Anam v Minister for Immigration

[2016] FCCA 388

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANAM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 388

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 Tribunal’s factual findings were incorrect.

Legislation:

Migration Act 1958 (Cth), ss.97, 474

Migration Regulations 1994 (Cth), reg.1.03, cl.572.224 of sch.2, cl.4020 of sch.4

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Applicant: MD KHAIRUL ANAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 381 of 2014

Judgment of: Judge Cameron

Hearing date: 1 February 2016

Date of Last Submission: 1 February 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

Solicitors for the Applicant: Mr C. Guan of Paul Guan & Associates

Counsel for the First Respondent: Mr J. Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 381 of 2014

MD KHAIRUL ANAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Bangladesh, applied for a Student (Temporary) (Class TU) subclass 572 visa on 9 October 2012. On 4 April 2013 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not meet Public Interest Criterion (“PIC”) 4020 and did not therefore satisfy cl.572.224(a) of sch.2 to the Migration Regulations 1994 (“Regulations”).

2. On 22 April 2013 the applicant applied to the second respondent (“Tribunal”) for a review of the delegate’s decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Relevant legislation

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 of decision was cl.572.224(a) which, at all relevant times, provided that the applicant had to satisfy PIC 4020.

2. At the time of the delegate and Tribunal decisions, PIC 4020, which is found in sch.4 to the Regulations, 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; or

   (b) a visa that the applicant held in the period of 12 months before the application was made.

   …

   (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 of both the delegate and Tribunal decisions, reg.1.03 of the Regulations defined “bogus document” as having the same meaning as in s.97 of the Act, which provided:

   bogus document, in relation to a person, means 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.

Background facts

Application to the Department

1. As noted earlier, the applicant’s application for a subclass 572 visa was lodged on 9 October 2012.  In support of his application, and in order to prove that he had the financial capacity to support his intended stay in Australia, the applicant provided, amongst other things, a bank statement from the Bangladesh Krishi Bank dated 5 December 2012.  The account holder named on the bank statement was “Md. Khairul Kabir”, purportedly the applicant’s father.  

2. On 19 February 2013 the Minister’s department (“Department”) advised the applicant that it had been determined, through various means of integrity checking, that the bank statement did not truthfully reflect his circumstances or that of the account holder in that:

   … the balances listed, and the available balance listed, [were] greatly in excess of the funds actually available in the account during the statement periods and transaction periods or for any historical period observed.

   The applicant was invited to respond to information that he had provided false, misleading and bogus information to the Department.

3. In a statutory declaration dated 18 March 2013 the applicant claimed that it had not been his intention to submit a non-genuine document.  He claimed that a bank clerk had mistakenly printed out the statement of someone named “Md Khairul Kabir” and that, although his father used that spelling, the name on his father’s account was “Md Khyrul Kabir”.  The applicant claimed that as the names and account balances were very similar neither he nor his father noticed the error before the document was submitted.  He claimed that he had made an innocent mistake.

4. On 24 March 2013 the applicant submitted a further bank statement from the Bangladesh Krishi Bank for an account in the name of “Md Khyrul Kabir” which he claimed was “the correct/genuine statement that the bank should have issued in the first place”.  Although the balances were different, the transactions in that further bank statement were identical to those in the 5 December 2012 statement.

5. The applicant’s visa application was refused by a delegate of the Minister on 4 April 2013. In reaching that decision, the delegate noted that the false information which was significant to the applicant’s case was not the spelling of the account holder’s name but the funds said to be held in the account. In this regard, integrity checks conducted by the Department had confirmed that the bank account never held the funds outlined and described in the bank statement. As the funds actually held in the account did not match the funds described in the bank statement, the delegate found that the applicant had provided fraudulent and false information to the Department. The delegate also found that there were no compelling and compassionate circumstances which would justify waiving PIC 4020. Consequently, the delegate found that the applicant did not satisfy PIC 4020 and, therefore, cl.572.224(a) of sch.2 to the Regulations for the grant of the visa.

Proceedings before the Tribunal

1. On 22 April 2015 the applicant applied to the Tribunal for a review of the delegate’s decision.  At a hearing on 9 January 2014 the applicant provided to the Tribunal a written submission in which his representatives claimed that in the process of preparing the 8 December 2012 statement a clerk at the bank had made typing errors in relation to the applicant’s father’s name and his father’s account number.  It was submitted that as a result of those errors, when the Department conducted its integrity checks it gave the bank the wrong name and account number and so the bank was unable to verify the correct account balance.  The applicant also said that he had contacted the bank and it had confirmed that the statements were correct but he conceded that he had no corroborative evidence to support that claim.

2. In considering the applicant’s claims and evidence, the Tribunal noted that:

   a)at no point did the applicant or his representative address the “key issue” of the inflation of the funds said to have been held in the account;

   b)the transactions and balances displayed in the two bank statements were identical, raising concerns as to the genuineness of both documents;

   c)it gave weight to the results of the integrity checks carried out by the Department in Australia and overseas and accepted that the discrepancies between the document provided by the applicant and the advice from the Bangladesh Krishi Bank to Australian officials about the true history of the balances was evidence that the document dated 5 December 2012 was a bogus document; and

   d)the requirements of PIC 4020(1) applied whether or not the document in question was provided knowingly or unwittingly.

3. The Tribunal found that the 5 December 2012 statement was false and therefore a bogus document under s.97(b) of the Act. As a consequence, the Tribunal was satisfied that, in support of his application, the applicant had given or caused to be given to the Minister a bogus document and that he therefore did not meet the requirements of PIC 4020(1). The Tribunal went on to consider whether PIC 4020 should be waived, but was not satisfied that there were any compelling or compassionate circumstances which would justify waiving its requirements. As the applicant did not satisfy PIC 4020, the Tribunal affirmed the decision of the delegate not to grant the applicant a subclass 572 visa.

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.The second respondent has made a jurisdictional error by failure to find that the alleged bogus bank statement submitted to the department was very likely innocent, unintended or accidental matters or likely genuine documents.

   Particulars

   a.It was alleged that the visa applicant had given, or caused to be given a bogus bank statement to support his student visa application, which was issued to his father, Md Khyrul Kabir on 05/12/2012.

   b.The statement has incorrectly spelt his father’s name as Md Khairul Kabir and the bank account number given in the statement was not his father’s, and the second respondent appeared to have accepted them as an error made by the bank clerk, and there was no element of purposely untrue.

   c.However, the alleged bogus statement showed the balance of the account as 39,17,524.23, and the integrity checks conducted by the department were told that the balance listed and available balances listed were greatly in excess of the funds actually available.

   d.In response, the applicant has given a “correct” bank statement with the correct spelling of his father’s name and his correct bank statement, and the statement showed that the balance of the account as 37,66,477.38 with the identical transactions.

   e.The two statements themselves stated that they were generated by the computer, though they were also sealed by the bank clerk’s details.

   f.In response to the alleged inflated fund of the statement at the hearing, the applicant said that the bank confirmed that the two statements were correct.

   g.The applicant said that the alleged inflated amount was not necessary for his visa application, as he had sufficient documents showing his financial ability for study.

   h.There was no evidence to show that the statements were not issued by the bank, nor was there evidence that the checks conducted were relevant to the correct bank account and the correct account holder, or verification had been done to the correct bank account and the correct account holder when submitted.

   i.If the funds in excess, was it possible that the documents were generated incorrectly by the computer?

   2.The second respondent made a jurisdictional error by basing no evidence to hold that the bank statement issued to his father on 5 December 2012 was a bogus document.  

   Particulars

   a.There was no evidence to show that the bank statement was not issued to his father, though it contained errors including wrong spelling of his name and his bank account number given incorrectly.

   b.There was no evidence to show that the bank statement is a counterfeit or has been altered by a person who does not have authority to do so, though it was alleged that the balance of the account was in excess of the balance actually available.  It was genuinely issued by the Bangladesh Krish Bank.

   c.There was no evidence to show that the bank statement was obtained because of a false or misleading statement, whether or not made knowingly.  The document was generated by the computer.  It means that it was not a statement given by a person but a business record.  

   3.The second respondent acted unreasonably in holding that the bank statement issued to his father on 5 December 2012 was a purposely untrue document.

   Particulars

   a.The document was generated by the computer.

   b.The document was again sealed by the bank clerk at the request of the applicant, reaffirming that the document was generated by the computer.

   c.As the documents were generated by the computer and are business records, they would not like to make more comments when asked for an explanation, simply relying to the client that they had been unaware of any approach by the Australian authorities, and two statements were correct.

   d.However, the tribunal preferred the evidence of integrity check to the business record.

Ground 1

1. The first ground of the amended application alleged that the Tribunal made two critical mistakes.  One was said to be a failure to find that the 5 December 2012 bank statement was probably genuine and the second was said to be a failure to find that the submission of that document lacked an intention to mislead.

2. In relation to the first of these asserted mistakes, the applicant’s complaint does not rise above a disagreement with the Tribunal’s fact finding.  It was not suggested that the finding that the 5 December 2012 bank statement was bogus was entirely unsupported by evidence or illogical or unreasonable in the sense described in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. The applicant did say in the second particular of this allegation that there was no evidence that the statement was not issued by the Bangladesh Krishi Bank, the implication presumably being that if it had been issued by the bank then it could not have been falsified.  However, if that was the case the applicant wished to make, then it was for him to put evidence to that effect before the Tribunal but he did not.  In the absence of such material, the evidence in the Tribunal’s possession which was relevant to whether the statement was genuine was the results of the Department’s integrity checks and the applicant’s evidence about the history of the document.  It was open to the Tribunal to find on that evidence that the document was bogus even though its provenance was not determined.

3. The second mistake alleged to have been committed by the Tribunal, not finding that the submission of the 5 December 2012 bank statement lacked an intention to mislead, was an invitation to undertake impermissible merits review.  As a consequence, it does not demonstrate jurisdictional error on the Tribunal’s part.

Ground 2

1. The second ground of the amended application was to the effect that the Tribunal committed a jurisdictional error in concluding that there was evidence that the 5 December 2012 bank statement was bogus. That is not correct. The integrity checks conducted by the Minister’s department and to which the Tribunal gave weight were evidence that the 5 December 2012 statement was not genuine. It was therefore open to the Tribunal to find, as it did, that the document was bogus in the sense described in s.97(b) of the Act, namely that it was “counterfeit or [had] been altered by a person who [did] not have authority to do so”.

Ground 3

1. For the reasons given in relation to the second ground of the further amended application, the third ground is also not made out.  Further in this regard, it is to be recalled that the Tribunal described the 5 December 2012 statement as fraudulent.  It can be inferred from that observation that the Tribunal considered it to have been purposely untrue.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 3 March 2016