Haq v Minister for Immigration

[2013] FCCA 204

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 204

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – alleged failure by the Tribunal to consider exceptional circumstances – alleged failure by the Tribunal to consider the applicant’s ‘current’ enrolment status – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2

Myeong Il Kim v Ron Witton (Presiding Member of Immigration Review Tribunal) and Minister of Immigration and Ethnic Affairs [1995] FCA 1508
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Applicant: MD MAZHARUL HAQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 389 of 2013

Judgment of: Judge Nicholls

Hearing date: 3 May 2013

Date of Last Submission: 3 May 2013

Delivered at: Sydney

Delivered on: 10 May 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms E Warner Knight

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application made on 28 February 2013 and amended on 3 May 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5000.00

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 389 of 2013

MD MAZHARUL HAQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 28 February 2013, and amended on 3 May 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 11 February 2013, to affirm the decision of the Minister’s delegate, made on 7 July 2010, to refuse the grant of a Student (Temporary) (Class TU) visa (the “student visa”) to the applicant.

Background

1. The applicant is a citizen of Bangladesh (Court Book – “CB” – CB 1). He arrived in Australia in March 2007, holding a Student Subclass 572 Vocational Education and Training Sector visa. He remained lawfully in Australia on further student visas, the last of which was a Student Subclass 572 visa granted on 19 May 2009 and valid to 9 June 2010 ([16] at CB 88). On 2 June 2010 the applicant applied for another Student Subclass 572 visa (CB 1 to CB 6).

The Delegate

1. By email dated 7 June 2010 the applicant was advised that the Minister’s Department was “…still waiting to see evidence of enrolment and attendance in a course of study between 19/05/2009 and 26/01/2010”. The applicant was asked to submit this evidence “as soon as possible” (CB 7).

2. The applicant sent the Department two “Confirmation of Enrolment” (“CoE”) documents (CB 9 to CB 13). However, each document stated that the applicant’s enrolment had been cancelled by the education provider for “non-commencement of studies” (CB 10 to CB 13).

3. By email dated 8 June 2010 the Department notified the applicant that the CoE documents were not evidence of attendance. The applicant was again invited to submit evidence of full time study or, alternatively, to explain any reasons for not maintaining full time study (CB 8).

4. The applicant failed to submit any documentary evidence of full time study. Instead, on 11 June 2010, he submitted a Psychological Assessment Report (“the Report”) (CB 16.7). The Report was drafted on 10 June 2010, and, in summary, it stated that the applicant was unable to “achieve a satisfactory attendance record” between May 2009 and December 2009 due to “the sudden break up of a year-long relationship” and “his mother’s massive heart attack” (CB 16.8 and CB 48). The delegate took the Report into consideration, but noted that despite the claims raised in the Report the applicant made no effort to defer his studies or to return to Bangladesh (CB 16.9).

5. Ultimately, the delegate found that the applicant did not maintain an appropriate full time enrolment between 19 May 2009 and 26 January 2010 and, as a result, the applicant failed to meet “Condition 8516”, attached to his visa, and therefore did not comply with cl.572.235 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 16.9).

The Tribunal

1. On 30 July 2010 the applicant applied to the Tribunal for review of the delegate’s decision (CB 19 to CB 26). The applicant was invited to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in his case (CB 32 to CB 33). On 2 October 2012, the Tribunal received an “acceptance” form from the applicant for the hearing on 12 October 2012 (CB 34 to CB 35).

2. On 11 October 2012, the Tribunal received submissions from the applicant’s migration agent (CB 36 to CB 41). Attached to the submissions was a copy of the Report, a copy of the applicant’s passport, statutory declarations from the applicant and the applicant’s mother and father (CB 43 to CB 65). On 12 October 2012, the Tribunal received a letter from the applicant’s overseas employer and various documents relating to the applicant’s education history in Australia (CB 70 to CB 77).

3. The Tribunal recognised that the issue for consideration in the applicant’s case was ([68] at CB 97):

   “…whether, at the time of this decision, the applicant has complied substantially with Condition 8516 of his subclass 572 Vocational Education and Training Sector visa.”

4. The relevant part of the Regulations is as follows (with reference to [12] – [13] at CB 87):

   “[Condition] 8516

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

   …

   572.231          The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a) a principal course; and

   (b) of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice:

   (i) made under regulation 1.40A; and

   (ii) in force at the time the application was made.”

5. In his written submissions, and at the Tribunal hearing, the applicant did not dispute his non-compliance with Condition 8516. Rather, the applicant sought to argue that his non-compliance was due to factors beyond his control. He relied on the above documents (at [9] above) to support his claim ([25] at CB 89).

6. The Tribunal considered the Report, however it gave it little weight as it was written after one consultation with the psychologist and after the applicant had already recovered ([77] at CB 98). The Tribunal also noted that it differed in important respects from other evidence before it, such as the applicant’s parent’s statutory declarations ([77] at CB 98).

7. While the Tribunal accepted that the applicant had experienced depression after his relationship breakdown, it was significant that the applicant was not so severely affected that he could not continue to work ([79] at CB 99). Nor did he seek any medical intervention or student counselling at that time. As a result, the Tribunal was not satisfied that the applicant’s circumstances were such that he was prevented from continuing his studies, or from seeking to defer his studies on compassionate grounds ([79] at CB 99).

8. The Tribunal noted that there was no evidence before it that the applicant was currently enrolled in, or the subject of a current offer of enrolment in, a course of study ([83] at CB 100). Further, that despite coming to Australia to study and his subsequent bridging visa permitting him to do so, the applicant had not studied since mid-July 2010. When the Tribunal informed the applicant that most sub-clauses of student visas required him to be enrolled, or have a current offer of enrolment, the applicant responded that, if given a positive decision by the Tribunal, he would study “immediately” ([83] at CB 100).

9. Further, while the notion of “substantial compliance contemplates that there can be some degree of non-compliance” ([74] at CB 98), after consideration of the applicant’s oral evidence and written submission and the issues that were considered relevant in Myeong Il Kim v Ron Witton (Presiding Member of Immigration Review Tribunal) and Minister of Immigration and Ethnic Affairs [1995] FCA 1508, the Tribunal found that there was no evidence that the applicant had “substantially compl[ied]” with Condition 8516 of his visa and, therefore, that the applicant breached cl.572.235 of Sch.2 to the Regulations. Accordingly, the Tribunal affirmed the decision of the delegate to refuse the grant of a student visa to the applicant ([89] at CB 101).

10. Further, I also note that, as there was no evidence before the Tribunal that the applicant was enrolled in, or the subject of a current offer of enrolment in, any course of study, the Tribunal was not satisfied that the applicant met the criteria for any of the other Student (Temporary) (Class TU) visa subclasses ([88] at CB 100).

The Application to the Court

1. The application to the Court contained three grounds. On 28 April 2013, the applicant attempted to lodge an amended application in the following terms:

   “1. The Migration Review Tribunal failed to take into account the exceptional circumstances which contribute for breached of visa condition.

   Particulars

   i) The Tribunal failed to take into account the exceptional circumstances of my mother’s sickness and relationship broken with my girlfriend by which I was unduly affected with my overall education performance.

   ii) The Tribunal failed to give weight to the report from a Psychologist which indicated that I had developed anxiety and depression as a result of the sudden breakup of a one year long relationship and as a result of my mother’s massive heart attack.

   2. The Migration Review Tribunal failed to consider my current enrolment status into the course.

   Particulars

   i) I applied for a student (Temporary) (Class TU) Subclass 572 visa to the Department of Immigration and Citizenship which was refused. I appealed to the Tribunal for refusal of this visa.

   ii) The Tribunal failed to consider my current enrolment status into the course in the sense that without approval of my visa I was not able to continue my course or not be able to enroll any other course until dissolve this issue.”

   [Errors in the original.]

Before the Court

1. At the hearing, the applicant appeared in person and was assisted by an interpreter in the Bengali language. Ms E Warner Knight appeared for the first respondent. The applicant confirmed that he wished to proceed with the grounds set out in the amended application. Leave was granted for the amended application to be filed in Court.

Ground One

1. The applicant’s first ground suffers, in what has become increasingly common in migration matters of this type, from a misunderstanding of the term “did not consider”.

2. Such an assertion in relation to a Tribunal decision immediately conjures the type of jurisdictional error described in such cases as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630. That is, that the Tribunal did not consider a claim expressly made, or clearly arising from the circumstances presented. Alternatively, it may be that such a complaint may assert a failure to take into account a relevant consideration (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).

3. However, any plain reading of the Tribunal’s decision record reveals that such complaints cannot succeed. The Tribunal did consider what the applicant put to it. It simply did not accept that the matters put in explanation by the applicant were such as to satisfy it that the visa must be granted.

4. These matters were particularised (at (i) of ground one) as being the circumstances of the applicant’s mother’s illness and the break up of his relationship with his girlfriend. Before the Court, the applicant pressed that the Tribunal failed to understand his “mental” situation in light of these two events (see also ground two below).

5. The Tribunal plainly considered these claims in the sense that that term is understood at law. The Tribunal’s findings were all reasonably open to it. No legal error is revealed. In that sense also, there was no failure to take into account a relevant consideration

6. The second particular to ground one (at [18] above) is a complaint about the weight the Tribunal said it gave to the Report. The Tribunal did “not place much weight” on it. It gave reasons for this. The weight to be assigned by the Tribunal to evidence before it is for it to determine (Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). This complaint, as with the first particular to ground one, is an attempt to challenge the factual findings made by the Tribunal. It seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

7. In all, ground one is not made out

Ground Two

1. Ground two asserts that the Tribunal failed to consider the applicant’s “current” enrolment status. As stated, on its face, this complaint is not different to those in ground one. That is, it seeks to assert a failure by the Tribunal to consider parts of the applicant’s claims, or a failure by the Tribunal to take into account a relevant consideration.

2. Ground two fails for the same reason as ground one. The Tribunal did consider the matter of the applicant’s current studies (as at the time of its decision) ([83] at CB 100). The Tribunal’s findings in this regard were reasonably open to it on what was before it.

3. The Minister understood the applicant’s written submissions to expand the complaint to be that he was prevented from continuing his studies in July 2010 because the delegate refused the grant of a student visa at “about” that time. The focus of the complaint appears to be that the Tribunal failed to consider the “real situation” in this regard and that that was a denial of natural justice.

4. In relation to this latter complaint, it is clear that this matter was discussed at the hearing with the Tribunal (see [57] at CB 95). If the applicant’s complaint is that he was denied natural justice because the issue was not raised then that complaint cannot be made out.

5. It may be that the complaint is really that the Tribunal’s alleged failure was that the outcome was adverse to him. In this regard, the Tribunal is not obliged to make the “correct”, or “right”, decision to avoid a charge of procedural unfairness or a failure of the provision of natural justice (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

6. In terms of the alleged failure to consider, the Tribunal’s decision record at [79] (at CB 99) provides the answer to this charge. The Tribunal found that it was not satisfied that the applicant’s circumstances were so difficult that the applicant was prevented from maintaining his enrolment, or seeking to defer his studies. This was reasonably open to the Tribunal on what was before it.

7. The answer to the applicant’s submission that he would not, or could not, continue his studies in circumstances where the student visa had been refused was equally addressed by the Tribunal at the hearing. The Tribunal told the applicant that he could have continued his studies while the holder of the bridging visa that had been granted to him and was in effect at the relevant time ([57] at CB 95). In all, ground two is not made out.

Oral Complaint

1. Before the Court the applicant complained that, at the hearing, the Tribunal asked him why he had not subsequently enrolled in an educational course. His submission was that he could not enrol as he had been denied a visa.

2. As the Minister submitted the applicant was already enrolled at the time when his visa application was refused by the delegate. He could have continued to study at the relevant time (because he held a bridging visa). I agree with the Minister that the fact of the refusal of the visa did not prevent the applicant from continuing his studies. It was the applicant’s choice to cease his study.

Conclusion

1. Before the Court the applicant did no more than repeat the complaints set out in his written submissions. None of the grounds of the application, as amended, are made out. I cannot otherwise see jurisdictional error in the Tribunal’s decision. In these circumstances the application should be dismissed. I will make an order accordingly

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date:  10 May 2013