Hossain v Minister for Immigration

[2015] FCCA 2065

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2065

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – failure to satisfy relevant criteria – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 360, 476, 499

Migration Regulations 1994 (Cth), Schedules 2, 5A

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

Applicant: ZAKIR HOSSAIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1134 of 2014

Judgment of: Judge Nicholls

Hearing date: 17 July 2015

Date of Last Submission: 17 July 2015

Delivered at: Sydney

Delivered on: 17 July 2015

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 28 April 2014 and amended on 4 September 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of the $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1134 of 2014

ZAKIR HOSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised From Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 April 2014 and amended on 4 September 2014 seeking review of the decision of the then Migration Review Tribunal (“the Tribunal”) (now the Administrative Appeals Tribunal) which affirmed the decision of the Minister’s delegate to refuse Mr Zakir Hossain (“the applicant”) a Student (Temporary) (Class TU) visa (“student visa”).

Background

1. Before the Court in evidence is the bundle of relevant documents filed by the Minister (“the Court Book” - “CB”) and the applicant’s affidavit of 4 September 2014 which annexes a transcript of the hearing conducted by the Tribunal (“T”). 

2. The applicant is a citizen of Bangladesh, who arrived in Australia on 7 August 2009 on a student visa and has continued to reside in Australia apart from four periods of absence (between 9 September to 5 December 2010; 26 August to 24 October 2011; 26 December 2012 to 31 January 2012; and 26 September 2013 to 10 January 2014) (CB 1).

3. Relevant to the current matter, the applicant applied for a further student visa on 25 June 2013 (CB 1 to CB 7).  Included with the application was the applicant’s Overseas Student Confirmation-of-Enrolment (CoE) in a Bachelor of Business due to commence on 15 July 2013.

4. At the date of application, the applicant had completed one English language course and had been enrolled in, but had not completed, the following courses: Diploma of Commerce, Bachelor of Business (Accounting), Bachelor of Business Administration, Advanced Diploma of Accounting, Diploma of Management and Bachelor of Business.  Two gaps of non-enrolment were also identified between 21 March 2011 to 7 November 2011; and 23 April 2012 to 24 September 2012 (CB 62 to CB 106).

5. In a letter dated 1 May 2013, the Minister’s department requested further information from the applicant in relation to satisfaction of the relevant criterion including evidence of health insurance arrangements, English language ability, financial capacity, health assessment and substantial compliance with the previously held student visa (CB 8 to CB 13).

6. The applicant responded on 30 May 2013,  with the following (CB 8):

   “Respected Sir,

   Thank you for your email.

   As per your letter I am attaching these documents regarding my visa.

   1. Health cover until 15/10/2015

   2. Bank deposit certificate of my parents

   3. Bank deposit certificate of my father

   4. Declaration of sponsorship of my father

   5. Declaration of sponsorship of my mother

   6. National ID of my father

   7. National ID of my mother

   8. Receipt of my medical examination

   9. Death Certificate of my grandmother

   10. My 2 medical Certifications

   Sir, I am trying to get all pending documents. Please give me extension of 15 days. I am also waiting for letter for my college for my study. They say it will take 10 days. Please give me time and I will send my explanation and other documents.”

   Thank you

   Zakiir Hosain”

7. On 25 June 2013, the delegate refused to grant the applicant a student visa on the basis that he did not satisfy cl.573.223 and 573.235 of the Migration Regulations1994 (Cth) (“the Regulations”), as at the relevant time. That is, the delegate was not satisfied that the applicant had complied substantially with the conditions of his last substantive visa; that he met the English Language proficiency requirement; and that he met the financial capacity requirements (CB 36 to CB 38).

8. The applicant applied to the Tribunal for review of the delegate’s decision on 12 July 2013 (CB 45 to 55). He was assisted by a registered migration agent (CB 51).

9. The applicant was invited to, and attended, a hearing before the Tribunal on 5 March 2014 (CB 58).  The transcript of that hearing is in evidence before the Court.

10. Prior to the hearing, the applicant provided written submissions by way of his migration agent (CB 112 to CB 113). He claimed, amongst other matters, that his grandmother died on 29 August 2011 impacting his mental status and studies; the failure of enrolment in a course between 23 April 2012 and 24 September 2012 was due to depression; that his father died on 11 November 2013; and that he suffered due to family circumstances, which adversely affected his ability to maintain enrolment.

11. On 7 March 2014, the Tribunal wrote to the applicant inviting him to comment on, or respond to, certain information which the Tribunal considered would, subject to his comments or response, form the reason, or part of the reason, for affirming the decision under review (CB 132 to CB 134). The Tribunal put to the applicant for comment the relevant Provider Registration and International Student Management System (PRISMS) information (at CB 133):

    “This information is relevant to the review because it may lead the Tribunal to find that you have been residing in Australia since 7 July 2009, apart from four periods totalling approximately 31 weeks, the longest period being approximately 14 weeks, and this may lead the Tribunal to find that you have been using the student visa to maintain ongoing residence in Australia and cast doubt on whether you are a genuine applicant for entry and stay as a student.”

12. On 20 March 2014, the applicant responded to the Tribunal’s letter (CB 137 to CB 140). The applicant asserted, inter alia, that he had a close relationship with his grandmother who became ill and died after his departure from Bangladesh which had left him “mentally upset”; that his girlfriend had broken up with him, his friends betrayed him and his family faced financial crisis which was “a nightmare”; and his father died which greatly impacted his mental health, following which he became ill and, although notifying the college, his confirmation of enrolment was cancelled (CB 138 to CB 139).

13. The Tribunal affirmed the delegate’s decision on 28 March 2014 not to grant the applicant a student visa (CB 142 to CB 151). It identified the central issue to be whether the applicant intended to genuinely stay in Australia temporarily as a student (CB 151). In particular, the Tribunal focused on satisfaction of cl.573.223 ([7] at CB 143 to CB 144).

14. It is important to note that the basis of the Tribunal's decision for the affirmation of the delegate's decision turned on a different issue to that considered by the delegate. 

15. The Tribunal noted in its decision record that the applicant had not complied with the conditions of his last substantive visa, relevantly, providing evidence in relation to Schedule 5A of the Regulation requirements (CB 142 to CB 151).

16. The Tribunal put to the applicant, pursuant to s.359AA of the Act, its concerns in relation to his history of study in Australia ([29] at CB 147):

    “The Tribunal stated it was concerned that since his arrival in Australia, he had completed only one course, the English language course, and had been living in Australia since August 2009 apart from four periods, had provided a handwritten death certificate in relation to his grandmother who was 88 years of age when she died on 29 August 2011 but no other documentation, a death certificate which he claimed was related to his father, had provided some letters from a doctor which appeared to list medications but it did not know what these were. The Tribunal stated that it was concerned whether any of these events affected his ability to study and be able to pass any course since the English language course in January 2010.

17. The Tribunal considered the applicant’s reasons, noting the assertion that “he was psychologically sick and disturbed” ([30] at CB 147]).  However, it also noted that the information provided by the applicant “developed…over the course of the application” ([48] at CB 150).

18. The Tribunal did not accept that the applicant experienced a “breakdown in a relationship with a girlfriend, betrayal by friends or that his family suffered a financial crisis” ([50] at CB 147). Noting the applicant’s failure to make any reference to such events prior to the letter of 20 March 2014, the Tribunal found that “these were a recent invention to enhance his application for the visa” ([50] at CB 147).

19. The Tribunal considered the two letters provided from a doctor in relation to his mental health, but found them to be inadequate so as to “account for the applicant’s failure to successfully pass any courses since January 2010 or account for the two significant gaps in his studies” ([49] at CB 150).  

20. The Tribunal found that the evidence of the applicant did not overcome the Tribunal’s primary concerns ([51] at CB 150):

    “The Tribunal has considered the evidence that the applicant has completed one English language course, has undertaken some studies although not successfully completed any other qualification, had applied to undertake an IELTS test, intends to obtain a higher degree from an Australian institution, he and his family have spent a lot of money on his studies, the family’s social status would diminish if he went home without finishing a Bachelors degree and has been issued with a certificate of enrolment for the course, Bachelor of Business, which commenced on 17 March 2014 and is due to be completed on 31 December 2016, but given his history of study and residence in Australia, these do not overcome the Tribunal’s concerns that he is not a genuine applicant for entry and stay as a student.”

21. Ultimately the Tribunal was not satisfied “that the applicant intends genuinely to stay in Australia temporarily”, and therefore does not meet cl.573.233(1)(a) of Schedule 2 to the Regulations for the grant of the visa.

Application before the Court

1. The amended application of 4 September 2014 identifies the following three grounds [I note that the applicant sought an “extension of time” in his amended application, however I took that to mean an extension of time within which to file the amended document, not the substantive application.]:

   “1. That the Migration Review Tribunal failed to accord the Applicant procedural fairness in making determination of affirming the decision of the Department of Immigration which included a decision that the applicant did not meet ‘financial capacity to undertake study and residence’ para 14 of MRT decision), however, this issue was not dealt with by the Tribunal and the applicant was not invited to comment or be heard on the question of financial capacity and residence during the hearing or in writing about his financial capacity or residence. The applicant was not afforded any opportunity to comment or make submissions in respect of the material being relief upon by the Tribunal. 

   2. That the Migration Review Tribunal (the tribunal) failed to accord the Applicant procedural fairness in making determination about the psychological state of applicant during the 2 gaps of study for the period as 21 March 2011 to 7 November 2011 and 23 April 2012 to 24 September 2012. The applicants asked the MRT to let him know if the MRT need more information/evidence about this in his response to the MRT invitation to comment.

   3. That the Migration Review Tribunal erred in its determination to consider the ‘applicants circumstances’ and ‘any other relevant matter’ in determining whether the applicant is ‘a genuine applicant for stay as a student pursuant to Clause 573.223 of the Migration Relations 1994 (the Regulations) in that it failed to properly consider:

   a. the country the applicant visited was Bangladesh and not ‘Pakistan’ as set out in the invitation to comment dated 7 March 2014 on Page 2., as the applicant only travelled to Bangladesh as indicated on his passport. The tribunal has failed to consider the applicants circumstances in their home country which a tribunal is required to have regards to pursuant to Direction No 53. (see page 3 of the Tribunals decision).

   b. the current financial capacity of the applicant;

   c. the value of the course to the applciants future (the was touched on by the applicant but not properly considered by the Tribunal) and

   d. the current & future residence of the applicant.”

   [Errors in the original.]

Consideration

1. The applicant appeared before the Court today in person and was assisted by an interpreter in the Bengali language. In essence, the applicant raised one complaint before the Court today.  I will return to that complaint below. 

2. Ground one of the application to the Court asserts that the Tribunal denied the applicant procedural fairness.  The applicant states that the delegate’s decision was based, in part, on a finding that the applicant did not meet the relevant financial requirements to undertake study and live in Australia.  In his ground, the applicant directs attention to [14] of the Tribunal’s decision record (at CB 145).  Plainly, at that part of the decision record, the Tribunal was setting out the claims, and the evidence, that had been put before the delegate, and noted the basis upon which the delegate refused the application for the visa. 

3. The complaint before the Court is that the Tribunal did not deal with this matter in its decision. That is, the matter of the applicant’s failure to comply with conditions that attached to his previous visa, that he had not submitted evidence of English language proficiency and financial capacity.  The denial of procedural fairness, or the failure of procedural fairness, is said to be that he was not invited to comment on this issue, or this collection of issues, at the hearing or to make submissions on those matters. 

4. However, the applicant’s ground fails to recognise that in the exercise of its jurisdiction, which is to review the delegate’s decision, the Tribunal was required to consider the application for the visa a fresh (“de novo”). 

5. It is clear that the delegate’s decision did turn, in part, on the question of the applicant’s financial capacity to undertake his study and to cover his stay in Australia. The Tribunal recognised this when it set out the background to the applicant’s case, and that includes paragraph 14 of its decision record, to which the applicant now refers. 

6. It is important to note that in the conduct of its review of the delegate’s decision, the Tribunal is not confined only to the issues that disposed of the application before the delegate. Given the circumstances that were ultimately presented to it, it was reasonably open to the Tribunal to take the view that the central issue before it was whether the applicant had met the requirements of cl.573.223(1) of the Regulations for the grant of the visa. That issue was, given the applicant’s history, whether the applicant was indeed intending to remain in Australia as a genuine student. The Tribunal also recognised this to be a different issue to that which was dispositive of the application before the delegate. I refer here to [7] of the Tribunal’s decision record (at CB 143 to CB 144):

7. The applicant has put before the Court the transcript of the Tribunal hearing.  The transcript reveals the following.  The Tribunal recounted to the applicant the issues that were before the delegate. However, at question 8 of the transcript (T2), the Tribunal told the applicant as follows:

   “…But the issue that I was concerned about was whether you are a genuine student, having regard to your history of residence and study in Australia.”

8. It is clear, on any plain reading of the transcript, that the hearing proceeded on that basis.  Following the hearing, the Tribunal wrote to the applicant and invited him to comment on, or respond to, certain information that went to this issue and which the Tribunal said would be the reason, or a part of the reason, for affirming the delegate’s decision.

9. In these circumstances the applicant’s claim that he was denied procedural fairness cannot be made out. The applicant was invited to a hearing pursuant to s.360 of the Act where the issue dispositive of the review was squarely put to him, and he was given the opportunity to give his evidence and make his arguments in relation to that issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).

10. Further, given the language of the Tribunal’s letter sent on 7 March 2014 to the applicant, that letter was sent pursuant to s.359A of the Migration Act. In any event, the Tribunal’s subsequent letter complied with its procedural fairness obligations as required by s.359A of the Act.

11. On the material before the Court, ground one of the application is not made out. 

12. Ground two asserts a denial of procedural fairness.  This is said to be because the Tribunal did not ask the applicant for more information about his claimed “psychological state”. I note from the transcript, that in answer to the Tribunal’s questions about the reasons for the gaps in his study, the applicant advanced the claim, amongst a number of other claims, that he was psychologically disturbed, and this affected his study. 

13. In context, that relates to the matters concerning his relatives’ circumstances in his home country. I note here, for example, question 33 at [6] of the transcript. Having regard to the transcript of the hearing, the Tribunal put to the applicant that he had not provided evidence that he had been to see a doctor in Australia about his psychological condition (question 34 at [6], of the transcript):

    “…you haven't provided any evidence that you've been to see a doctor about any psychological condition in Australia, apart from, apart from there's two letters from a doctor which indicate you were unwell to go to school for a week and you were vomiting for another period of time. There's no evidence that you've been to see a doctor about any psychological conditions in Australia…”

14. In its decision record, the Tribunal did consider the applicant’s claims about being “psychologically disturbed” because he was affected, amongst other things, by his grandmother’s ill-health and her subsequent death.  The Tribunal also had regard to written representations made on behalf of the applicant ([47] at CB 150).  Ultimately, the Tribunal found that the applicant’s evidence, in this regard, was unconvincing as to why he had not sought medical treatment for his claimed psychological condition.

15. This was in the context of the Tribunal finding that the medical evidence that the applicant had presented did not support the claim of psychological problems.  The Tribunal’s finding that this matter did not provide a satisfactory explanation as to the applicant’s failure to pass any educational courses since January 2010, or to account for gaps in his studies, was a finding that was reasonably open to it make on what was before it, ([46] – [49] at CB 149 – CB 150).

1. In ground two the applicant also asserts that he asked the Tribunal to tell him if it needed more information.  It must be said that there is nothing in the transcript of the hearing to show that the applicant asked that question, at that time.  However, the applicant’s response to the Tribunal’s subsequent letter does make such a reference. I note here the applicant’s letter (at CB 140), that the applicant says “let me know if you need more information regarding this”, meaning the matters that he had responded to in his letter. 

2. However, in the circumstances of this case, I agree with the Minister’s submission, that it was for the applicant himself to advance any evidence, or arguments that he wished to put, in support of his case.  There is no obligation for the Tribunal to make out the applicant’s case for him, or to assist him, in that regard.  It is for the applicant to make out his own case, such that the Tribunal can reach the requisite level of satisfaction for the grant of the visa.

3. Nor is there any general obligation on the Tribunal to make further inquiries.  In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429, the High Court set out the limited circumstances in which such an obligation may arise. There is nothing that can be seen in this case to say that it falls within any of those limited circumstances. In all, ground two is not made out.

4. Ground three asserts that the Tribunal fell into error because it did not have regard to the applicant’s circumstances, and other relevant matters, in its consideration of whether he was a genuine student, pursuant to cl.573.223 of the Regulations. The applicant seeks to particularise what the Tribunal is said not to have considered.

5. In this regard, it is clear from the Tribunal’s decision record that it did have regard to Direction 53, that was made pursuant to s.499 of the Act. This direction sets out the matters that the Tribunal is required to weigh in the consideration of the applicant’s circumstances as a whole. I refer to the Tribunal’s decision record at [9] – [10] (CB 44), where it noted all these matters. It is clear from what subsequently, and immediately, follows in the decision record that the Tribunal did proceed to consider those matters, and that part of the applicant’s complaint is not made out.

6. In relation to ground three, particular (a), the applicant claims that the Tribunal did not give proper regard to his circumstances in his home country, Bangladesh. This is the country to which he had travelled on a number of occasions from Australia. I note that in the Tribunal’s letter of 7 March 2014, the Tribunal referred to “Pakistan” instead of Bangladesh as his home country.  This was a matter that the applicant raised with some strength before the Court today.  In essence, the applicant said that this mistake by the Tribunal in its letter, made him “feel” or “think” that the Tribunal did not have proper regard to his particular circumstances because it referred to “Pakistan”, to which he had not travelled, instead of Bangladesh, which was the relevant country.

7. The issue before the Court today was not only whether the Tribunal had made a mistake, which plainly it had, but whether such a mistake had legal consequences in the exercise of its jurisdiction.  That is, did it have a consequence for the making of its decision such that it can be said that the Tribunal’s mistake was a jurisdictional error.

8. It is important to note that the error appears in the Tribunal’s letter to the applicant.  It is clear that there is no such error in relation to the country of reference in the Tribunal hearing.  That letter is signed not by the Tribunal member, but by a Tribunal officer.  However, in my view, given that the Tribunal member was the person constituted for the purpose of conducting this review, that error becomes, in effect, the Tribunal’s error.

9. Nonetheless, and importantly, no such error is evident in the Tribunal’s decision record, which, after all, is the mechanism through which the Tribunal’s consideration of the applicant’s case and its findings are conveyed.  In my view, taking into account the totality of the material before the Court, the mistaken reference to “Pakistan” in the letter can only, as the Minister broadly describes it, be described as a “typographical error”. 

10. As the applicant quite rightly said, this is not a mistake where a word is misplaced, which is what normally would be described as a “typographical error”.  This is a mistake with the reference to a country which was not relevant to the applicant’s claims.  In that sense, I agree with the applicant that, in a way, the phrase “typographical error” is not entirely accurate.  However, what I understood from the Minister, to be the use of that phrase, was that it was not an error that had any material effect on the Tribunal’s ultimate consideration of the applicant’s claims and, therefore, the exercise of its jurisdiction.

11. Ultimately, the Tribunal did have regard to the applicant’s circumstances with reference to Bangladesh and there is no evidence before the Court that at the time that the Tribunal came to consider the applicant’s circumstances, that it fell into any error in considering the applicant’s circumstances in this regard. 

12. I also agree with the Minister’s submissions today that it cannot be said that the applicant was misled by this error.  The applicant was plainly aware of the relevant country and in his response he took no issue with this mistaken reference. It cannot be said that that mistaken reference in the Tribunal’s letter affected the applicant’s capacity to subsequently present his case.

13. In all, therefore, while I agree with the applicant that an error was committed by the Tribunal in what it expressed in the letter to the applicant, in the total circumstances of this case, it is not an error that went to the exercise of the Tribunal’s jurisdiction.

14. As to the remainder of the particulars, the applicant does not recognise that the issue for determination before the Tribunal was whether, in effect, he was a genuine student.  His financial capacity to support himself in Australia, the nature of the educational course and its relevance to the applicant (and his residence in Australia) were addressed appropriately, in context, by the Tribunal ([51] – [53] at CB 150 to CB 151)

15. After explaining to the applicant the difficulties with his application to the Court, in particular that the Court could only assist him if there was a mistake as to the exercise of the jurisdiction by the Tribunal, the applicant sought more time from the Court to consult a lawyer.

16. The applicant did not provide any satisfactory explanation as to why he had not consulted with a lawyer prior to this occasion.  The applicant had confirmed at the beginning of the hearing that he had not consulted a lawyer and had drafted the application to the Court himself by consulting the internet. I accept what the applicant says and it may be that the applicant felt that coming to this Court, with what he had been able to put together himself, would be sufficient to assist him.

17. In making his application to the Court, it is clear that the application itself seeks to invoke legal issues and references the Migration Act. The applicant is not a lawyer. However, the applicant recognised, at least, that legal issues were important in these proceedings. I cannot accept that the applicant’s “belief”, that he was able to successfully prosecute his own case, is a satisfactory explanation for now seeking the opportunity to go and speak to a lawyer 15 months after his case had been put to the Court. In this regard, I note that the applicant has attended Court on two previous occasions and, indeed, his matter was set down for final hearing today in September of last year.

18. In any event, had there been some possible legal issue apparent in the material that had been put before the Court, the existence of any such possible legal argument or issue would, obviously, be a relevant consideration as to whether to give the applicant further time, even at this late stage. However, I cannot see that any such legal issue arises in what has been presented to the Court, therefore to give the applicant further time would, in my view, be an exercise in futility.

19. The Tribunal properly identified the issue for consideration that arose from the circumstances presented, and in the statutory and regulatory context, in which it was required to consider the applicant’s claims. That issue was squarely identified for the applicant and he was, as I said earlier, given the opportunity to comment on that issue, and to comment or respond to information concerning that issue, after the hearing.

20. The Tribunal’s conclusion and the antecedent findings that informed that conclusion, were all reasonably open to the Tribunal to make on what was before it.  In those circumstances, the applicant’s request, which I took to be a formal application for an adjournment, was refused.

Conclusion

1. In all, none of the grounds of the application are made out. I cannot otherwise see any jurisdictional error arising from the material before the Court. It is appropriate to dismiss the application as amended. I will make that order.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  31 July 2015