Abdul v Minister for Immigration

[2014] FCCA 1750

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDUL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1750

Catchwords:
MIGRATION – Migration Review Tribunal – no matter of principle – application dismissed.

Applicant: HAI SHOEIB MOHAMMED ABDUL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1995 of 2013

Judgment of: Judge Riethmuller

Hearing date: 8 July 2014

Date of Last Submission: 8 July 2014

Delivered at: Melbourne

Delivered on: 8 July 2014

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant:

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 20 November 2013 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3900.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1995 of 2013

HAI SHOEIB MOHAMMED ABDUL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for judicial review of the decision of the Migration Review Tribunal dated 24 October 2013.  In that decision, the Tribunal affirmed a decision of the delegate dated 16 August 2012, refusing the applicant a student visa. 

2. The applicant is an Indian national who arrived in Australia in August 2008 on a student visa which was current until July 2012. The delegate’s refusal to grant the applicant a student visa was based upon the applicant not satisfying the enrolment requirements of clause 572.235, schedule 2, to the Migration Regulations 1994. In particular, the delegate found that the applicant not been enrolled in any course of study from December 2011 until July 2012.

3. The applicant lodged an application for judicial review of the Tribunal decision on 5 September 2012.  The applicant’s grounds in his judicial review application are as follows:

   1. S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised.

   2. I am not happy with tribunal decision, applying for judicial review for legitimate decision.

   3. I do have exceptional circumstances beyond breaching 8202 condition.

4. In this case, I am satisfied that the application was lodged within time.  With respect to the second ground, it is clear that it simply seeks a merits review of the decision of the Tribunal, and in this regard, is not a basis for review that is open in judicial review proceedings. 

5. The third ground also appears to seek merits review, making the claim that the applicant has exceptional circumstances for breaching the conditions, despite the fact that the Tribunal had not accepted such a claim. 

6. The submissions before me focused upon whether or not the Tribunal was right to take into account that there was no evidence of the applicant being treated in hospital, and whether or not the conduct of the education provider had been taken into account. 

7. Before turning to those specific issues, I refer to the submissions that were made to the Tribunal, as recounted by them (CB 105- 106):

   20. The tribunal referred to the representative’s statement in which it was asserted that it had to be carried for hospital CT scan in October 2011. The applicant was asked if he was admitted to hospital at that time. The applicant said that he was taken to hospital by his friends for a sinus problem for which he received one day of treatment and was not admitted to the hospital overnight. He indicated that the word “carried” meant that he was taken to hospital by his friends.  He then said that he couldn’t walk. The tribunal put to the applicant if he had attended a hospital in Australia and presented as being unable to walk into the hospital by himself, that there would likely be medical records from the hospital of that. The applicant handed over a medical imaging request form dated 7 November 2011 in which the request was made for a CT scan by a local general practitioner in Coburg. The applicant said that he was seeing a local doctor but his condition was so serious that his friends took him to hospital. The tribunal put to the applicant that the request form did not support his assertion that he was carried into the hospital.

   21. At hearing the applicant lodged two prescriptions dated 7 November 2011, receipts in respect of attendances at a general practitioner, Dr Blatt and three medical certificates from Dr Blatt certifying the applicant was unfit for work for a total of six days in July 2011. He also lodged documents from the Reliable Homoeo Centre in Hyderabad, India, much of the contents of which were illegible to the tribunal. A small cardboard card was also provided with the Reliable Homoeo Centre details on the front and handwritten notes on the back. That card was dated 8 November 2012, despite the applicant’s representative maintaining that the applicant was treated by a homoeopathic doctor in India until September 2012 (per submission lodged after the hearing).

   22. The applicant told the tribunal that visiting doctors in Australia didn’t make much difference to his health so he consulted his doctor in India, a homeopathic doctor who sent medicines which were very helpful for him. The tribunal put to the applicant that the medical receipts, scripts and brief certificates did not indicate that the applicant’s medical condition was so bad that he was unable to remain enrolled. The applicant said that there was only one occasion on which he had a serious attack, however every week he would go to the doctor and take medicines. He said the doctor couldn’t give him a statement for the west of the week. He referred to the winter seasons in Australia and that he suffered for 3 to 4 months. He also referred to the period from September to December. The tribunal indicated it might not give much weight to the prescription, receipts and brief medical certificates in the context that the Australian doctors could ostensibly have given some details of the applicant’s illness and provided a medical opinion as to the extent of his illness and his capacity to maintain enrolment. The applicant said that he was unable to sit in an air-conditioned room. The tribunal observed that he had not provided any medical evidence to that effect. The applicant said that he went back to college after one or two months but was told that his enrolment had been cancelled so he must wait until the department contacted him. That is why he stayed at home. The tribunal asked the applicant whether he telephoned or contacted the Department. The applicant repeated that he had been told by his education provider that he would be contacted. He said he was just taking their word and waiting for the department contact him.

8. The specific findings of the Tribunal that are relevant commence at paragraph 25.  The Tribunal said:

   25. The issue in this matter concerns whether the applicant has complied substantially with the conditions of his previous substantive visa. The delegate relied on information from a computer system PRISMS maintained by the Department of Education, Employment and Workplace Relations (as it was then named) to find that the applicant was not enrolled in a registered course of study from 24 December 2011 until 5 July 2012, almost the entirety of the applicant’s visa period. The tribunal has confirmed that the applicant was granted a visa in 20 December 2011 which was set to cease on 11 July 2012.  The tribunal has also confirmed that PRISMS indicates the applicant was not enrolled from 24 December 2011 until 5 July 2012. The applicant does not in fact claim he was enrolled in a registered course in the relevant period; rather he refers to feeling sick in October 2011, being unable to attend the course between October 2011 and January 2012 and then attending his college in February 2012 only to be informed that his enrolment had been cancelled. He claims he was told to wait until he was contacted by the Department. In the tribunal’s view the applicant’s evidence is consistent with the above records. The tribunal is satisfied and finds that the applicant was not in fact enrolled in a registered course from 24 December 2011 until 5 July 2012.

   26. As set out above it was a condition of his previous student visa, Condition 8202, that he maintain enrolment in a registered course.

   27. On departmental file is a letter from the applicant’s migration agent to an officer of the department, dated 6 August 2012. In part the letter sets out that the applicant:

   “... Suffered severely from sinuses during that period, June 2011 till February 2012. The severe cold weather in June, 2011 triggered the sinus problem for Mr Mohammed Abdul, who felt very sick during this period and was unable to leave his house for days at a time. He had severe constant migraines on one side of his head and could not eat for long periods. The applicant fell so weak and helpless that his friends had to help him to the Doctors regularly to get appropriate treatment but could not recover.

   In October, 2011, Mr Mohammed Abdul felt very sick and had to be carried to the Hospital for CT scanning … [he] could not leave home during this period due to severe illness and weakness and survived only with the help of his friends. He could not attend the course he was undertaking for a few months (October, 2011 – January 2012) and had informed College (Melbourne Institute of Training and Technology) about this matter. In December, 2011, Mr Mohammed Abdul contacted his family doctor in India to send medication (Homoeopathy). The treatment of homoeopathy is very slow but very effective over long-term. The prescribed medication from the Homoeopathy Doctor is attached with the documents. The applicant has now recovered completely after undertaking the medication.”

   28. The applicant provided a various invoices and receipts concerning consultations with a Dr Blatt. Three invoices/receipts relate to attendance in July 2011. There are three medical certificates from Dr Blatt concerning the applicant’s incapacity for work for a total of six days in July 2011. The applicant also provided two scripts for medication both of them dated 7 November 2011. The medication was prescribed by Dr Inumala who also completed the medical imaging request form on 7 November 2011 in respect of the request concerning “CT – sinuses – ongoing problems since 4-5 months has been on several courses of abx.”

   29. The applicant did not provide hospital records concerning his claim that he was carried into hospital in October 2011. When asked above that statement at hearing the applicant gave somewhat conflicting answers. He said that the word “carried” (as was set out in his statement) meant that his friends simply took him to hospital. He then gave evidence that he couldn’t walk. As was put to the applicant at hearing, if that was the situation the tribunal would expect that some note would have been made about that and that some documentation would likely be available to corroborate that claim. The applicant has provided no evidence whatsoever of treatment in hospital in October 2011 or November 2011. The tribunal considers that the applicant has contrived and manufactured this evidence. The medical imaging request form in respect of a CT is dated 7 November 2011. The tribunal considers that the applicant has contrived and manufactured this evidence. The medical imaging quest form in respect of a CT is dated 7 November 2011 and is simply an imaging request form. It provides no corroboration that the applicant was carried into hospital at that time. Indeed given that it is evident that Dr Inumala consulted the applicant on 7 November 2011 (the date on which the scripts and the CT imaging form were signed) the tribunal considers that had Dr Inumala observed the applicant as particularly unwell that statement to that effect could have, and would, have been obtained by the applicant and/or his agent.

   30. The applicant claims that he was not satisfied with his treatment by Australian doctors and so consulted his homoeopathic doctor in India.

   31. As set out above the applicant has provided evidence of having consulted a homoeopathic practitioner in India over the telephone from India and been diagnosed and treated by that practitioner. He has provided a copy of a statement from Dr Siddiqui, dated 14 October 2013 which refers to the applicant being treated for sinus under homoeopathic treatment from December 2011 when the applicant initially contacted him with the problem, until September 2012. It states that the applicant was suffering from severe sinus migraine, fever and facial tenderness. It sets out that he was advised to take rest and continue the treatment for recovery. The applicant has provided two further documents from the homoeopathic position, one dated 12 November 2011 and the other dated 16 December 2012 both of which are largely undecipherable.

   32.The tribunal accords very little weight to the documents from Dr Siddiqui the homoeopathic physician, taking into account the limited nature of any consultation which could occur over the telephone, that his actual medical qualifications are not apparent and that the applicant does not claim to have ever seen Dr Siddiqui in person. His evidence however is that he has consulted Australian medical practitioners. As set out above those practitioners were is a position to be able to provide detailed reports, notes or certificates in respect of the applicant. No such notes, reports or certification before the tribunal suggests the applicant was incapable of maintaining enrolment or attending classes other than perhaps for a short period such as in July 2011. The tribunal also takes into account its finding that the applicant has exaggerated or contrived evidence concerning his medical condition.

   33. The applicant claims that he was unable to walk and had to be carried by his friends to hospital on the same date that he consulted Dr Inumala in Coburg. Yet he has only provided the CT imaging referral form and two scripts in respect of his consultation on 7 November 2011. His provision of those documents that failure to provide any report from Dr Inumala or an explanation as to why he was unable to provide such a report, significantly undermines, in the tribunal’s view, the claimed impact of any medical condition he suffered. A referral for a CT scan for ongoing sinus problems and prescribing of two particular medications on 7 November 2011 does not, in the tribunal’s view support the claim impact of the medical condition suffered by the applicant. The tribunal notes that the applicant had in fact obtained certification from Dr Blatt that he was unfit for work for six days in July 2011. He was not unfamiliar therefore with obtaining medical certificates for incapacity.

   34.On the basis of the evidence before it the tribunal is not satisfied that the applicant’s enrolment in the period 24 December 2011 to 5 July 2012 was adversely affected in any significant way by a medical condition or conditions.

   …

   36. The applicant claims that he was advised by his education provider in February 2012 that his enrolment had been cancelled and that he should wait for the Department to contact him about his visa. The tribunal does not accept that he was given that advice. In rejecting that claim the tribunal has taken account of concerns about the applicant’s credibility. It is apparent from the evidence that the applicant made no attempt to contact the Department or to advise the Department of his situation or to clarify his obligations concerning enrolment. The tribunal is satisfied that the applicant’s failure to maintain enrolment was not related to any misleading advice by the Department or from his education provider.

   …

   40. As was noted by the delegate the applicant had been granted a visa on 20 December 2011 valid until 11 July 2012. The tribunal considers that his failure to remain enrolled for almost the entirety of the visa period is a significant breach, taking into account that he was granted a student visa on the basis that he was enrolled and studying. The tribunal considers that whilst the applicant may have had a medical condition the tribunal is not satisfied that the medical condition actually prevented the applicant from maintaining enrolment. In absence of any other accepted explanation the tribunal finds that the applicant deliberately flouted the condition requiring him to remain enrolled.

9. The part of the Tribunal’s reasons that the applicant takes issue at is set out in paragraph 29, where the Tribunal said:

   29. …

   The applicant has provided no evidence whatsoever of treatment in hospital in October 2011 or November 2011. The tribunal considers that the applicant has contrived and manufactured this evidence. The medical imaging request form in respect of a CT is dated 7 November 2011. The tribunal considers that the applicant has contrived and manufactured this evidence.

   …

10. The applicant claimed that his friends carried him to hospital as he was so ill, although, today he says that he meant that his friends took him to the hospital.  On either version, there remains no evidence of him being admitted to hospital, nor any evidence in the medical material before the Tribunal of any actual admission to hospital.

11. On the evidence before it, it was clearly open to the Tribunal to conclude that the applicant had not been admitted to hospital, and there was certainly no evidence of an admission.  Indeed, the only evidence of him being actually incapacitated by his sinus difficulties (the medical condition he said that he suffered from) was three medical certificates certifying that, for the period 14 to 15 July, 19 to 20 July, and 6 to 7 July 2011, the applicant was “medically unfit for work”.

12. The request for the CT image appears to have been made by the applicant’s general practitioner for imaging by a medical imaging laboratory.  The certificate has on the back of it, as appears at court book page 93, the various locations of the imaging service for the purpose of those who were attending for an image to be taken.  None of this indicates an admission to hospital.  In this regard, I am not persuaded that the Tribunal erred in making the finding that it did, nor that it failed to have regard to any relevant evidence, nor that the finding was not reasonably open to the Tribunal in this case.

13. The applicant also complains that the Tribunal failed to have proper regard to a note from his homoeopathic doctor in India, which appears at page 86 of the Court Book.  That note says:

    TO WHOM EVER IT MAY CONCERN

    This is to certify that Mr. Hai Shoeib Mohammed Abdul has been treated for sinus under Homeopathy treatment from December, 2011 when he initially contacted me with the problem until September, 2012.

    Mr. Mohammed Abdul was suffering from severe sinus migraine, fever and facial tenderness.

    He was adviced to take rest and continue the treatment till recovery.   

14. However, in this case, the Tribunal specifically considers the note from this doctor saying:

    31. As set out above the applicant has provided evidence of having consulted a homoeopathic practitioner in India over the telephone from India and been diagnosed and treated by that practitioner. He has provided a copy of a statement from Dr Siddiqui, dated 14 October 2013 which refers to the applicant being treated for sinus under homoeopathic treatment from December 2011 when the applicant initially contacted him with the problem, until September 2012. It states that the applicant was suffering from severe sinus migraine, fever and facial tenderness. It sets out that he was advised to take rest and continue the treatment for recovery. The applicant has provided two further documents from the homoeopathic position, one dated 12 November 2011 and the other dated 16 December 2012 both of which are largely undecipherable.

1. The Tribunal then deals with the weight that it should place upon this material:

   32. The tribunal accords very little weight to the documents from Dr Siddiqui the homoeopathic physician, taking into account the limited nature of any consultation which could occur over the telephone, that his actual medical qualifications are not apparent and that the applicant does not claim to have ever seen Dr Siddiqui in person. His evidence however is that he has consulted Australian medical practitioners. As set out above those practitioners were in a position to be able to provide detailed reports, notes or certificates in respect of the applicant. No such notes, reports or certification before the tribunal suggests the applicant was incapable of maintaining enrolment or attending classes other than perhaps for a short period such as in July 2011. The tribunal also takes into account its finding that the applicant has exaggerated or contrived evidence concerning his medical condition.  

2. This is not a case where the Tribunal has failed to have regard to relevant material, nor one where the Tribunal have not turned their mind to carefully analysing what weight to give that evidence.  Significantly, it appears that this is evidence from a homoeopathic doctor who is in India and did not ever see the applicant in person.  In these circumstances, it’s not surprising that a Tribunal would place little weight upon the homoeopathic doctor’s evidence.

3. The final matter raised by the applicant’s submissions was that, in January or February of 2012, his college cancelled his enrolment without warning, and told him there was nothing he could do except to wait for the Department of Immigration to contact him.  The issue was specifically considered by the Tribunal at paragraph 36, where they say:

   36. The applicant claims that he was advised by his education provider in February 2012 that his enrolment had been cancelled and that he should wait for the Department to contact him about his visa. The tribunal does not accept that he was given that advice. In rejecting that claim the tribunal has taken account of concerns about the applicant’s credibility. It is apparent from the evidence that the applicant made no attempt to contact the Department or to advise the Department of his situation or to clarify his obligations concerning enrolment. The tribunal is satisfied that the applicant’s failure to maintain enrolment was not related to any misleading advice by the Department or from his education provider.

4. The Tribunal later returns to this issue, stating:

   39. The tribunal has found that it was condition of the applicant’s previous student visa, Condition 8202, that he remain enrolled in a registered course whilst the holder of that visa. The tribunal has further found that the applicant was not in fact enrolled in a registered course in the period 24 December 2011 to 5 July 2012. Whilst the tribunal accepts he has a sinus condition the tribunal has not accepted the applicant’s claim that he was too unwell to remain enrolled or that any medical condition significantly affected his capacity to remain enrolled in that period. Accepting for the moment the applicant’s claim that he did not receive warning letters from his education provider, the tribunal considers that little weight should be accorded to such a failure, taking into account the applicant’s apparent knowledge that he was not attending classes and that he had not made any arrangements with his education provider for the deferral.

5. The Tribunal has dealt with the issue, and it seems to me it was open to the Tribunal to form the views that it did on the material before it. 

6. Nothing that has been raised by the applicant in his application or submissions today indicates any judicially reviewable error on the part of the Tribunal.  Despite directions from the Registrar on 5 February 2014, the applicant did not lodge any written submissions or contentions of fact or law, nor any other documents or evidence.  In the circumstances, I must therefore dismiss the applicant’s application. 

   [Further Argument Ensued]

7. There is nothing in this case to indicate that costs should not follow the event.  Costs sought by the Minister in the sum of $3,900, which is somewhat less than the scale fee, are no doubt reflective of the fact that the applicant did not file any outline of argument or, at any point, it seems, identify any arguable claim for judicial review.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 August 2014