Awan v Minister for Immigration and Multicultural Affairs

Background 2 The applicant is a national of Pakistan. He was born on 8 January 1976. He first entered Australia on 29 June 1996 as the holder of a Student (Temporary) (Class TU) visa, subclass 560 which was granted on 20 June 1996. On 12 January 1998 he was granted a further subclass 560 visa. He departed and returned to Australia while holding this visa. 3 On 17 July 1998 he was granted a further subclass 560 visa valid until 1 August 2000. He departed and returned to Australia on two further occasions whilst holding this visa. 4 On 1 August 2000 the applicant was granted a Bridging A (Class WA) visa, subclass 010 and on 7 August 2000 he was granted a further subclass 560 visa valid to 30 April 2001. It was this visa which was later cancelled by the delegate on 21 April 2001 because the delegate found that the applicant was not a "genuine student". The applicant did not thereafter hold a visa, and was accordingly placed in immigration detention. 5 The applicant claimed, when lodging his application for review to the Tribunal, that he was a genuine student and wished to continue his studies in this country. 6 In 1997 the applicant completed a Certificate IV in Textiles (Manufacturing Technology) at the Melbourne Institute of Textiles. In 1998 he completed a Diploma of Textile Manufacturing Technology. He then enrolled in a Master of Information Systems at Central Queensland University ("CQU") and completed that course in November 2000. The degree was conferred on 6 April 2001. 7 On 19 April 2001 the applicant attended at the Preston office of the Department of Immigration and Multicultural Affairs ("DIMA") to apply for a further subclass 560 visa. He said that he proposed to commence study for a one year Master of Business Administration course at CQU which was scheduled to begin on 16 July 2001. While at the Preston office he was advised that as the course did not begin for some time, he should depart Australia and apply for the subclass 560 visa from offshore. He decided in the light of that advice not to lodge the application. Later that day he attended the Melbourne office of DIMA and was given the same advice. Once again, upon receiving that advice, he elected not to lodge an application. 8 On 20 April 2001 the applicant again attended at the Preston office of DIMA. On this occasion, he provided a Confirmation of Enrolment form for an Advanced Diploma of Business (International Trade Marketing) from Cambridge International College commencing on 30 April 2001 and scheduled for completion on 20 April 2003. He said that he wanted to study marketing and international trade in order to enhance his diverse skills, and to contribute to his future business career. His proposed course of study seems to have met with some skepticism. This led the applicant to become abusive towards DIMA staff. He threatened to set fire to himself unless permitted to remain in this country. Police and DIMA compliance officers attended the DIMA office and arrested him, placing him in immigration detention. It seems that the applicant was somewhat intoxicated. He later apologised for his behaviour. 9 On 21 April 2001 the applicant was interviewed and his existing subclass 560 visa was cancelled. The delegate gave two reasons for adopting this course. She stated that she did not believe that he was a genuine student as he had, some months earlier, applied for permanent residence status. She also said that she believed that he had engaged in, and was likely to engage in, behaviour not contemplated by his existing visa. She noted that the applicant had not attended any course since November 2000, when he completed his previous degree at CQU. She said that she was satisfied that he had no intention of returning to Pakistan. 10 On 23 April 2001 the applicant was interviewed in relation to the application for a subclass 560 visa which he had lodged on 20 April 2001. He said that he could not afford to travel overseas to lodge that application offshore. He had for that reason enrolled in the Advanced Diploma of Business course which was scheduled to commence on 30 April 2001, several months before the commencement of the MBA course at CQU. The applicant appeared to know very little about the Advanced Diploma of Business course. He could not say how it might assist his career. The DIMA officer who interviewed him concluded that the course in which he had enrolled did not matter to him in the slightest, so long as his enrolment enabled him to obtain a visa permitting him to remain in Australia. 11 A file note prepared by a DIMA officer on 30 April 2001 recorded that the applicant had told her during a telephone conversation that he did not wish to return to Pakistan because, if he did, his family would force him to get married. He also said that he wished to remain in Australia until he was granted permanent residence. 12 On 30 April 2001 the delegate refused the application for a subclass 560 visa. On the same day the applicant lodged an application for a Bridging E (Class WE) visa, subclass 050. 13 Also on the same day the applicant applied to the Tribunal for review of the decision to cancel his subclass 560 visa. He said that if he were granted a subclass 560 visa he would enrol in the MBA course at CQU. He intended in the meantime to travel around Australia. On 1 May 2001 the applicant withdrew his application for a Bridging E visa.

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.

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