Thrif v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 295
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thrif v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 295
File number(s): SYG 2350 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 6 March 2025 Catchwords: MIGRATION – judicial review – cancellation of Subclass (Student) visa under s 116 of the Migration Act 1958 (Cth) for breach of a visa condition – whether the Tribunal in exercising its discretion whether to cancel the visa failed to consider relevant matters and took into account irrelevant matters – no jurisdictional error disclosed – application dismissed Legislation: Migration Act 1958 (Cth), ss 116, 476
Migration Regulations 1994 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) r 13.06
Cases cited: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Minister for Immigration & Citizenship v SZJSS & Ors (2010) 243 CLR 164
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 3 March 2025 Place: Sydney Applicant: Applicant appeared in person Solicitor for the First Respondent: Ms Q Ren of HWL Ebsworth Solicitor for the Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 2350 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FURKHAN BIN NAZEER THRIF
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.The Application dated 13 October 2020 is amended to seek a writ of mandamus and ground 2 in the Application is amended to read ‘The Tribunal failed to consider the compelling reasons and circumstances presented to them’.
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 9 September 2020. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel the applicant’s Student (subclass 500) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The issue raised in this matter is whether the Tribunal in exercising its discretion whether to cancel the visa failed to consider relevant matters and took into account irrelevant matters. For the reasons set out below, no jurisdictional error is disclosed in the Tribunal’s reasons and the application is dismissed.
BACKGROUND
The applicant is a citizen of India. On 9 January 2018, the applicant was granted the visa to undertake a Master of Professional Accounting at the University of New South Wales (UNSW) to commence on 26 February 2018. The PRISMS record showed the applicant’s enrolment in the Masters course was terminated on 20 February 2018 because he did not commence the degree ([55] of the reasons).
Notice of intention to consider cancellation
On 17 October 2019, the delegate issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of the visa on the ground it appeared the applicant had not complied with subclause (2)(b) of condition 8202 attached to the visa, being the applicant was required to be enrolled in a registered course at the Masters level or a higher level course (Court Book (CB) 16 to 19).
On 29 October 2019, in response to the delegate’s NOICC, the applicant provided the Department with an Indian death certificate for his father (CB 26) and a medical report showing the applicant had surgery for appendicitis (CB 29). The applicant in his email response to the Department outlined the difficulties he faced upon arrival in Australia, stating he suffered from depression, underwent surgery for appendicitis and his father died in June 2019 (CB 22 and 23).
Delegate’s decision
The delegate found grounds for cancellation because the PRISMS record showed the applicant failed to maintain enrolment in a registered course at the Masters level or at a higher level, as required by visa condition 8202(2)(b). On 16 January 2020, pursuant to s 116(1)(b) of the Act the delegate cancelled the visa for non-compliance with visa condition 8202(2)(b) (CB 44 to 52).
On 22 January 2020, the applicant applied to the Tribunal for review of the delegate's decision (CB 53). The applicant appeared, assisted by his representative, before the Tribunal to give evidence and present arguments.
Tribunal decision
There was no issue before the Tribunal that the applicant had breached condition 8202(2)(b) of his student visa condition, in that he had failed to maintain enrolment in a registered course at the Masters level or at a higher level. At [12] of the reasons, the Tribunal noted the applicant had not been enrolled in a Masters degree course for a period of almost 22 months.
The issue before the Tribunal was, in exercising the discretion under s 116(1) of the Act, whether or not to cancel the visa. For the reasons set out in [22] of this judgment, the Tribunal affirmed the delegate’s decision to cancel the applicant's visa.
GROUNDS IN THE APPLICATION
The applicant’s grounds for judicial review are set out in his application dated 13 October 2020 as follows (as per original):
1. My student visa was canelled [sic] by the visa officer by finding that I was not enrolled in a registered course of study at the level for which the visa was granted. Therefore breached subclause 8202(2)(b).
2.The department failed to consider the compelling reasons and cicumstances [sic] presented to them.
3. I applied for the AAT for the merit review on my case.
4. The tribunal conducted the hearing and affirmed the decision of the department to cancel my student visa.
5. The Tribunal only considered the past breach of visa condition and did not consider my current circumstances in which I am fully compliant with all visa conditions.
6. Member failed to consider that the Department of immigration and border protection did not accord to the applicant procedural fairness and natural justice.
7. The decision of the member is affected by the jurisdiction error and was not determined according to law as the circumstances at the time of application was not considered and this must be overlooked again according to law.
8. Member also paid no heed towards my current circumstances at the time of review application and only considered the past circumstances and this depicts the error in the decision.
9. Member erred in affirming the applicant’s application without fully considering my circumstances and its implications on my future and family.
PROCEEDINGS BEFORE THE COURT
The applicant appeared at the hearing before me unrepresented, assisted by an interpreter. Mindful of the Court’s duties to a litigant in person, I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Application, Court Book, and the Minister’s written submissions. Prior to the hearing the interpreter interpreted to the applicant the Application and the Minister’s written submissions.
The applicant raised nine alleged jurisdictional errors. Grounds 1, 3, and 4 set out the factual background, being that the visa was cancelled, the applicant applied to the Tribunal for review and the Tribunal affirmed the delegate’s decision to cancel the visa. These matters are not in contest.
Ground 2 raised an alleged error by the delegate, which decision being a primary decision as defined in s 476(4) of the Act, this Court does not have jurisdiction to review (s 476(2)(a)). The applicant at the hearing said he meant to allege the Tribunal had failed to consider the compelling reasons and circumstances for not cancelling the visa. The Minister did not object to leave being granted to the applicant to amend ground 2, to replace the reference to the Department with a reference to the delegate. Accordingly, such leave was granted to amend ground 2.
The amended ground 2 and grounds 5 to 9 broadly allege the Tribunal, in exercising its discretion whether to cancel the visa, failed to take into account relevant matters and took into account irrelevant matters. Before dealing with the grounds, the relevant legal principles that apply to the grounds are set out below.
RELEVANT LAW
The power to cancel a visa, where a condition of the visa has been breached, is discretionary as set out in s 116(1)(b) of the Act, as follows:
(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; or
…
Visa condition 8202, relevantly, provides as follows:
…
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full-time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered
course that, once completed, will provide a qualification from the
Australian Qualifications Framework that is at the same level as, or at
a higher level than, the registered course in relation to which the visa
was granted; and
…
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the
holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications
Framework level 9.
In Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 (Peko-Wallsend) at 40 to 42 Mason J set out the legal principles which apply on judicial review in relation to failing to take into account relevant considerations as follows:
…where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decisionmaker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.
It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.
…in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decisionmaker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar (42); Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (43); Elliott v. Southwark London Borough Council (44); Pickwell v. Camden London Borough Council (45).
So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.
There are no mandatory considerations set out in the Act or the Migration Regulations 1994 (Cth) (Regulations) for the Minister to consider in the exercise of the discretion to cancel a visa. The discretion is broad, but must be exercised reasonably: Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486 at [53]-[54] per Gilmour, Logan and Mortimer JJ; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 at [43]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [61(b)] per Griffiths J.
APPLICANT AND MINISTER’S SUBMISSIONS
In support of his grounds, the applicant said he had an agent in India who was helping him with his visa, and he had not initially realised the agent had applied for the visa to study a Masters course at UNSW based on fraudulent documents. The applicant said he could not undertake the study at the Masters level and instead applied to study a Diploma of Information Technology Networking, which he was studying at the time of the Tribunal’s decision. The applicant said the Tribunal failed to consider these matters and also failed to consider the death of his father, his health issues, and the effect of the cancellation of the visa on the applicant’s future and broader effect on his family.
The Minister agreed the Tribunal, in exercising the discretion, was required to consider the applicant’s claims and evidence in deciding whether to cancel the visa. However, the Minister said the applicant fails at the factual level, because the Tribunal had in fact considered all of the applicant’s claims and evidence, as follows:
(a)The extent of the applicant's compliance with his visa conditions at [36] to [39] of the reasons;
(b)His medical evidence at [44], [51] and [73] of the reasons;
(c)His father's death at [45], [51], [52] and [73] of the reasons;
(d)The allegation that the applicant was a victim of fraud at [26] to [29] and [46] to [50] and [53] to [73] of the reasons;
(e)His homesickness and depression at [51], [63] and [74] of the reasons;
(f)His studies at the time of the decision, completion of his Diploma of Information Technology Networking and his desire to complete his Advanced Diploma at [19], [31], [33] to [35] of the reasons;
(g)The effect of the cancellation on the applicant, and the broader effect on his family at [42] to [43] of the reasons.
CONSIDERATION
There are no mandatory relevant considerations the Tribunal was required to consider. However, the Tribunal did need to consider, in the sense of engage with, the claims and evidence of the applicant to then decide whether, in the exercise of its discretion reasonably exercised, the visa should or should not be cancelled. The Tribunal at [22] of its reasons noted correctly there were no matters specified in the Act or Regulations that were required to be considered in the exercise of the discretion and the Tribunal then noted that it had regard to the circumstances of the applicant’s case.
The Tribunal’s reasons disclose the Tribunal did in fact consider and engage with the applicant’s claims and evidence as follows:
(a)The extent of the applicant's compliance with his visa conditions – The Tribunal found the applicant was not enrolled in a Masters course for almost 22 months, which it considered to be a significant breach owing to its duration ([36] of the reasons). Further, the Tribunal noted at [38] the applicant’s evidence as to his efforts to become compliant with the visa condition in that he started studying the Diploma of Information Technology Networking and lodged another student visa, but later withdraw it as it was supported by bogus financial documents submitted by his mother who was the victim of fraud by a banker. At [39] of the reasons the Tribunal gave little weight to this attempt because the applicant had not attempted to lodge the further visa application until 13 October 2019, that is, over 18 months after his enrolment in the Masters course was cancelled.
(b)The allegation the applicant was a victim of fraud – The Tribunal at [15] of the reasons noted the applicant’s evidence he had been the victim of fraud perpetrated on him by an education agent in India. The applicant said he asked the agent to obtain enrolment in a Bachelor of Commerce at UNSW. The applicant said when he arrived at the airport to depart from India to Australia the agent handed over a file containing his enrolment for the Master of Professional Accounting and not for the Bachelor of Commerce. The Tribunal at [23] to [30] of the reasons noted the evidence of a Mr Mohammed who gave evidence that he too had been the victim of such fraud. The Tribunal noted the applicant’s evidence at [16] and [46] that after he arrived in Australia he went to UNSW and showed them his enrolment for the Master of Professional Accounting provided by his education agent but was told there was nothing in the system. The Tribunal noted the applicant’s evidence he then contacted the agent in India who told him he would obtain an enrolment in the Bachelor of Commerce. The Tribunal then noted at [48] of the reasons the applicant said he realised he had an enrolment for a course other than the Bachelor of Commerce at the airport prior to his departure from India but the agent told him he could go to Australia and change his enrolment to the Bachelor of Commerce. At [65] of the reasons, the Tribunal noted fraud involving student visa applications from India is a widespread issue, however, it did not accept the applicant was entirely an innocent victim of such fraud, because, as noted at [66] of the reasons, the applicant gave evidence he realised he had been issued with an enrolment in the wrong course at the airport prior to leaving India, but, despite this, continued with his plans to travel to Australia, knowing the enrolment had been issued to him for the wrong course and a course at a Masters level, which was not consistent with his highest level of qualification, which was year 12 of high school. The Tribunal also noted at [68] of the reasons its concerns with the applicant’s credit. At [70] the Tribunal did not accept the applicant’s submissions there were compelling and compassionate circumstances to explain the extent of his breach of the visa condition, given the applicant had been aware at the airport in India he had an enrolment for a Masters and not for a Bachelor level degree and he had been complicit in the fraud in providing the Department with false information about his academic qualifications as recently as 29 October 2019.
(c)His medical evidence and his father’s death – From [44] of the reasons, the Tribunal noted the circumstances in which the ground of cancellation arose, being the fact he was a victim of fraud by the education agent in India; his depression and loss of interest in his studies (at [57]); his father’s medical issues and subsequent death (at [45] and [52]); the applicant’s own medical issues (at [51]). The Tribunal at [73] of the reasons accepted the applicant had suffered appendicitis and was required to be hospitalised and undergo an operation in June 2018. The Tribunal also accepted the applicant’s father had died in June 2019 following treatment for various conditions. However, the Tribunal at [73] did not consider that either of these matters were material reasons for the applicant’s breach of condition 8202(2)(b), which resulted from the cancellation of his enrolment in a Masters level course in March 2018. The Tribunal did not consider the said matters provided sufficient reason for a breach which occurred for a duration of 22 months. Further, the Tribunal at [74] noted the applicant’s claims of depression and homesickness. The Tribunal had concerns as to the credibility of the applicant’s evidence but found, even if accepted, it considered the significant period of the non-compliance was such that the breach of the visa condition was not beyond his control ([75] of the reasons).
(d)The effect of the cancellation on the applicant, his future and the broader effect on his family – At [42] the Tribunal noted the effect of not being permitted to study in Australia on his future and career prospects and the expectations and hopes of the applicant’s wife and parents and the disappointment, embarrassment and shame if he was not able to complete the studies. The Tribunal at [43] accepted the applicant would experience some hardship if the visa was cancelled and may experience emotional and psychological hardship and difficulty in his family relations. Further, the Tribunal accepted the applicant may suffer some financial difficulties. The Tribunal gave some weight to these factors against cancelling the visa.
The weight the Tribunal gave to its consideration of each of the above matters was a matter for the Tribunal in considering whether the visa ought to be cancelled and it was a matter for the Tribunal to accept or reject any evidence: Peko-Wallsend at 42 per Mason J; Minister for Immigration & Citizenship v SZJSS & Ors (2010) 243 CLR 164 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. The applicant appears to be asking this Court to enter a review of the merits of the decision. At the hearing, I explained to the applicant it was impermissible for this Court to engage in any merits review: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J. Given the Tribunal’s reasons set out in the preceding paragraph, I find the Tribunal actively considered and engaged with the applicant’s claims and evidence. Therefore, no jurisdictional error arises in relation to the grounds alleged by the applicant.
Self-evident jurisdictional error
Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I have not identified any such jurisdictional error.
CONCLUSION
The application must be dismissed, as no jurisdictional error is disclosed.
I will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 6 March 2025
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