal was whether the applicant complied with condition 8202(2)(a). The Tribunal noted that the applicant accepted he had breached condition 8202(2)(a) as he had not been enrolled in a full-time registered course since 7 October 2018 ([9] of the reasons). Therefore, the Tribunal found the applicant did not comply with condition 8202(2)(a) ([11] of the reasons).
The second issue before the Tribunal was whether in the exercise of its discretion, the Tribunal should cancel the applicant’s visa. In the exercise of that discretion, the Tribunal had regard to the circumstances of the case, the matters raised by the applicant and the matters in the Department’s Procedural Instruction “General visa cancellation power” ([12] of the reasons). The Tribunal concluded that the visa should be cancelled ([53] of the reasons).
RELEVANT LAW
Relevantly, at the material time, the Act provided as follows:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa;
…
The relevant visa condition provided as follows:
8202
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full-time registered course
…
GROUNDS IN THE APPLICATION
The applicant’s further amended application filed on 1 November 2024 contained the following two grounds for judicial review (as written):
1.The decision of the Administrative Appeals Tribunal was legally unreasonable.
Particulars
a. when finding that the applicant had not complied for 21 months with condition 8202(2)(a) of his student visa, the Tribunal took into account the 6 month period when the applicant no longer held his student visa (as it had been cancelled by the delegate).
b. in finding that the applicant was staying in Australia for a purpose other than study, it was irrational for the Tribunal to rely on the fact that the offer of study of Diplomas of Hospitality Management were not at the Bachelor level, given that the first engineering course the applicant had come to Australia to study had been at the Diploma level.
c. The applicant contended that the non compliance was caused by factors out of the applicant's control because it was in part attributable to the death of his aunt and uncle. The Tribunal rejected this on the basis that the applicant could have brought this under control by deferring his study and returning home to grieve. The fact that the applicant could have taken other steps to minimise the impact of the deaths on his studies does not rationally address the fact that the deaths were out of the applicant's control and they caused him to be depressed which contributed to his non-compliance.
2. The Tribunal misunderstood the applicable law
Particulars
The applicant repeats the particulars to ground 1(a)
At the hearing before me, the applicant did not press particular (b) to Ground 1 above.
CONSIDERATION
Ground 1
Ground 1, with the remaining particulars (a) and (c), raise the issue of whether the Tribunal’s decision was vitiated by legal unreasonableness. Before dealing with how the applicant put his case, I will briefly identify the relevant legal principles as to legal unreasonableness.
Legal unreasonableness
The Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson, Mortimer JJ (as her Honour then was)), in considering legal unreasonableness, referred to the High Court decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [44] and noted that legal unreasonableness may arise in two different contexts as follows:
(a)The first is the identification of an underlying jurisdictional error in the decision-making process.
(b)The second is that the outcome (ultimate conclusion) of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Jurisdictional error in decision-making process
In Ground 1, the applicant contended that the Tribunal in the decision making process, in exercising a discretion, made findings of fact which were not based on probative material and employed irrational or illogical reasoning.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [49] (SZUXN), Wigney J elaborated on the first context in which legal unreasonableness may arise, being where “a tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction .” In exercising the statutory power in this case, the Tribunal needed to weight up a number of different matters. In making those determinations, the Tribunal’s reasons and findings need to be examined.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ stated the following as to the correct approach when analysing the reasons subject to judicial review:
132. … It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
Further, if an error is identified in the decision-making process (that is on the way to the ultimate conclusion), then as Wigney J said in SZUXN, at [55]:
… the overarching question is whether the Tribunal’s decision was affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out.
Applicant’s contentions in relation to particular (a) of Ground 1 – [38] of Tribunal’s reasons
First, the applicant contended that when considering the extent of compliance with visa conditions, the Tribunal at [38] of its reasons, made a finding of fact that the applicant had not complied with condition 8202(2)(a) for over 21 months. The applicant submitted that this finding was irrational and not based on probative material, which material established that the applicant was only non-compliant with condition 8202(2)(a) for 15 months. The applicant alleged that the 21 month period referred to in [38] of the Tribunal’s reasons, took into account the period from 6 February 2020, after the visa was cancelled, until the Tribunal’s decision in July 2020 which was irrational.
The applicant contended that the Tribunal then gave some weight in favour of cancelling the visa on the basis of the irrational finding of fact that there had been a period of non-compliance for 21 months. The applicant contended that the identified error was a fact finding mistake in the decision making process and it was material to the ultimate conclusion, because the Tribunal was weighing up different factors in the exercise of its discretion.
Minister’s contentions
The Minister accepted that the material established that the applicant was only non-compliant for 15 months. However, the Minister submitted that the finding at [38] of the reasons was not irrational, because the Tribunal was not saying that the applicant was non-compliant for 21 months, but was saying that the applicant was non-compliant for a significant period of time. The Minister contended that in the context of the Tribunal’s earlier reasoning at [7] to [11] of the reasons, the Tribunal clearly understood the applicant had not been non-compliant for the whole of the 21 month period, but only for a significant period of time, being less than 21 months. The Minister says this is borne out by the Tribunal’s earlier reasoning, and its acknowledgement at [10] and [47] of the reasons, that from the time of the cancellation of his student visa the applicant was on a Bridging visa E, which did not allow the applicant to study.
Conclusion as to particular (a) of Ground 1 – [38] of Tribunal’s reasons
Paragraph 38 of the Tribunal’s reasons said the following and appears to contain typos in the word “non-complaint” after the words “significant period of time”:
38. However, the applicant has been non-complaint with condition 8202(2)(a) for a significant period of time has he has not been enrolled in a course for over 21 months. Accordingly some weight is given in favour of cancelling the visa.
In my view, on a fair reading of the Tribunal’s reasons as a whole, the Tribunal at [38] of the reasons was not saying that the applicant had been non-compliant with condition 8202(2)(a) for over 21 months, but rather the Tribunal was saying the applicant had been non-compliant for a significant period of time, and was noting that the applicant had not been enrolled in a course for over 21 months, which was factually correct. This reading of [38] of the reasons, is supported by reading the reasons as a whole for the following reasons:
(a)The Tribunal at [1] and [2] of its reasons was aware that the delegate had cancelled the visa on 6 February 2020, because the applicant had not been enrolled in a registered course.
(b)At [9] of the reasons, the Tribunal noted that the applicant had not been enrolled in a course since 7 October 2018.
(c)Therefore, the reference to a significant period of time in [38] of the reasons, was a reference back to the period calculated from 7 October 2018 to 6 February 2020, being the date of cancellation of the visa by the delegate.
(d)Further, the Tribunal at [10] of the reasons noted that after the visa was cancelled by the delegate on 6 February 2020, the applicant obtained a Bridging Visa E, which had no study rights. At [47] of the reasons, the Tribunal repeated that information. The Tribunal was clearly aware that the applicant could not study after the visa was cancelled and at [38] of the reasons could not be said to be including in the period of not complying with visa condition 8202 (2)(a), the 6 month period when the applicant no longer held the student visa and was on the Bridging Visa E, which had no rights to study.
(e)Therefore, the Tribunal clearly had in mind the applicant had no right to study after the cancellation of the visa.
I also note, as pointed out by the Minister, that the reference to the applicant not being enrolled in a course for over 21 months was a reference to the applicant’s solicitor’s submissions made in writing to the Tribunal and the concession that the applicant had not been enrolled in a course of study for over 21 months (being 1 year and 9 months), at CB 79, which was factually correct.
Therefore, I do not find that the Tribunal at [38] of its reasons made a finding of fact that the applicant was non-compliant with condition 8202(2)(a) for over 21 months. I reject the applicant’s submissions in that regard.
Applicant’s contentions in relation to particular (a) of Ground 1 – [19] of Tribunal’s reasons
Further, the applicant says that at [19] of the reasons, the Tribunal made a finding of fact that the applicant had not been studying for 21 months. The applicant says that in the fact finding process the Tribunal failed to appreciate there was a reason that for the last 6 months the applicant had not been studying, being he held a Bridging Visa E, which prevented the applicant from studying at all (TP 11.40).
The applicant says that the fact finding at [19] of the reasons was based on a wrong assumption, as the applicant was only able to legally study for a 15 month period, because once he was granted a Bridging Visa E, a condition of that visa was that he was not permitted to study. Therefore, the finding was unreasonable because it was without a factual basis. The applicant says that if the error had not been made, the weight the Tribunal attributed to a relevant factor, as to whether to cancel the visa may have been different, with the potential to affect the Tribunal’s ultimate decision.
Minister’s contentions
The Minister submitted that there is no factual error in [19] of the reasons, because the applicant’s legal representatives in written submissions had told the Tribunal that the applicant had not been studying for the last 21 months and all the Tribunal was doing at the end of [19] of the reasons was noting that fact.
Conclusion as to particular (a) of Ground 1 – [19] of Tribunal’s reasons
When considering whether the applicant had a compelling need to remain in Australia, the Tribunal at [19] of the reasons, by using the words “Furthermore, for the last 21 months he has remained in Australia working and not studying at all,” was mirroring the applicant’s solicitor’s written submissions to that effect, as set out at CB 79. In the context of the decision as a whole and the Tribunal expressly noting at [10] and [47] of its reasons that the applicant since the cancellation of his visa was on a Bridging visa, which did not permit him to study, cannot be said at [19] of the reasons to be presumed to be labouring under a wrong assumption. Therefore, I reject the applicant’s submissions.
Applicant’s contentions in relation to particular (c) of Ground 1
In relation to this ground, the applicant only says as follows at [18] of his written submissions:
The applicant contended that the non-compliance (with his visa conditions) was caused by factors out of the applicant’s control because it was in part attributable to the death of his aunt and uncle. The Tribunal rejected this on the basis that the applicant could have brought this under control by deferring his study and returning home to grieve. The fact that the applicant could have taken other steps to minimise the impact of the deaths on his studies does not rationally address the fact that the deaths were out of the applicant’s control, and they caused him to be depressed which contributed to his non-compliance.
At the hearing before me, I attempted to explore precisely what the applicant was contending, but the applicant’s counsel said in essence the argument was as set out at [18] of the applicant’s written submissions, as set out in the preceding paragraph of this judgment.
The applicant appears to be attacking the Tribunal’s reasons at [36], which were under the heading “The circumstances in which ground for cancellation arose”:
36. The Tribunal does not accept the submission that the circumstances in which the ground for cancellation arose were matters beyond the applicant's control. The applicant's difficulties with his studies arose prior to the passing of his relatives. Struggling with studying and failing to pass subjects were matters entirely within the applicant's control. While the Tribunal accepts that his situation would have worsened after receiving news of his Uncle and Aunt's accident, there will things that the applicant could have done to take control of the situation. There is no evidence that the applicant sought a leave of absence or deferral from his studies so that he could return home and recover from his grief. For these reasons, the Tribunal gives significant weight in favour of cancelling the visa.
Minister’s contentions in relation to particular (c) of Ground 1
The Minister in his written submissions submitted as follows:
39. First, and as raised earlier, the applicant (by his own evidence, see eg [24]) claimed that his difficulties with his studies and his (undiagnosed) depression began prior to the passing of his uncle and aunt.
40. Second, the AAT noted that the educational institution where the applicant was enrolled found that the applicant had failed to exhaust the support services offered to him, and that it was clear that he had not satisfactorily demonstrated to his education provider that he had done enough to rectify the situation regarding the progress of his studies: [35].
41. Third, the AAT did not reject that the deaths of the applicant's relatives were circumstances out of the applicant's control. Rather, the AAT found that there was no evidence that demonstrated that the applicant tried to take practical steps in an attempt to try and take control of, or manage the situation with the progress of his studies. It is in this context that the AAT stated, by way of example, that the applicant could have tried to seek a leave of absence or deferral from his studies so that he could return home and recover from his grief: [36].
42. As the AAT noted, there was no evidence that the applicant sought a leave of absence or deferral from his studies so he could return home to recover from his grief. There was nothing illogical or unreasonable about the way that the AAT came to the factual conclusion in paragraph [36]. The AAT gave careful consideration to the material and evidence before it in reaching its conclusion. Applying SZMDS, it cannot be said that only one conclusion was open on the material and evidence placed before the AAT or that the conclusion was not open on that material and evidence or that the process of reasoning adopted by the AAT was such that the decision was illogical or irrational or unreasonable.
In my view, on a fair reading of the Tribunal’s decision, the Tribunal at [36] of the reasons implicitly accepted that the death of the aunt and uncle were matters beyond the applicant’s control, but was saying the matter that was not beyond the applicant’s control was that he could have taken steps so that the university did not cancel his enrolment, such as obtain a leave of absence or deferral from his studies, to return home and recover from his grief. This was reasoning that was open on the material placed before the Tribunal and was not irrational or illogical reasoning. Therefore, I reject the applicant’s submissions as to particular (c) of Ground 1.
Ground 2
The applicant submitted that this ground is related to particular (a) of Ground 1, in that in making the finding at [38] of its reasons, that the applicant had been non-compliant for 21 months, the Tribunal misunderstood visa condition 8202(2)(a). It is said the Tribunal wrongly thought that it could have regard to a period after the visa was cancelled in determining the extent of non- compliance with condition 8202(2)(a). Thus, the applicant submited there was a misunderstanding by the Tribunal of how visa conditions work and did not understand that the visa conditions only apply while the applicant holds a visa (TP 23.18, TP 24.18).
The Minister submitted that the Tribunal did not misunderstand the effect of visa condition 8202(2)(a).
For the reasons outlined in paragraphs [24] to [26] of this judgment, on a fair reading of the Tribunal’s decision it did not misunderstand the effect of condition 8202(2)(a). Therefore, Ground 2 does not disclose jurisdictional error.
CONCLUSION
As no jurisdictional error has been disclosed, the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 9 January 2025
0
9
1