Ahmed v Minister for Immigration

[2015] FCCA 2300

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2300

Catchwords:
MIGRATION – Student visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the applicant was not given a hearing before the Tribunal and the Tribunal found a document the applicant relied on was bogus.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.97, 359A, 359C, 360, 379A, 477, 474

Migration Regulations 1994, cl.572.224 of sch.2, cl.4020 of sch.4

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169 Patel v Minister for Immigration & Border Protection (2015) 145 ALD 566

Applicant: WAQAS AHMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 209 of 2014

Judgment of: Judge Cameron

Hearing date: 24 July 2015

Date of Last Submission: 24 July 2015

Delivered at: Sydney

Delivered on: 24 July 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr O. Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the second respondent appearing in the court record be amended to Administrative Appeals Tribunal.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 209 of 2014

WAQAS AHMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Pakistan, applied for a Student (Temporary) (Class TU) subclass 572 visa on 10 September 2012. On 4 December 2012 a delegate of the first respondent (“Minister”) refused the applicant’s application on the basis that he did not satisfy Public Interest Criterion 4020 (“PIC 4020”) of sch.4 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision and on 18 December 2013 the Tribunal affirmed the delegate’s decision to refuse him a visa.

2. On 29 January 2014 the applicant applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and so the applicant has applied for an extension of that limitation period.

3. For the reasons which follow, the application for an extension of the time within which to bring these proceedings will be dismissed.

Relevant law

1. The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time a decision was made on his application was cl.572.224(a) which relevantly required him to satisfy PIC 4020.

2. At the time the delegate and Tribunal made their decisions, PIC 4020 relevantly provided:

   (1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)     the application for the visa; …

   …

   (4)The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)     In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)     false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

3. At the time the delegate and Tribunal made their decisions, the term “bogus document” was defined in s.97 of the Act as:

   … a document that the Minister reasonably suspects is a document that:

   (a)purports to have been, but was not, issued in respect of the person; or

   (b)is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)was obtained because of a false or misleading statement, whether or not made knowingly.

4. Also relevant to this case are ss.359A, 359C, 360 and 379A of the Act which relevantly provide:

   359A Information and invitation given in writing by Tribunal

   (1) Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or

   …

   359C Failure to give information, comments or response in response to written invitation

   …

   (2)     If the applicant:

   (a) is invited under section 359A to comment on or respond to information; and

   (b) does not give the comments or the response before the time for giving them has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

   …

   360 Tribunal must invite applicant to appear

   (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2) Subsection (1) does not apply if:

   …

   (c) subsection 359C(1) or (2) applies to the applicant.

   …

   379A Methods by which Tribunal gives documents to a person other than the Secretary

   Coverage of section

   (1) For the purposes of provisions of this Part or the regulations that:

   (a) require or permit the Tribunal to give a document to a person (the recipient); and

   (b) state that the Tribunal must do so by one of the methods specified in this section;

   the methods are as follows.

   …

   Dispatch by prepaid post or by other prepaid means

   (4) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

   (a) within 3 working days (in the place of dispatch) of the date of the document; and

   (b) by prepaid post or by other prepaid means; and

   (c) to:

   (i)      the last address for service provided to the Tribunal by the recipient in connection with the review; or

   (ii)     the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

   (iii)   if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer.

   …

Background facts

1. As already noted, the applicant applied for a student visa on 10 September 2012.  On 2 October 2012, following a request for further information on his financial capacity, the applicant provided to the Minister’s department (“Department”) a letter dated 24 September 2012 purportedly issued by the Barclays Bank in the United Kingdom.  The letter certified that the applicant’s father had borrowed £45,000 to finance the applicant’s education in Australia.

2. On 18 October 2012 the Department wrote to the applicant advising him that the Barclays Bank loan letter had been found to be “non-genuine” and inviting him to provide an explanation of the document.  In response the applicant said that the document had been provided by a consultant whom he had engaged to arrange a loan.  He said that he was shocked that the document was not genuine.

3. In refusing the applicant’s application, the delegate did not accept that the applicant had had no knowledge concerning the genuineness of the bank letter.  She was not satisfied that the applicant met PIC 4020 or that circumstances existed which justified the waiving of that criterion.

The Tribunal’s decision and reasons

1. On 18 November 2013 the Tribunal wrote to the applicant inviting him to provide by 11 December 2013 comments on or a response to information that the Barclays letter provided to the Department was bogus. The applicant was advised that if he did not provide his comments or response within the period allowed or as extended, the Tribunal might make a decision on his application without taking any further step to obtain his views. He was also advised that he would lose any entitlement he might have otherwise had under the Act to appear before the Tribunal to give evidence and present arguments. No response was received from the applicant. In those circumstances, the Tribunal proceeded to make a decision on the review on the information available to it.

2. The Tribunal found that the Barclays letter was a bogus document which the applicant had given, or caused to be given, to the Minister in relation to his visa application.  On that basis, it found that he did not satisfy PIC 4020(1).  It also found that as the applicant had not responded to its 18 November 2013 letter, there was no information before it to indicate that there were compelling or compassionate circumstances justifying the waiver of PIC 4020(1).

Proceedings in this Court

Application for extension of time

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding, it relevantly provided:

   477Time limits on applications to the Federal Circuit Court

   (1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)     In this section:

   date of the migration decision means:

   …

   (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

2. The Tribunal’s decision was dated 18 December 2013 which means that the applicant had until 22 January 2014 to commence these proceedings.  As the application was not filed until 29 January 2014, it was brought out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time specifying why the applicant considers that it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application specified why he said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. In the circumstances of this case, that question will be determined by whether the allegations made in the substantive application for judicial review have reasonable prospects of success and whether the applicant has provided a satisfactory explanation for the delay in commencing the proceedings.

2. In his statement to the Court today from the bar table, the applicant said that he had not known that he had to lodge his application within thirty-five days of the Tribunal decision.  In his application commencing these proceedings, the applicant said that he had received information from the Department that he had until 30 January to file his application.

3. I am prepared to accept that the applicant did not know that his application should have been filed within the thirty-five day period and I conclude that he has demonstrated a satisfactory explanation for the delay in commencing the proceedings.

Reasonable prospects of success

1. In relation to the question of whether the substantive application has reasonable prospects of success, it should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude that it was in the interests of the administration of justice to extend the time within which to bring these proceedings, it was necessary that the applicant demonstrate that he had reasonable prospects of proving that the Tribunal’s decision on his visa application was affected by jurisdictional error. I have concluded that he has not done so.

2. In his application commencing this proceeding the applicant alleged:

   1.MRT stated that they sent us a letter but I did not received any letter of invitation to appear for hearing.  I provided my contact number, email address and postal address as a source to contact.  But I did not received any piece of information required to appear for hearing.  And decision was made without my words being heared – No chance to provide evidence.

3. At the hearing of this application the applicant reinforced what he had said in his application by stating that he had not received the Tribunal’s invitation to respond to information and had wished to attend the Tribunal hearing in order to explain the circumstances of the letter on Barclays letterhead. In essence, the applicant’s allegation was that he had been denied the real and meaningful hearing which s.360 of the Act implicitly guaranteed him.

4. Another issue which arose in this matter was one which the Minister placed before the Court in the discharge of his duty as a model litigant.  That was whether the Tribunal was correct in concluding that the letter on the Barclays letterhead was bogus.

5. Turning to the issue concerning s.360, the evidence relevant to this issue starts with the address given by the applicant to the Tribunal when applying for review of the delegate’s decision. As reproduced at p.49 of the Court Book, which is exhibit A, the applicant provided an address in Auburn, a suburb of Sydney. Reproduced at pp.68 to 71 of the Court Book is the letter which the Tribunal sent to the applicant, dated 18 November 2013, pursuant to s.359A of the Act. The letter bears a registered post number on its first page.

6. The next item of evidence relevant to the dispatch of the s.359A letter is the Australia Post document reproduced at pp.72 and 73 of the Court Book which, by reference to the same registered post number as appears on the first page of the s.359A letter, indicated that by 19 November 2013 the letter in question was at an Australia Post location in Villawood, pending delivery, which was attempted later in the day according to that document. The significance of this document is, first, that the s.359A letter was sent by prepaid post to the applicant and, secondly, that it was so sent the day after the date which the letter bore.

7. The next evidence of relevance is found in para.3 of the Tribunal’s decision where the Tribunal records that the applicant did not respond to its letter. 

8. I am satisfied that the notice requirements of s.359A and the delivery requirements of s.379A of the Act were satisfied. That being so, the Tribunal was empowered by s.359C(2) to make a decision on the review without taking any further action to obtain the applicant’s views on the information. Section 360 provides that, because s.359C(2) applied to the applicant, the Tribunal was not required by s.360(1) to invite the applicant to appear before it. The Tribunal did not err by not inviting the applicant to appear before it and no breach of s.360 of the Act has been demonstrated.

9. Turning to the issue of whether the Tribunal erred in considering whether the letter on the Barclays letterhead was bogus, it should be acknowledged that the Tribunal did not refer to the statements of law concerning what amounted to a bogus document, which the Full Court of the Federal Court made in Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169 and in Patel v Minister for Immigration & Border Protection (2015) 145 ALD 566. Nevertheless, it applied the correct test, namely, was the letter purportedly provided by Barclays Bank purposely untrue. That it did so is made clear from paras.8 and 9 of its reasons.

10. The applicant submitted to the Court that a fraud had been perpetrated upon him.  That may be true, but it does not mean that the Tribunal erred.  As Buchanan J said in Trivedi at 179 [49]:

    … it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application.

11. For these reasons, I conclude that the Tribunal did not err in finding that the letter purportedly from Barclays Bank was a bogus document or that the applicant failed to satisfy a requirement of PIC 4020 on that account. 

Conclusion

1. Although the applicant has provided a satisfactory explanation for the delay in commencing the proceeding, his allegations of jurisdictional error do not have reasonable prospects of success.  Consequently, time for the bringing of the proceedings will not be extended and the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 27 August 2015