Aziz v Minister for Immigration

[2017] FCCA 2694

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZIZ v MINISTER FOR IMMIGRATION [2017] FCCA 2694

Catchwords:
MIGRATION – Review of departmental decision – refusal to permit applicant to reinstate a withdrawn visa application – withdrawal made by the applicant’s sponsor acting with ostensible authority – no reviewable legal error.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: ZAFAR AZIZ

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 749 of 2016

Judgment of: Judge Driver

Hearing date: 3 November 2017

Delivered at: Sydney

Delivered on: 3 November 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms R Francois

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application as amended orally in court by leave on 3 November 2017 is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 749 of 2016

ZAFAR AZIZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Aziz, seeks judicial review of a purported decision of the Minister’s Department to refuse to permit him to cancel what purported to be a withdrawal of a carer visa application made by him. 

2. There was an initial question whether the Court had any jurisdiction in the matter and whether the application was competent. Mr Aziz was not legally represented in these proceedings, and I permitted him to amend his application orally so that it became an application to review decisions by officers of the Minister’s Department made on 8 and 10 March 2017 that it was not possible for Mr Aziz to retract what purported to be his withdrawal of his visa application. I am satisfied that I have jurisdiction under s.476 of the Migration Act 1958 (Cth) to review those decisions.

Background

1. Background facts relating to the matter are set out in the Minister’s outline of submissions filed on 27 October 2017. 

2. Mr Aziz is a 51 year old male citizen of Pakistan who first obtained a student visa in 2010[1] and currently resides in Australia[2].  Mr Aziz seeks to care for his 48 year old nephew[3] and it is accepted that his nephew needs care[4].

   [1] Court Book (CB) 35

   [2] CB 1

   [3] CB 23

   [4] CB 94, cf CB 49 – 50

3. On 16 April 2015, Mr Aziz lodged the application for the carer visa[5].

   [5] CB 1 – 57

4. During the period between April 2015 and February 2016, the Minister’s Department corresponded with Mr Aziz about the application, including in relation to a fraudulent document[6].

   [6] CB 82, 140, 141 187 – 223

5. On 3 March 2016 at 12.34pm, the Minister’s Department received an email apparently from Mr Aziz withdrawing his application[7].  On 3 March 2016 at 7.23pm the Minister’s Department received an email attaching copy of a letter apparently from Mr Aziz withdrawing his application[8].

   [7] CB 226

   [8] CB 224 – 225

6. On 4 March 2016, the Minister’s Department emailed Mr Aziz’s migration agent and acknowledged the withdrawal of the application[9].

   [9] CB 228

7. On 6 March 2016, Mr Aziz emailed the Minister’s Department and said he did not wish to withdraw his application and apologised for the inconvenience[10].

   [10] CB 232.9

8. On 8 March 2016, the officer informed Mr Aziz that it “was not possible to retract the withdrawal”[11].

   [11] CB 232.5

9. On 8 March 2016, Mr Aziz responded and alleged that his nephew forged his signature and withdrew the application without his knowledge[12].

   [12] CB 232

10. On 10 October 2016, the officer again informed Mr Aziz that it was unable to “undo” the withdrawal “because the migration regulations prevent the department from doing so” and that, based on the Minister’s Department’s analysis, his signature did not appear to be forged[13].

    [13] CB 234

The present proceedings

1. I have before me a substantial body of evidence.  In addition to the court book filed on 3 June 2016, I received the affidavit by Mr Aziz in support of his application as well as three affidavits of service of documents[14].  The application itself has a number of other documents attached to it[15].  I also received the following additional exhibits:

   a)a subpoena filed by the Minister’s Department on 26 October 2017 (exhibit R1);

   b)a sheet of paper with the applicant’s handwriting in block letters (exhibit R6);

   c)a sheet of paper with the applicant’s handwriting in cursive letters (exhibit R7);

   d)a sheet of paper with the applicant’s handwritten address (exhibit R9); and

   e)a sheet of paper with the applicant’s handwritten list of housemates (exhibit R10).

   [14] Exhibits R2-R4

   [15] Exhibit R8

2. This was an unusual judicial review proceeding in that there was a substantial amount of evidence received, including the extensive cross-examination of Mr Aziz by counsel for the Minister.  I surmise that the initial purpose of that cross-examination was to test the fundamental assertion of Mr Aziz that he was not the author of the notice of withdrawal of his visa application and that that was done, in fact, by his nephew. 

3. What emerged during the course of cross-examination was something more fundamental and surprising.  With very few exceptions, Mr Aziz denied that signatures purporting to be his in the court book were his.  He asserted that his nephew had signed his name and wrote documents on his behalf which, on their face, purported to be documents prepared by Mr Aziz. 

4. The picture that emerged was one in which Mr Aziz gave to his nephew effectively unfettered authority to sign his name and prepare and submit documents on his behalf in relation to the visa application.  It appears, based on the evidence of Mr Aziz, which I accept, that this arrangement came unstuck when someone submitted a fabricated medical statement.  That was detected by the Minister’s Department, which invited comments on it.  Mr Aziz consulted solicitors and corresponded with the Minister’s Department.  It appears that there was a criminal proceeding in which Mr Aziz was ultimately acquitted.  I am willing to accept that someone other than Mr Aziz submitted a fraudulent document in support of the visa application. 

5. Mr Aziz gave frank evidence, which I accept, that the relationship between him and his nephew became increasingly strained.  There were many arguments, and Mr Aziz left his nephew’s home and has not returned to live here.  Indeed, there has been very little contact between Mr Aziz and his nephew over the last 18 months.  Mr Aziz is unwilling to return to his nephew’s home to live there or to resume their former arrangements unless his fundamental concerns about what he says his nephew did are addressed.

6. Mr Aziz never revoked the authority he gave his nephew to control the visa application process.  It follows that while I accept his evidence that it was his nephew rather than he who withdrew the visa application, I find that this was done in accordance with the authority Mr Aziz had given his nephew.  That being so, it was not open to Mr Aziz to later countermand and retract the withdrawal.  Further, the withdrawal was consistent with and reflected the breakdown in relations between Mr Aziz and his nephew.  It would seem that at the point the visa application was withdrawn, the propositions needed to support a carer visa application were no longer available. 

7. For these reasons, I am not persuaded that the decisions made by the Minister’s Department in relation to the withdrawal of the visa application are attended by any reviewable legal error.  I will accordingly order that the application be dismissed.

8. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Aziz did not wish to be heard on the question of costs. 

9. I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,825.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 November 2017