Iqbal v Minister for Immigration

Case •

[2007] FMCA 974

•

31 May 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IQBAL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 974
MIGRATION – Visa – student (temporary) (class TU) visa – Migration Review Tribunal – application for review of MRT decision affirming decision of a delegate of the Minister – condition 8202 – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359A, 359A(1), 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEEV v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
Applicant: MD ARIF IQBAL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 96 of 2007
Judgment of: Scarlett FM
Hearing date: 31 May 2007
Date of Last Submission: 31 May 2007
Delivered at: Sydney
Delivered on: 31 May 2007

REPRESENTATION

Solicitors for the Applicant: Mr R. Turner
Solicitors for the Applicant: McMahons National Lawyers
Counsel for the Respondents: Ms V. McWilliam
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent’s costs fixed in the sum of $3,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 96 of 2007

MD ARIF IQBAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) that was signed on 6th December 2006. 


    The Tribunal affirmed the decision under review which was a finding by the Minister's delegate that the applicant was not entitled to the grant of a student (temporary) (class TU) visa. 

  2. The background of the matter, so far as it is relevant, is that the applicant is a national of Bangladesh who applied for a student visa on 15th March 2004 and a delegate of the Minister refused that application on 1st July in that year.  The applicant then lodged an application for review with the Migration Review Tribunal on 26th July 2004. 


    On 7th January 2005 the Tribunal affirmed the decision, but on


    22nd February 2006 the Federal Magistrates Court quashed the Tribunal's decision and the application was remitted to the Tribunal for determination. 

  3. The proceedings before me relate to the second decision of the Tribunal.  The subject matter relates to the applicant's student visa and the question is whether or not he complied with condition 8202. 


    That is a requirement that an applicant make satisfactory progress. 


    The applicant's records showed that in the 16 subjects that he undertook between 2001 and 2003 he passed four of those subjects, gaining 40 points.  He was required to obtain 200 points.  On 17th June 2003 the University of Western Sydney advised the department that the applicant had not met the course requirements. 

  4. The Tribunal wrote to the applicant initially on 31st March 2006. 


    That letter was a letter expressed to comply with the requirements of s.359A of the Migration Act 1958 (Cth) (“the Act”) and indeed referred to that section. The applicant notified the Tribunal of a change of address on 6th April 2006 and so on 15th May the Tribunal wrote the same letter to the applicant at his new address. The letter was headed "Invitation to Comment on Information" and it referred to the provisions of s.359A of the Act, saying:

    Section 359A of the Act states that the Tribunal must explain and invite comment on particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. You are invited to comment in writing on the following information: (1) you provided a copy of your academic transcripts to the department. The transcripts indicate you only passed four of 16 subjects you attempted in 2001 to 2003. You only gained 40 points.


    The transcripts show you were required to gain 240 points. 


    On 17 June 2004 the University of Western Sydney advised the department that you did not meet the course requirements. 


    This information is relevant to the review because clause 573.212 requires the Tribunal to be satisfied that you substantially complied with the conditions on your previous student visa granted on 30 April 2001.  Condition 8202 required, among other things, that you achieved an academic result certified by the education provider to be at least satisfactory for each term or semester of the course.[1]

    [1] See Court Book page 66

  5. The applicant replied to that letter by means of a letter from his then legal advisers.  That letter dated 7th July 2006 contained a statutory declaration by the applicant, a letter relating to the applicant's mother's medical condition, a copy of Court papers from the Burwood Local Court relating to a case in which the applicant had been the victim of an assault, copies of the applicant's passport, letters from Central Queensland University and other matters.  The letter contained a submission in which the applicant did not dispute his academic records for the period between 2001 and 2003, but went on to say:

    The applicant disputes the advice of the University of Western Sydney (UWS) to the Department of Immigration dated 17June 2004 that the applicant "had not met course requirements".  The UWS was fully informed by the police and by the applicant of the assault incident and of the applicant's injury and emotional impact caused by the assault in April 2001.  Throughout the rest of 2001 and 2002 the UWS fully supported the applicant's struggle to recover from injury and never certified the applicant as not meeting course requirements.  Instead, the university continued to support the applicant's study at the university despite the applicant's poor academic results during that period of time.

  6. The Tribunal invited the applicant to appear before a hearing of the Tribunal by means of a letter to his legal advisers dated 28th July 2006.  The applicant attended a hearing.  The Tribunal found that the applicant had not provided a certificate from his education provider that certified that his academic results were at least satisfactory in spring session 2001, autumn session 2002, spring session 2002 and autumn session 2003.  The Tribunal therefore found that the visa applicant did not comply substantially with condition 8202(3)(d).  The Tribunal went on to find that as it had found the applicant had not complied substantially with condition 8202(e)(d), he did not meet clause 572.212 and therefore was not entitled to the grant of a visa.

  7. The applicant has sought judicial review of this decision in this Court.  His current solicitor, Mr Turner, has provided written submissions, a list of authorities, being two in number, SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and SZEEV v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214. I have also been provided with a copy of the transcript of the Tribunal hearing on 24th August 2006 annexed to an affidavit by Mr Turner and, as I said, a written outline of submissions. 

  8. The thrust of the applicant's submission is that the Tribunal fell into jurisdictional error by failing to comply with its statutory duty to it, failing to comply with the requirement of s.359A(1) of the Act. For the applicant Mr Turner submitted that the information that should have been provided to the applicant was simply that the university had not certified that his academic results were at least satisfactory. He went on to submit the letters of 31st March 2006 and also 29th July 2006, which was a request for information, did not discharge the Tribunal's duty.  As I have said, the Tribunal also wrote to the applicant on


    15th May 2006, but that was in effect a repeat of the letter of 31st March only addressed to the applicant's new address. 

  9. Mr Turner submits that the letters from the Tribunal do not (a) set out the information that would be the reason or part of the reason for affirming the decision or (b) explain why it is relevant.  He goes on to submit that the correct information was not provided to the applicant as it can be implied that the Tribunal did not understand what the correct information was.  He submits that the Tribunal did not discuss the question of a certification by the university during the hearing or in its correspondence and goes on to submit that it is not sufficient, indeed it may be misleading, to simply point out that –

    It requires the Tribunal to be satisfied that it substantially complied with the conditions of your previous student visa.  Condition 8202 required, among other things, that you achieve an academic result certified by the education provider to be at least satisfactory.

  10. He submits, correctly in my view, that it is not possible to substantially comply with the provision of a certificate.  The thrust of his submission is that the adverse information was put to the applicant, which was included in three dot points to which I have referred, did not include the one piece of adverse information that was the reason for affirming the decision, namely the failure to provide certification from the university that his academic results were at least satisfactory.  Mr Turner brought to my attention the fact that this particular question is the subject of a reserved decision of the Full Court of the Federal Court constituted by Bennett J.  A decision has not been handed down. 

  11. In my view, it is not a matter where the Court should wait.  If it is, the fact that there is a decision pending, then in my view it is not a decision that is before me at this stage and I am not satisfied that much is to be gained by waiting to see what another Court will do.  That Court, with the greatest of respect, will make its own decision at a time when that Court thinks it is appropriate. 

  12. The applicant submits that the failure to provide the information is a breach of statutory duty, which is a jurisdictional error, and refers to the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (supra) and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 dated


    24th February 2006.

  13. Against this counsel for the respondent Minister has submitted that there are three independent responses to the complaint. First, that the information contained in the Tribunal's letter was not the reason for the Tribunal's decision. The reason for the Tribunal's decision was the lack of certification from the university that the applicant's academic results were at least satisfactory. Ms McWilliam submitted that the lack of certification was not required to be put to the applicant in order to comply with s.359A of the Act because that section only requires the Tribunal to provide an opportunity to comment on information. It does not require the Tribunal to provide an opportunity to comment on the lack of information. Section 359A of the Act is not directed towards the Tribunal identifying holes in the applicant's case that the applicant needs to address.

  14. The second point is that if it is found that the letter from the University of Western Sydney of 17th June 2004 and the applicant's academic transcripts were part of the reasons for the Tribunal finding that there was an absence of certification so as to enliven s.359A of the Act, then the Tribunal in fact complied with its obligations under s.359A.


    In support of that she submits that the words used by the Tribunal in its letters were sufficient to explain the relevance of the information to the applicant, namely that the operative factor in the Tribunal's mind was that the university had not certified that his academic results were at least satisfactory.

  15. The third point, which is the third alternative submitted on the basis that if it is found that s.359A of the Act was both enlivened and not complied with, was that there is a residual discretion to refuse relief and in the present case relief should be refused because the failure to comply with s.359A could not have materially affected the decision. For the reasons which I hope to make clear, it will not be necessary to consider whether in fact there is a residual discretion.

  16. As to the first point made on behalf of the respondent Minister, that s.359A of the Act was not enlivened, as I indicated to counsel during the course of the hearing, I had some difficulty with accepting this particular proposition in that it was put that the reason why the Tribunal affirmed the decision of the delegate was that the applicant had not provided a certificate from the education provider that certified that the applicant's academic results for the relevant period of time were at least satisfactory. That in fact is the piece of information which Mr Turner for the applicant submits should have been provided in terms of s.359A.

  17. In my view, it is perhaps fanciful to say that there was no obligation on the Tribunal to provide this information in that form. What the Tribunal did do in its s.359A letters was in fact set out all the relevant information. The three bullet points in the section that I quoted referred, first of all, to the applicant's academic transcripts showing that he had only passed four out of 16 subjects and had only gained 40 points out of 240 required and that on 27th June 2004 the University of Western Sydney had advised the department that he did not meet the course requirements.  That is the summary given by the Tribunal. 


    That information sets out the very reason why the Tribunal affirmed the decision of the delegate.  True it is that the Tribunal used the words that the applicant had not provided a certificate from the education provider showing his academic results to be at least satisfactory for each term or semester of the course. 

  18. When one considers the information given by the Tribunal in its context it is quite clear that that information and the substance of it made it quite clear to the applicant what the problem was.  The letter also sets out the requirement of condition 8202 of showing that the applicant achieved an academic result certified by the education provider to be at least satisfactory.  In my view, it was not necessary for the Tribunal to turn that information around so as to set out the need for the applicant to provide a certificate from the university saying that the academic results were satisfactory.  The very fact, after all, that the Tribunal advised the applicant that the university had advised the department on 17th June that the applicant did not meet the course requirements, in my view, made it abundantly clear. 

  19. Mr Turner for the applicant submitted that the applicant was in some way misled because it was not spelt out to him that what he needed to do was to provide, if he could, a certificate from the education provider saying that he did meet the course requirements.  In my view, that is unnecessary.  The applicant was legally represented.  His legal advisers, who are migration agents, answered the letter and made the appropriate comments.  It would be clear that the only way that the applicant could provide a certificate from the university that his academic results were at least satisfactory for the relevant period of time would be in some way to persuade the university to reverse the position set out in the letter of 17th June 2004 that the applicant had not met those requirements. It was not necessary for the Tribunal to tell the applicant in as many words what he had to do in order to bring his case before the Tribunal. That, to my mind, is not the purpose of s.359A of the Act.

  20. The purpose of s.359A is to provide to the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and invite the applicant to comment on it. In my view, that is what the Tribunal did. The letters of 31st March and


    15th May set out that information drew the attention of the applicant to the particular section, invited the applicant to comment on it and set out why the information was relevant to the review. I am of the view that there was an obligation on the Tribunal to provide that information to the applicant under the terms of s.359A. I do not accept the submission from Ms McWilliam of counsel that placing that requirement on the Tribunal is burdening the Tribunal unnecessarily. Quite clearly, the Tribunal was able to comply with this requirement without any real difficulty at all. The Tribunal did do exactly what it was required to do and, in my view, no jurisdictional error has been made out.

  21. It follows that the decision is a privative clause decision as defined by s.474 of the Act and the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  19 June 2007


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