Ahmed v Minister for Immigration

[2014] FCCA 1131

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1131

Catchwords:
MIGRATION – Review by Migration Review Tribunal (Tribunal) – whether the Tribunal afforded the applicant opportunity to present evidence and arguments to the Tribunal – whether the Tribunal gave the applicant notice of issues dispositive of the application before it – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.41(2A), 360, 362B, 379A(5), 379G(1)(b), 379G(2).

Migration Regulations 1994 (Cth), reg.2.05(4), cl.572.231, 572.235.

Applicant: MOHAMMED SABBIR AHMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2428 of 2013

Judgment of: Judge Manousaridis

Hearing dates: 10 April & 15 May 2014

Delivered at: Sydney

Delivered on: 30 May 2014

REPRESENTATION

Applicant in person

Counsel for the Respondents: Mr H.P.T. Bevan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2428 of 2013

MOHAMMED SABBIR AHMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 25 August 2011 the applicant applied to the first respondent (Minister) for a Student (Class TU) visa (student visa). Two of the criteria the applicant had to satisfy were those prescribed by cl.572.231 of the Migration Regulations 1994 (Cth) (Regulations), and cl.572.235 of the Regulations as they stood at the time the Tribunal made its decision.

2. Clause 572.231 required that the applicant be enrolled in, or be the subject of a current offer of enrolment in an applicable course of study. Clause 572.235 required that the applicant had complied substantially with the conditions that applied to the last of any substantive visa he held.

3. On 3 February 2012 a delegate of the Minister refused to grant the applicant the visa because the delegate was not satisfied the applicant had complied with a condition of the visa he had previously held, and thus did not satisfy cl.572.235 of the Regulations. The applicant then applied to the second respondent (Tribunal) for a review of the delegate’s decision.

4. By letter dated 25 July 2013 sent by fax to the applicant’s representative, the Tribunal invited the applicant to appear before it at 2.30 pm on 2 September 2013 to give evidence and present arguments. The letter invited the applicant to provide the following:

   ·    A certificate of enrolment to show that you are currently enrolled in a registered course;

   ·    Evidence of your past studies in Australia, including attendance certificates, academic transcripts and certificates of completion;

   ·    An explanation of why you were not undertaking a course of study in the period 16 November 2009 to 29 August 2011 and any documentary evidence relevant to this explanation.

5. The applicant did not appear at the hearing referred to in the Tribunal’s letter; and the applicant did not, before the appointed time of the hearing, attempt to change the hearing date. The Tribunal decided to make a decision on the applicant’s application for review without taking any further action to enable the applicant to appear before the Tribunal.

6. On 16 September 2013 the Tribunal decided that the applicant did not satisfy cl.572.231 because:[1]

   the applicant has not provided any information which indicates that he is currently enrolled in or the subject of a current offer of enrolment in any course of study.

   [1] CB63 at [11]

Claims and evidence in this Court

1. In an application filed with this Court, the applicant, who is not legally represented, claims the Tribunal made two jurisdictional errors. The first is that the Tribunal denied the applicant an opportunity to be heard or comment on the issue of his enrolment with educational institutions after the date of the scheduled hearing. The second is the Tribunal failed to notify the applicant of issues that were determinative of the Tribunal’s review of the application before it, and also failed to provide the applicant an opportunity to make submissions on a particular subject matter.

2. When the matter came before me for hearing on 10 April 2014, the applicant, who was not legally represented, asserted facts which were not the subject of any evidence. After hearing submissions from counsel for the Minister, I adjourned the hearing of the application to 15 May 2014, and I directed the applicant to file evidence on which he intended to rely.

3. At the hearing of 15 May 2014, I read an affidavit which the applicant filed with the Court on 7 May 2014. What the applicant deposed in his affidavit may be summarised as follows:

   a)The applicant came to Australia in July 2006 on a student visa and enrolled in a Bachelor of Information Technology at Central Queensland University.

   b)On 13 August 2007, the applicant changed his course of study to the Advanced Diploma of Hospitality at Global College. The applicant did that because he wanted to be a chef. After six or seven months, Global College closed.

   c)On 27 August 2009 the applicant decided to study hairdressing and enrolled in a course at the “AHBC College” (which I understand is a reference to the Australian Hair and Beauty College).

   d)After 25 August 2011, when the applicant applied for his student visa, the applicant went to the Australian Hair and Beauty College to get his attendance certificate and results, but he was told he had outstanding fees that the applicant had to pay before the Australian Hair and Beauty College would issue the applicant with all the certificates. “So on 23^rd of September 2011 when the delegate asked for the relevant paper work I couldn’t submit them. So on 23^rd February 2012 my visa application was refused”.

   e)The applicant retained Mr Bitel to lodge an application for review to the Tribunal which Mr Bitel did.

   f)On 25 July 2013 the applicant received a letter from Mr Bitel’s office informing the applicant that he had been invited to appear before the Tribunal on 2 September 2013. On 14 August 2013, however, the applicant was informed Mr Bitel required to be paid his fees of $3,550, and that if he were not paid “he will withdraw the application and will not proceed with the case to MRT”. The applicant was unable to pay the fees.

   g)There was “a big misunderstanding” between the applicant and Mr Bitel’s office:[2]

   Because of my lack of knowledge about this jurisdictional matters I thought he will withdrew my case from MRT. I didn’t understand that he is withdrawing as my authorised recipient not the whole case form MRT. At that time I didn’t understand what was going on and I called his office numerous time to meet David but each time I was told that he won’t meet unless the fees has been paid. So I thought my case has been withdrawn. Because I didn’t receive any correspondence form him I thought I don’t have to go to MRT because I thought the case has been withdrawn.

   [2] All errors and infelicities are in the original.

4. There was additional evidence tendered at the hearing. First, there was evidence that the applicant had ceased his study of a Certificate III in Hairdressing on 16 November 2009, but the applicant, when cross-examined, did not agree that he stopped studying that course on 16 November 2009. It was put to the applicant that the reason he was unable to provide to the delegate any attendance certificate and results in relation to the Australian Hair and Beauty College was not because the applicant was unable to obtain those documents for the reasons he gave in his affidavit, but because he had not studied there since November 2009, but the applicant did not accept that proposition.

5. Second, there was evidence that indicated the applicant had been enrolled with the Canterbury Business College for a Diploma of Business commencing on 22 August 2011 and ending 10 February 2012. In cross-examination, the applicant said he had studied for part of the period of the course, but ceased to do so after he became aware his application for his student visa was refused. He could not recall for how long he continued with the course, or when he ceased studying.

6. Third, there was evidence that the applicant had enrolled in an Advanced Diploma of Business that was scheduled to commence on 16 April 2012 and end on 28 September 2012. The applicant accepted, however, he did not commence that course.

7. Fourth, there was evidence that, at least up to 8 April 2014, the applicant had not enrolled in any other course that is or was registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).[3]

   [3] Affidavit of Sindy Gaete, affirmed 9 April 2014, at [9]

8. And finally, the applicant tendered two certificates issues by Culinary Solutions Australia, one dated 24 September 2013, and the other dated 11 February 2014, certifying the fulfilment of the requirements of Asian Cookery courses. Evidence given by the Minister, however, showed that the courses Culinary Solutions Australia provided to the applicant were not registered on CRICOS.

First ground of review

1. As I say earlier in these reasons, the applicant raises two grounds of review in his application. The first ground is as follows:

   The Tribunal committed jurisdictional error when it denied the Applicant procedural fairness in failing to allow the Applicant opportunity [sic] to be heard or comment form [sic] me on the issue post-hearing verification of entombment [sic] with any education institution.

   Particulars

   Tribunal stated (MRT decision, p 03 at [8]) the review applicant did not appear before the tribunal at which he was schedule [sic] to appear no postponement was sought. In those circumstances and pursuant to s 362 of the Act, I have decided to make my decision on the review without taking any further action to enable the application to appear before me.

2. The applicant did not make submissions in relation to this ground, either at the hearing of 10 April 2014 or at the hearing of 15 May 2014.

3. As I understand the ground, the complaint is that the applicant was not given an opportunity to present evidence and arguments to the Tribunal. Whether or not there is any merit in this ground depends on whether the Tribunal, in the circumstances of this case, was authorised to determine the application for review without taking any further steps after it sent its letter of 25 July 2013 to invite the applicant to appear before it.

4. The Tribunal’s letter dated 25 July 2013, which was issued pursuant to s.360 of the Migration Act 1958 (Cth) (Act), was addressed to Mr David Lee Bitel. It was sent to him by fax. In his application for review to the Tribunal, the applicant completed that part of the application form that requested details of the applicant’s representative by including the name and address of Mr Bitel. A fax number was also included as part of the representative’s details. The fax number is the same as that stated in the Tribunal’s letter dated 25 July 2013 and to which I infer the letter was sent.

5. By inserting the name, address and fax number of Mr Bitel in the representative’s details section of his application for review, the applicant authorised Mr Bitel to “do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review” within the meaning of s.379G(1)(b) of the Act. Because of s.379G(2) of the Act, the Tribunal was authorised to provide documents to the applicant by providing the documents to Mr Bitel. Further, under s.379A(5) of the Act, the Tribunal was authorised to provide documents to Mr Bitel by fax. The Tribunal did so. Accordingly, by faxing to Mr Bitel the letter dated 25 July 2013 to the fax number specified in the application, the Tribunal notified the applicant of the hearing on 2 September 2013.

6. Having provided the letter dated 25 July 2013 to the applicant in the manner authorised by the Act, and thus, having issued the invitation required by s.360 of the Act, the Tribunal had power under s.362B of the Act to decide the application for review “without taking any further action to allow or enable the applicant to appear before it”. And the Tribunal exercised that power. In my opinion, there is no material that may suggest the Tribunal made a jurisdictional error by exercising its discretion under s.362B not to take further action to allow or enable the applicant to appear before it. Even if there was such material, and the Tribunal was required to take further action and, as a result of that action, the applicant did appear before the Tribunal, that would have made no difference to the outcome. That is so because, at least up to 8 April 2014, the applicant had not enrolled in any other course that is or was registered on CRICOS.

The second ground of review

1. The second ground of review is as follows:[4]

   [4] All errors and infelicities are in the original.

   The Tribunal committed jurisdictional error when it failed to put the Applicant on notice that the applicant representative is no longer representing the applicant (MRT decision, p 2 at [7]) was a determinative issue whilst the delegate’s decision had turned solely on the question of where the applicant did enrolled any course or not thereby denying the Applicant procedural fairness and/or breached ss 359A, 359AA and / or 360 of the Act.

   Particulars

   The Tribunal whilst referred to the issue of the enrolment did not put the Applicant on notice that it was a determinative issue stated and in failing to allow the Applicant AN opportunity to be heard or comment on the issue exceptional circumstances which were matters not in issue before the delegate. The Applicant was denied opportunity to present arguments on this determinative issue.

2. The applicant did not make submissions in relation to this ground, either at the hearing of 10 April 2014 or at the hearing of 15 May 2014.

3. The ground as drafted is difficult to understand, and it appears to claim a number of errors. One may be taken to relate to the Tribunal’s reference in paragraph 7 of its reasons to the applicant’s representative sending a fax to the Tribunal on 21 August 2013 stating that he was no longer acting for the applicant. The error the applicant appears to claim relates to the “big misunderstanding” which I have set out in paragraph 9(g) of these reasons. That is, as I understand what the applicant deposed, he claims he was under the understanding that Mr Bitel’s ceasing to represent him meant that his application before the Tribunal would also be withdrawn.

4. In my opinion, even if I were to accept that the applicant believed that the withdrawal by Mr Bitel’s representation would also result in the withdrawal of his application, that manifests no jurisdictional error on the part of the Tribunal. In any event, I do not accept the applicant held such misunderstanding. The applicant accepted in cross-examination that he had read, albeit “roughly”,[5] the Tribunal’s letter dated 25 July 2013, and spoke about it with Mr Bitel. The applicant accepted that he saw the hearing date and time specified in the letter, and that the Tribunal invited him to provide information, including a certificate of enrolment to show that the applicant was currently enrolled in a registered course. The applicant also accepted in cross-examination that he could not provide the information the Tribunal had requested in its letter.

   [5] T15.20 (hearing of 15 May 2014)

5. A second error ground 2 may be taken to claim the Tribunal made is that it failed to give notice to the applicant to make submissions in relation to “exceptional circumstances”. Counsel for the Minister suggests that this is a reference to the following passage from the delegate’s reasons for decision:[6]

   As a result I am not satisfied that there were compelling and compassionate circumstances reasonably beyond his control which prevented him from maintaining enrolment in an acceptable course of study.

   [6] CB29

6. The Minister submits that the matter to which the delegate referred is not a matter that could be relied on in support of a student visa if the applicant otherwise did not satisfy cl.572.231 of the Regulations. I accept the Minister’s submission.

7. There is no provision which empowers the Minister to grant an applicant a student visa on the grounds of compassionate circumstances where the applicant does not otherwise satisfy cl.572.231. Compassionate circumstances, however, may arise as an issue when an application is made for a waiver of a condition under s.41(2A) of the Act.

8. Subsection 41(2A) of the Act provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3). Sub-regulation 2.05(4) of the Regulations provides that, for subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:

   a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

   i)over which the person had no control; and

   ii)that resulted in a major change to the person’s circumstances; and

   b)if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

   c)if the person asks the Minister to waive the condition, the request is in writing

9. There is nothing in the material before me that indicates that the applicant applied for a waiver under s.41(2A) of the Act.

10. The Minister further submitted that, if the presence of compassionate circumstances was a relevant issue, the applicant had notice of it because it was an issue the delegate regarded as dispositive. If that is correct, the Tribunal will have committed jurisdictional error because it did not consider the issue. As I have found, however, the presence of compassionate circumstances was not a relevant issue. 

1. A third error the second ground may be taken to claim the Tribunal made is that it failed to inform the applicant that a determinative issue in the application for review before it was whether or not the applicant was enrolled in, or was the subject of a current offer of enrolment in an applicable course of study. In my opinion, the Tribunal made no such error.

2. The Tribunal gave the applicant notice that an issue before it was whether the applicant was “currently enrolled in a registered course”. It did so in the Tribunal’s letter dated 25 July 2013 by inviting the applicant to provide a “certificate of enrolment to show that you are currently enrolled in a registered course”. The applicant gave evidence that he read the letter and had a discussion about it with Mr Bitel. The letter does not in terms state whether or not the applicant was not enrolled in a registered course. The Tribunal, however, did inform the applicant that on the material before it was unable to make a favourable decision. In that context, by inviting the applicant to provide, among other things, a certificate of enrolment to show the applicant was enrolled in a registered course, the Tribunal made it clear that whether or not the applicant was currently enrolled in a registered course was a determinative issue.

Conclusion and disposition

1. The applicant has not demonstrated any jurisdictional error on the part of the Tribunal.

2. I propose to dismiss the application, and order the applicant to pay the Minister’s costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 30 May 2014