Ahmed v Minister for Immigration

[2017] FCCA 198

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 198

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visa – whether compelling and compassionate circumstances were considered – provision of bogus documents – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 359, 476.

Migration Regulations 1994 (Cth), sch.2, cl.572.225.

Applicant: MD HELAL UDDIN AHMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1977 of 2016

Judgment of: Judge Street

Hearing date: 7 February 2017

Date of Last Submission: 7 February 2017

Delivered at: Sydney

Delivered on: 7 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms G Doyle
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1977 of 2016

MD HELAL UDDIN AHMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 28 June 2016, affirming the decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant is a citizen of Bangladesh and on 29 September 2014 provided documents to the Department relating to the financial capacity requirements for his student visa, including bank documents and an affidavit from his brother who was his sponsor.

The Delegate’s Decision

1. By letter dated 28 November 2014, the Department invited the applicant to comment on information that the documents were not genuine. On 19 and 23 December 2014, the applicant responded to the invitation and provided a statutory declaration that his brother had falsified the documents without his knowledge. The applicant also provided documents indicating that his father would be his financial sponsor and that he could meet the financial requirements.

2. On 28 January 2015, the delegate refused to grant the applicant the visa. The delegate found the applicant did not satisfy cl.573.224 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which requires the applicant to meet, amongst other things, the Public Interest Criterion 4020. The delegate was not satisfied that the compliance with the public interest criterion 4020 should be waived.

The Tribunal Decision

1. On 16 February 2015, the applicant lodged an application for review. By letter dated 1 June 2016, the applicant was invited to attend a hearing on 21 June 2016. The applicant attended on that date and was represented by his migration agent, as well as assisted by an interpreter, and the applicant gave evidence and presented arguments.

2. The Tribunal identified that the issue on review was whether the applicant meets the Public Interest Criterion 4020 (PIC 4020) as required by cl.573.224 for the grant of the visa, and whether the requirements in cl.4020 should be waived on the ground of compelling or compassionate reasons to justify the granting of the visa. The Tribunal found, based on the evidence before it, that the applicant has given or caused to be given to the Department a bogus document, as defined in s.5(1) of the Act, and found information that is false or misleading in a material particular in respect of the visa application which was the subject of the review.

3. Accordingly, the Tribunal found the applicant did not meet cl.4020(1). The Tribunal correctly identified that those requirements may be waived where there are compelling circumstances that affect the interests of Australia or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that would justify the granting of a visa. The Tribunal referred to the fact that the expression “compelling circumstances” or “compassionate and compelling circumstances” are not defined and refer to the ordinary meaning of the same.

4. The Tribunal referred to a letter provided to the Tribunal on 16 June 2016 prior to the hearing, and a post-hearing submission dated 27 June 2016 requesting a waiver of PIC 4020. The Tribunal set out the alleged compelling circumstances by reference to the applicant being an international student and it being critically important to the infrastructure to Australia.

5. There is a reference in the letter to the applicant contributing student fees and his ability to spread the word about studying in Australia and the quality of the Australian institutions when he returns to Bangladesh and that this would further the interest in the international students market in Australia. Reference is also made in the letter to the applicant contributing to the revenue benefits from studying in Australia.

6. The Tribunal accepted that as a student paying fees, and as a consumer and part-time employee paying tax, and as an advocate for studying in Australia, the applicant may bring value to the Australian economy. The Tribunal, however, did not consider that those factors give rise to a level of compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, or an Australian permanent resident, or an eligible New Zealand citizen. The Tribunal accordingly found the requirements of cl.4020(1) should not be waived and found that the applicant did not satisfy PIC 4020 for the purpose of cl.573.224, and affirmed the decision of the delegate.

Before this Court

1. The grounds of the application are as follows:

   1.   That there was jurisdictional error and therefore grounds for this application as the Tribunal did not adequately consider my submission as to compelling circumstances affecting the rights of Australian Citizens and Permanent Residents. The Tribunal failed to properly apply the law in interpreting what constituted as compelling or compassionate circumstances.

   2. The Tribunal did not properly apply Section 359 of the Migration Act to obtain information relevant to consideration of compelling and compassionate circumstances.

2. On 11 October 2016, this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be an excess of statutory power or denial of procedural fairness to the applicant. The Court explained, in summary, that this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

4. The Court explained to the applicant that if satisfied that the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained to the applicant that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed. The Court explained to the applicant it would have identified the evidence and then hear submissions from the applicant, and then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. From the bar table, the applicant indicated that he did not consider the Tribunal’s decision or its conduct of the review to be unlawful or unfair, but wished to explain his background circumstances and hardship in relation to the decision the subject of challenge. The Court explained to the applicant that it could not make fresh findings of fact and could not grant relief on compassionate circumstances. The Court explained again to the applicant that its power was confined to considering whether the Tribunal’s decision was unlawful or unfair.

6. The Court referred the applicant to the grounds that were identified in the application, and summarised the submissions from the first respondent as to why those grounds did not appear to give rise to any relevant legal error. The applicant acknowledged again that the Tribunal’s decision was fair and lawful, and did not seek to put any submissions as to why the Tribunal’s decision was unlawful or unfair.

7. In relation to Ground 1, it is clear the Tribunal did consider the submissions advanced in relation to compelling circumstances. Ground 1 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal. It was for the Tribunal to determine whether there were compelling circumstances. This Court cannot revisit the merits. The Tribunal correctly identified the relevant law in relation to compelling or compassionate circumstances. Ground 1 fails to make out any jurisdictional error.

8. In relation to Ground 2, there was no easily ascertainable information in respect of a critical fact that was identified to give rise to any duty upon the Tribunal to make inquiries. It was for the applicant to establish the basis upon which the visa should be granted.

9. On the material before the Court, it is not apparent that there was any breach of s.359 of the Act. On the material before the Court, the Tribunal complied with its statutory obligations. The applicant had a genuine and meaningful hearing before the Tribunal on the material before the Court. Further, on the material before the Court, there is nothing to indicate that the Tribunal failed to comply with its obligations of procedural fairness. The grounds in the application fail to make out any jurisdictional error. Nothing was put by the applicant to identify any basis upon which the Court could find jurisdictional error.

10. The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  10 February 2017