Hossain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 186
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hossain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 186
File number: SYG 3385 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 23 March 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to given proper consideration to the applicant’s evidence – whether the Tribunal placed too onerous a burden on the applicant to prove documents were genuine – whether the Tribunal failed to “further investigate” – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s decision was illogical or irrational – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 359AA, 360, 476
Migration Regulations 1994 (Cth), cl 572.224 of Schedule 2 and Public Interest Criterion 4020 in Schedule 4
Cases cited: Abebe v The Commonwealth [1999] HCA 14
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Gill v Minister for Immigration & Border Protection [2017] FCAFC 51
Hossain v Minister for Immigration and Border Protection [2016] FCCA 2139
Karan v Minister for Home Affairs [2019] FCAFC 139
Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship & Anor v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 421
SZBEL v Minister for Immigration &Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Verma v Minister for Immigration and Border Protection [2018] FCAFC 87
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 14 March 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr N Swan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 3385 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD SHOWROV HOSSAIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 MARCH 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant in this proceeding is a citizen of Bangladesh. He arrived in Australia in July 2009 as a holder of a Higher Education (Subclass 573) student visa (Court Book (“CB”) 154).
On 27 August 2013, the applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (CB 1-8). The applicant was enrolled to complete a Diploma of Disability with a course commencement date of 14 October 2013 (CB 14-15).
On 3 September 2013, the then Department of Immigration and Citizenship (the “Department”) wrote to the applicant requesting further information in support of his application (CB 16-23). Relevantly, the applicant was asked to provide evidence that he had “sufficient funds to cover [himself] and all family unit members…during the first 24 months of [his] proposed study and stay in Australia…” (CB 20).
On 20 September 2013, the applicant’s registered migration agent responded to that request via email (CB 24). Attached to that email were various documents, including a letter from the Assistant General Manager of the Nagar Bhaban Branch of the Sonali Bank in Dhaka, Bangladesh (“the bank”) (CB 29) and an account statement purportedly issued by the bank (CB 30-31).
On 18 November 2013, the Department sent a letter to the applicant (through his agent) which explained that the Australian Consulate in Dhaka had contacted the Sonali Bank. Further, the bank had advised that the bank account statement provided by the Applicant was bogus and the account did not exist (CB 92-96). The applicant was invited to provide comment in response (CB 94-96).
On 8 December 2013, the applicant’s agent provided a response, via email, stating that the call placed to the bank “may have been answered by someone who was not familiar with accounts verification” and that the “miscommunication may have occurred because that specific branch manager was on leave (CB 97). The agent also provided a “bank account verification document” (CB 98).
On 19 December 2013, a delegate of the Minister refused to grant the applicant the Visa (CB 105-107). The delegate found that the applicant did not satisfy Public Interest Criterion 4020 (“PIC 4020”) in Schedule 4 of the Migration Regulations 1994 (Cth) (the “Regulations”) and, as such, cl 572.224 of Schedule 2 of the Regulations. The delegate was satisfied that the applicant had provided non-genuine documents (the “Sonali Bank documents”) to the Department.
On 22 December 2013, the applicant sought review of the delegate’s decision by the Migration Review Tribunal (the “MRT”) (affidavit of Benjamin Peter Wilson sworn and filed on 12 January 2022 (“BPW affidavit”) at 5-15).
On 29 May 2015, the MRT affirmed the delegate’s decision (BPW affidavit at 50-55). Relevantly, the MRT was not satisfied that the requirements of PIC 4020(1) in Schedule 4 of the Regulations should be waived.
On 18 June 2015, the applicant sought judicial review of the MRT’s decision in the then Federal Circuit Court of Australia (the “FCCA”).
On 29 August 2016, the FCCA dismissed the application for judicial review: Hossain v Minister for Immigration and Border Protection [2016] FCCA 2139. That decision was then appealed to the Federal Court of Australia (the “FCA”). On 2 February 2017, the FCA remitted the matter to the Administrative Appeals Tribunal (the “Tribunal”), by consent, for reconsideration (CB 112-114).
On 22 June 2017, the applicant was invited (through his agent) to attend a hearing before the Tribunal scheduled for 18 July 2017 (CB 125-126). On 14 July 2017, that hearing was rescheduled (at the applicant’s request) to 1 August 2017 (CB 132-133). On 31 July 2017, the applicant’s migration agent wrote to the Tribunal and asked for a further adjournment because the applicant was ill and required “additional time to provide documents”. It was explained that the applicant was “in the process of getting documents from Bangladesh but as the banks and system is slow there so it will take him time to receive documents from Bangladesh”
(CB 134). The Tribunal hearing was rescheduled to 24 August 2017 (CB 141-142) and occurred on that date. (CB 143-145).
On 28 August 2017, after the Tribunal hearing, the Tribunal wrote to the applicant
(CB 148-150). The Tribunal referred to the Sonali Bank documents provided to the Department by the Applicant, observed that the Department had conducted an integrity check with the Sonali Bank and explained that the Department had been advised that the “account does not exist. The supplied account statement is a fantasy document”. The Applicant was invited to comment on this information.
Nothing was received from the applicant.
On 5 October 2017, the Tribunal affirmed the delegate’s decision (CB 152-163).
On 3 November 2017, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as is the case here) the applicant appeared before the Court without legal representation and had difficulty articulating his concerns. In these circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
Here, the Tribunal’s decision is 11 pages long and spans 47 paragraphs. Two of those pages contain extracts of relevant legislative provisions.
The Tribunal began by identifying the type of visa decision under review. It then gave a summary of the delegate’s decision and reason for refusal (at [1]-[2]).
The Tribunal then detailed the applicant’s visa and immigration history (at [3]) and explained:
4.In support of his visa application submitted on 27 August 2013, on 20 September 2013 the applicant provided a two page bank statement in the name of Mohammed Iqbal Hossain with the heading 'Sonali Bank Limited Nagar Shaban Branch, Dhaka' and dated 18 September 2013. A letter, also dated 18 September 2013 headed 'Sonali Bank Limited' and signed by 'Mallik Abdullah-AI-Mamun' was submitted certifying that Mohammed Iqbal Hossain held savings account number [omitted] with a balance of [omitted]. The applicant's representative submitted additional documents in support of the visa application after 18 September 2013.
5.On 18 November 2013 the Department wrote to the applicant inviting him to comment on information. He was informed that the Australian Consulate in Dhaka contacted the Sonali Bank who advised that the bank account details provided in support of the visa application did not exist and the bank statement was bogus. The applicant responded on 8 December 2013 and declared he had provided genuine evidence of funds held by his father in a valid account at Sonali Bank in Bangladesh. The applicant suggested the Australian Consulate call may have been answered by an inexperienced person or the specific branch manager was on leave.
The Tribunal confirmed that the applicant appeared at a hearing before it on 24 August 2017 (at [6]) and was represented by a migration agent in relation to his review (at [7]).
The Tribunal then stated:
8.The Tribunal discussed with the applicant the Department's decision that a non-genuine document had been provided in evidence in support of his visa application. The applicant claimed that when he applied for a further student visa in 2013 there were political issues and protests in his home country and banks and offices closed down. He said as a result it was difficult to contact the bank and the bank manager later told him he had not received a call from Australia. The Tribunal asked the applicant whether he was disputing the Department's claim of having contacted the relevant bank in Bangladesh. He said he was not assuming anything but was told the bank manager did not receive any calls. According to the applicant the bank manager he spoke to is named Mallik Abdullah Al Mamun. The Tribunal advised the applicant that was the same person the Department had contacted and the applicant replied he did not know what happened in that case.
9.The applicant claimed his father contacted the bank manager and stated again that the manager had not received a call from the Department and neither did the Sonali Bank head office. The applicant then went on to say his father had a different account now and was able to support him. The applicant agreed that normally it was possible to contact the Sonali Bank by telephone but told the Tribunal it is now a three year old case and he does not know how much information they have.
10.The Tribunal invited the applicant to make submissions about the Department's findings that he had provided information that was false and misleading and/or a bogus document. The applicant said he did not understand procedures at the time as he was just a student so his parents arranged everything with the bank. The applicant suggested the Departmental case officer may not have spoken to the correct person at the bank.
The Tribunal then detailed the applicant’s response, as follows:
11.The applicant said he discussed with his father about his visa being refused and said they believed there had been some mistake which is why he decided to fight it. He said the college he was studying at told him he could not continue because he was holding a Bridging Visa. He said he now has two colleges, one in Sydney and one in Adelaide who will give him an offer letter. The applicant explained that he had requested more time to provide financial support documents from Bangladesh in relation to his study plans for this reason. The Tribunal advised him he had been told in February 2017 that his case had been remitted from the Federal Circuit Court which gave him ample time to obtain and submit any further documents. The applicant said before taking his case to court, he did not have an agent and did everything himself.
12.The applicant said he had believed he would be granted the visa after his case was successful in the Federal Circuit Court. He added his father had tried to fix everything but had also been sick and there were issues with the bank as well. This was why he was claiming he needed extra time to provide further documents. The Tribunal explained to the applicant that new financial documents were not the issue; rather the issue the Tribunal was considering was whether false and misleading information or a bogus document had been provided in relation to his application for a student visa. The Tribunal further explained that if it agreed with the Department's decision, it was required to consider whether there are compelling or compassionate reasons for waiving the relevant criteria.
The Tribunal continued:
13.The Tribunal referred the applicant to a file note that was made by the Department after contacting the relevant branch of the Sonali Bank and being advised that the relevant account, details of which had been provided by the applicant did not exist. He was invited to comment or respond to the information. The Tribunal stated that in accordance with section 359AA of the Migration Act, it was putting to the applicant particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. He was advised that the information is relevant to the review because, subject to his comment or response, it may indicate that the applicant provided information that was false or misleading, or a bogus document. The Tribunal advised that if it relied on the information it may lead to the decision under review being affirmed. The applicant was invited to comment on or respond to the information and was told he may seek additional time which the Tribunal would consider. The Tribunal also advised it would also be sending the document to him after the hearing and inviting him to make further comment then.
The Tribunal then explained that it had advised the applicant that the file note to which it referred describes actions of a Departmental officer in contacting the bank in Dhaka on 29 September 2013. The Tribunal noted that, “according to the evidence, Mr al Mamun advised the officer that the bank account details provided by the applicant did not exist” (at [14]).
The Tribunal then summarised the applicant’s oral evidence as follows:
15.The applicant said he wished to comment on the information. He said that on the last day of his Federal Circuit Court case there was a similar document presented. He claimed he said at the time that it was incorrect and it was his understanding the Departmental case note was dated before he had sent in all of his documents. The applicant wanted to know how the Department could provide a result without having considered all of his documents. The applicant suggested it was incorrect for the Department to make a decision on the validity of a document when not all had been submitted. The Tribunal referred the applicant to the date on the Department's file note which was 29 September 2013 and the applicant said his agent had provided documents to the Department slowly over a period of time.
16.By way of explanation, the applicant said he provided all of his documents to the Department by 8 December 2013 and the officer made a decision in his case on 19 December 2013. He said that the Department's file note was dated 29 September 2013, and therefore, why was the Department able to contact the bank before 8 December 2013. The applicant confirmed he had provided the relevant bank statements on 18 September 2013. The applicant resumed his claim that there were problems with the banks being closed at the time and said he could provide media articles in that regard. The applicant then wanted to know when the Department had contacted the bank because, as he said previously, he had been told by the bank manager that no one did. He reiterated that at the time it was not possible to contact the bank online either. The Tribunal asked the applicant if he was claiming the content of the Department's file note was untrue and he replied 'yes'. When asked if he believed the case note had been falsified he said it was not fair to say that but the content was not true. The applicant said he could not provide any evidence from the bank manager as he had only had verbal contact with him
As detailed by the applicant, the Tribunal asked him if he wanted to make submissions in relation to any “relevant compelling or compassionate reasons justifying the grant of the visa”. The applicant responded that he had “suffered mentally, financially and socially” and that he had problems obtaining work as a nurse due to his immigration status, only working the occasional shift (at [17]).
The Tribunal then stated:
18.The Tribunal advised the applicant he would be given an opportunity to make any further comment or response to the issue of compelling or compassionate circumstances, as well as respond further to the matter of the Department's file note. The applicant said he would wait for that invitation to comment further.
19.The applicant explained he just wants a valid visa as it is frustrating to tell employers, friends and family that he is on a Bridging Visa. He said he wants to continue his studies on a valid visa and due to these problems he has not been to Bangladesh for five years.
20.The applicant asked for an example of a relevant compelling or compassionate reason as he said he did not understand. The Tribunal explained the criteria again and told the applicant there was no definition of the terms. The Tribunal told the applicant it is not able to advise him but explained that an example might be if he had an Australia born child. The Tribunal suggested the applicant obtain advice from his migration agent. The applicant then asked if he was able to get a letter to allow him to continue studying and he was told he would need to speak to the Department.
The Tribunal then set out the relevant legislative requirements detailed in PIC 4020 in Schedule 4 of the Regulations (at [22]) and explained that those requirements can be waived if there are compelling or compassionate reasons to justify granting the visa (at [23]).
The Tribunal assessed whether the applicant had “given, or caused to be given, a bogus document” and detailed relevant legislation and authorities regarding the meaning of the term “bogus document” and “false or misleading” information (at [24]).
The Tribunal also noted that the requirement regarding bogus documents was applicable whether or not the Minister became aware of the bogus documents and whether the document was providing knowingly or unwittingly (at [25]). Further, the Tribunal explained that it “need not conclude that the applicant was aware that the information was purposely untrue for PIC 4020 in Schedule 4 of the Regulations to be engaged” (at [26]).
The Tribunal explained that it needed to consider the evidence as a whole in deciding whether the requirements of PIC 4020 in Schedule 4 of the Regulations should be waived (at [27]).
The Tribunal then detailed the evidence before it as follows:
(a)the applicant was invited to comment on or respond to information pursuant to s 359AA of the Act at the hearing, with the Tribunal referencing a file note written by a Departmental officer on 29 September 2013 regarding a phone call with the bank manager during which the manager advised the account details provided by the applicant do not exist (at [28]);
(b)in his written response to that invitation, the applicant suggested that staff changes and a lack of training could have impacted and that the person who had answered the call at the bank may not have been familiar with account verification or there was a miscommunication because the branch manager was on leave. The applicant asked that they contact the bank again via Mr al Mamun (at [29]);
(c)the applicant claimed he had spoken to Mr al Mamun who said that he had not received a phone call from any Australian authority. The applicant initially said that there were problems in Bangladesh at that time leading to the closure of banks and business but later said the bank could ordinarily be contacted by phone in 2013 (at [30]); and
(d)the applicant said that, after applying for the visa on 27 August 2013, the applicant submitted financial information on 18 September 2013 (which the Department had attempted to verify). The applicant claimed that he continued to provide further documents until 8 December 2013. The Tribunal considered that the applicant appeared to be claiming that the verification of financial information was unfair in circumstances where the applicant was continuing to provide documents (at [31]).
The Tribunal then determined as follows:
32.The Tribunal does not accept the applicant's reasons put forward as to why the Department concluded the relevant bank documents were bogus. Regarding his response to the Department on 8 December 2013, the Department file note (discussed with the applicant at the hearing and provided to him in hard copy post-hearing) specifically records the officer having contacted the Nagar Shaban Branch of the Sonali Bank in Dhaka at 11.58am on 29 September 2013 and speaking to Manager Mr Mallik Abdullah Al Mamun. The file note states Mr Al Mamun checked computerised records and confirmed the account did not exist.
33.The Tribunal also does not accept the applicant's claims that he was told by Mr Malik Abdullah Al Mamun of the Sonali Bank that no phone call from the Department or from any Australian authority had been received. On the evidence available to it, the Tribunal does not agree the information recorded in the Department's file note is untrue. No reason was provided as to why the Department's file note recording the outcome of their integrity checks was false. Since the applicant has provided a number of different reasons, some of them contradictory, to explain why the Department made its findings, the Tribunal places no weight on them.
34.The Tribunal is satisfied the Australian Consular official carried out a valid integrity check on the financial documents provided with the applicant's student visa application and was properly advised as to their authenticity.
The Tribunal noted that the applicant had said that he required additional time to provide further documents from Bangladesh, noting that his father had the means to support him. The Tribunal explained to the applicant that the issue before it was whether false or misleading information or bogus documents had been provided and not whether the applicant could provide new financial documents (at [35]).
The Tribunal then noted that it had written to the applicant on 28 August 2017 (after the hearing) inviting him to comment on or respond to information. That correspondence included a hard copy of the Departmental file note and gave the applicant a further opportunity to comment:
36.Following the hearing the Tribunal wrote to the applicant on 28 August 2017 and invited him to comment or respond to information. As the applicant had appeared by video-link and not been provided with a copy of the Department's file note during the hearing, he was sent a hard copy of the document after the hearing and given a further opportunity to comment. He was also invited to make any further submissions in relation to compelling or compassionate reasons for waiving the relevant criteria. The text of the letter to the applicant was as follows:
Invitation to comment or respond
In conducting the review, the Tribunal is required by the Migration Act 1958 to invite you to comment on or respond to certain information which it is considered would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The particulars of the information now being put to you is that while processing your application for a Student Visa, the Department obtained information that indicated financial documents provided by you were not genuine.
At the Tribunal hearing on 24 August 2017 the Tribunal discussed with you the circumstances surrounding the Department's findings that you had provided a bogus document and/or information that was false or misleading in a material particular. The Department's finding was in relation to bank statements from the Sonali Bank of Bangladesh.
Bank account details and a letter from Sonali Bank as evidence of funds held by your father Mr Mohammed Iqbal Hossain were submitted by your migration agent on 20 September 2013. This occurred after you were requested to provide additional information in support of your visa application by letter from the Department dated 3 September 2013. The Department then carried out an integrity check with the issuing bank on 29 September 2013.
A file note recording the action taken by the Departmental officer states as follows:
Applicant: Md Showrov Hossain
I contacted Sonali Bank Ltd. Nagar Bhaban Branch Dhaka on 29/09/2013 on the land line number [omitted] at 11.58 a.m. and spoke to Manager Mr. Malik Abdullah Al Mamun. After introduction and identification, I provided Mr Mamun the details of this bank account and asked him to verify the account. He confirmed after checking their computerised records that this account does not exist. The supplied account statement is a fantasy document.
Outcome: Non-genuine
This information is relevant to the review because it indicates you provided bogus documents or information that was false or misleading in a material particular. If the Tribunal relies on this information in making a decision, it may lead to the decision under review being affirmed.
Invitation to make further submissions
During the Tribunal hearing on 24 August 2017 the Tribunal explained to you that if it was satisfied a bogus document and/or information that was false or misleading in a material particular had been provided, the Tribunal is required to consider whether the requirements of cl.4020(1) or (2) should be waived, that is, not applied in your case.
As explained to you during the hearing, the requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa. The factors that the Tribunal can consider do not include your own circumstances, personal or otherwise because you are not an Australian citizen, permanent resident or eligible New Zealand citizen.
As noted by the Tribunal, the applicant was asked to respond to the invitation to comment by 11 September 2017. No response was provided (at [37]).
On the evidence before it, the Tribunal was satisfied that the applicant had knowingly provided false or misleading information and bogus documents in relation to his visa application (at [38]). The Tribunal continued:
39.The Tribunal finds the applicant has given or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth information that is false or misleading and bogus documents. The information was false or misleading in a material particular at the time it was given. In addition it was relevant to the criteria the Minister may consider when making a decision on an application, whether or not the decision was made because of that information and it was given in relation to the visa application
On that basis, the Tribunal found that the applicant did not meet PIC 4020(1) in Schedule 4 of the Regulations (at [40]).
The Tribunal then considered whether the requirements of PIC 4020(1) or (2) in Schedule 4 of the Regulations should be waived, noting that the Tribunal can do so where “there are compelling circumstances that affect the interests of Australia or where there are compassionate or compelling circumstances… that justify granting the visa” (at [41]). The Tribunal also considered the meaning of the words “compelling circumstances” and “compassionate or compelling circumstances” (at [42]).
The Tribunal found as follows in this regard:
43.For the following reasons, the Tribunal is not satisfied that the requirements should be waived. The Tribunal explained to the applicant during the hearing the criteria under which it could consider any compassionate or compelling circumstances. The applicant made some submissions about his personal circumstances. This included the applicant having suffered mentally, financially and socially, difficulties he experienced with obtaining ongoing work as a nurse, and the purpose of his studies which he had hoped would be beneficial to his future. Although the applicant was invited to make further submissions about compassionate or compelling circumstances in the Tribunal's letter dated 28 August 2017, he did not do so.
44.The Tribunal has assessed the claims made by the applicant and has also had regard to Departmental policy in considering the waiver of cl.4020(1). The Tribunal is not satisfied the evidence discloses any compelling circumstances that affect the interests of Australia, or any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justifies the granting of the visa. Therefore the requirements of cl.4020(1) should not be waived.
On the basis of the above, the Tribunal affirmed the delegate’s decision not grant the applicant the visa ([at 47]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 3 November 2017 contains one “ground of review” in narrative form. The text of the sole ground of review is not entirely legible in the originating application. The Court is, however, satisfied that it is replicated in full in the affidavit deposed by the applicant and filed with the application for judicial review on 3 November 2017.
The applicant’s sole ground of review provides as follows:
In paragraph 27 to 39, Tribunal member stated that following all the events it concludes that I knowingly provided bogus documents and/or information. All the required documents related to my application was provided to Department of Immigration. Department officer called bank and got adverse information. My father spoke to the manager whose name is mentioned in the department file and He said he has not received any call.
I informed the department same and so did to Tribunal. Now what should I be doing where there is an issue between Bank and Department of immigration. I provided what bank gave me to Department and when department asked for explanation about the documents. My father spoke to manager who informed that he not received any call. I told same thing to department and later tribunal. How can Tribunal conclude that I knowingly provided false information? Tribunal did not do further checks and on basis of just case notes of Department of immigration officer Member made a decision. This is unfair and unjust. Member had made jurisdictional error in his decision.
The Court gave the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were provided.
The materials before this Court thus include the application for judicial review and supporting affidavit, both filed by the applicant on 3 November 2017, email documents verifying that the applicant had been sent a copy of the Court Book (referenced as Exhibit 2), a Court Book numbering 163 pages (referenced as Exhibit 1), the affidavit of Benjamin Peter James Wilson sworn and filed on 12 January 2022 and written submissions filed by the Minister on 17 January 2022.
The Court confirmed with the applicant at the hearing that he had received a copy of the Court Book and the Minister’s written submissions and was prepared to proceed with the hearing.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant materials: Craig at 198;
(c)where the decision-maker relies on irrelevant materials: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at on 5 October 2017: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that his primary concern was that the Tribunal focussed “too much” on the “compelling/compassionate circumstances” and not on what was “required” to get a student visa. In effect, the applicant stressed that the Tribunal failed to properly assess the material before and thus adopted an irrational approach.
These submissions will be addressed below.
CONSIDERATION
Relevant legislative provisions
The applicant in this matter was found not to have met the requirements of cl 572.224 of Schedule 2 to the Regulations. One of those requirements was that the applicant satisfy PIC 4020 in Schedule 4 to the Regulations.
Before considering the applicant’s grounds of review, it is useful to summarise PIC 4020 in Schedule 4 to the Regulations. As accurately outlined by the Tribunal in this matter (at [22]), broadly speaking, PIC 4020 in Schedule 4 of the Regulations requires that:
(a)there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1) in Schedule 4 of the Regulations; and
(b)the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) of Schedule 4 of the Regulations during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and 2AA in Schedule 4 of the Regulations; and
(c)the applicant satisfies the Minister as to his or her identity: PIC 4020(2A) in Schedule 4 of the Regulations; and
(d)neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) in Schedule 4 of the Regulations during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA) in Schedule 4 of the Regulations.
The term “bogus document” is defined in s 5 of the Act as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
The requirements of in PIC 4020(1) and (2) in Schedule 4 of the Regulations can be waived if there are compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4) in Schedule 4 of the Regulations.
Grounds of review
Interpreting the applicant’s ground of review and subsequent oral submissions as broadly as possible, the Court has identified the following concerns:
(a)the Tribunal failed to give proper consideration to the applicant’s evidence regarding contact he and his father made with the bank (“Issue 1”);
(b)the Tribunal placed a too onerous burden on the applicant to prove the bank documents were genuine (“Issue 2”);
(c)the Tribunal failed to “further” investigate the Department’s file note and its contents before making its decision (“Issue 3”);
(d)the Tribunal failed to afford the applicant procedural fairness (“Issue 4”); and
(e)the Tribunal’s decision was illogical or irrational (“Issue 5”).
Issue 1 - Whether the Tribunal failed to give proper consideration to the applicant’s evidence regarding contact he and his father made with the bank
The applicant here appears to take issue with the Tribunal’s treatment of the evidence regarding actions he alleges he and his father took to verify whether a call had indeed been made by or on behalf of the Department to the Sonali Bank manager.
In his “ground of review”, the applicant states:
My father spoke to the manager whose name is mentioned in the department file and He said he has not received any call. I informed the department same and so did to Tribunal.
…
My father spoke to manager who informed that he has not received any call. I told same thing to department and later Tribunal.
This ground fails on a factual level.
The Tribunal referred to, and assessed both pieces of evidence throughout its reasons as follows (emphasis added):
8.The Tribunal discussed with the applicant the Department's decision that a non-genuine document had been provided in evidence in support of his visa application. The applicant claimed that when he applied for a further student visa in 2013 there were political issues and protests in his home country and banks and offices closed down. He said as a result it was difficult to contact the bank and the bank manager later told him he had not received a call from Australia. The Tribunal asked the applicant whether he was disputing the Department's claim of having contacted the relevant bank in Bangladesh. He said he was not assuming anything but was told the bank manager did not receive any calls. According to the applicant the bank manager he spoke to is named Mallik Abdullah Al Mamun. The Tribunal advised the applicant that was the same person the Department had contacted and the applicant replied he did not know what happened in that case.
9. The applicant claimed his father contacted the bank manager and stated again that the manager had not received a call from the Department and neither did the Sonali Bank head office. The applicant then went on to say his father had a different account now and was able to support him. The applicant agreed that normally it was possible to contact the Sonali Bank by telephone but told the Tribunal it is now a three year old case and he does not know how much information they have.
…
16.By way of explanation, the applicant said he provided all of his documents to the Department by 8 December 2013 and the officer made a decision in his case on 19 December 2013. He said that the Department's file note was dated 29 September 2013, and therefore, why was the Department able to contact the bank before 8 December 2013. The applicant confirmed he had provided the relevant bank statements on 18 September 2013. The applicant resumed his claim that there were problems with the banks being closed at the time and said he could provide media articles in that regard. The applicant then wanted to know when the Department had contacted the bank because, as he said previously, he had been told by the bank manager that no one did. He reiterated that at the time it was not possible to contact the bank online either. The Tribunal asked the applicant if he was claiming the content of the Department's file note was untrue and he replied 'yes'. When asked if he believed the case note had been falsified he said it was not fair to say that but the content was not true. The applicant said he could not provide any evidence from the bank manager as he had only had verbal contact with him.
…
30.During the hearing, the applicant claimed he had spoken to the same bank manager, Mr Mallik Abdullah Al Mamun and said he was told Mr Al Mamun had not received a phone call from any Australian authority. The applicant claimed that at the relevant time there were problems in Bangladesh that led to banks and businesses being closed. He said the bank was not contactable then, although he later told the Tribunal the Sonali Bank could ordinarily be contacted by phone in 2013.
As the Minister correctly contends (in written submissions dated 17 January 2022 at [17]), the Tribunal was “plainly aware” of the claims the applicant was making in relation to the attempts made by him and his father to verify the alleged communication between the Department and the bank. Indeed, the Tribunal expressly states that it “advised the applicant that Mr al Mamun “was the person the Department had contacted” to which it is said that “the applicant replied he did not know what happened in that case” (at [8]).
This exchange demonstrates that the Tribunal was well aware of, and did consider, the specific claims made by the applicant in this regard.
As outlined at [57] above, the definition of “bogus document” in s 5 of the Act only requires that the Minister (or in this case, the Tribunal), “reasonably suspects” that a particular document is bogus. There is no requirement for a positive finding or determination. Rather, the decision maker need only hold a reasonable suspicion.
Here, the Tribunal was provided evidence in the form of a file note from the Department detailing an integrity check that had been undertaken. That check revealed that documents provided by the applicant were not genuine. It is clear from the Tribunal’s reasoning that, based on that information, the Tribunal held a reasonable suspicion that the documents provided by the applicant were “bogus”.
The applicant was given ample opportunity (both during the Tribunal hearing and following that hearing) to comment on or respond to the adverse information. At the hearing, the applicant simply claimed that both he and his father had contacted the bank and were told by the bank manager that he had not received any calls from Australian authorities. The applicant did not provide any evidence in this regard, either at the hearing or following the hearing (in response to the invitation to comment letter).
On the basis of the evidence before it, the Tribunal ultimately made findings in relation to the issues before it as follows (emphasis added):
32.The Tribunal does not accept the applicant’s reasons put forward as to why the Department concluded the relevant bank documents were bogus. Regarding his responses to the Department on 8 December 2013, the Department file note (discussed with the applicant at the hearing and provided to him in hard copy post-hearing) specifically records the officer having contacted the Nagar Bhaban Branch of the Sonali Bank in Dhaka at 11:58am on 29 September 2013 and speaking to Manager Mr Mallik Abdullah Al Mamun. The file note states Mr Al Mamun checked computerised records and confirmed the account did not exist.
33.The Tribunal also does not accept the applicant’s claims that he was told by Mr Mallik Abdullah Al Mamun of the Sonali Bank that no phone call from the Department or from any Australian authority had been received. On the evidence before it, the Tribunal does not agree the information recorded in the Department’s file note is untrue. No reason was provided as to why the Department’s file note recording the outcome of their integrity checks was false. Since the applicant has provided a number of different reasons, some of them contradictory, to explain why the Department made its findings, the Tribunal places no weight on them.
It was open to the Tribunal to make the above findings and conclusions about the applicant’s evidence. In its treatment of the evidential material before it, the Tribunal only needed to be satisfied that there was some evidence with probative value as to whether the applicant provided a bogus document or false and misleading information in relation to his visa application: Verma v Minister for Immigration and Border Protection [2018] FCAFC 87 at [37]; Gill v Minister for Immigration & Border Protection [2017] FCAFC 51.
The Tribunal ultimately determined as follows:
34The Tribunal is satisfied the Australian Consular official carried out a valid integrity check on the financial documents provided with applicant’s visa application and was properly advised as to their authenticity.
As stressed by the Minister (at [19] in written submissions filed on 17 January 2022), the applicant provided no evidence to verify that he (or his father) had made any calls to the bank, no evidence to substantiate the conversation he (or his father) had had with the bank manager and no evidence to support the applicant’s claims that the documents provided by him were genuine. In the absence of any such evidence from the applicant, the Tribunal made findings based on the evidence before it (as outlined above). There was no error in the Tribunal’s reasoning in that regard.
Issue 1 does not reveal any jurisdictional error on the part of the Tribunal.
Issue 2 - Whether the Tribunal placed too onerous a burden on the applicant to prove the bank documents were genuine
In his “ground of review”, the applicant asks the following question: “Now what should I be doing where there is an issue between Bank and Department of immigration?”
Arguably, the applicant is of the view that the Tribunal placed too high a burden on him to prove the authenticity of the Sonali Bank documents he had provided in support his visa application.
It is not for the Tribunal to direct the applicant to material which may prove his case. It was the applicant’s responsibility to provide the evidence he needed to satisfy the Tribunal that he met the relevant visa criterion: Abebe v The Commonwealth [1999] HCA 14 (“Abebe”).
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 421 (“Singh”), Justice Wigney also states, at [42], that:
It is for the visa applicant to make his or her case; to present whatever information, evidence and submissions he or she is able to present to satisfy the decision-maker that the visa criteria have been met.
Despite being given every opportunity to provide further evidence to verify the authenticity of the Sonali Bank documents provided by him, the applicant did not do so.
In the circumstances, the Tribunal weighed the evidence from the Department (regarding the integrity check conducted) against the applicant’s oral evidence of a phone call he and his father had had with a bank manager.
The Tribunal did not err in doing so and no jurisdictional error arises in relation to Issue 2.
Issue 3 - Whether the Tribunal failed to “further” investigate the Department’s file note and its contents before making its decision
The applicant claims that the Tribunal “did not do any further checks and on basis of just case notes of Department…”.
The duty imposed on the Tribunal is a duty to conduct a review: Minister for Immigration and Citizenship & Anor v SZIAI (2009) 259 ALR 429.
As outlined above in relation to Issue 2, it is for the applicant to make his case and adduce evidence to support his case and to satisfy the Tribunal that the visa criteria have been met: Abebe; Singh.
Although the Tribunal has some powers under the Act to obtain information in certain circumstances, it does not have a general duty to make its own enquiries, to investigate an applicant’s claims or to make an applicant’s case for him: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (“SGLB”) at [43].
Further, it is well established that the Tribunal is under no obligation to investigate or conduct an inquiry to ascertain whether an applicant’s case might be “better put” or supported by additional evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; SGLB at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
Further, as submitted by the Minister, in order for an error to arise of the sort the applicant alleges, there must be a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable: Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 at [31]-[33]; Karan v Minister for Home Affairs [2019] FCAFC 139.
That was not the case here.
In the circumstances of this matter, it was not unreasonable for the Tribunal to attribute weight to the Department’s file note and its contents. There was no evidence before the Tribunal to suggest that the information contained in the Departmental file note was not accurate.
No error arises in relation to Issue 3.
Issue 4 - Whether the Tribunal failed to afford the applicant procedural fairness
The penultimate sentence in the applicant’s ground of review makes reference to the Tribunal’s decision as being “unfair and unjust.”
The applicant is arguably concerned that the Tribunal did not adhere to its procedural fairness obligations under the Act.
In this regard, the Court notes as follows:
(a)the applicant was invited to attend a hearing before the Tribunal as required by s 360 of the Act (CB 124-126);
(b)the applicant’s representative requested, on two separate occasions, for the Tribunal hearing to be postponed. The Tribunal agreed to the postponements on both occasions (CB 129-142);
(c)the applicant appeared before the Tribunal on 24 August 2017 to give evidence and present arguments (CB 143-145);
(d)at the hearing, the Tribunal explained to the applicant, in accordance with s 359AA of the Act, that it had information before it to suggest that the bank documents before it were “bogus” and that the account details provided by the applicant did not exist. The Tribunal notified the applicant at the hearing that this was a determinative issue and no error of the kind identified in SZBEL v Minister for Immigration &Multicultural & Indigenous Affairs [2006] HCA 63 is identified here;
(e)the Tribunal hearing lasted for almost an hour; and
(f)following the hearing, the Tribunal wrote to the applicant, providing him with a further opportunity to comment on or respond to information considered adverse to his case (CB 146-150). No response was provided by the applicant to that invitation.
On the basis of the above, the Court is satisfied that the Tribunal did not breach any of its procedural fairness obligations.
No error arises in relation to Issue 4.
Issue 5 - Whether the Tribunal’s decision was illogical or irrational
As articulated by the High Court in SZMDS at [130]-[131], the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
As argued by the Minister in written submissions filed on 17 January 2022:
21.In the circumstances of this case, there was nothing unreasonable, illogical or irrational in the Tribunal not accepting the Applicant’s claims, in particular the claim that the Applicant’s father had spoken to the Sonali Bank manager and had been told that no call had been made to him by the Australian authorities. There was also nothing illogical and irrational in the Tribunal being satisfied, on the basis of the Department’s file note (and its non-acceptance of the Applicant’s claims), that a consular official did carry out an integrity check, and that he or she had been advised that the Sonali Bank account did not exist. Again, a rational and reasonable Tribunal could have reached the same conclusion.
The Court agrees.
As outlined above, the Tribunal gave the applicant every opportunity to provide evidence to prove the authenticity of the Sonali Bank documents. The applicant chose not to do so.
The file note documenting the outcome of the integrity check completed by the Department provided a logical basis for the Tribunal’s finding that the applicant had failed to demonstrate that there was no evidence before the Tribunal that the letter and bank statements the applicant had provided to the delegate were bogus documents. It was entirely logical for the Tribunal, on the basis of the file note and the applicant’s own inconsistent submissions to it, to hold a reasonable suspicion that the documents were not genuine.
In circumstances where the Tribunal was provided with evidence from the Department indicating that the documents were bogus, and where the applicant provided no tangible evidence to refute that information, the Tribunal had more than a reasonable suspicion that the documents were bogus.
The Tribunal ultimately found that the applicant did not meet PIC 4020(1) of Schedule 4 of the Regulations and could not satisfy cl 572.224 of Schedule 2 of the Regulations.
Given the lack of evidence from the applicant in this regard, it cannot be said that the Tribunal acted capriciously in making its finding in that regard.
No jurisdictional error arises in relation to Issue 5.
DECISION
The applicant has failed to identify any jurisdictional error. The Court has otherwise been unable to identify jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 March 2022
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