Islam v Minister for Immigration

[2016] FCCA 1638

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1638

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – applicant seeking to challenge factual findings of the Tribunal – application constituting merits review – application dismissed.

Legislation:

Migration Act 1958

Migration Regulations 1994, Sch.2, cl.572.223(2)(b)

First Applicant: TANIA ISLAM

Second Applicant: FARIHA HOSSAIN

Third Applicant:   KAZI FORHAD HOSSAIN

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2308 of 2014

Judgment of: Judge Burchardt

Hearing date: 27 May 2016

Date of Last Submission: 27 May 2016

Delivered at: Melbourne

Delivered on: 15 July 2016

REPRESENTATION

The Applicants: Ms Islam, in person

Counsel for the First Respondent: Ms Gangemi

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application filed on 17 November 2014 be dismissed.

3. The First and Third Applicants pay the First Respondent’s Costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2308 of 2014

TANIA ISLAM

First Applicant

FARIHA HOSSAIN

Second Applicant

KAZI FORHAD HOSSAIN

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 17 November 2014 the applicants seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 21 October 2014.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the visa applicants Student (Temporary) (Class TU) visas. The first applicant is the substantive applicant.

2. The grounds of application assert:

   “1.    Case officer said tania is not a genuine student, on the other hand, she complite (sic) her study. 

   2.    She wants to complete (sic) further study. 

   3.    I think its a error to take dicition (sic).” 

3. Those grounds, which were drafted it would seem by somebody other than the applicant, who is the primary applicant, the others being merely being dependant family members, scarcely indicate with any clarity what it was the applicant was asserting.  The affidavit that accompanied the application relevantly says only, “officer said tania is not a genuine student but she wants to complete her study.  It may be a communication error”.

4. Although orders were subsequently made by Registrar Allaway on 18 February 2015 which permitted the applicant, should she have been so advised, to file an amended application and written submissions, she did not do so.  The first respondent has filed written submissions and I will refer to those in giving the following chronology which does not seem to me to be controversial. 

5. The applicant is a 33-year old citizen of Bangladesh who first arrived in Australia on 2 April 2007 on a Student visa.  The second applicant is the first applicant’s eight-year old daughter and the third applicant is the first applicant’s husband. They now have a further and much younger child.  The Student visas granted to the applicant were valid until 27 July 2009.  In 2009, the applicant applied for further visas but they were refused for failing to satisfy the health criteria.  That decision was reviewed in the Migration Review Tribunal successfully.  On 20 May 2011, the applicants were granted a third Student visa valid until 29 May 2012 and on 21 May 2012, a further visa was applied for.  That was refused by a delegate of the Minister and the applicants sought review at the Tribunal which led in the ultimate to the decision the subject of these proceedings.

6. In June 2014, however, the then decision of the Tribunal was set aside on the basis of agreed jurisdictional error and a further hearing took place on 17 September 2014 following which the decision dated 21 October 2014, to which I have already referred, was handed down, thus leading to this proceeding. 

7. It is common cause that to obtain the subclass 572 visa that the applicant sought she had to satisfy certain criteria.  Pursuant to cl.572.223(2)(b) of Schedule 2 to the Migration Regulations 1994, the Minister must be satisfied that the applicant is a genuine applicant for stay and entry as a student having regard to (1) the stated intention of the applicant to comply with any conditions subject to which the visa is granted and (2) any other relevant matter.

8. The question before the Tribunal is best understood from the Tribunal’s reasons for judgment themselves.  The Tribunal set out the application for review at Court Book (“CB”) 220.  It noted the visa history of the applicant and the various Tribunal hearings that had taken place.  The Tribunal noted, at CB220-221 (para.7), material provided to the Tribunal, albeit some of it after the hearing.  This included evidence that she had studied a Certificate III in Hairdressing at NMIT between 10 July 2007 and 30 June 2008 and successfully completed the course.  She also provided statements of results in a Certificate IV in Hairdressing at NMIT in 2008 and evidence that she had studied a Diploma of Hairdressing in Salon Management at Melbourne International Training College between 2 February 2009 and 26 November 2009 and successfully completed the course.

9. She further provided a letter dated 26 June 2012 from an assistant professor at the Department of Radiotherapy at Khulna Medical College and Hospital which stated that the applicant’s mother-in-law had been suffering from gastric cancer and was under his treatment from March 2011 until the time of decision.  The applicant also provided a set of results marked “unofficial” issued by Imperial College for three subjects for a Diploma of Management which started on 1 April 2011.  The Tribunal noted that the statement of results indicated that the enrolment was cancelled but that the applicant was found competent in three subjects which appeared to have been undertaken from 6 April 2011 to 12 August 2011.

10. The applicant further provided evidence from Imperial College Technology & Management in the form of a Diploma of Management commenced on 5 December 2011 and ended on 30 November 2012.  The applicant provided a letter dated 4 September 2014 signed by Dr Christine Longman stating that in March 2013 the applicant’s pregnancy was confirmed and her child was born on 11 November 2013.  The letter stated inter alia that the applicant was unwell over the time of her pregnancy and was unable to study.  The applicant provided a confirmation of enrolment for a Diploma of Marketing with a start date of October 2014 and an end of 16 October 2015 and a COE for an Advanced Diploma of Marketing with a start date of 19 October 2014 and an end date of 14 October 2016.

11. The letter from the applicant’s doctor is at CB203 and I note that its terms are set out in the Tribunal’s decision.  The Tribunal recorded the applicant’s appearance at the Tribunal for the hearing on 17 September 2014 and what the applicant had said at it at paragraphs 8-21, CB221-223.  There is no suggestion by the applicant that the matters thus recorded are in any way inaccurate.  I note that in paras.10 - 12 the Tribunal said:

    “The Tribunal noted, from the previous Tribunal decision, that the applicant lodged a review application in January 2010 in relation to a previous visa application which was refused on the basis that she did not satisfy the health criteria.  On review, the Tribunal, differently constituted, remitted her case to the Department on 10 March 2011 and she was granted a Subclass 572 visa on 23 March 2011. She agreed that this was therefore her third hearing before the Tribunal.

    The applicant told the Tribunal that when her visa was refused [January 2010], her agent did not tell her if she was allowed to study or not.  She did not ask her agent if she could study.  The visa was refused and she was waiting for the MRT outcome.  The Tribunal asked her why she was waiting.  She replied that her agent did not tell her.  When asked, she said she did not ask the Department if she was allowed to study after her student visa was refused. 

    The Tribunal asked if she wanted to study in Australia why she did not ask her agent if she was allowed to do so.  She said she does not know but the next time her visa was refused, she asked her agent and continued to study.”

12. At para.13 CB222 the Tribunal recorded:

    “The applicant told the Tribunal (in summary) that:

    a.  About one week after her student visa was granted [23 March 2011] she started a Diploma of Management.  Her enrolment was cancelled because she missed handing in some assignments. 

    b.  Her mother-in-law had stomach cancer while the applicant was studying the Diploma of Management.  Her husband was very tense.  She had one child at the time and all of them were distressed about her mother‑in‑law’s condition.  She studied the course for about 6 months but she did not hand up all of her assignments.  She was not sure what date her enrolment was cancelled.”

13. The applicant set out the applicant’s studies and relevant matters at paras.14-15 CB222-223 and I note that the issue of the applicant’s health during her pregnancy was canvassed in terms.  The Tribunal also traversed with the applicant an apparent PRISM record showing that the applicant commenced a course on 1 April 2011 and the enrolment was cancelled on 13 October 2011 due to non-payment of fees. The applicant said she thought she could obtain relevant evidence about this matter (para.17).

14. It is not necessary to traverse the other matters the Tribunal canvassed with the applicant.  The Tribunal considered claims and evidence at CB224-26.  The Tribunal set out the criteria that the applicant had to meet at paras.24-26 in terms that seem to me unobjectionable and addressed the issue under the heading, appropriate as it was, “Is the applicant a genuine student having regard to stated intention to comply and other relevant matters”.  The Tribunal noted, at para.31, the applicant’s failure to study after her visa was refused in January 2010 because of a failure to satisfy health criteria.  At paras.32-36, CB225, the Tribunal found:

    “The applicant was not obliged to study while holding a bridging visa, but she was entitled to do so.  She claims that she did not know she was allowed to study after her visa was refused and that she just waited for the outcome of her (first) review application. The Tribunal is of the view that if the applicant wanted to study in Australia after her visa was refused on 18 January 2010, she would have asked her agent or the Department if she was allowed to study.  Instead of doing so, she remained in Australia without studying from December 2009 until 1 April 2011. 

    She was granted a new student visa in March 2011 and commenced study in the Diploma of Management on 1 April 2011.  Her mother-in-law was diagnosed with stomach cancer in March 2011 which caused distress to the applicant and her husband, who was therefore unable to work. Due to the stress on her family, the applicant did not complete some assignments.  She also experienced some financial problems but eventually paid her school fees in October 2011.  Her COE was cancelled on 13 October 2011, but after she paid her fees, a new COE was issued for study from 5 December 2011 until 13 November 2012.  She completed the Diploma of Management while holding a bridging visa. 

    The Tribunal accepts that the applicant’s mother-in-law had stomach cancer in 2011 and that this may have caused distress and resulted in financial problems for the applicant and her husband.  The Tribunal notes that the statement of results by the applicant indicates that she was found competent in 3 subjects which she undertook in the period 6 April 2011 to 12 August 2011.  The statement of results does not record an outcome for the subject which ran from 17 August 2011 to 16 September 2011.

    The Tribunal accepts that the applicant studied the Diploma of Management from 1 April 2011 until at least 12 August 201,1 when she was found competent in the last of three subjects on the same statement of results.  Her evidence at the hearing was that she studied for about 6 months and then her COE was cancelled.  The Tribunal notes that she completed the diploma on 30 November 2012. 

    She told the Tribunal that after completing the diploma, she intended to study further, but when she learned in February 2013 that she was pregnant, she was not enrolled in any course.  The Tribunal is of the view that if the applicant continued to study in 2013, she would have been enrolled in a new course before she found out that she was pregnant at the end of February 2013.”

15. At paragraphs 38-41, the Tribunal continued.

    “From the time of her arrival in Australia on 2 April 2007 until the bridging visa issued to her on 6 February 2014, the applicant has been entitled to study, including periods when she held a bridging visa.  The Tribunal recognises that the applicant is not obliged to study while holding a bridging visa, however, as the Tribunal explained to the applicant during the hearing, the Tribunal is of the view that a person who is a genuine applicant for entry and stay as a student would take every opportunity to study in Australia while she is entitled to do so.

    The applicant has been permitted to study in Australia for a period of 6 years and 10 months.  During that time, she has completed 2 years of hairdressing qualifications and 18 months of management studies.  She has therefore spent 82 months in Australia and completed study totalling 42 months. 

    The Tribunal accepts the medical evidence that the applicant was unable to study while pregnant in 2013, however, there is still a significant period during which the applicant was permitted to study in Australia but did not do so. 

    After considering all of the evidence in this case, the Tribunal is not satisfied that the applicant’s study history and conduct in Australia are consistent with those of a genuine applicant or entry and stay as a student.”

16. The Tribunal went on to affirm the decision of the delegate accordingly.  When the matter came before the court, the applicant informed the court that she had told the Tribunal that she was pregnant, and it was not possible to continue study.  She had given a doctor’s report to the Tribunal but it still viewed her claim unfavourably.  She referred to a gap in her study, but said that her mother in law had cancer.  Her mother in law died in January 2016.  She said it was too hard for us to continue.  She has two children as well.

17. Counsel for the Minister was essentially content to rely upon the written submissions filed, although she took the court to some of the materials in the CB that were relevant. 

18. This is a matter in which the applicant as a self-represented litigant has necessarily found it difficult to clearly articulate any kind of discernable legal case.  In discussing the matter with her, I was careful to avoid use of the confusing phrase “jurisdictional error”, but ultimately that is what the applicant needs to show to succeed.

19. Her complaints really amount in substance to the fact that the Tribunal did not give the weight to her ill health in pregnancy and the ill health of her mother in law that she would have liked.  This is clearly merits review in its starkest form, and that is not a permissible exercise of the court’s function in a case such as this.  The Tribunal, in my view, upon reading the decision fairly and as a whole, clearly understood the nature of the test it was required to apply and formulated that test in terms that are entirely consistent with the relevant legislation.

20. The Tribunal not only understood the task before it, but applied itself to it in a fashion that seems to me straightforward.  As the first respondent’s written submissions submit, the Tribunal’s finding was clearly open to it on the evidence.  In the circumstances, the application cannot succeed.  It must be dismissed with costs as requested by the first respondent. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 15 July 2016