Awan v Minister for Immigration and Multicultural Affairs

The applicant's case before the Tribunal 14 A hearing was held on 7 May 2001 at which the applicant gave evidence. He told the Tribunal that shortly after completing his Master of Information Systems degree at CQU in November 2000 he had applied to the University of Melbourne for admission to the degree of Master of Commerce (Employment Relations and Human Resources Management). He said that he had been confident that he would be accepted. However, in the second week of March 2001, having heard nothing from the University for several months, he had contacted the Faculty of Commerce and been told that his application had been unsuccessful. He was informed that the University had written to him in February 2001 telling him of his failure to gain entry, but he claimed that the letter must have gone astray. 15 The applicant said that he had approached CQU in April 2001 because it had been too late to apply for admission to other courses. He had gained admission to the MBA course at CQU, but that course was not scheduled to begin until July 2001. When he had applied for a further student visa on 19 April 2001 he had been upset to learn that he must leave Australia in order to apply for that visa. Apparently he had planned to apply for a Tourist visa to the United Kingdom to enable him to play cricket in England before starting the CQU course in July. The advice which he had received had thrown his plans into disarray. 16 The applicant confirmed that he had enrolled in the course for an Advanced Diploma of Business at Cambridge International College only when told that his CQU enrolment would not allow him to remain in this country. Nonetheless, he now wished to pursue the Advanced Diploma of Business course. He said that although he had threatened to set fire to himself, he had no intention of doing so. He said that although a container of petrol had been found in his car shortly after his arrest, it was there for legitimate reasons. 17 The applicant told the Tribunal that he wished to study either business or marketing before returning to Pakistan to join his family's cotton business. He said that his father had agreed that he should complete a further course in 2001. He had promised that he would provide financial assistance to enable him to do so. 18 The applicant admitted that he had lodged an application for permanent residence in February 2001. However, he said that he was prepared to withdraw that application if, by doing so, his chances were enhanced of remaining in this country on a student visa. He produced both a copy of a letter from a customer of the family business, and a letter showing that he owned property in Pakistan, in support of his claim that he intended eventually to return to that country. 19 The applicant told the Tribunal that, contrary to the delegate's conclusion, he was a genuine student. He explained that his application to study at CQU had been made belatedly because he had mistakenly believed that he would be accepted by the University of Melbourne. He said that he had been surprised at his failure to gain admission to that course. 20 The applicant claimed that he had not breached the conditions of any of the student visas granted to him from the time of his arrival in this country in 1996. He said that he had no relatives in Australia. He said that in 1996, while driving a taxi, he had been the victim of a serious assault. He claimed that he had suffered psychological damage as a result of that incident. He said that he would suffer irreparable harm if he were kept in immigration detention. The course at Cambridge International College had already commenced, and he said that he wished to pursue that course. He said that his mother was in hospital as a result of stress arising from his detention. He assured the Tribunal that there would be no repeat of his actions of 20 April 2001, which he claimed were brought about by the fact that he had been intoxicated. He said that he no longer drank alcohol.

The Tribunal's findings 21 The Tribunal referred to s 116(1)(fa) of the Migration Act 1958 (Cth) ("the Act") which provides that, subject to subsections (2) and (3), the Minister may cancel a visa if satisfied that, in the case of a student visa, its holder is not, or is not likely to be, a genuine student, or that, while in Australia, he or she had engaged in, is engaging or is likely to engage, in conduct (including omissions) not contemplated by the visa. 22 Section 116(2) provides that the Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. It is common ground that there were no such circumstances in this case. 23 Section 116(3) provides for circumstances in which a visa must be cancelled. Regulation 2.43(2) of the Migration Regulations 1994 sets out those circumstances. Regulation 2.43(2)(b), which came into operation on 1 December 1998, states that: "…in the case of a Student (Temporary) (Class TU) visa - that the Minister is satisfied that the visa holder has not complied with condition 8202." 24 The Tribunal noted that although the decision to cancel the applicant's visa had referred to condition 8202, a breach of that condition had not been listed as a ground for cancellation. Hence reg 2.43(2) did not apply. 25 The Tribunal drew attention to subclause 560.224(1) in relation to the definition of a "genuine student". It provides: "Subject to subclauses (4) and (5), the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard: (a) to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and (b) subject to subclauses (2) and (3), to the applicant's comprehension of English for the purposes of the course; and (c) to whether the applicant intends to comply with any conditions subject to which the visa is granted; and (d) to any other relevant matter." 26 The Tribunal noted that par 9 of the Procedures Advice Manual ("PAM 3") referred to the following factors relating to subclause 560.224(1). The visa applicant: "- is seeking to enter/stay in Australia for the purpose of study;

• will abide by visa conditions;
• will not become an unlawful non-citizen; and
• will leave Australia at the end of their authorised stay." 27 The Tribunal noted in relation to subclause 560.224(1)(a) that the applicant claimed that his father would meet his education expenses in Australia but that he would have to meet his own living costs through part-time employment. 28 In relation to subclause 560.224(1)(c) the Tribunal found that there was no evidence that the applicant had not complied with any conditions of any visas previously held by him, and presumably no evidence to suggest that he would not comply with any such conditions in the future. 29 In relation to subclause 560.224(1)(d) the Tribunal noted that PAM 3 referred to: "· the student's situation in their home country, for example, personal, financial, employment and other commitments that may induce the applicant to return to their home country and circumstances (e.g. military service commitments) that may induce the applicant not to return to their home country; · the student's immigration history e.g. previous compliance with immigration laws and whether the student has previously applied for entry to Australia; · the student's academic record; · the student's links with Australia; · whether the student satisfies officers that they will leave Australia at the end of any authorised period of temporary stay; · whether the proposed course of study will commence within a reasonable time of the student's proposed date of arrival in Australia; · whether the student's stated purpose in studying in Australia and the proposed duration of stay is consistent with the applicant's circumstances; · whether the student is seeking to undertake a course consistent with, and appropriate to, their current level of education; · whether the study is relevant to the student's past or proposed future employment (as appropriate) in their home country; · if a similar course is already available in the home country, whether the student has sound reason for not undertaking the study there; and [sic]" 30 The Tribunal noted that there was no evidence from the applicant's father concerning the nature of his business, or that he consented to the applicant remaining in Australia for an extra year in order to study marketing. There was no evidence that the applicant intended to return to Pakistan after completing his proposed course, other than his own assurance that this was indeed his intention. There was no evidence that he had ever demonstrated a genuine desire to study marketing. The Tribunal observed that the Advanced Diploma of Business course at Cambridge International College was at a level significantly lower than the Masters of Information Systems degree which he had recently completed at CQU. There was no evidence that the Advanced Diploma of Business course was in any way relevant to the applicant's future in the family business. The only evidence concerning similar courses in Pakistan was that given by the applicant that such courses were not as valuable as equivalent Australian courses. 31 In relation to whether the applicant intended to leave Australia at the end of his studies, the Tribunal noted that PAM 3 said at par 9.5.7: "· the mere fact that the student has applied for a permanent visa (whether in or outside Australia) does not in itself mean that the same person applying for student visa does not intend to leave Australia at the end of any authorised period of temporary stay; · in such circumstances, however, it may not be unreasonable for officers to require the student to provide a higher level of proof of their intentions. For example, a student otherwise assessed as genuine but who has applied in Australia for a permanent visa may need to satisfy officers that they will leave Australia should their permanent visa application be unsuccessful." 32 The Tribunal said that although the applicant had indicated a willingness to withdraw his application for permanent residence status, he had not, in fact, done so. This cast doubts upon the bona fides of his claim. 33 The Tribunal did not accept the applicant's explanation that he had failed to apply in a timely matter to enrol in a course for 2001 because he had been confident that he would be accepted by the University of Melbourne. This was because he had waited until the second week of March 2001 (i.e. after the commencement of the academic year) before contacting the Faculty of Commerce to ascertain the outcome of his application. 34 The Tribunal concluded that the applicant was not a genuine student, and that grounds existed to cancel his visa under s 116(1)(fa)(i). 35 The Tribunal then turned to consider whether it should exercise its discretion not to cancel the visa notwithstanding the fact that the applicant was not a genuine student. It said it took into account Migration Series Instruction (MSI) 301 which sets out the primary considerations to be taken into account when determining whether or not to cancel a temporary visa under s 116: "· the purpose of the visa holder's travel to and stay in Australia; · the extent of non-compliance with any conditions subject to which the visa was granted. For example, a visitor who is located working illegally may have committed a more serious breach of conditions than a student visa holder who is found working two hours over the allowed twenty hours per week, but is still attending lectures and meeting course requirements; · the degree of hardship which may be caused to the visa holder and any family members · the circumstances in which the ground for cancellation arose; · the person's behaviour in relation to the Department, now and on previous occasions. For example, the truthfulness of statements made to officers of the Department or in applications before the Department and their overall record of compliance with visa conditions, provisions and/or undertakings." 36 The Tribunal said it took into account the applicant's previous history of compliance with the terms of student visas. It accepted that there had only been one failure to comply with a condition of any such visa, and that it was that failure which had triggered the cancellation in the instant case. 37 The Tribunal accepted that the applicant would suffer hardship if his visa were cancelled. However, it regarded the circumstances under which the grounds for cancellation had arisen to be serious. It did not accept the applicant's explanation for having had a container of petrol in his car on the very day he threatened to set fire to himself. It noted that he had expressed remorse for his actions, and that he had been intoxicated at the time. However, it found that this did not excuse the serious nature of his conduct which, in its view, had placed DIMA staff, and the public, at risk of harm. 38 The Tribunal took into account the applicant's assurances that there would be no repetition of this conduct. It observed, however, that there was no material or other evidence to support his claim that he was now in a stable psychological condition. Further, there was no evidence from family members, friends or community organisations attesting to his character, honesty or integrity that might convince the Tribunal that he would comply with these assurances. 39 In taking into account all relevant matters, the Tribunal found that, on balance, the reasons for exercising the discretion did not outweigh the reasons for not exercising the discretion. It therefore affirmed the decision under review.

Jurisdictional error 40 In his application to this Court, the applicant contended that because the Tribunal had failed to make any finding regarding his financial capacity to undertake the course of studies proposed, it had no jurisdiction to cancel his visa. He referred to the observations in the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 19 to 23 in support of the contention that a failure to make a relevant findings of fact can give rise to jurisdictional error of the type referred to in s 476(1)(b). 41 In the joint judgment in Yusuf their Honours noted that a failure on the part of the Refugee Review Tribunal to make findings about claims of past persecution may constitute an error of law or a failure to take account of relevant considerations so as to give rise to judicial review within "accepted and well-established limits". 42 Their Honours said at 20: "That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the tribunal failed to make some relevant finding of fact. For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations. It is necessary, therefore, to consider some further aspects of s 476, especially subss (1)(b), (c) and (e) …" 43 Their Honours went on to restate the ambit of "jurisdictional error" under the general law, and the consequences that follow from a decision-maker making such an error. They referred to Craig v South Australia (1995) 184 CLR 163 at 179 and continued at 21-22: "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." 44 It has been suggested by some commentators that these observations have opened a door to review in this Court which many had previously thought to be closed. In Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 Gyles J categorically rejected that interpretation. His Honour said at [15]: "I can say, however, that I think it clear that the judgment of McHugh, Gummow and Hayne JJ was not intended to widen the existing scope of judicial review for jurisdictional error. Indeed, their Honours expressly state the contrary. In particular, I do not consider that their Honours were intending to, or did, redefine what are relevant considerations for the purposes of judicial review of administrative decisions, so as to make every fact or matter alleged by an applicant which a judge considers to be relevant to a decision to be a relevant consideration for those purposes … Indeed, I do not read any of the judgments in Yusuf as having this effect." 45 In Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911, I said the following at [57]-[58]: "I note, however, that the majority in Yusuf recognised that a failure on the part of the RRT to make a finding on a material issue might fall within ss 476(1)(b), (c) or (e) of the Act… The effect of Yusuf is that if the RRT has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material, it may be said to have exceeded its authority or powers, or to have erred in law. However, there is nothing in Yusuf to suggest that the existing scope of judicial review for jurisdictional error has been enlarged: Khan… It must be remembered that a consideration is not "relevant" for this purpose unless the decision-maker is bound to take it into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42." 46 The approach taken by Gyles J in Khan was also followed by Hely J in Capa v Minister for Immigration and Multicultural Affairs [2001] FCA 898 at [30]. 47 In several recent decisions of this Court, given at first instance, jurisdictional error of the kind identified in the joint judgment in Yusuf have been found. In Cujba v Minister for Immigration and Multicultural Affairs [2001] FCA 699, Conti J found that the grounds relied upon by the Minister's delegate to cancel a particular visa lacked any viable or rational basis for their support. His Honour said at [105]: "The critical issue remains as to whether the findings I have made … as to the absence of viable and reasonable grounds to support the subject decisions … attract any one or more of the grounds for review propounded by the Applicants. I have concluded that the significance of such findings is of such radical implications in terms of absence of any reasonable or viable evidentiary basis, or to adopt the dictum of Gummow J in Eshetu … such findings are so lacking in support by some probative or logical grounds, as to constitute for the purposes of s 476(1)(b) jurisdictional error within the principles enunciated in Yusuf … in that such findings ignored the relevant material and relied on the irrelevant material exposed in my discussion and observations … above." 48 In Cujba, the subject decisions were based upon a process of reasoning by the Tribunal involving "guilt by association" (without even evidence of "association"). The egregiousness of the errors made meant that the circumstances were somewhat exceptional. It would be wrong, in my view, to conclude that Conti J took a different view of the scope of jurisdictional error, as adumbrated in Yusuf, than that taken in Khan. 49 In Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881, a decision of the Refugee Review Tribunal was set aside by Carr J upon the basis that there was jurisdictional error within the meaning of s 476(1)(b) of the Act. His Honour referred to various observations in Yusuf relating to the construction of that section, and noted that the Refugee Review Tribunal in the instant case gave "absolutely no consideration" to a series of questions which were critical to the resolution of the issue before it. Once again, Applicant Z, when properly understood, involves nothing more than the application of orthodox principles of judicial review. 50 As indicated earlier, the only matter identified by the applicant as giving rise to jurisdictional error in the present case was the Tribunal's failure to make any finding regarding his financial capacity to undertake the course of studies proposed. It will be recalled that subclause 560.224(1)(a) provides that this factor is one to which the Minister must have regard in determining whether an applicant is a genuine applicant for entry and stay as a student. 51 The Tribunal referred to the applicant's financial position in par 25 of its reasons for decision. It said: "In relation to subclause 560.224(1)(a) the Tribunal notes that the visa applicant was granted a waiver of the application fee to the Tribunal on the basis of his income. In his application the visa applicant stated that his father provided funds for education expenses but that other costs such as accommodation and food were met through part-time employment." 52 The Tribunal went on to say in par 27: "In this case the visa applicant has given evidence of land ownership and a letter from a customer of his family's business. However there is no evidence from the visa applicant's father about the nature of the business or that the father consents to the visa applicant remaining in Australia for an extra year to study marketing …" 53 Nonetheless, as the applicant correctly pointed out, the Tribunal made no specific finding regarding his financial capacity to undertake the course of study proposed. 54 In my view, the Tribunal's failure to make any finding regarding this matter was of no consequence. It did not find that the applicant was not a genuine student because of any doubts about his financial ability to undertake the course proposed. It found that he was not a genuine student because of "other relevant matters" in accordance with subclause 560.224(1)(d). 55 In par 26 of its reasons, the Tribunal referred to the PAM 3 guidelines dealing with subclause 560.224(1)(d). It set out these guidelines in full. Then, in pars 27 to 30 of its reasons for decision, it dealt with each of the factors which were relevant to the applicant's case. It stated in par 32 that it was "for these reasons", i.e. by reason of the "other relevant matters", that it found that at the time of cancellation of his visa the applicant was not a genuine student. 56 The present case has none of the characteristics of Cujba or Applicant Z. The Tribunal worked its way logically and systematically through the various policy factors set out in the PAM 3 Guidelines, and expressed its views about the significance of each of them. I consider that it implicitly accepted that the applicant had the financial ability to undertake the course at the Cambridge International College (notwithstanding the lack of any evidence that his father would support him financially until 2003). Its failure to make a finding, in terms, to the effect that he had the financial ability to pursue that course does not suggest that it identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material. 57 It follows that this first ground of review, complaining of jurisdictional error, must be rejected.

Failure to arrange for medical examination 58 The second ground relied upon by the applicant was that the Tribunal had failed to comply with the requirements of s 363(1)(d) of the Act by not arranging for him to be medically examined. It was said that this failure to comply with the requirements of that section, by not even considering the exercise of the power, gave rise to the ground of review contained in s 476(1)(a), namely a failure to observe procedures required by the Act. 59 Section 363(1)(d) provides: "363. (1) For the purpose of the review of a decision, the Tribunal may: … (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination." 60 It was submitted on behalf of the respondent that it was not necessarily apparent from the Tribunal's decision in the present case that it had failed to consider the exercise of this power. However, it was submitted that even if the Tribunal had failed to do so, such failure did not establish a ground of review for failure to observe procedures required by the Act within the meaning of s 476(1)(a). 61 The use of the word "may" in s 427(1)(d) of the Act (which is in identical terms to s 363(1)(d), but is the analogue applicable to the Refugee Review Tribunal ("RRT")), makes it clear that the Tribunal is empowered, but not required to arrange for such an examination. 62 In Kulwant Singh v Minister for Immigration and Multicultural Affairs [1996] FCA 1013, North J, in relation to a decision of the RRT, noted at [10]: "…In my view, there is no implicit requirement in s 427(1)(d) that the Tribunal consider whether to have the Secretary arrange a medical examination. The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise the power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act." 63 These comments were cited with approval by Ryan J in Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at [21]-[22] and by Finn J in Yusuf v Minister for Immigration and Multicultural Affairs [1999] FCA 1053 at [19]-[20]. 64 In Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 French J rejected a similar argument to that relied upon by the applicant and observed at [29]: "Generally speaking when a statute provides for a person to apply to some authority for the grant of a right or privilege the decision-maker is, absent some relevant statutory direction, entitled to rely upon the materials supplied by the applicant as that which is presented in favour of the application. There is no general duty on the decision-maker to seek additional material which may remedy deficiencies in the applicant's presentation …" 65 In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 (at 445), a Full Court held that s 427(1)(d) of the Act is indeed permissive, and does not impose any duty on the Tribunal to make further enquiries. See also Abdul Raheem v Minister for Immigration and Multicultural Affairs [2001] FCA 940 at [21] -[23] and [25] per Stone J. 66 There is an additional difficulty which confronts the applicant. The particular failure to comply with s 363(1)(d) (upon which he relies) is relevant to only one of many matters which the Tribunal may take into account in determining whether he is a genuine student. It is by no means clear that an error made in relation to one such matter will vitiate the exercise of a discretion. It is not necessary to express any concluded view upon that issue. 67 It might have been better had the Tribunal sought medical opinion regarding the applicant's mental state when considering the "other relevant matters" to which it had regard in determining whether to permit him to stay. The Tribunal did not consider that course to be warranted. That was a matter which was essentially for the Tribunal to determine. Its failure to seek such additional medical opinion does not, in the circumstances of this case, lead to the setting aside of its decision. 68 It follows that this second ground of review must also be rejected. 69 Accordingly, the application must be dismissed with costs. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate: Dated: 3 August 2001 Counsel for the Applicant: Mr R.G.A. Deckker

Solicitor for the Respondent: Australian Government Solicitor