ISLAM v Minister For Immigration and Anor (No.2)

[2014] FCCA 3048

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 3048

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error.

Legislation: 

Migration Act 1958 (Cth), ss.359A, 360

Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1
Myeong Il Kim v Ron Witton (Presiding Member of Immigration Review Tribunal) and Minister of Immigration and Ethnic Affairs (1995) 59 FCR 258; [1995] FCA 1508
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63

Applicant: HASIBUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2500 of 2013

Judgment of: Judge Barnes

Hearing date: 15 December 2014

Delivered at: Sydney

Delivered on: 15 December 2014

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2500 of 2013

HASIBUL 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 6 September 2013.  The Tribunal affirmed a decision of the delegate of the First Respondent refusing the Applicant a Student (Temporary) (Class TU) visa. 

2. The Applicant is a citizen of Bangladesh.  He arrived in Australia in 2009 as the holder of a student visa that was in effect from April 2009 until June 2011.  He applied for a further student visa on 21 June 2011. 

3. That application was refused and he sought review by the Tribunal.  He attended a Tribunal hearing on 3 April 2013.  A transcript of the hearing is in evidence before the Court as an annexure to the affidavit of Michelle Elizabeth Stone affirmed on 30 April 2014.

4. The Tribunal wrote to the Applicant pursuant to s.359A of the Migration Act 1958 (Cth) (the Act) on 23 April 2013 putting certain matters to him for comment. He provided a response. On 4 June 2013 the Tribunal wrote again under s.359A, putting additional matters to the Applicant. Again, he responded.

5. In its findings and reasons the Tribunal explained that the issue before it was whether the Applicant met the criterion in relation to the subclass of student visa for which he was applying that he had complied substantially with the conditions that applied to the last substantive visa held by him and to any subsequent bridging visa.  Relevantly condition 8516 (which applied to the Applicant’s subclass 572 visa in effect from April 2009 until June 2011) required that he continue to be a person who would satisfy the criteria for grant of that visa.  One of the criteria for the visa (see cl.572.231) required him to be enrolled or the subject of a current offer of enrolment in a course of study that was a principal course.  In addition, condition 8202 required the Applicant to be enrolled in a registered course.

6. In its findings and reasons the Tribunal found that it was appropriate to assess the Applicant on the basis that he was seeking a subclass 573 visa, given that by the time of the Tribunal decision he was studying for a Bachelor of Business (although it also addressed the other subclasses).  However, for reasons which it gave, the Tribunal was not satisfied that the Applicant had complied substantially with conditions 8516 and 8202 that applied to the last substantive visa he had held.

7. The Tribunal set out the law in relation to substantial compliance, finding that this was a question of fact to be determined having regard to the particular circumstances of the case.  In its findings and reasons it addressed the particular circumstances of the Applicant’s case. 

8. The Tribunal found that the Applicant had held his subclass 572 Student visa from April 2009 until June 2011, a period of some 26 months.  It acknowledged that the Department had found that the Applicant had not undertaken any study for a period of about 18 months while he held that visa and had regarded this as the period to be taken into account for assessing substantial compliance.  However the Tribunal was of the view that the requirement in condition 8516 related only to periods during which the Applicant was not enrolled or did not have an offer of enrolment and that it required him to continue to satisfy the criterion that he be enrolled or have an offer of enrolment in a registered course.  Similarly, it found that condition 8202 required the Applicant to be enrolled in a registered course.  The Tribunal therefore considered whether the Applicant was enrolled in a registered course or had an offer of enrolment in the period from 2009 to 2011 while he was the holder of the Student visa. 

9. The Tribunal found that PRISMS records before the Department (which it had put to the Applicant in its s.359A letters) indicated that the Applicant had ceased studying a Certificate IV in Financial Services at Uniworld College on 18 December 2009 (which was recorded as his last day of study) and that he did not commence a Diploma of Accounting on 22 April 2010. It found that he did not start his Bachelor of Business (at King’s Own Institute) until 21 March 2011 pursuant to a certificate of enrolment created on 18 March 2011 and an offer of enrolment of 11 March 2011.

10. However the Tribunal had regard to the fact that the PRISMS records indicated that the record regarding the Applicant’s study and enrolment at Uniworld was not created until 13 April 2010 and that his Certificate of Enrolment in the Certificate IV and in the proposed Diploma of Accounting were cancelled on that day. 

11. The Tribunal found that the Applicant was not enrolled in a registered course from 14 April 2010 until 18 March 2011 and that he did not have an offer of enrolment in the period 14 April 2010 to 11 March 2011.  In other words, the Tribunal considered whether the Applicant had complied substantially on the basis that he was not enrolled and did not have an offer of enrolment for a period of 11 months during the 26 months of his student visa.

12. In considering this issue and whether the Applicant had complied substantially with the conditions applicable to his student visa, the Tribunal addressed his claims that he had continued to study at Uniworld until September or October 2010 and that at most he was not studying for about six months, including during summer vacation.  It recorded that the Applicant claimed that the college had insisted on further payments and that it may have reported him as having ceased to study when he continued to study.

13. However the Tribunal observed that the Certificate of Enrolment (CoE) for the Certificate IV course of Uniworld indicated that all fees had been prepaid and also that the CoE was not cancelled until about a week before the course finished.  It stated that it had considered the evidence given by the Applicant and his uncle (as summarised earlier in its reasons for decision) but did not accept that the Applicant had continued to study until September or October 2010. 

14. The Tribunal addressed several matters in relation to this conclusion.  It found that as the payment of tuition fees was not an issue (because the fees for the Certificate IV course were shown as prepaid on the CoE) there would have been no reason for Uniworld to cancel the Applicant’s Certificate of Enrolment on 13 April 2010 unless he was not attending or passing the course.

15. The Tribunal considered whether the Applicant’s CoE for the diploma course was cancelled because he had not prepaid the fees.  However it had regard to the fact that not only was that CoE cancelled but also Uniworld had recorded on PRISMS that the Applicant had ceased studying in December 2009.  This was said to indicate that the CoE was cancelled because the Applicant had ceased studying in December 2009.  As the Applicant was undertaking a package of courses, the Tribunal was of the view he would not have been permitted to commence the Diploma course in April 2010 if he had not completed the Certificate IV. 

16. The Tribunal accepted that where a student was enrolled in a package of courses, some colleges were reluctant to issue any qualification document until the student completed the package.  However it was of the view that if the Applicant had continued to study until September or October 2010 (as he and his uncle had claimed) he would have been able to provide some evidence, such as completed assignments or fee receipts for the Diploma course.  The Tribunal found that the Applicant had provided no documents in support of his claim that he continued to study until September or October 2010.  While he claimed that he did not keep any receipts, the Tribunal was of the view there would be some records, such as transfers of money from the Applicant’s parents to the Applicant or his uncle.

17. The Tribunal also addressed the Applicant’s contention that he had been unable to obtain documents from Uniworld to show that he continued to study until September or October 2010 because it had closed down.  The Tribunal accepted that Uniworld College had closed and that the Applicant was not able to obtain documents as at September 2013.  However it also found that, contrary to the Applicant’s claims, there was information before it (which it had put to the Applicant) that Uniworld did not stop teaching overseas students until 15 December 2011.  It had regard to the fact that this was after both the Applicant’s visa application and the Department’s decision of July 2011.  The Tribunal did not accept that at the time he had applied for the further student visa in June 2011 the Applicant was unable to obtain documents in support of his claim that he had continued to study at Uniworld until September or October 2010. 

18. Nor did the Tribunal did not accept the Applicant’s fresh claim (in response to a s.359A letter) that he had continued to approach Uniworld for documents until early 2012. It had regard to the fact that this claim was first made after the Tribunal hearing in response to the Tribunal informing the Applicant that Uniworld had not closed down until after his student visa application had been refused. The Tribunal was of the view that in his evidence to the Tribunal that the Applicant had tried to minimise the period he was not studying and to blame the education provider in the hope that the closure of the education provider would make it impossible to check his claims.

19. The Tribunal reiterated its finding that the Applicant was not enrolled and not the subject of a current offer of enrolment for a period of about 11 months during the 26 month period his subclass 572 student visa was in effect.  It was of the view that the period of non-enrolment and the breach was significant.  It found that the Applicant was aware that by not being enrolled in a registered course he was in breach of a condition of his visa.

20. The Tribunal addressed other issues raised by the Applicant, including his claim that he had missed some classes because he was distressed about his uncle’s business losses and that he was late paying some fees because his agent had not prepaid as much as he had expected.  The Tribunal accepted that the Applicant was upset about his uncle’s financial situation and business losses and that he had missed some classes for this reason.  However it had regard to the fact that the purpose of the visa and entry to Australia was to study.

21. Insofar as the Applicant claimed that money his father sent was a contribution to his uncle, the Tribunal had regard to the records indicating that the Applicant’s tuition fees for the Certificate IV course were prepaid and that his enrolment in the Diploma course was cancelled before it began.  It did not accept that there would be no evidence that he paid fees after April 2010.  It was of the view that, as indicated in the records, the Applicant had ceased studying and that this was why his enrolment was cancelled.  The Tribunal did not accept that the Applicant ceased being enrolled because of his financial situation, as his fees were prepaid and his father was his source of financial support, not his uncle.  While it accepted that the Applicant was distressed by his uncle’s business losses and that the home environment may have been distressing, the Tribunal found this did not excuse or explain the Applicant’s failure to maintain his studies and enrolment.  It gave more weight to its finding that the Applicant came to Australia to study, but that he deliberately did not do so for a period of about 11 months.

22. The Tribunal also addressed the Applicant’s claim that he wanted to change his enrolment to a degree course.  It accepted that it may not have been necessary for him to obtain a release letter from Uniworld.  However it did not accept the Applicant decided to do this only a few months after ceasing his studies at Uniworld.  It found that he ceased his enrolment at Uniworld in April 2010, but did not commence his degree course until some eleven months later, in March 2011.  The Tribunal was of the view that this was a significant period of non-enrolment.  It was of the view that the Applicant did not cease his enrolment at Uniworld because he wanted to undertake a degree or wanted to change education providers. 

23. The Tribunal considered the Applicant’s evidence that he was currently undertaking a Bachelor of Business, that he had only five subjects to complete that course and that he wanted to undertake a Master’s degree.  It accepted that since March 2011 the Applicant had been a genuine student.  However it gave more weight to the finding that the Applicant was not enrolled or the subject of an offer of enrolment for 11 months during the period of his earlier student visa.  It was also of the view that he had tailored his evidence and tried to minimise the period during which he was not enrolled as he was aware that his non-enrolment was a breach of his visa conditions.

24. The Tribunal stated that it had considered all the evidence the Applicant provided about his reasons for non-enrolment, but gave more weight to the length of the period of non-enrolment and to its finding that the Applicant had deliberately flouted the conditions.  It found that the Applicant had not complied substantially with the conditions of his last held substantive visa.

25. The Tribunal also found that the Applicant did not meet the criteria for any other subclass of student visa.  It affirmed the decision not to grant the Applicant a Student visa. 

26. The Applicant sought review by application filed in this Court on 15 October 2013.  He filed an Amended Application on 26 February 2014.  He has not filed written submissions.  In oral submissions today he took issue, in effect, with the merits of the Tribunal decision.  He re-presented some of the arguments that he had made to the Tribunal about when he was studying, about difficulties he had faced because of his uncle’s situation and about payment of money to Uniworld.  He also referred to his present circumstances.

27. Merits review is not available in this Court.  As I endeavoured to point out to the Applicant, these proceedings are not a rehearing of his application for a Student visa.  The claims that he raised orally today do not establish legal error, let alone jurisdictional error, on the part of the Tribunal. 

28. The first ground in the Amended Application refers to the requirement that the Applicant complied substantially with the conditions that applied to his last substantive visa and, relevantly, asserts that at all “relevant” times, including in September 2013, the Applicant satisfied the condition that he was enrolled in a course of study that was a principal course.  He claimed that at the time of the Department’s decision he was enrolled in a course of study that was a principal course.  It was contended that the Tribunal had misconstrued the Migration Regulations 1994 (Cth) in determining otherwise.

29. Insofar as the Applicant appears to contend that he would satisfy the requirement that he comply substantially with the conditions applicable to his last visa if he was enrolled in a course at the time of his application for a fresh visa, the time of the Department’s decision or the time of the Tribunal’s decision, that is a misconstruction of the legislation.

30. What was in issue, as the Tribunal recognised, was whether the Applicant had complied substantially with the conditions that applied to the visa that was in effect between April 2009 and June 2011.  The Tribunal accepted that the Applicant had enrolled in a Bachelor of Business course in March 2011.  However, as set out above, it found that he had not met the criteria in question for a period of some 11 months of the 26 months his student visa had been in effect.

31. Insofar as this ground intends to take issue with the Tribunal’s rejection of the Applicant’s claims that he continued to be enrolled for a longer period of time, it takes issue with the Tribunal’s findings of fact. Such findings were open to the Tribunal on the material before it for the reasons which it gave. In any event, a mere wrong finding of fact is not indicative of jurisdictional error. There is nothing to suggest that there is any issue of unreasonableness, irrationality or illogicality. The Tribunal’s conclusions in this respect were justified for the reasons it gave, in particular the documentary records before it and the matters it had put to the Applicant in the s.359A letters. Ground One is not made out.

32. Ground Two in the Amended Application refers to the Tribunal’s decision at paragraph 50 and to its finding that the Applicant was aware that by not being enrolled in a registered course he was in breach of a condition of his visa.  It was contended that the Tribunal had erred because it did not put this issue to the Applicant and that this was a denial of procedural fairness. 

33. The Tribunal’s conclusion in this respect was part of its consideration of the particular circumstances of the Applicant (as referred to by Sackville J in Myeong Il Kim v Ron Witton (Presiding Member of Immigration Review Tribunal) and Minister of Immigration and Ethnic Affairs (1995) 59 FCR 258; [1995] FCA 1508). Counsel for the Minister acknowledged that the Tribunal did not specifically put this issue to the Applicant in so many words, as demonstrated by the transcript of the Tribunal hearing. However, as was submitted, there was no obligation on the Tribunal to inform the Applicant of this conclusion.

34. The Applicant never contended that he was unaware of the requirement that he had to be enrolled.  Indeed, he relied on an argument that he continued to be enrolled beyond the time at which the documentary records showed that he was enrolled.  As indicated, the Applicant claimed that he had studied at virtually all times and never claimed to have been unaware of his visa conditions.  The Tribunal found that the Applicant was not enrolled from April 2010 to March 2011 and that his evidence to the contrary had been tailored to try to minimise the breach.  It was open to the Tribunal to proceed on the basis that the Applicant understood that it was necessary for him to be enrolled or at least to have an offer of enrolment.  The Tribunal was not obliged to put its provisional reasoning in this respect or its thought processes to the Applicant.

35. Moreover, having regard to the delegate’s decision, this is not a case in which it can be said that the Tribunal’s conclusion in this respect was an adverse conclusion not obviously open on the known material such as to give rise to an obligation to put the matter to the Applicant under s.360 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 and Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1).

1. As the First Respondent submitted, it was open to the Tribunal, once it rejected the Applicant’s factual claims, to find that it could infer that the Applicant was aware that by not being enrolled he was in breach of his visa conditions.  Ground two is not made out.

2. The last ground in the Amended Application refers to the fact that the Applicant and his uncle had given evidence to the Tribunal that they made certain payments to Uniworld in 2010.  It was claimed that the Tribunal had not rejected this evidence and hence that it must have implicitly accepted it.  The evidence was said to be consistent with a conclusion the Applicant was enrolled in a course at Uniworld in 2010.  It was contended that the Tribunal had overlooked this evidence and that this constituted jurisdictional error.

3. I am not satisfied that the Tribunal overlooked the evidence in question, let alone that it did so in a manner constituting jurisdictional error.  First, the Tribunal set out in some detail the evidence given by the Applicant and the person he called his uncle at the Tribunal hearing, including in relation to their claims that they made certain payments to Uniworld. 

4. In its reasons for decision the Tribunal summarised the oral evidence, much of which related to the claims that the Applicant was asked to make further payments to Uniworld and did so and that he asked for certificates and evidence in relation to his attendance which he claimed continued until approximately September or October 2010. Issues that the Tribunal had with those claims in light of the documentary evidence were put to the Applicant on two occasions pursuant to s.359A of the Act. The relevance of the Tribunal’s concern about these claims was also explained in the s.359A letters, including the fact that there was evidence of pre-payment of fees and no evidence (such as receipts or bank statements) of any further payments. The Tribunal recorded the Applicant’s responses.

5. In its findings and reasons the Tribunal addressed these issues, including the Applicant’s suggestion that the college had insisted on further payments and that there was a delay, whether there had been pre-payment of fees for the diploma course and the difficulties that might face those enrolled in a package of courses.  However the Tribunal had regard to the fact that there was no documentary evidence supporting the Applicant’s claims about study in the diploma course and to the fact that Uniworld college was still teaching overseas students until after the Applicant made his second student visa application and it was refused by the Department.  The Tribunal also considered the other reasons the Applicant gave for missing classes.  It reiterated that it had not accepted that there would be no evidence that he had paid fees after April 2010.  It did not accept that he ceased being enrolled in a course because of his financial situation. 

6. In these circumstances, it is apparent that the Tribunal had regard to the evidence given by the Applicant and his uncle but did not accept that the Applicant was studying after April 2010.  It was ultimately not persuaded by the Applicant’s unsupported (other than by his uncle) oral claims that he had made further payments and that this was evidence that he continued to study until September or October 2010.  Having regard to the Tribunal’s references to these claims I am not satisfied that it overlooked this evidence.  Rather, the Tribunal did not accept that this evidence established that the Applicant continued to study until September or October 2010.  It has not been established that the Tribunal implicitly accepted the evidence about payments made to Uniworld in 2010 or that it overlooked the evidence let alone in a manner constituting jurisdictional error.  Ground Three is not made out.

7. As no jurisdictional error has been established on any of the grounds contended for by the Applicant the application must be dismissed. 

8. The Applicant has been unsuccessful.  There is nothing in the circumstances to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  The amount sought is appropriate in light of the nature of this and other similar cases. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  14 January 2015