Islam v Minister for Immigration

[2015] FCCA 3024

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3024

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Student (Temporary) (Class TU) visa – procedural fairness – whether the Tribunal failed to raise an adverse finding of fact – whether the Tribunal failed to afford the application with an opportunity to give evidence and present arguments – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Application for an adjournment – no utility in granting adjournment – application refused.

Legislation:

Migration Act 1958 (Cth), ss.476, 499

Migration Regulations 1994, cl.573.223(1)(a)

Applicant: MD RAKIBUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1517 of 2015

Judgment of: Judge Street

Hearing date: 10 November 2015

Date of Last Submission: 10 November 2015

Delivered at: Sydney

Delivered on: 10 November 2015

REPRESENTATION

The applicant appeared in person

Counsel for the Respondents: Ms A Douglas-Baker

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1517 of 2015

MD RAKIBUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 8 May 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant applied for the visa on 25 January 2013, which was refused on 15 July 2013 for a combination of reasons.  The applicant sought a review on 5 August 2013 and an earlier Tribunal affirmed the delegate’s decision on 8 September 2014.  The applicant sought judicial review of that decision and on 30 January 2015 orders were made by consent remitting the matter for hearing by a reconstituted Tribunal.

3. On 17 March 2015 a letter was sent to the applicant inviting the applicant to attend a hearing to be conducted on 13 April 2015.  The applicant appeared before the Tribunal on that date to give evidence and present arguments, and was assisted by his registered migration agent, although the migration agent did not actually attend the hearing.

4. The grounds of the application are as follows:

   1. The Tribunal denied the Applicant procedural fairness and failed to act in a way that was fair and just as required by s 357A of the Migration Act 1958 (“the Act”).

   Particulars

   The Tribunal surprised the Applicant at the hearing by raising at the hearing the issue of whether he satisfied the criterion of being a "genuine temporary entrant" which had not been previously raised as an issue by the Minister's delegate or by a previously constituted Tribunal.

   2. The Tribunal failed to provide the Applicant with a real opportunity to give evidence and present arguments relating to the issues arising in relation to the review, as required by s360 of the Act.

   Particulars

   By surprising the Applicant with an issue that had never been raised previously, and which he had no reason to believe he would be required to address at the hearing, and denying the Applicant further time or the option of an adjournment to prepare arguments and / or evidence in relation to that issue, the Tribunal denied the Applicant the full benefit of the type of hearing contemplated by s360.

5. The Tribunal identified in para.4 that the nature of the visa that the applicant had applied for is generally one that depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course.

6. At the time of the hearing before the Tribunal, the applicant was not enrolled in any course. The Tribunal identified the requirements of cl.573.223(1)(a) which provides as follows:

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant’s circumstances; and

   (ii) the applicant’s immigration history; and

   (iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv) any other relevant matter; and

   (b) …

7. It is clear from the Tribunal’s reasons in paras.6 to 19 that the Tribunal raised with the applicant the issue of whether he was a genuine temporary applicant and its concerns given his absence of enrolment in a course for some period of time.  It is clear that issue was explored with the applicant in the evidence as a live issue.

8. During the hearing the applicant offered to provide a letter of offer after the hearing.  However, the Tribunal indicated that it would not delay the matter just because of a desire to produce a letter of offer.  At the end of the hearing before the Tribunal, the applicant was invited to make any further submissions, and the applicant declined.  No adjournment was sought by the applicant before the Tribunal. 

9. Consistent with the requirements of s.499 of the Act, the Tribunal had regard to direction number 53 and, in para.26, set out the reasons why it found that the applicant was not a genuine temporary entrant. It was in those circumstances the Tribunal found:

   27. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).

   28. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a Student Visa, it must affirm the decision under review.

10. In relation to ground 1, it is clear the applicant was invited to a hearing consistent with a statutory regime, and it is apparent from the face of the reasons of the Tribunal that the Tribunal raised the live issue concerning whether the applicant was a genuine temporary entrant in relation to the criteria with the applicant at the hearing.

11. The proposition that an applicant for a Student (Temporary) (Class TU) visa might be surprised by the notion that there was a need to be enrolled in a course as a student in the context of whether he was a genuine temporary entrant is, of itself, surprising.  Be that as it may, it is clear that the issue of being a genuine temporary entrant was clearly raised by the Tribunal and explored with the applicant.  There is no substance in ground 1 of the application.

12. In relation to ground 2, this appears to be a restatement of in substance, the same issue as raised by ground 1, and it is clear for the reasons I have given that the applicant was invited to and did attend a hearing and give evidence and present arguments consistent with the statutory regime. 

13. There is nothing identified by the applicant in the grounds of the application to support the proposition that the hearing before the Tribunal in its review was not fair and just.  The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification.

14. At the commencement of the hearing today, the applicant indicated he wished to seek an adjournment.  No earlier notice of that request for an adjournment had been provided to the respondent.  The adjournment was opposed by the respondent. The proceedings were commenced on 3 July 2015. The applicant’s solicitor filed a notice of intention to withdraw on 7 October 2015 and filed a notice of withdrawal on 14 October 2015. The ceasing to act by the solicitor on the record is not of itself a proper basis to grant an adjournment in this case. The applicant said he had spoken to a solicitor who had referred him to another person.  No evidence was put on in relation to the steps taken by the applicant to try and obtain another solicitor and there is no reason why the Court would have any confidence that there would be any utility in granting an adjournment in the circumstances of this case. I take into account that the Court made orders on 14 July 2015 providing an opportunity for the filing of an amended application, affidavit and submissions, and no such documents were filed. 

15. For the reasons given above, the grounds of the current application are doomed to failure and in these circumstances an adjournment will only unnecessarily add to the costs of the parties and utilise limited Court time.  For these reasons, the adjournment was refused. 

16. Nothing was said by the applicant from the bar table to identify any jurisdictional error by the Tribunal.  The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 November 2015