Islam v Minister for Immigration and Border Protection
[2015] FCA 1185
•3 November 2015
FEDERAL COURT OF AUSTRALIA
Islam v Minister for Immigration and Border Protection [2015] FCA 1185
Citation: Islam v Minister for Immigration and Border Protection [2015] FCA 1185 Appeal from: Islam Swapon v Minister for Immigration & Anor [2015] FCCA 1976 Parties: G M ASRAFUL ISLAM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 846 of 2015 Judge: KATZMANN J Date of judgment: 3 November 2015 Legislation: Migration Act 1958 (Cth) ss 65, 338, 474, 476
Migration Regulations 1994 (Cth) Sch 2 cll 573.223(1A)(c), 573.224, Sch 4 Pt 1 criterion 4020Cases cited: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129Date of hearing: 3 November 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondent: Nicole Maddocks of DLA Piper
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 846 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: G M ASRAFUL ISLAM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
3 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 846 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: G M ASRAFUL ISLAM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE:
3 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Migration Act 1958 (Cth) regulates the entry into, and residence in, Australia of non-citizens. It gives the Minister the power to grant and refuse visas to non-citizens for that purpose. The Act and the regulations made under it prescribe criteria for the grant of visas. If the Minister is satisfied that a visa applicant satisfies the relevant criteria for the visa he or she applies for, the Minister is obliged to grant the visa; otherwise the Minister must refuse to grant it: Migration Act, s 65. One of the criteria for the grant of a Student (Temporary) (Class TU) visa at the time with which this proceeding is concerned, and in particular a subclass 573 higher education visa, was that the applicant satisfies Public Interest Criterion (PIC) 4020: Migration Regulations 1994 (Cth) Sch 2 cl 573.224. Unless the Minister decided to exercise his right of waiver, to satisfy PIC 4020 there had to be an absence of evidence that the applicant had given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Commonwealth medical officer a bogus document or information that is false or misleading in a material particular in relation to the visa application or a visa held by the applicant in the year preceding the making of the application.
This appeal arises out of a decision by the Minister’s delegate to refuse to grant the appellant, a Bangladeshi national, a Class TU subclass 573 visa on the ground that he had not satisfied PIC 4020(1) because he had provided bogus documents or false or misleading information in support of his application and there were no compassionate or compelling circumstances which would justify the waiver of the requirements in PIC 4020(1). The appellant sought review of that decision in the Migration Review Tribunal but the Tribunal reached the same conclusion and affirmed the delegate’s decision. The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision but complained only about the delegate’s decision. In any event, the primary judge found that even if the matters complained of were directed to the Tribunal’s decision, “[j]urisdictional error on the part of the Tribunal had not been demonstrated”. Absent jurisdictional error, the Federal Circuit Court had no power to set aside the Tribunal’s decision: see Migration Act, s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The notice of appeal contains one ground of appeal in which it is alleged that the Federal Circuit Court erred in finding that there was no jurisdictional error. No particulars were given and no submissions in support of the appeal were filed. There is no merit in the appeal.
In his application for the visa, the appellant declared that he had access to sufficient funds to support him and the members of his family unit for the total period of his stay in Australia, including proposed tuition fees, living expenses, and the cost of fares. The appellant was subsequently advised by a processing officer in the Minister’s department (Department) that he needed to show that he had a total of $28,400 in funds available to him. He was asked to provide “proof of income stream” for the individuals who were supplying his funds. The appellant responded with a letter to the Department stating that his father was the sponsor and that his father had 3,430,536 Bangladeshi taka (BDT), (which he said was equivalent to about AUD 41,835.81) in an account with the Pubali Bank in Jessore, Bangladesh. He attached a bank statement for the period 2 October 2011 to 28 March 2012 which purported to disclose a closing balance of BDT 3,591,977.12 for an account in the name of a man recorded in the birth certificate he submitted to the Department as his father. But when the Department referred the bank statement to the bank for verification, the bank advised that the document did not exist in its records.
A processing officer then wrote to the appellant, drawing his attention to PIC 4020 and its requirements and to the information received from the Pubali Bank, and advised him that the Department considered the document to be bogus or false or misleading. He invited the appellant to “resubmit new documentation” and provide a statement indicating compelling and/or compassionate reasons as to why the Department should waive the requirements of PIC 4020.
PIC 4020, included in Sch 4 to the Regulations relevantly stated:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
…
(3)To avoid doubt, [subclause (1) applies] whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) … if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note:Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
(Original emphasis.)
The appellant took up the invitation of the processing officer, submitting three documents purportedly from another bank in Bangladesh, the BRAC Bank, relating to monies held by that bank in his father’s name. He said nothing about the earlier document which the Department had considered bogus or false or misleading (the Tribunal referred to two documents submitted the same day but there appears to be one two-page document). Nor did he provide a statement indicating compelling and/or compassionate reasons for the Department to waive compliance with PIC 4020. When he appeared before the Tribunal he claimed that his brother was responsible for the bogus documents (a claim the Tribunal accepted) and that he was unaware at the time he submitted them that they were not genuine. The Tribunal then explored with the appellant his circumstances, noting his evidence that he had assisted his social community by collecting money for mosques in Australia, helping the elderly (possibly by helping them cross the road) and doing social work (possibly by giving money to an Australian friend for churches). The Tribunal received several references attesting to his good character, which the Tribunal accepted were genuine. The Tribunal considered the appellant’s account of his circumstances and the references but was not satisfied that they were compelling circumstances affecting Australia’s interests or compassionate or compelling circumstances affecting the interests of Australian citizens, permanent residents or eligible New Zealand citizens so as to justify the grant of the visa.
The grounds pleaded in the application in the court below (without alteration) were:
1.The delegate to the Minister (DIBP) failed to understand that I am a genuine student as a student visa holder.
2.The delegate to the Minister (DIBP) failed to justify that I have access to the funds declared according with the clause 573.224 in schedule 2 of the Migration Regulation.
3.The delegate to the Minster failed to understand that I have access to the fund according to the PIC 4020.
The primary judge held that the court had no jurisdiction to review the delegate’s decision, relying on ss 338 (which defines the decisions which may be reviewed by the Tribunal — “MRT-reviewable decisions”) and 476 of the Migration Act (which defines the jurisdiction of the Federal Circuit Court). His Honour said that for that reason alone the application should be dismissed. Still, his Honour went on to say:
However, even if those allegations had been directed to the Tribunal they would still not have disclosed a basis on which the Tribunal’s decision should be set aside because they did not address the basis of the Tribunal’s decision, namely, that a bogus document had been supplied in support of the applicant’s application for a visa. That conduct disentitled the applicant to a visa unless relevant compassionate or compelling circumstances existed but the Tribunal found that none did. The applicant did not seek to demonstrate error in that latter aspect of the Tribunal’s decision.
The appellant submitted in the court below that his father had always had sufficient funds to enable him to satisfy the financial requirements and, as his Honour put it, “for various reasons his brother had taken it upon himself to send him a document which was bogus”. The appellant referred the Court to the bank statements submitted from the BRAC bank, which he insisted were genuine. But his Honour said that, by the time these bank statements were supplied, the question was no longer whether he had sufficient access to finance, but whether a bogus document had been supplied. Once a determination to that effect had been made, his Honour said, the later documents were “of no material relevance”. Consequently, his Honour held that “the fact that the Tribunal did not base its decision on them was not erroneous”.
The appeal to this Court is in the nature of a rehearing in which it is necessary to establish error on the part of the court below: see for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. The Minister filed submissions contending that the primary judge made no error. As I have already indicated, the appellant filed no submissions, either in chief or in reply. At the hearing, when asked to identify the basis of his sole ground of appeal he replied merely that, after he submitted the “wrong” bank statement he submitted a second one and did not know why it was not accepted. He declined to engage with the Minister’s submissions or the primary judge’s reasons.
The primary judge was correct in holding that the decision of the delegate was not reviewable. Review was precluded by s 476(2)(a) of the Migration Act. The primary judge was also correct to conclude that the BRAC statements were of “no material relevance”. They were relevant to the criterion in cl 573.223(1A)(c), which required that the Minister be satisfied that, while the applicant holds a visa, he or she will have sufficient funds to meet the costs and expenses required to support him and the members of his family unit during his proposed stay in Australia. The difficulty for the appellant is that he needed to satisfy the criterion in PIC 4020(1) as well as the criterion in cl 573.223(1A)(c), unless the Minister or the Tribunal, as the case may be, was satisfied that the circumstances in PIC 4020(4) justified waiving either of the requirements in PIC 4020(1). Nothing the appellant said touches on the issues raised by PIC 4020(1) or PIC 4020(4) or called into question the legality of the Tribunal’s decision.
For all these reasons the primary judge did not err in concluding that the appellant had failed to demonstrate that the Tribunal had committed any jurisdictional error.
It follows that the appeal must be dismissed. The appellant should pay the Minister’s costs. There will be orders accordingly.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 4 November 2015
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