Ahmed v Minister for Immigration

[2018] FCCA 3447

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3447

Catchwords:
MIGRATION – Student visa – applicant arrives in Australia in 2012 to study – enrols in IT courses – fails to complete courses – suffers hand injury – enrols in commercial cookery course – delegate of the Minister not satisfied applicant intends to stay in Australia temporarily – delegate refuses visa application – Tribunal affirms decision on same ground – whether applicant afforded natural justice – applicant alleges Tribunal failed to invite medical experts to review his medical condition – Tribunal under no general duty to do so – Tribunal actively engaged in its consideration of merits of application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 357A, 359A, 360, 499

Migration Regulations1994 (Cth), cl.573.223

Cases cited:

Plaintiff M47 v Director General of Security (2012) 251 CLR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: SALMAN AHMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1162 of 2016

Judgment of: Judge A Kelly

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Orders pronounced: 26 November 2018

Delivered at: Melbourne

Delivered on: 27 November 2018

REPRESENTATION

The Applicant: In person

Solicitor for the Respondents: Ms Allan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 2 June 2016 be dismissed.

2. The applicant pay the costs of the first respondent fixed at $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1162 of 2016

SALMAN AHMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 2 June 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 April 2016 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

Background

1. The applicant, a Pakistani citizen aged 32 years, was granted his initial Student (Class TU) (subclass 573) visa offshore on 22 February 2012.  He first arrived in Australia on 11 March 2012.  The applicant was subsequently granted a further Student (Class TU) (subclass 573) visa on 18 June 2013, which was valid until 18 November 2014.

2. Since his arrival in Australia, the applicant had previously been enrolled in Graduate Diploma of Business Information Systems and Master of Information Technology.  He completed neither course.

3. On 18 November 2014, the applicant applied for a Student (Class TU) (subclass 573) visa and supplied a Confirmation-of-Enrolment in relation to a Certificate III in Engineering-Fabrication Trade/Certificate IV in Engineering.

4. By letter dated 20 November 2014, the Department requested information from the applicant, including evidence of: (1) the applicant’s English language ability; (2) the applicant’s Genuine Temporary Entrant criterion; (3) the applicant’s financial capacity; and (4) overseas student health cover.

5. On 10 December 2014, the applicant provided the Department with a number of documents including a certificate confirming his father’s bank balance and others addressing his Genuine Temporary Entrant criterion.  He provided explanations as to why he had only travelled back to his home country once, why he had deferred his studies in the past due to a mental health condition, and why he had enrolled in a course in fabrication after having previously studied information technology.

6. On 11 December 2014, the Department emailed the applicant requesting evidence of his relationship to the bank balance account holder. On that date, the applicant provided the Department with an affidavit of support deposed by his father.

7. On 12 December 2014, the Department emailed the applicant providing notification that the affidavit provided was unsatisfactory to demonstrate the applicant’s father’s relationship as sponsor. On that date, the applicant provided the Department with copies of his birth certificate and passport.

8. On 22 January 2015, the Department notified the applicant that his application for a student visa had been refused. A delegate of the Minister refused the visa application on the basis that having considered the applicant’s circumstances and immigration history, the delegate was not satisfied that the applicant intended to stay in Australia temporarily. For that reason, the delegate was not satisfied that the applicant met the requirements of cl 573.223(1)(a) of the Migration Regulations1994 (Cth) (Regulations) and Ministerial Direction No 53, Assessing the genuine temporary entrant criterion for Student visa applications: see s.499.

9. On 5 February 2015, the applicant applied to the Tribunal for review of the delegate’s decision.  The application listed Atlantis Education and Migration as the applicant’s representative.

10. On 24 February 2016, the applicant’s representative was provided access to documents from the applicant’s Departmental file.

11. On 9 March 2016, the Tribunal invited the applicant to attend a hearing on 6 April 2016 to give evidence and present arguments relating to the decision under review.  On 21 March 2016, the Tribunal invited the applicant to attend a rescheduled hearing on 12 April 2016.

12. On 12 April 2016, the applicant appeared before the Tribunal but did so without the assistance of his nominated representative. 

13. On 29 April 2016, the Tribunal notified the applicant of its decision.  In a written statement of reasons dated 28 April 2016 (Reasons), the Tribunal affirmed the delegate’s decision not to grant the applicant a Student visa. Having regard to cl 573.223(1)(a) and Ministerial Direction No 53, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily. Although the Tribunal noted that the applicant was a poor student, the Tribunal did accept that a hand injury had interrupted some of the applicant’s previous study attempts. The Tribunal also expressed concerns that after being prevented from completing a fabrication course due to his hand injury, the applicant had chosen to study commercial cookery (which also placed reliance on the use of hands). In its summary, the Tribunal placed “greatest weight on the applicant’s own statements at hearing as to his intentions which are driven by a fear of returning to Pakistan… and by a plan to obtain for himself and his fiancé a permanent future in Australia”.

Procedural history

1. On 2 June 2016, the applicant filed an application for judicial review of the Tribunal’s decision.  The applicant sought an order that the Tribunal’s decision be quashed.

2. The applicant swore an affidavit on 1 June 2016 which exhibited the Tribunal’s Statement of Decision and Reasons and deposed that the Tribunal had made a jurisdictional error in neglecting to invite a medical specialist to review the impact of his hand injury, and not accepting the evidence given by medical professionals at Coburg Medical Centre.

3. By a Response filed on 8 June 2016, the Minister opposed the making of the orders sought in the application on the basis that the application did not establish any jurisdictional error in the Tribunal’s decision.

4. The matter was listed for directions hearing on 9 November 2016.  On that date orders were made, by consent, listing the matter for Final Hearing. Further orders were made regulating the filing by the applicant of any amended application, affidavits and written submissions. The applicant has not taken the opportunity to file further material.

Consideration

1. The applicant’s grounds of review may be considered collectively.  They read as follows:

   1.The Department and its officer failed to consider the applicants individual circumstances and health conditions

   2.That a breach of natural justice occurred in connection with the making of the decision

   3.That the applicant was denied procedural fairness in connection with the making of the decision

   4.That procedures that were required by law to be observed in connection with the making of the decision were not observed

   5That the making of the decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made

   6.The Tribunal has made a jurisdictional error by not accepting the evidences given by medical professionals at Royal Melbourne Hospital

   7.The Tribunal has made a jurisdictional error by not accepting the evidences given by medical professionals at Coburg Medical Centre

   8.The Tribunal has made a jurisdictional error by not inviting medical experts to review my health condition to accurately determine the impact of the accident on my health, impact on my day to day ability to undertake tasks.

2. Ground 1 raises matter in relation to which this court has no jurisdiction.

3. Grounds 2, 3 and 4 are unparticularised complaints of a want of natural justice and procedural fairness.  The statutory framework within which a decision-maker has exercised power is of critical importance when considering the precise content of the requirement of procedural fairness in a particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [26], [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Plaintiff M47 v Director General of Security (2012) 251 CLR 1, [498] (Bell J). In the present case, the statutory framework was that provided by Part 5 of the Act which concerns review of Part 5-Reviewable Decisions. Division 5 of Part 5 concerns the manner of the conduct of a review of such decisions and is an exhaustive statement of the natural justice hearing rule: s 357A. It required that the Tribunal act in a way that was fair and just.

4. The applicant’s generalised complaints of a want of natural justice and procedural fairness find no support in the materials comprised in the court book. I discern no basis for a failure to observe the requirements of s 359A and, as noted above, the applicant was invited to attend before the Tribunal in accordance with s 360. The Tribunal raised squarely for the applicant the issue which was of determinative significance to its decision: [14(b)]. The applicant had annexed a copy of the Delegate’s decision to his application for a merits review by the Tribunal and so was on notice of that issue in any event: SZBEL, supra (2006) 228 CLR 152, [35]. I also accept the Minister’s submission that the Tribunal plainly had regard to the requirements of Direction No 53.

5. Beyond the generalised claims that are made, the gravamen of the applicant’s complaint is disclosed by Grounds 6, 7 and 8 which rest on an alleged failure to accept medical evidence of the Royal Melbourne Hospital and Coburg Medical Centre and by not inviting his medical experts to review his medical condition further so as to assess the impact of his injuries upon his health.  Before me the applicant stated that he had been involved in an accident when struck while riding a motor cycle as a result of which he had been placed under observation for 24 hours.  He further stated that he had injured a finger on his dominant right hand while moving a refrigerator.  He said that the first of those accidents had occurred while he was studying for his Masters of Information Technology and that the second accident had occurred while he was studying for his Engineering-Fabrication Trade/Certificate.  Contrary to the applicant’s submission, the Tribunal was under no general duty to conduct inquiries of the kind suggested by the applicant.

6. The applicant was invited to attend before the Tribunal to present evidence and raise arguments in relation to the issues arising by way of review of the delegate’s decision. It was for him to adduce evidence and present arguments and he did so. The Tribunal hearing was conducted from1:54pm until 5:21pm. The Reasons indicate that the applicant was afforded a real opportunity to present evidence and raise arguments concerning the Delegate’s decision: [15]-[41].

7. It is notable that when asked whether he wished to draw the Tribunal’s attention to any further matter, he said that he had nothing further to add: [41]. Further, insofar as the question of medical evidence was concerned the applicant stated that he had provided the Tribunal with copies of reports from the doctors who had treated him. The Tribunal did accept that the applicant had been injured and that those injuries and a period of recuperation had interrupted his studies: [42], [51].

8. The Tribunal identified the applicable law and applied it to the facts of this application.  It was a matter for the Tribunal as to what weight it attached to the evidence.  The Reasons confirm that the Tribunal was actively engaged in its consideration of the merits of the application. 

9. I accept that by these Grounds the applicant seeks from this court a further merits review of the visa application.  This is impermissible.

Conclusion

1. As the applicant was self-represented I have re-examined the materials comprised in the court book.  As I consider that there is no substance in the Grounds of review advanced by the applicant and identify no other basis for legitimate complaint, the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  27 November 2018