ISLAM v Minister for Immigration

[2015] FCCA 1124

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1124

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – non-appearance by Applicant – hearing in accordance with r.13.03C(1)(e) of the Federal Circuit Court Rules – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)
Migration Act 1958 (Cth), ss.359A, 360
Migration Regulations 1994 (Cth)

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63

Applicant: SAIFUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 556 of 2014

Judgment of: Judge Barnes

Hearing date: 17 April 2015

Delivered at: Sydney

Delivered on: 17 April 2015

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 556 of 2014

SAIFUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 3 March 2014.  The Tribunal made a decision not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. Before considering the substance of the application, it is relevant to note that by email of 13 April 2015 the Applicant sought an adjournment of the hearing scheduled for 17 April 2015 on the basis of what he described as a health issue.  He attached a medical certificate dated 13 April 2015 which certified that he had attended a medical centre on that date and was suffering from anxiety, obsessive compulsive disorder, gastrooesophageal reflux, and left lateral epicondilytis (sic).  Allowing for the spelling, this is probably intended to be a reference to tennis elbow.

3. The certificate stated that the Applicant was “receiving medical treatment” but did not address the Applicant’s fitness or lack of fitness to attend a hearing or in any other respect.  The First Respondent opposed an adjournment. 

4. I decided that an adjournment was not warranted on the material before me.  The Applicant was notified by email by the Registry and informed that the medical certificate did not address his fitness to attend Court or to participate in a hearing, but that the Court was prepared to give him the opportunity to participate by way of telephone link if he preferred.  He responded that he would not participate over the telephone as he needed to go to the washroom frequently given his gastrooesophageal reflux and that the Court should make a decision in his absence.  No medical evidence was provided to support this claim.

5. The Applicant was informed that he had not provided a medical certificate relating to the hearing on Friday, 17 April 2015, that if he did participate by telephone link the need for frequent breaks would be accommodated and that he could change his mind and either attend the hearing in person or by way of telephone link if he informed the Registry of his contact telephone number.  He replied on 14 April 2015 that he was suffering from left lateral epicondylitis which would be a barrier to talking or holding the telephone set and “relating things” and that if the hearing date could not be postponed, the Court should make the decision in his absence.

6. Having regard to the very limited medical evidence before the Court and the opportunities that were afforded to the Applicant to participate by way of an extended telephone hearing, I am not satisfied that any adjournment of the hearing would be in the interests of the parties or the administration of justice. Consistent with the Applicant’s indication that the hearing could proceed in his absence if there was no adjournment, I am satisfied that, as provided for in r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth), it is appropriate that he the hearing proceed.

7. The First Respondent filed and relied on an affidavit as to service of its submissions.  I am satisfied that the Applicant was served with a copy of the First Respondent’s written submissions on 13 April 2015.  I regard this as relevant in relation to the issue of adjournment.  The submissions pointed out that the Applicant did not raise any grounds in his application.  Nonetheless the Minister’s solicitors properly addressed the issue of whether any jurisdictional error was identifiable in the decision of the Tribunal.  Hence the Applicant was put on notice of the issues to be canvassed today.

8. Turning to the substantive application, the Applicant applied for a Subclass 572 Student visa on 20 March 2012. Relevantly, among the requirements to be satisfied at the time of the decision was cl.572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which required the Applicant to have complied substantially with the conditions that applied to the last substantive visa held by him and to any subsequent bridging visa.

9. The evidence before the Court is that the last substantive visa held by the Applicant was a student visa valid from 21 June 2011 until 27 September 2012. That visa was subject to condition 8516, which required the holder to be a person who continued to satisfy the primary or secondary criteria, as the case required, for the grant of the visa. One of the primary criteria for the grant of a Subclass 572 visa was cl.572.231 in Schedule 2 to the Regulations, which, at the time of the grant of the earlier substantive visa, required the Applicant to be enrolled in, or the subject of a current offer of enrolment in, a course of study that was a principal course of a type specified for Subclass 572.

10. After the Applicant made his application for the Student visa, the Department wrote to him requesting an explanation as to a gap of some five months in the period of his study.  The Applicant responded, attaching various documents requested by the Department, including what purported to be an explanation for the gap.  However the delegate refused the application on the basis that the Applicant had not complied condition 8516 to which the previous student visa was subject. 

11. The Applicant sought review by the Tribunal. Relevantly, the Tribunal invited the Applicant to a hearing. It postponed the hearing when he advised that he was overseas. The Applicant subsequently attended a hearing. On 23 December 2013, the Tribunal wrote to the Applicant under s.359A of the Migration Act 1958 (Cth) (the Act), putting to him certain information for comment, in particular, that while the Department had found that he was not enrolled for some five months, PRISMS records held by the Department indicated that the period of non‑enrolment was considerably longer.

12. The Tribunal letter set out details of this information.  The Applicant was informed that this was relevant because it showed that, in essence, the Tribunal might find he was only enrolled in a registered course for some three to four months of the period of 15 months that he held his last student visa and hence might not be satisfied he had substantially complied with condition 8516 and also condition 8202 to which his last substantive visa was subject.  The Applicant was to comment by 20 January 2014. 

13. On 31 December 2013 the Applicant advised the Tribunal that (as he claimed he had said at the hearing in October 2013), he had lost some of his important papers overseas, his father had a brain tumour and he was upset because his wife and child had not received a visa.  In these circumstances he sought an additional six months to comment or respond.  The Tribunal granted him a short extension of time until 3 February 2014. 

14. On 27 January 2014 the Applicant responded to the s.359A letter, advancing explanations for why he did not maintain enrolment in various courses which he was not enjoying or finding too hard and referring to his inability to study the course that he wanted to study.

15. In its reasons for decision the Tribunal outlined the Applicant’s evidence at the hearing in relation to his enrolment history. It set out the information put to him in the s.359A letter and his response. It found that the relevant subclass, given the Applicant’s current enrolment, was Subclass 572 and that the issue was whether the Applicant met cl.572.235, that is, whether he had complied substantially with the conditions on the last substantive visa (relevantly condition 8516 which required him to satisfy the criteria for the grant of the visa, one of which, under cl.572.231, required him to be enrolled in, or the subject of a current offer of enrolment in, a course of study that was a principal course).

16. The Tribunal found that the last substantive visa held by the Applicant was the subclass 572 visa from 21 June 2011 to 27 September 2012.  It accepted that the Applicant was enrolled in a Diploma of Accounting when that visa was granted on 21 June 2011, but found that such enrolment was cancelled on 27 June 2011.  It found that he subsequently enrolled in a Diploma of Information Technology on 22 August 2011, but that such enrolment was cancelled on 23 August 2011.  In addition, he next enrolled in a Diploma of Information Technology on 14 November 2011 but that enrolment was cancelled on 15 November 2011.  According to the Tribunal, the Applicant next enrolled in a Certificate IV in Business Administration on 23 April 2012.  His enrolment was deferred or suspended on 1 June 2012 for compassionate or compelling reasons.  On that basis the Tribunal accepted that he was enrolled between 23 April 2012 and 1 June 2012. 

17. On the basis of this evidence the Tribunal found that in the period before 23 April 2012, the Applicant was only enrolled in a course for three brief periods of a number of days, that he was mostly not enrolled at all for a period of 10 months and that he was not enrolled in any course at all between 16 November 2011 and 22 April 2012 (a period of five months).  The Tribunal found that there was no claim that the Applicant was the subject of a current offer of enrolment in such periods.

18. On the basis of these findings the Tribunal concluded that the Applicant had breached condition 8516. It found that this represented a substantial breach, given that the Applicant had not been enrolled for a period of almost 10 months out of a total period of 15 months and that the breach related directly to the purpose of the visa, which was to enable the Applicant to study in Australia.  It was also of the view that even if the period of non‑enrolment had been five months, as the delegate had found, this would nonetheless be a significant period of non‑compliance.

19. The Tribunal went on to consider the explanations provided by the Applicant for the breach.  It accepted that prior to being diagnosed with a brain tumour in April or May 2012, the Applicant’s father might have been unwell, notwithstanding that there was no evidence in relation to this period.  It accepted that the Applicant missed his wife and child and was upset because they were twice refused visas.  However it did not accept that his concern for his father prior to April 2012 or missing his family caused him to be unable to be enrolled in a course. 

20. The Tribunal noted that the Applicant claimed he was now distressed and required psychotherapy but found that there was no medical evidence to suggest that his health was adversely affected at the time when he had failed to be enrolled while holding his earlier student visa.  It also found that this was contrary to the Applicant’s own evidence to the Tribunal that the main reason he was not enrolled was because he could not gain entry to the fashion design course in which he wished to enrol.

21. The Tribunal considered that the Applicant’s evidence indicated that the main reason he was not enrolled was either because he found the courses too hard or did not prefer them or changed his mind about what course he should undertake because he was unsuccessful in gaining entry into the fashion design course. 

22. The Tribunal concluded that it was not satisfied that the Applicant had complied substantially with condition 8516 (which applied to his last substantive visa) and hence that he did not meet cl.572.235. Nor did he meet any equivalent provision in relation to any other subclass of student visa. The Tribunal affirmed the decision not to grant the Applicant a student visa.

23. The Applicant sought review by application filed on 7 March 2014.  There are no grounds in his application.  He merely stated that he wanted to get back his student visa or to be granted a student visa.  In the accompanying affidavit he attested he filled the form in himself and did not provide any false information and intentionally did not make any mistakes.  That does not identify any grounds. 

24. However, as indicated, in written submissions the solicitor for the Minister considered the Tribunal procedures and decision and whether any jurisdictional error was apparent. 

25. First, the Applicant was invited to and attended a Tribunal hearing. There is nothing in the material before the Court to indicate that there was any failure by the Tribunal to comply with s.360 of the Act, whether in relation to the technical requirements of the legislation or in relation to the need for dispositive issues to be raised in the hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63). It appears from the Tribunal account of the hearing (the only evidence before the Court in that respect) that such issues and the concerns of the Tribunal were discussed. No failure to comply with s.360 of the Act has been established.

26. I also note that when the Applicant sought postponement of the hearing, the Tribunal ultimately granted such a postponement.

27. Similarly, there is nothing in the material before the Court to indicate any failure by the Tribunal to comply with s.359A of the Act. It relied upon PRISMS records which showed the Applicant’s enrolments during the relevant period. To the extent that such records enliven the s.359 obligations, it is clear that the Tribunal put such information to the Applicant in its letter of 23 December 2013. It explained the relevance of the information to the review and the consequences of it being relied upon. It invited the Applicant to comment or respond.

28. The Tribunal considered the Applicant’s application for an extension of time. It advised him that the request had been considered. The Tribunal agreed to grant an extension, albeit not for the six months sought. There is nothing to suggest it acted unreasonably in this respect (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [18] and [30]). The Applicant responded within the time then allowed. He had the opportunity to address the Tribunal’s concerns. The Tribunal considered the Applicant’s response to its s.359A letter in its findings and reasons. It was under no further obligation to invite the Applicant to comment on why it was not minded to accept his explanations as satisfactory.

29. Insofar as the fact that the Applicant’s last held visa was subject to condition 8516 was also capable of constituting information, that information was contained in the delegate’s decision recorded provided by the Applicant to the Tribunal (see s.359A(4)(b)). In any event, more pertinently perhaps, that information was put to the Applicant in the Tribunal’s letter of 23 December 2013.

30. The Tribunal’s findings were open to it on the material before it for the reasons that it gave.  No jurisdictional error has been established on the material before the Court.  In the absence of any jurisdictional error, it is appropriate that the application be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  1 May 2015