Faruque v Minister for Immigration

[2015] FCCA 386

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARUQUE & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 386

Catchwords:
MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant applicants Student (Temporary) (Class TU) visas – financial document in support of visa applications given that was found to be false or misleading in a material particular – no reviewable error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.572.224 of Schedule 2, Public Interest Criterion 4020

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169

First Applicant: ROKSANA FARUQUE

Second Applicant: SHAHRIER SHAOWN

Third Applicant: RAFAEL AZAD SHAHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2668 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 10 February 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

The Applicant: The First Applicant appeared in person with a Bengali interpreter.

Solicitor for the First Respondent: Mr L Dennis of Sparke Helmore

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2668 of 2014

ROKSANA FARUQUE

First Applicant

SHAHRIER SHAOWN

Second Applicant

RAFAEL AZAD SHAHAN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 25 September 2014 by the first applicant, Roksana Faruque, the second applicant, Shahrier Shaown, and the third applicant Rafael Azad Shahan, seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member T. Delofski on 29 August 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicants Student (Temporary) (Class TU) visas.

2. The representatives of the Minister filed on 23 December 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.

Background

1. In setting out the following background material I have quoted directly from the Court Book and Minister’s written submissions. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. The applicants, citizens of Bangladesh, applied for Student (Temporary) (Class TU) visas on 27 February 2013 (CB 1). On 19 December 2013, a delegate for the Minister refused to grant the visas on the basis that the applicant did not satisfy Public Interest Criteria (PIC) 4020, and consequently failed to satisfy cl 572.224 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) (CB 73). On 7 January 2014, the Tribunal received an application for review of the delegate’s decision (CB 80). On 29 August 2014, after a hearing held on 27 August 2014, the Tribunal affirmed the decision under review (CB 110, 115).

Tribunal’s decision

1. The Tribunal identified that the relevant issue on review was whether the applicant satisfied cl 572.224 of Schedule 2 to the Regulations (CB 117 at [8]). That clause required that the applicants satisfied PIC 4020 at the time of decision. PIC 4020 relevantly required that:

   There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister…a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

2. The Tribunal then set out the relevant law (CB 117 at [7]-[8]). In particular, s.97 of the Migration Act which defines “bogus document”; and the authority for the proposition that “[w]hile PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or Tribunal on review) to conclude that the applicant was aware the information was purposely untrue for PIC 4020 to be engaged”: Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 at [54].

3. The Tribunal referred to the delegate’s decision record in which the delegate found that the first applicant did not meet PIC 4020(1) because a bank statement in her husband’s (the second applicant) name “was referred to the appropriate overseas post for verification” and the post was “advised by the bank that the balances and transactions shown on the supplied statement did not match the bank’s records” (CB 117 at [9]).

4. The Tribunal recounted what the first applicant said about the bank statement at the hearing (CB 117 at [10]). The first applicant told the Tribunal that the bank statement had been “provided to the Department on their lawyer’s advice” and that “they had never used the account and had been shocked” when the Department told them the results of the verification efforts (CB 117 at [10]).

5. The Tribunal then concluded that the applicants did not meet PIC 4020 because it was satisfied the first applicant gave the Department information that was “false or misleading in a material particular” (CB 117 at [11]).

6. Pursuant to PIC 4020(4), the Tribunal proceeded to consider whether there were any compelling or compassionate circumstances that would warrant the waiver of PIC 4020(1). The Tribunal set out the applicants’ submissions in this regard (CB 17-18 at [13]), Then, after considering that evidence, the Tribunal concluded that it was not satisfied there were compelling or compassionate circumstances justifying a waiver of PIC 4020(1) (CB 18 at [14]).

7. The Tribunal found that the applicants did not meet PIC 4020 and consequently failed to satisfy cl 572.224 of Schedule 2 to the Regulations. On 29 August 2014, the Tribunal affirmed the decision under review (CB 115).

Current Proceedings

1. The application before the Court pleads the following grounds of review:

   1.  Affidavit Attached

   2.  Migration Review Tribunal failed to consider my Circumstance into Account in its decision (Affidavit Attached)

   3.  Migration Review Tribunal failed to consider the relevant fact of my circumstance which was critical in reaching the decision (Affidavit Attached)

2. The Affidavit of the first applicant filed on 25 September 2014 relevantly states:

   1.     That I have a husband Shahrier Shaown and a son Rafael Azad Shahan, born in Australia as dependants on my student Visa.

   2.     The MRT refused my visa on the basis that my husband’s financial statement was false and it was misleading in relation to the approval of my primary application.

   3.     I was unaware of this false financial circumstance as his wife and from a cultural point of view, it was not my function to question my husband’s intention.

   4.     We have a son born to us on 21^st January 2012 and we have plans to settle him to Australian way of life.

   5.  Our son Rafael as for as we are concerned deserves to be brought up here where he will be able to have a much better life than in Bangladesh.

   6.     We ourselves have come here to better our future except for what has happened about the financial determination.

   7.     My husband Shahrier is a qualified chef with a diploma in Hospitality Management from Metro College.

   8.     Shahrier has lived here in Sydney for the past 12 years and lives an Australian way of life and I for 6 years.

   9.     He is presently employed full time as a chef with Frank & Beau, a Mexican restaurant in Majhrka Park, ACT and in Machabah restaurant in Manuka, ACT.

   10.    He earns a weekly income of $1000 which keeps us living a moderate level.

   11.    I also am Qualified in hospitality sector with a diploma in Hospitality Management from Metro College.

   12.    My husband has 2 Australian Citizens who would be disadvantage in the event he is unable to continue being in employment with them as he is highly qualified chef in Mexican and Turkish Cuisine.

   13.    My husband is very close to his father’s friend Abu Zafar who is an Australian citizen and is part of our family.

   14.    We are a family who will be an asset to the Australian community and meet the Public interest criterion to be waived on compelling grounds.

   15.    I seek to be allowing for my family to remain in Australia.

   …

3. At the first court date direction hearing, the application was set down for a show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth).

Applicants’ Submissions

1. The applicants filed written submissions on 20 January 2015.  These submissions state:

   Already I had explained all real facts to the MRT hearing, regarding my case for kind consideration of my case by a judgement in favour of me, my husband and child.

   Now I am appealing to you for defending me again with an appeal for you kind consideration as those were not considered by MRT Decision.  These are mentioned below:

   1.  For misleading documents of Prime Bank of Bangladesh, all liabilities goes to that bank as I had just submitted that bank statement for my student visa only, not for any financial benefit of myself.  Moreover I showed most of the amount which cover my study expense.  I have told to the honourable judge that I was not aware about the statement which prime bank provided me.  After that incident I complained against the bank manager and closed my account in that back.

   2.  My husband is a qualified chef and got 10 years of experience of work in Australia.  Now he is working in a well known café restaurant and earns good amount to lead a beautiful life in Australia.  I used to work in one of my uncle’s business and doing good there as well.  My only one innocent son who was born here in Australia is now started his pre school.

   Your Honour I mentioned those facts to The honourable judge that if we do not able to live here we will be socially ruined and our innocent child’s life will be ruined and he will be deprived from the beautiful Australian way of life.

   3.  I mentioned that there are 2 (two) Australian Citizens who will be in trouble for business management.  I have attached their statement, besides I have one New Zealand citizen friend with whom I used to do community work he also gave statement about me.

   4.  Your Honour I also mentioned during my MRT hearing that I had applied for 457 visa which I had to withdraw because of my case though I have skill to work in Australia and have proper IELTS score (6 individually).

   5.  Your Honour I have every trust and honour on your honourable court for reviewing my case.  For the mistake/faults/negligence were happened by me I apologies for these unconditionally and I here by declare that in future I will not submit any document without proper cross checking.

   6.  For the above mentioned points I hope kindly you will impose DOCTRINE OF NECESSITY for me to stay in Australia.  I hope and pray to you for the judgement in favour of me as I would like to have my Student visa to continue my study.

   7.  Your Honour I am a woman, I have an innocent son and my husband is living with me.  As a women and mother of under 5 year son I should get some sorts of privilege by exemption of any type of punishment by your review and Judgement considering on women and child humanitarian ground.

   Attached to the written submissions are three statements prepared by Abu Zafar, Alam Zahangir and Norman Hura.  These statements are effectively positive character references relating to the first and second applicants.

2. The first applicant appeared at the hearing on 10 February 2015 with the assistance of a Bengali interpreter, though she was able to proceed for a majority of the hearing without the interpreter’s assistance.  Her oral submissions restated the contents of her affidavit and written submissions and did not raise any further grounds of review.

Minister’s Submissions

Ground one

1. The Minister submits this ground refers to the Affidavit filed in support of the application. The Affidavit contends that the applicant was “unaware of this false financial circumstance” (at [3] of the Affidavit). The Affidavit goes on to explain circumstances relevant to whether there were compelling or compassionate circumstances that would warrant the waiver of PIC 4020(1) (at [12]-[14] of the Affidavit).

2. The Minister submits that the Tribunal correctly applied the relevant authority to the applicants’ circumstances in finding that PIC 4020 was engaged.  In particular, the Tribunal’s reasons demonstrate that it considered that the relevant document had “the necessary quality of purposeful falsity”: Trivedi (supra) at [43], and applied the correct test as set out in that case.

3. Further, the first applicant’s contentions regarding the Tribunal’s approach to whether there were “compelling or compassionate circumstances” amount to impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal’s findings in this regard were open to it for the reasons it gave.

Ground two and three

1. The Minister submits these grounds essentially contend that the Tribunal “failed to consider” the applicant’s circumstances. The Tribunal considered the applicant’s submissions both in relation to the application of PIC 4020 and in its consideration of whether to waive that condition: (CB 117-118 at [10]-[13]). These grounds seek impermissible merits review and should be dismissed: Wu Shan Liang (supra) at 272.  

Conclusion

1. The Minister contends the application should be dismissed with costs.

Consideration

1. It should be noted at the outset that the applicants in these proceedings are unrepresented litigants, are from a non-English speaking background, and have little, if any, experience or knowledge of legal practice and procedure in Australia.

2. The issue before the Tribunal was whether the applicants met Public Interest Criterion (PIC) 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) as required by subclause 572.224 of Schedule 2 to the Migration Regulations.  Clause 572.21 prescribes is a list of criteria to be satisfied at the time of decision when applying for a visa of the type the applicant applied for.

3. Relevantly, subclause 572.224 stated at the time of the applicants’ visa application:

   572.224      The applicant:

   (a)     satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and

   …

   (Emphasis added)

4. PIC 4020 stated at the relevant time:

   (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.

   (2)   The Minister is satisfied that during the period:

   (a)    starting 3 years before the application was made; and

   (b)    ending when the Minister makes a decision to grant or refuse the application;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (3)   To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (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 particularmeans 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.

5. In the Decision Record at [9]-[11] the Tribunal stated:

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

   …

   9.     In the Decision Record (a copy of which was provided to the Tribunal by the applicants with their review application), the delegate found that the applicant did not meet PIC 4020(1) on the basis that the applicant had provided with her visa application a financial documents – specifically a Prime Bank statement in the second named applicant’s (her husband’s) name – which had been referred to the appropriate overseas post for verification; and the post had been advised by the bank that the balances and transactions shown on the supplied statement did not match the bank’s records.

   10.    At the hearing the applicant said that her husband’s Prime Bank statement had been provided to the Department on their lawyer’s advice, that they never used that account and had been shocked when advised by the Department that the balances and transactions shown on the supplied statement did not match the bank’s records.  She observed that there was widespread corruption in Bangladesh and acknowledged that the information in the statement may have been incorrect, albeit without her knowledge.

   11.    Based on the evidence before it, the Tribunal is satisfied that the applicant gave to the Department, as part of her visa application, information – namely the Prime Bank statement in her husband’s name – that is false or misleading in a material particular.  Therefore, the applicant does not meet PIC 4020(1).

6. On a fair reading of the applicants’ various contentions and submissions, their sole ground of review in respect of the Tribunal’s finding that they did not meet PIC 4020(1) (and, as a result, subclause 572.224) was that they were, or at least the first applicant was, unaware that the Prime Bank statement provided was false or misleading in a material particular.

7. In Trivedi (supra) his Honour Buchanan J stated at [54] (Allsop CJ and Rangiah J agreeing):

   [54] In summary, I conclude that:

   ·   PIC 4020(1) refers to information that is false, in the sense of purposely untrue;

   ·   it is not necessary to conclude that a visa applicant is aware that information is purposely untrue, before PIC 4020 is engaged;

   ·   the FCCA was correct to conclude that the MRT did not make a jurisdictional error when it found that PIC 4020 was engaged in the present case.

8. Accordingly, any claim by the applicants that they were unaware the Prime Bank statement was false or misleading cannot be sustained.  The Minister’s submissions (reproduced above at [18]) accurately address this issue.  To the extent that the first applicant in her oral submissions to the Court sought to substantiate her financial capacity, such an invitation cannot be entertained as this is seeks to engage the Court to engage in impermissible merits review (see Wu Shan Liang (supra) at 272).

9. Grounds two and three of the application allege the Tribunal failed to consider the applicants’ circumstance and/or the relevant fact of the applicants’ circumstance.  These grounds are elaborated on in the first applicant’s affidavit and the applicants’ written submissions, however, these submissions again seek to engage the Court in impermissible merits review.  On a fair reading of the Court Book and Decision Record, it cannot be said there was any claim advanced by the applicants that the Tribunal failed to consider.

1. These grounds, in respect of the Tribunal’s application of subclause 572.224 and PIC 4020, raise no arguable case for the relief claimed.

2. The second aspect of the Tribunal’s consideration related to whether the requirements of PIC 4020(1) may be waived due to the existence compelling and compassionate circumstances.  This has been addressed at [12]-[14] of the Tribunal’s Decision Record (CB 117-118).

3. The Explanatory Statement in the Amending Act that introduced PIC 4020, though not binding on a decision-maker, states:

   This subclause provides the Minister with a discretionary power to waive the requirements of the clause 4020 in circumstances where the Minister is satisfied that there are sufficient grounds to justify the granting of the visa. It is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia’s interests (or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), not the interests of the visa applicant.

   The types of circumstances that may involve compelling or compassionate reason for waiving any or all of paragraphs 4020(1)(a) or (b) and subclause 4020(2) include:

   - family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

   - that family members in Australia would be left without financial or emotional support; and

   - a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).

4. On a fair reading of the Decision Record, the Tribunal considered the applicants’ claims in support of their request to it to waive the requirements against the correct legal test (see PIC 4020(4) and Decision Record at [12]).  It then restated the applicants’ claims in this respect at [13], but ultimately was not satisfied compelling or compassionate circumstances existed to justify the waving of the requirements of PIC 4020(1).  On a fair reading of the Decision Record, the Tribunal’s findings were open to it on the material before it and for the reasons it gave.

5. There is nothing contained in the applicants’ submissions, (first applicant’s) affidavit or grounds of review that raises any error of law in this respect.  The applicants have, rather, made submissions as to the merits of their eligibility for such a waiver of the requirements of PIC 4020(1).  This invites the Court to engage in impermissible merits review.  No arguable case for the relief claimed in this respect has been raised by the applicants.

Conclusion

1. I have considered the first applicant’s affidavit, the pleaded grounds of review in the application, the applicants’ written submissions and the first applicant’s oral submissions, however, no arguable case for the relief claimed has been raised by the applicants for the reasons stated above.  Further, I have read and considered the contents of the Court Book and, particularly, the Decision Record and there is no error of law apparent on the part of the Tribunal.

2. While I feel some sympathy for the circumstances of the applicants, particularly the third applicant, there is no relief available to the applicants in this Court in judicial review proceedings.  The Tribunal correctly made its decision and the merits of that decision cannot be challenged in this Court.

3. The application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with the first and second applicants ordered to pay the Minister’s costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 5 March 2015