Faisal Ahmed v Minister for Immigration

[2013] FCCA 301

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAISAL AHMED v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 301

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the applicant provided evidence of an acceptable source of funds from an acceptable individual to support his studies in Australia in accordance with the Schedule 2 of Subclass 573 and Schedule 5A of Part 5 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), Pt. 8 Div. 2, ss.359A, 424A, 474.

Migration Regulations 1994 (Cth) Sch. 2, reg.573.223, cl.5A505

Cases cited:
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

Applicant: FAISAL AHMED 

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2008 of 2012

Judgment of: Judge Emmett

Hearing date: 16 May 2013

Date of Last Submission: 16 May 2013

Delivered at: Sydney

Delivered on: 16 May 2013

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2008 of 2012

FAISAL AHMED

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 23 August 2012 and handed down on 24 August 2012 (“MRT”).

2. The issue in this case is whether the applicant provided evidence of an acceptable source of funds from an acceptable individual to support his studies in Australia in accordance with the requirements of his visa. This issue is considered below in the context of considering whether the MRT’s decision is affected by jurisdictional error.

Background

1. The applicant claims to be a citizen of Bangladesh.

2. On 23 April 2010, the applicant lodged an application for a Student (Temporary) (Class TU) visa with the Department of Immigration and Citizenship (“the Department”) under s.65 of the Act.

3. On 27 May 2010, the Delegate refused the applicant’s application for the visa.

4. On 16 June 2010, the applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.

5. On 23 August 2012, the MRT affirmed the decision of the Delegate not to grant the visa.

6. On 17 September 2012, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Having regard to the applicant’s enrolment, the relevant subclass of the Student (Temporary) (Class TU) visa applied for by the applicant is the Subclass 573 Higher Education Sector.

2. Pursuant to reg.1.41 of the Migration Regulations 1994 (Cth) (The Regulations) , the relevant criteria for the grant of a Subclass 573 visa is set out in reg.573 of Schedule 2 to the Regulations which relevantly stated at the time of the lodgement of the visa, at cl.573.223:

   “573.223     

   (1)   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

   (2)   An applicant meets the requirements of this subclause if:

   …

   (a) (iii)   the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or…”

3. Clause 5A505 of Schedule 5A, Part 5 of the Regulations provides that an applicant must give evidence that the applicant has funds from an acceptable source that are sufficient to meet specified expenses.

4. Funds from an acceptable source include a money deposit held by an acceptable individual, or a loan from a financial institution made to and held in the name of an acceptable individual (see cl.5A505(1)(a), (2)).

5. An acceptable individual includes an uncle or aunt of an applicant.

The Delegate’s decision

1. On 27 May 2010, the Delegate refused the applicant’s application for a Student (Temporary) (Class TU) visa on the basis that that he had not satisfied the prescribed criteria for any subclass within the Student (Temporary) (Class TU) visa.

The Tribunal’s review and decision

1. On 16 June 2013, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. The applicant provided further documents in support of his review application.

3. On 12 April 2012, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 9 May 2012 to give oral evidence and present arguments.

4. On 9 May 2012, the applicant attended the MRT hearing and gave evidence.

5. The MRT explored the applicant’s claims with him at the hearing and put to him matters of concern it had about his evidence. At the conclusion of the hearing, the MRT told the applicant that it would undertake its own enquiries regarding his financial situation and study record.

6. On 3 July 2012, the MRT wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it (“the s.359A Letter”). The s.359A Letter gave particulars to the applicant that documents, being alleged bank statements from banks in Bangladesh, have been found by checks undertaken by staff at the Australian High Commission in Dhaka to be “non genuine”. The s.359A Letter informed the applicant that the Tribunal may conclude that if the applicant had access to funds from an acceptable source sufficient to satisfy the requirements of cl.5A505, there would have been no need for the applicant to submit non-genuine documents.

7. On 13 August 2012, the applicant responded to the MRT, providing a number of documents, however he made no reference to the adverse information specified in the s.359A Letter. Relevantly, the documents included 2 sponsor documents in relation to financial support for the applicant identified by each of those persons as “a distant nephew”.

8. The MRT noted that the applicant had not addressed the issue of the alleged bank documents genuineness in response to the s.359A Letter, and accordingly concluded that the alleged bank documents were not genuine. Based on that conclusion, the MRT stated that it gave those documents no weight.

9. In relation to the financial support statements from the two individuals who described the applicant as a “distant nephew”, the MRT found that there was no evidence of the relationship between those persons and the applicant beyond the description in the statements. In the circumstances, the MRT was not satisfied that either individual is the uncle or aunt of the applicant, because it found that the use of the word “distant” indicated a relationship more remote than that of an uncle or aunt.

10. Accordingly, the MRT concluded that the applicant did not have an acceptable source of funds from an acceptable individual for the purposes of cl.5A505. The MRT concluded that the applicant did not satisfy the requirements of Schedule 2 to the Regulations.

11. Further, the MRT noted that there was no evidence before it to enable the MRT to be satisfied that the applicant meets the criteria for any of the other Student (Temporary) (Class TU) visa classes.

12. Accordingly, the MRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court.

2. On 28 November 2013, the applicant attended a directions hearing before a Registrar of this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support.

3. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also provided with a copy of the applicable costs schedule of the Court.

4. At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further relevant documents to present to the Court this morning in support of his application.

5. The applicant confirmed that he relied on the grounds contained in the application filed on 17 September 2012 as follows:

   “1. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral evidence.

   2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving me the opportunity to submit my explanations for any adverse information that the tribunal may have. If I would be given the opportunity to explain that could have led to a different decision by the tribunal.

   3. The tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an apprehension of bias in the making of the purported decision.”

6. The applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The applicant made no relevant submission in support of any of the grounds other than to say that he wished to continue to live in Australia.

Ground 1

1. Ground 1 asserts that the MRT exceeded its jurisdiction or constructively failed to exercise its jurisdiction by failing to take into consideration the applicant’s oral evidence. The assertion is unsupported by particulars, evidence, oral or written submissions.

2. A fair reading of the MRT’s decision record makes clear that the MRT explored the applicant’s claims with him at a hearing, and took his oral evidence into account in so far as it was relevant. There is nothing otherwise on the face of the MRT’s decision record to suggest that the MRT failed to consider the applicant’s oral evidence or that the MRT exceeded its jurisdiction or failed to exercise its jurisdiction.

3. There was no transcript of the MRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the MRT’s decision record is not accurate. At the directions hearing on 28 November 2012, the applicant was given an opportunity to file a transcript of the MRT hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the MRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the MRT hearing. The Court is entitled to accept the MRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the MRT exceeded its jurisdiction, failed to exercise its jurisdiction and denied the applicant procedural fairness by not giving the applicant and opportunity to explain adverse information. The ground was otherwise unsupported by particulars, evidence, or written or oral submissions.

2. If by Ground 2 the applicant was intending that his complaint related to the MRT’s finding that the alleged bank statements from Bangladesh were not genuine, that information was the subject of a s.359A Letter, the details of which are referred to above.

3. The information contained in the s.359A Letter was clearly put to the applicant in accordance with s.359A of the Act. The information related to a report obtained from the Australian High Commission in Dhaka that the alleged bank statements from Bangladesh were not genuine. The MRT gave that information and a copy of the report to the applicant for comment in accordance with s.359A of the Act. The s.359A Letter explained the relevance of the information to the applicant and the consequences of it being relied upon by the MRT (see paragraph 20 above in these reasons).

4. Two responses were received from the applicant’s migration agent. Neither response addressed the information in the s.359A Letter. One of the responses, dated 9 August 2012, provided, inter alia, financial support statements from two individuals in an attempt to satisfy cl.5A505 of the Regulations that the applicant has funds from an acceptable source, being money or a loan held by an acceptable individual. As stated above, the MRT did not accept that the identified individuals were “acceptable individuals” in that it was not satisfied that they were an uncle or aunt of the applicant as required by the Regulations. The MRT was not satisfied that the description of the applicant as a “distant nephew” of the identified individuals was evidence that the individuals were the uncle or aunt of the applicant. The MRT found that the use of the word “distant” indicated a relationship more remote than that of an uncle or aunt and that there was no other evidence before it of the relationship between those individuals and the applicant.

5. If the applicant was suggesting that the adverse information not given to him was the MRT’s finding that it was not satisfied that the applicant’s sponsors were his uncle or aunt, there was no obligation on the MRT to give that information to the applicant for comment. First, the description of the relationship of the applicant to the sponsors as a “distant nephew” was given to the MRT by the applicant for the purposes of its review. In the circumstances, it was not information that otherwise enlivened any obligation under s.359A of the Act. Secondly, the MRT’s finding that it was not satisfied that the individuals were the uncle and aunt of the applicant is no more than an assessment by the MRT of the evidence before it.

6. There was no other information before the MRT and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the MRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the MRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

7. The MRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. In the circumstances, the applicant was given an opportunity to address adverse information. No further explanation was provided by the applicant or his migration agent on the report that found his alleged Bangladesh bank statements not to be genuine.

9. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the MRT denied the applicant natural justice and was biased or there was an apprehension of bias by the MRT. The ground was otherwise unsupported by particulars, evidence, or written or oral submissions.

2. A claim of bias is serious and requires evidence, such as a transcript of the MRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the MRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

3. A fair reading of the MRT’s decision does not disclose any prejudgment on the part of the MRT in the sense that the MRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

4. A fair reading of the MRT’s decision does not suggest that the MRT approached its task other than with a mind open to persuasion. Further, there is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the MRT, might reasonably apprehend that the MRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

5. Accordingly Ground 3 is not made out.

Conclusion

1. A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the Applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The MRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  16 May 2013