Hossain v Minister for Immigration
[2016] FCCA 2139
•29 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2139 |
| Catchwords: MIGRATION – Visa – student visa – failure of Tribunal to make enquiries – adjournment – medical certificate – weight – no jurisdictional error demonstrated. |
| Legislation: Migration Act 1958 (Cth), ss.65, 362B & 368 Migration Regulations 1994 (Cth), cl.572.224 of Schedule 2 |
| Cases cited: SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 |
| Applicant: | MD SHOWROV HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 220 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 2 March 2016 |
| Date of Last Submission: | 2 March 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 29 August 2016 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr O Young |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application dated 18 June 2015 is dismissed.
The applicant do pay the first respondent’s costs to be agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 220 of 2015
| MD SHOWROV HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review in relation to a decision of the Migration Review Tribunal (‘the Tribunal’) (as it then was) dated 29 May 2015 affirming an earlier decision of a delegate of the Minister which refused to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant was self-represented in these proceedings. His grounds of application are as follows:
“In paragraph 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26, tribunal states that “Paragraph 18, It considers his comments in the email to be highly speculative ... Paragraph 19 “Tribunal notes that the applicant requested the department to contact the bank manager and there is no evidence before the tribunal that the department did this. The Tribunal has considered this matter but had decided not to make further enquiries in the circumstances of this case given applicant failure to attend the hearing and to provide further evidence … Tribunal also takes into account the high level of corruption in Bangladesh …
These paragraph clearly shows that Tribunal failed to put enough weight on the evidence provided. Also it failed to do any further enquiries or direct Department to do it. I had clearly stated that Department should contact the Bank and get the information. Interestingly, Tribunal claims to get away all its responsibilities to further check the information at hand by simply saying that I was unable to attend the hearing. Also it states there is high level of corruption in Bangladesh and things. It seems that an imaginary story is being built and a decision is made. Facts are not looked at. There is error in tribunal’s decision.
I am suffering from Migraine and had requested for postpondment (sic) of hearing. Tribunal member has nowhere made reference of this in his decision. He failed to consider this while making decision and failed to give me time for hearing. I had provided letter from doctor that I am sick. This is also a clear Jurdcitional (sic) error in decision and I was not given chance to present before tribunal.”
The applicant did not file an Outline of Submissions but made brief oral submissions before me. I will summarise those later in these reasons.
Procedural background and legislative framework
The applicant applied for his visa on 27 August 2013.[1] In order to be granted the visa, it was necessary for the applicant to meet the requirements of cl.572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). One of those requirements was that the applicant was able to satisfy Public Interest Criteria 4020 (‘PIC 4020’). PIC 4020 included a requirement that:
[1] Court Book (‘CB’) p 155.
“Schedule 4
4020(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.”
The delegate refused the application because there was evidence that the applicant had given bogus bank documents, or false or misleading information to a relevant officer of the Department.[2] The applicant was given a written invitation to attend to give oral evidence and present arguments before the Tribunal on 22 April 2015. This letter was dated 3 February 2015. The applicant was advised that a failure to attend may result in an adverse decision in his absence. On 22 April 2015, the applicant’s registered migration agent presented a medical certificate to the Tribunal. The certificate claimed that the applicant was unable to attend work, or his regular duties, between 2 April 2015 and 23 April 2015 due to a “medical condition”.[3] The matter was accordingly postponed and the Tribunal wrote again to the applicant and invited him to a hearing, this time on 15 May 2015. The applicant was advised in that letter that any medical evidence provided to seek a further postponement would need to address whether he was fit to attend and participate in the hearing itself.[4]
[2] CB p 155 at [2].
[3] CB p 130.
[4] CB pp 135-136.
The hearing did not proceed on 15 May 2015. Two days before the scheduled date, an email was received from the registered migration agent for the applicant explaining that the applicant had pre-existing plans to travel overseas between 13 and 27 May 2015.[5]
[5] CB p 137.
On 18 May 2015, the Tribunal again wrote to the applicant inviting him to give oral evidence and present argument on 29 May 2015. He was specifically advised in that letter, that if he did not attend, a decision may be made without further notice.[6]
[6] CB p 145.
On 29 May 2015, the registered migration agent emailed the Tribunal requesting another postponement and providing yet another medical certificate. This certificate said that the applicant was unable to perform work and usual duties on that day.[7] The Tribunal concluded that the medical certificate did not satisfy that the applicant was unable to attend to participate in the Tribunal hearing, and declined to postpone the matter. It determined to proceed to make a decision pursuant to s.362B of the Act, which permits a Tribunal to proceed in circumstances where an applicant has been invited but not attended. The Tribunal complied with s.368, producing a written decision record dated 29 May 2015, and with the obligation under s.368A by posting it to the applicant on 2 June 2015.[8]
[7] CB p 149.
[8] CB p 153.
Tribunal decision
The Tribunal noted the requirements of cl.572.224(a) and PIC 4020. It further noted that PIC 4020 could be waived if there were compelling or compassionate reasons justifying the grant of the visa.[9] The Tribunal identified the issue under review as being whether the applicant could satisfy PIC 4020 in light of the provision of allegedly bogus documents. The Tribunal noted that the requirement was not to provide a bogus document whether or not the Minister was aware of it, or whether or not it was provided knowingly or unwittingly.[10]
[9] CB p 156 at [11].
[10] CB p 157 at [13].
The Tribunal noted that the ‘bogus document’ issue arose because the applicant submitted a document purporting to be from the Sonali Bank, Nagar Bhaban Branch, Dhaka. The document stated that the applicant’s father had an account with the bank with a certain balance as at 18 September 2013. A document purporting to be a statement from the account was also submitted.[11]
[11] CB p 37.
The Tribunal noted that some enquiries conducted by the Department had established that the bank itself had advised that the account was non-existent and the documents were not genuine.[12]
[12] CB p 157 at [16].
The applicant submitted a further letter purporting to be from the bank dated 2 December 2013. He also provided a statutory declaration in which he postulated how the bank might have come to be mistaken. The Tribunal considered both the applicant’s statutory declaration and the further bank letter he had provided.[13]
[13] CB p 157 at [18].
The Tribunal placed little weight on what it described as the “highly speculative” propositions in the statutory declarations. It chose to give more weight to the evidence obtained by the Department. The rationale for doing so is that it could be satisfied that the information gathered by the Department came directly from the bank.[14]
[14] CB p 157 at [18].
The Tribunal declined the request that had been made by the applicant to contact a person from the bank, whose number the applicant had provided to it.[15] The Tribunal concluded in effect that it was for the applicant to make his own case, and noted that he had had sufficient time in which to provide any further evidence he wished to put before the Tribunal. The Tribunal noted that the applicant had failed to attend the hearing. It also took account of the high level of corruption in Bangladesh and assessed that there was an appreciable risk that it would be given false information if it contacted the person nominated by the applicant. It considered information from Transparency International in reaching this conclusion.[16]
[15] CB p 158 at [19].
[16] CB p 158 at [19].
The Tribunal concluded that there was an element of fraud or deception from some person in this case, because the documents had apparently been prepared or altered by a person who was acting without authority. It concluded that the documents in question were false or misleading in a material particular at the time that they were submitted. It concluded that the documents were relevant to the criteria the Minister may consider when making a decision on an application.[17] For that reason, the applicant was not able to meet PIC 4020. This meant that he could not satisfy cl.572.224 of Schedule 2 to the Regulations. The Tribunal considered waiving, but declined to waive PIC 4020, as the applicant had not provided any evidence of compassionate or compelling circumstances that would justify it doing so.
[17] CB p 158 at [20].
Submissions
The applicant submitted that he did not attend at the Tribunal hearing because he was both sick and in Melbourne. He asserted that he had lots of documents that he could provide to the Tribunal. He submitted that it was unfair on him not to adjourn the hearing. He acknowledged that he had previously provided documents to the Tribunal. He was critical of the Tribunal for not calling him on the day of the hearing. His reason for being in Melbourne on the day of the hearing was that he was mentally frustrated and he had gone there to visit relatives. In his submission, he had provided sufficient evidence from the bank to enable the Minister to grant his visa. He maintained that the documents he had provided to the Tribunal were genuine. He submitted that if the Tribunal had adjourned and enabled him to attend to give evidence, he would have been able to explain the bank documents which it found to be bogus.
Counsel for the first respondent submitted that the applicant was on proper notice of the fact that an appropriately detailed medical certificate was required if the applicant sought a further postponement. The first respondent submits that it was clearly open to the Tribunal to proceed pursuant to s.362B, and in the circumstances, it was also a reasonable decision for the Tribunal to make.
Counsel for the first respondent submitted that the Tribunal was not required to make further enquiries simply because the applicant had asked it to. It gave appropriate consideration to the documents that were provided by the applicant, including the statutory declaration. In the circumstances, the first respondent says the Tribunal made no error in finding that the applicant did not comply with PIC 4020. It submits that no jurisdictional error has been demonstrated by the applicant and that it was open to the Tribunal to give greater weight to the information obtained from the bank by the Department, rather than the information provided by the applicant and the matters he postulated in his statutory declaration.
Consideration
There was no jurisdictional error in the Tribunal electing to proceed pursuant to s.362B.
The Tribunal was required to give notice of the hearing to the applicant and it did so. On postponement of the first hearing date, the Tribunal was not then required to give a further 14 days’ notice.[18]
[18] SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 per Conti J.
The applicant complains in his grounds of application that the Tribunal made no reference to his suffering from a migraine and failed to consider his medical certificate. The relevant passage from the decision record is as follows:
“7.The applicant did not attend the hearing on 29 May 2015. In the letter of 28 April 2015 he was specifically put on notice that the Tribunal would not grant any further postponement on the basis of a medical certificate that stated that he was unable to work or attend his regular duties. The medical certificate that he did submit for 29 May 2015 is, however, only in terms of his inability to work and perform his usual duties and does not address at all his capacity to attend and participate in a Tribunal hearing. The applicant has submitted no other evidence demonstrating his unfitness to participate in the Tribunal hearing.
8.In these circumstances which do not indicate that the applicant was unfit to attend and participate in a hearing, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”
Whilst no mention was made by the Tribunal of the comment made by the applicant[19] in his email to the migration agent, I am not satisfied that it failed to properly consider his reasons for not attending. The failure of the applicant to attend, and the provision of the medical certificate by the migration agent under cover of the email dated 29 May 2015, were at the forefront of its mind. It clearly gave consideration to the medical certificate.
[19] CB p 148 – “Due to excessive migrant (sic) pain and medical condition, I am unable to attend today’s hearing.”
With respect to the question of the medical certificate provided by the applicant, I am not satisfied that it was an error for the Tribunal not to adjourn the proceedings on the basis of that certificate. The question of late and inadequate medical certificates was dealt with by the Federal Court in MZZGY v the Minister for Immigration and Border Protection:[20]
“These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Further, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refuse the adjournment application and proceed to hear the appeal on its merits.”
[20] [2014] FCA 488.
Those comments are apposite to this case. The certificate did not identify the nature of the medical condition suffered by the applicant. It did not identify the type of work or activities the applicant was unfit for. It did not comply with the instructions given to the applicant about the need for a certificate to indicate whether he was unfit to attend or participate in a tribunal hearing. The applicant submitted to this Court that not only did he have a migraine on 29 May 2015, thus making him unfit to attend, but that he was also in Melbourne. If that information is correct, and I note that the medical certificate appears to come from a general practice somewhere in Victoria, then the email sent by the applicant to his registered migration agent one and a half hours before the hearing was scheduled to commence, was disingenuous. It was disingenuous because it made no mention of the difficulty posed by his being in Melbourne.
Be that as it may, it was clearly open to the Tribunal to proceed to make a decision without further notice to the applicant. I am not satisfied that the applicant has demonstrated that the Tribunal acted in a way that was procedurally unfair to him.
The applicant complains that the Tribunal failed to make or institute further enquiries of a particular person employed by the bank in Bangladesh as he requested it to do.
There was no general duty on the Tribunal to make the enquiries requested by the applicant. There was nothing unreasonable in the legal sense, or seriously irrational or illogical in the Tribunal’s refusal to make contact with the person nominated by the applicant. It was open for the Tribunal to have the concerns expressed by it about the level of corruption in Bangladesh in considering whether it was appropriate or necessary to make the enquiries sought by the applicant. The applicant bore the responsibility of presenting his own case to the Tribunal. As it observed, the applicant had been given ample opportunity to gather evidence in support of his claim.
The applicant complains in his grounds that the concerns expressed by the Tribunal about the high levels of corruption in Bangladesh amounted to “an imaginary story … being built”. The Tribunal was entitled to give consideration to country information in considering the applicant’s claims. The Tribunal was not inventing or speculating about that matter. I reject that argument.
I do not accept the applicant’s submission that the Tribunal failed to put enough weight on the evidence provided. The evidence he is referring to is of course the bank documents he had submitted to the Department. Unless a failure to give adequate weight to evidence renders the decision of the Tribunal manifestly unreasonable, then the question of weight to be accorded to an item of evidence is a matter for the Tribunal. This was recognised by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[21]
[21] (1986) 162 CLR 24 at [41].
I am not satisfied that it was unreasonable for the Tribunal to give greater weight to the evidence obtained by the Department than the documentary evidence presented by the applicant. It was clearly open to it to do so. It was open to the Tribunal to conclude, as it did, that the documents submitted by the applicant in support of his visa application were bogus documents, that he did not satisfy PIC 4020, and that those requirements should not be waived. The applicant has not established any jurisdictional error on the part of the Tribunal.
I dismiss the application and make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 29 August 2016
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