Hasnat v Minister for Immigration and Border Protection
[2013] FCCA 1922
•12 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASNAT v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1922 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – where applicant applied for a subclass 572 visa – where applicant had previously completed two courses of study in Australia – where Regulations require that upon applying for a subclass 572 visa an applicant hold valid visa, supply evidence of sufficient funds to support oneself and a certificate of enrolment – where applicant provided information about funds held by his father in Bangladesh – where visa not granted by delegate for lack of provision of evidence of financial capacity – where applicant sought review of decision in 2010 but Tribunal did not deal with application for review until 2013, when applicant had completed course – where applicant then had no certificate of enrolment – where applicant wished to undertake further study and in fact did complete another course – where applicant unable, at time of Tribunal hearing, to produce certificate of enrolment and Tribunal refused application – where the grounds of review before this court directed at decision of delegate – whether court has power to review decision of delegate – whether Tribunal fell into jurisdictional error. |
| Legislation: Migration Act 1958 |
| SZRNJ v Minister for Immigration & Anor [2013] FCCA 1384 |
| Applicant: | MOHAMMED ABUL HASNAT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 600 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 12 November 2013 |
| Date of Last Submission: | 12 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to Minister for Immigration and Border Protection.
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 600 of 2013
| MOHAMMED ABUL HASNAT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application reveals, in startling clarity, the Byzantine world into which applicants for visas into Australia under the Migration Act 1958 (Cth) enter. It is the policy of this country, and has been for many years, to encourage persons from outside of Australia to contribute to the education export boom by educating themselves within this country. For that purpose visas are issued in various shapes and sizes. Not unnaturally these visas frequently have conditions attached to them. After all, it is not unreasonable to expect those persons applying for the visas to be able to pay for the courses which they attend. One can expect them to be able to support themselves whilst they are here. And, of course, one can expect them to have been enrolled in the course for which the visa is applied. But things are never that simple. Often people come to this country for educational purposes, obtain a visa for one course and then wish to remain in the country to undertake further education. This again is of benefit for the education export boom. Regrettably, however, the machinery of the bureaucracy that involves itself in consideration of the grant of visas is frequently unable to keep up with the pace of applications. What transpires is that people who do not have substantive visas to undertake particular courses actually do undertake those courses and pass them whilst awaiting a visa determination. So it was with Mr Hasnat.
Mr Hasnat is a citizen of Bangladesh. He first came to this country in 2007. He undertook a course of general English from beginner to advanced and incidentally has achieved a score of six in the IELTS tests. He speaks excellent English, as was established at the hearing before me today. He then undertook a course of Advanced Diploma of Hospitality Management between July 2008 and June 2010. He finished that course successfully. It was at this stage that he applied for a further visa to undertake a Diploma of Accounting. He obtained, from the school that was proposing to train him, the Australis Institute of Technology and Education, a document known as a Confirmation of Enrolment[1]. Obtaining one of these documents is a pre-requisite to obtaining a visa, in Mr Hasnat’s case a subclass 572 visa. See Regulation 572.222 of Schedule 2 to the Migration Regulations 1994 (Cth)[2].
[1] “CoE”
[2] “Regulations”
Another thing that is required in order to obtain a visa is the satisfaction of the Minister, through his delegate, that an applicant satisfies what is known as the financial capacity test. This is found in Regulation 573.223(2)(1)(b). When Mr Hasnat applied for his visa to undertake the accounting course he provided the department with some information concerning his financial capacity. Some of this is found at [CB 46] and [47] and appears to be information about funds held by his father in Bangladesh. It indicates that the father was holding approximately A$31,667.00 in a post office account and had been since 2008-2009.
On 5 September 2010 a case officer of the department, Ms Cheung, wrote to Mr Hasnat’s in the following form:
“I have assessed your application and you have been granted a Bridging Visa, this visa allows you to remain in Australia until a decision is made on your application. You can continue to study, but you should not leave Australia without contacting DIAC.”
In order to make a decision on the application, you must provide the following information:
· Evidence you have sufficient money to support yourself and your family members during your stay in Australia.
You need to show that you have access to $20,500.00.
This amount may be less if you have made further payments towards your course fees. You will need to provide proof of any payments; i.e receipts or statements.
You must show that the money has been in an account for more than 6 months. Bank statements should be no more than four weeks old.
This amount is calculated so that you have access to enough money to cover your tuition fees plus AUD$1,500 per month for living expenses for the 3 three years of your study.” [CB 38-39] [emphasis in original]
At [CB 41] there is some evidence of $3,000.00 being paid to Mr Hasnat on 25 August 2010.
On or about 14 September 2010 Mr Hasnat received a letter from Ms Cheung advising him that she had declined to grant the visa. The decision record is found at [CB 52-53] and states:
“The applicant did not satisfy Regulation 572.223(2)(a)(iii) for the following reasons:
The applicant lodged the student visa application on 02/08/2010.
The application was accompanied by financial statements in another person’s name in an offshore account.
The application was assessed and a letter requesting evidence of how these funds are accessed by the applicant was sent on 05/08/2010.
A period of 28 days was allocated for all documents to be submitted by 02/09/2010.
To date the applicant has been unable to provide evidence of how these funds are accessed and nothing indicating the applicant has received the money from this source in the past.
I am not satisfied that the applicant is a genuine applicant for stay as a student visa holder as they have not demonstrated that they have access to the funds declared.
Therefore the applicant does not meet the requirements of Regulation 572.223(2)(a)(iii).”
Mr Hasnat was advised of his right to seek review of that decision from the Migration Review Tribunal. On 1 October 2010 he filed an application for review. I have no reason to believe that if the review had taken place promptly Mr Hasnat would not have been able to satisfy the Tribunal that he did have access to the funds. I note that in any event the amount of funds requested by the delegate was considerably in excess of those really required because it related to a three year course when the course that he was undertaking was only for one year.
Certainly at that time it could not be said that he did not have a valid certificate of enrolment. But the Migration Review Tribunal did not deal with Mr Hasnat’s application promptly. It was not dealt with until 2013. By that time Mr Hasnat had completed the course. He wished to undertake further education. He tells the court that at this stage he was not enrolled in any course because he felt that he was in a state of limbo as a result of the failure of the Tribunal to deal with his earlier visa application. In all probability, if Mr Hasnat had made an application for another visa it would have been turned down on the basis that he was not making it from the position of being a valid visa holder as his last visa had been refused: Regulation 572.211(2) and (3). It would appear from the information in the Court Book at [CB 66] that he had done another course between 27 April 2012 and 21 September 2012 being a Certificate 4 in Business Administration. He passed.
When Mr Hasnat’s application came to the top of the pile at the Migration Review Tribunal a letter was written to him on 4 February 2013. This letter sought information and invited him to a hearing. Relevantly it stated:
“Additionally the Tribunal invites you to provide the following:
1.A certificate of enrolment as required by cl.572.222, or evidence that you are enrolled in, or the subject of a current offer of enrolment in a registered course;
2.Evidence of all your academic achievements and evidence of your enrolment in a registered course or courses since your arrival in Australia ...
3.Current evidence that you satisfy English language, financial capacity and ‘Other’ requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A for the purpose of cl572.223(2)(a)(i)...” [CB 72-74].
When Mr Hasnat went to the Tribunal for his interview on 5 March 2013 he was asked whether he had a current CoE. He did not. This failure to have a current CoE was the basis of the Tribunal’s refusal to grant him a visa. It was a refusal to grant him a visa to undertake a course that he had undertaken some two years prior and passed. That is why I say this is an example of a Byzantine bureaucracy.
Mr Hasnat then asked for more time to produce a CoE to which the Tribunal responded at [20] [CB 97]:
“[20]The Tribunal advised the applicant that it had considered his request for further time to provide a CoE but it declined to grant him extra time. The Tribunal put to the applicant that although he claimed that his representative had only recently advised him about the hearing, he had applied for a student visa in August 2010 and the visa was refused in September 2010…”
The Tribunal noted that the applicant had had more than two and a half years to gather the relevant information since the date of the application. The Tribunal noted that he made a unilateral decision to stop his studies last year, without adequate reason, when he could have continued.
What the Tribunal really wanted Mr Hasnat to do was to provide it with a CoE for an entirely different course than that for which he had applied for the visa. He would also need to provide it with the necessary financial information in respect of this new course so that the Tribunal could overrule the delegate’s decision refusing him a visa for a completely different course. It has been suggested that Mr Hasnat should have been aware of the situation, i.e. that he should have been aware that notwithstanding that he was going to see the Tribunal about a visa that was applied for some three years ago for a course he had already completed, that he could actually get a visa by coming to the Tribunal with a CoE and the necessary other information, but for an entirely different course which he then wished to undertake.
It is difficult to see how this could be understood as an obvious fact whether the applicant was represented by a migration agent or not. Most people would consider that if you are going to a Tribunal to discuss the failure to obtain a particular visa for a particular course that is what is going to be dealt with and not some other visa for some other course. I am satisfied that the Tribunal’s reasons for affirming the decision under review are unimpeachable. Mr Hasnat is the first to admit that he did not have a current CoE when he attended before the Tribunal. The court does not have any transcript of the discussions between Mr Hasnat and the Tribunal and so is unable to say whether the Tribunal itself explained to him the situation i.e. that he could go out, find another course, obtain a CoE and obtain the necessary financial information relevant to that course and not the one that he had undertaken three years ago. If the Tribunal did do that then it was possibly rather unfair of it not to grant him the extra time that he requested. If it did not then it contributed to Mr Hasnat’s incomprehension.
On 25 March 2013 Mr Hasnat filed with this court an Application for review of a decision of the Migration Review Tribunal. The three grounds of that application were:
“1.The delegate to the Minister failed to understand that I am a genuine applicant for stay, a student visa holder.
2.The delegates and the Minister failed to justify that I have access to the funds declared according with Schedule 5A.
3.The delegate to the Minister failed to understand that I have access to funds that my sponsor has provided.”
Ms Rayment, who appears on behalf of the Minister, wishes me to say that these three grounds, directed as they are to the decision of the delegate and not of the Tribunal, render the application invalid as this Court does not have power to review the decisions of a delegate pursuant to s.476(2)(a) of the Migration Act 1958. See SZRNJ v Minister for Immigration & Anor [2013] FCCA 1384 per Judge Manousaridis.
She asks this because if I make a finding that the application is incompetent then Mr Hasnat would have to seek leave to appeal my decision rather than have an automatic right of appeal.
Mr Hasnat is self-represented. So far as he was concerned the principal ground for the refusal of his visa in the first place related to the failure to have funds which he could access. But it is the case that this was not the principal ground for the Tribunal affirming the decision under review. When I consider the matter I am of the view that Ms Rayment is correct in her submission. This is clearly an attempt to obtain judicial review of the decision of the delegate. And whatever the Court’s feelings about the apparent unfairness of the process towards Mr Hasnat that is not an excuse for departing from the legal position as identified.
I have already made it clear that I cannot see any ground upon which the Tribunal’s decision can be impugned. If I am wrong about that and Mr Hasnat does seek leave to appeal then this error will doubtless be rectified. In these circumstances the application must be dismissed. I order that the applicant pay the first respondent’s costs assessed in the sum of $2,000.00.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Raphael.
Associate:
Date: 20 November 2013
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