Chowdhury v Minister for Immigration

[2017] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOWDHURY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2606

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of the Minister for Immigration and Border Protection not to grant the applicant a Student Temporary (Class TU)(subclass 573) visa – whether Tribunal afforded applicant fair opportunity to present his case – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 499

Migration Regulations 1994 (Cth), Schedule 2, cl. 573.223

Applicant: ABDUL ALIF CHOWDHURY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2108 of 2016

Judgment of: Judge Manousaridis

Hearing date: 19 October 2017

Date of Last Submission: 19 October 2017

Delivered at: Sydney

Delivered on: 19 October 2017

REPRESENTATION

Applicant in person.

Solicitors for the First Respondent:

Ms E Cheesman of

Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s cost set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2108 of 2016

ABDUL ALIF CHOWDHURY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister), not to grant the applicant a Student Temporary Class TU (subclass 573) visa (Student visa).

2. By way of background the applicant is a citizen of Bangladesh. He arrived in Australia on 5 July 2012 as the holder of a student visa that expired on 31 August 2015. On 17 August 2015 the applicant applied for a Student visa. On 6 November 2015 a delegate of the Minister refused to grant the applicant the Student visa because the delegate was not satisfied, having regard to the applicant’s circumstances, immigration history and other relevant matters, that he met the genuine temporary entrant criterion and therefore did not meet the requirements of cl.573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

3. Subclause 573.223(1) of Schedule 2 to the Regulations provided as follows:

   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant meets the requirements of subclause (2).

4. On 24 November 2015 the applicant applied to the Tribunal for review of the delegate’s decision. The issue the Tribunal considered it had to determine was whether the applicant met at the time of decision the criterion prescribed by cl.573.223 of Schedule 2 to the Regulations. In determining that question the Tribunal considered it was required to have regard to direction number 53 made under s.499 of the Migration Act 1958 (Cth) (Act).  The Tribunal noted“[t]his Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·   the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·   the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·   if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·   any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.[1]

   [1] CB204, [8]

5. The Tribunal noted that the factors set out in the direction should not be used as a checklist but rather as a guide decision makers should use to weigh up the applicant’s circumstances as a whole when deciding whether the applicant satisfies the genuine temporary entrant criteria.

6. The Tribunal in its reasons found that the applicant “has shown a total disregard for the visa requirements of the visa he currently holds”.  It relied on a number of matters. 

   a)First, the Tribunal found the applicant’s applying subject credits as he had for the course did not illustrate a robust or genuine participation in the international student program, but instead reflected a personal self-serving ability to be skilled in participating in and undertaking courses which demand as little input as conceivably possible.

   b)Second, the Tribunal found the applicant was unable to provide any plausible or convincing reason why the applicant cancelled seven courses in the four years he had been in Australia, or why the applicant had spent so little time participating in registered courses. The Tribunal so found because the applicant’s explanation that he cancelled courses that were not suited to him were not supported by any “substantial, identifiable reasons.”[2]

   c)Third, the Tribunal found the applicant’s actual participation in only 14 months of study over the previous four years, with the exception of the current course at the time of the Tribunal decision, was reflective of someone who is using the temporary student entry program for purposes other than study. 

   d)Fourth, the Tribunal referred to a five-month gap in the applicant’s period of study in 2014 and found the applicant’s lack of any convincing or plausible reason for the substantial gap is not indicative of a genuine temporary student entrant. 

   e)Fifth, the Tribunal did not accept, taking into account all of the circumstances, that it was a coincidence the applicant enrolled in the lesser duration course four weeks before he lodged his application for the student visa, and the Tribunal was of the view this was an intentional attempt by him to overcome any “charge of genuineness,” and his poor attendance and poor academic record.

   [2] CB206, [19]

7. Having considered the applicant’s circumstances, immigration history and other relevant matters, the Tribunal was not satisfied the applicant intends genuinely to stay in Australia temporarily and therefore did not meet cl.573.223(1)(a) of Schedule 2 to the Regulations.

8. I then move to the grounds of review. In the application that was filed under the heading “Grounds of Application for Extension of Time” the application states, “See affidavit attached to the application form.”  That is a reference to an affidavit the applicant filed when he filed the application.  In that paragraph the following is stated:

   On July 5th 2016 Migration Review Tribunal (MRT) has made a decision of my application for review (see attached annexure A).  I feel the tribunal officer has not given me a fair chance to review my application so I believe MRT made an unfair decision on my application for review.

9. The applicant, who is not legally represented, made submissions before me.  He began by making a number of statements which I understood were aimed at explaining why there were gaps in his enrolment, and why there were cancellations in his courses.  As he proceeded to make these statements I asked the applicant whether the matters he was putting to me were matters he had put to the Tribunal.  The applicant said not all of them were matters he had put to the Tribunal.  I then explained to the applicant that the role of this Court is restricted to determining whether the Tribunal considered the applicant’s case properly, by which I mean according to law. I indicated to the applicant that to the extent he was relying before me on statements that he had not put to the Tribunal, those statements could not show that the Tribunal failed to properly conduct its review of the applicant’s case.

10. And it is appropriate that I state the general legal notion that is involved in determining whether a Tribunal has undertaken its review according to law, and that is jurisdictional error. The expression “jurisdictional error” is the conclusion that is employed whenever a court concludes that a tribunal has not undertaken its review according to law. 

11. I then directed the applicant to the grounds stated in his affidavit.  Here the applicant made two broad submissions. First, the applicant said that, because it was the first time he appeared before the Tribunal, he was nervous and he was unable to explain everything he wanted to say to the Tribunal. When I asked the applicant whether he asked for an adjournment he said he did not know that it was something that he could do, not being a lawyer or not having a lawyer. Secondly, the applicant said the Tribunal member interrupted him. I asked the applicant whether he could remember what he was interrupted from saying. He said initially he could not. Later in the course of submissions he said he was interrupted two or three times by the Tribunal member.  He said the Tribunal member repeatedly asked him about the education gap to which I have already referred.

12. The difficulty with the applicant’s submissions is that there is no evidence of the transcript of what went on before the Tribunal. The applicant, at least before me, indicated an awareness that the hearing before the Tribunal was recorded but there is no suggestion he sought to obtain a recording of the hearing. That there is no evidence of a transcript and therefore there is no basis on which the Court can assess the submissions the applicant makes, is not a matter which in my opinion works any unfairness or injustice on the applicant. On 27 October 2016 directions were made which included a direction that, by 16 December 2016, the applicant file and serve any affidavit containing additional evidence on which he intends to rely including a transcript of the Tribunal hearing. The applicant has had an opportunity at the very least to obtain a recording and if necessary a transcript of the hearing before the Tribunal. I can understand that the cost of the transcript can be a barrier to obtaining a transcript, but I do not understand there to be a barrier to the applicant’s having obtained a copy of a recording of the hearing. If the applicant has a genuine concern about what occurred at the hearing, and in particular a concern that he was not dealt with fairly, it is reasonable to expect that the applicant would have explored his concerns by at the very least seeking an audio copy of the recording.

13. There being no transcript of the hearing before the Tribunal means that the only evidence of what occurred before the Tribunal is the Tribunal’s reasons for decision. Those reasons show that the Tribunal put to the applicant the concerns it had with the applicant’s meeting the criteria prescribed by cl.573.223(1)(a). In particular, the Tribunal asked the applicant questions about the very matters on which it relied to affirm the delegate’s decision. The Tribunal’s reasons indicate that the applicant responded to the questions put to him which in turns indicates that the applicant understood or at least was in a position to understand the questions, and he was in a position to answer them. Unfortunately for the applicant, the answers or most of the answers the applicant gave were not such as to persuade the Tribunal member to be satisfied of that which was conveyed by the applicant’s answers. 

14. There is another aspect concerning the applicant’s claim that there was unfairness in the hearing. Although a hearing before the Tribunal given by s.360 of the Act is an essential aspect of an applicant’s opportunity to make submissions and present evidence to the Tribunal, in this case the applicant took the opportunity to make submissions in writing both before the delegate and the Tribunal. These were submissions that were before the Tribunal. In the case of the Tribunal, the applicant provided written submissions on 26 April 2016 and these are to be found at page 83 of the court book. Those submissions, short as they are, indicate that the applicant was aware that the issue that had to be decided by the Tribunal and about which he was making submissions was whether or not he was a genuine student. In that respect the submissions refer to “The case officer of my initial visa application” (by which I understand to be a reference to the delegate) having “accused” the applicant of not being a genuine overseas student. The submissions indicate that the applicant was aware that the basis of that “accusation”, as he described it, was due to his enrolment history and academic history. And the applicant attempted to explain that in his submissions.  The point of my referring to that is that the hearing before the Tribunal was not the only opportunity the applicant had to present his explanation.  He was aware beforehand what the issues were and he took that opportunity to provide submissions about them. The submissions, as I have said, were considered by the Tribunal but, unfortunately for the applicant, for reasons that were reasonably open to the Tribunal, the Tribunal did not accept them.

15. For these reasons I cannot be satisfied that the applicant was in any way prevented or deterred from responding to the Tribunal’s questions or being in a position to put before the Tribunal all matters that he was in a position to put as to why he was a genuine student.  In my opinion, and as I already noted, the Tribunal put to the applicant questions that related to the very matters on which the Tribunal relied for affirming the decision of the delegate. 

16. There being no other ground on which the applicant relies, I am satisfied that the ground on which he does rely fails and it follows that the application will be dismissed, and I will make an order to that effect.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  26 October 2017