Islam v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 70
Federal Circuit and Family Court of Australia
(DIVISION 2)
Islam v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 70
File number(s): SYG 2460 of 2018 Judgment of: JUDGE LAING Date of judgment: 7 February 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant Student (Temporary) (Class TU) (Subclass 500) visas – whether the Tribunal denied the applicants procedural fairness – whether the Tribunal’s decision was affected by error of law – whether the Tribunal erred by failing to consider the Migration Regulations 1994 (Cth) and/or the case of Berenguel – whether the Tribunal misunderstood or failed to consider evidence – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359A, 360
Migration Regulations 1994 (Cth) sch 2 cl. 500.217, sch 4 PIC 4020
Cases cited: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 7 February 2023 Place: Sydney Solicitor for the First Applicant The First Applicant appeared by telephone Solicitor for the Second Applicant No appearance Solicitor for the First Respondent Ms S. Sangha (Mills Oakley) appeared in person Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
SYG 2460 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAHARUL ISLAM
First Applicant
MOMOTAJ AKTER
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
7 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants pay the first respondent’s costs fixed in the amount of $6,400.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 1 and 2 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) (Subclass 500) visas (student visas).
background
On 25 August 2017, the applicants applied for the student visas. The first applicant (Applicant) sought to meet the primary criteria. The second applicant, his wife, applied as a member of the family unit.
On 9 January 2018, the Delegate refused the application on the basis that they were not satisfied that the Applicant met Public Interest Criterion 4020 (PIC 4020) in Schedule 4 to the Migration Regulations 1994 (Cth) (Regulations), as required by cl. 500.217 of Schedule 2 to the Regulations.
On 15 August 2018, the Tribunal affirmed the Delegate’s decision.
the tribunal’s decision
The Tribunal noted at [11] that the Department had written to the Applicant on 17 December 2017 advising that unfavourable information had been received which did not support his application. The particulars of the information included that the account numbers he had provided to evidence his father holding requisite funds with SBAC Bank Ltd had, upon inquiry by an officer from the Australian High Commission, been advised by the bank to have become closed and/or inactive. The Tribunal noted at [12] that, in response, the Applicant had provided different account numbers said to evidence a loan facility with SBAC Bank Ltd, which had only been applied for on 28 November 2017.
The Tribunal had regard to further evidence and submissions put forward by the Applicant in relation to this issue (at [14]-[19]). At [20]-[24], the Tribunal reasoned:
20.The Tribunal has considered the evidence and the submissions of the applicant. Based on the evidence before it, including the delegate’s record of decision, the adverse information put to the applicant as set out in paragraph 11, the applicant’s responses, and the balance of documentary and other evidence provided to the Department and the Tribunal for the applicants, the Tribunal is satisfied that, in relation to the visa application under review, the applicant has given information pertaining to his father’s accounts with the SBAC Bank Limited in relation to a loan account [number redacted] and fixed deposit account [number redacted], as well as a statement of financial support signed by his father, [name redacted] as guarantor on 20 August 2017. This statement acknowledged that the applicant would have full access to the funds. The Tribunal is also satisfied, from information obtained by officers of the Australian High Commission and SBAC Bank Limited, that that as at 22 November 2017 that the fixed deposit account [number redacted] was closed and the loan account [number redacted] was inactive. The Tribunal considers this to indicate that contrary to the applicant’s representations to the Department that his proposed study was financially supported by funds held by his father in certain accounts with the SBAC Bank Limited in the order of Tk 26,10,000 (twenty six Lac ten thousand), those funds were not in fact available in the SBAC Bank Limited to support the applicants’ proposed stay and study in Australia.
21.The applicant does not dispute that the funds were not available in the accounts initially represented to the Department. The Tribunal has considered the submission by the applicant that he was unaware that the funds were withdrawn by his father. The Tribunal has considered the claim by the applicant that the accounts had been closed because it was assumed that the visa had been granted. The actions of the applicant’s father in closing the account on the assumption that the applicants had been granted their visa, without the knowledge or consultation of either applicant, indicates that the applicants did not have full access to the funds and that they were not genuinely there for the study and living costs of the applicants for the duration of their stay in Australia. The Tribunal has considered the evidence of the applicant at the hearing that the personal circumstances for the withdrawal of the funds were to make the monies more accessible to him. The Tribunal does not accept this submission. The Tribunal did not consider that it was plausible that the applicant’s father would withdraw money set up for the purposes of his visa grant and study to make it more accessible for the applicant without informing the applicant.
22. Of further concern for the Tribunal, was the evidence of the applicant that the second loan and account set up for the purposes of his study had also been closed as his father. That is the loan facility from SBAC Bank Limited dated 29 November 2017, for accounts [numbers redacted]. The applicant claimed that they were closed because his father did not wish to pay the interest. The applicant stated in the visa application that his father had secured a bank loan for his expenses for the purposes of the visa. On the material before it the Tribunal also finds that this second loan was not also available for the applicants to access for the duration of the visa. It is clear that it was untrue that the loans submitted would be available to be accessed for the duration of the visa.
23.The Tribunal has considered that the applicant produced a receipt for a one month deposit account [number redacted] received on 16 July 2018. However, the Tribunal is not satisfied that this establishes that, although funds have been withdrawn from all accounts the applicant has forwarded to the Department, these funds are otherwise being maintained. It only demonstrated that the applicant’s father was able to deposit twenty three lac in an account proximate to the Tribunal hearing.
24.The Tribunal therefore finds that there is evidence that the applicant has given or caused to be given, to the Department, information that is false or misleading. The Tribunal is also satisfied that the circumstances of the financial support for both applicants during the term of the visa are material particulars relevant to the criteria considered when making a decision on the visa application. The Tribunal is further satisfied that information was false and misleading at the time it was given, because on the evidence the money in the loan accounts was never intended to be for the applicant to access while studying and clearly the accounts that were subsequently closed were not for the purpose of the applicant accessing while studying.
The Tribunal therefore concluded that the Applicant did not meet PIC 4020(1) (at [25]). The Tribunal then considered whether the requirements of PIC 4020(1) should be waived. At [34], it considered:
34.The applicant submitted that he was a good student, he has provided evidence to the Tribunal of his enrolment and course progress. The applicant was now part way through his Bachelor degree. He also claimed to be unaware that his father had withdrawn the money and that it was unfair therefore for him to be punished. The Tribunal accepts that the applicant has undertaken his studies and acknowledges that the refusal of the visa would have a profound impact on the applicant's study plans. However, having considered all of the applicant's submission and evidence regarding his circumstances, as well as having regard to the relevant Departmental policy as set out above, these are not considered compelling circumstances that affect the interests of Australia, or compassionate or compelling in circumstance that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa.
The Tribunal concluded that PIC 4020(1) should not be waived (at [35]-[36]). In result, the Tribunal affirmed the Delegate’s decision (at [37]-[39]).
RELEVANT PROVISIONS
The provisions in issue before the Tribunal were cl 500.217 and PIC 4020(1).
Clause 500.217 relevantly provided:
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021…
PIC 4020 relevantly provided:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, 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, subclauses (1) and (2) apply 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) and subclause (2) 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.
proceedings before this court
The applicants relied upon the following grounds in their originating application filed on 3 September 2018 (reproduced verbatim):
(1)The Tribunal decision was affected by erred of law, procedural fairness and jurisdictional error in relation to exercise its discretion to grant sub class 500 visa.
(2)The Tribunal made erred of law in relation to consider subclass 500 and failed to consider migration Regulations and failed to consider Berenguel Vs Minister for Immigration and Citizenship [2010] HCA principles and discretions to grant sub class 500 visa.
(3)Tribunal misunderstood the meaning of false and misleading evidence/information’s submitted by the visa applicant. and therefore, made an error of law in forming an opinion in assessing visa applicants as genuine student and capable to afford tuition fees.
(4)Tribunal failed to consider explanations of withdrawal of funds from the bank by the visa applicants’ father and failed to take into account visa applicants fathers explanations in relation to withdrawal of funds and later deposit funds for the purpose of student visa for the applicant.
Ground 1
Ground 1, as pleaded, was unparticularised. The applicants did not say how they considered that they were denied procedural fairness, nor how the Tribunal’s decision was otherwise affected by error of law.
The Tribunal’s procedural fairness obligations were limited under Part 5 of the Migration Act 1958 (Cth) (Act). The applicants were invited to a hearing in accordance with s 360 of the Act, which was attended by the Applicant. There is no transcript before the Court evidencing what was or was not said at the hearing. However, the Applicant appears to have been sufficiently on notice of the issues on the review from the Delegate’s decision and their exchanges with the Tribunal that are recorded in the Tribunal’s decision record (at [16]-[19]). The Applicant therefore appears to have been given a meaningful opportunity to give evidence and present arguments regarding the dispositive issues on the review. There does not appear to have been any information before the Tribunal that was capable of enlivening its obligations under s 359A of the Act.
At the hearing before this Court, the Applicant submitted that it was unfair for the Tribunal to have not accepted his evidence regarding what was said to have been his father’s honest mistake, and the evidence that he had subsequently provided to the Tribunal. As I explained during the hearing of this matter, however, this Court does not have the power to set aside the Tribunal’s decision on the basis of disagreement alone. The role of this Court is limited to assessing whether the Tribunal’s decision was affected by any material, legally recognisable error.
The Tribunal was not persuaded by the evidence that had been provided regarding the mistake said to have been made by the Applicant’s father, and regarding the subsequent funds. The Tribunal did not accept that it was plausible that the Applicant’s father would have withdrawn money set up for the purposes of funding the Applicant’s visa and study in order to make it “more accessible to him”, in circumstances where the Applicant’s father had not informed the Applicant of the transfers (at [21]). The Tribunal was further concerned that the second loan and account had also been closed, for the stated reason that that Applicant’s father had not wanted to pay interest (at [22]). In these circumstances, the Tribunal was not willing to accept that the monies subsequently deposited by the Applicant’s father demonstrated that those funds were being maintained for the purposes of the Applicant’s study and related expenses (at [23]). Further, the Tribunal considered that the money in the loan accounts and closed accounts was never intended to be for the Applicant to access while studying (at [24]).
The applicants have not demonstrated how this reasoning could be said to have been relevantly closed to the Tribunal. I find that it was open to the Tribunal to have had concerns regarding the father’s claimed movement of funds without informing the Applicant, when those funds were relied upon as being available to the Applicant. The Applicant does not appear to have explained in any detail why moving the funds, without telling him, would have made the funds “more accessible”. In these circumstances, it was also open to the Tribunal to have had concerns regarding closure of the second loan and account. Whilst it is understandable that the Applicant may feel that it is unfair that the Tribunal did not accept his evidence, this is not a basis upon which the Court is able to set aside the decision of the Tribunal.
The Applicant submitted, at one point during the hearing, that although the Tribunal said that they considered the second fund, they should have looked into this further. However, there is no general obligation upon the Tribunal to make inquiries. As I explained at the hearing, it has been recognised that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances” justify a finding of error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) at [25]. However, the Applicant has not identified any “obvious inquiry” he contends that the Tribunal ought to have made, about any “critical fact”. Nor has he explained how failure to undertake such inquiries was otherwise capable of meeting the high threshold considered in SZIAI.
In these circumstances, ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal erred in law by failing to consider the Regulations and/or the case of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251 (Berenguel).
Again, the ground as pleaded was unparticularised. The Tribunal did consider the relevant Regulations in some detail at [6]-[10] and [29]-[31] of its decision as well as a number of cases discussing relevant principles. I am not able to discern any legal error in the Tribunal’s summary of these matters.
It is not apparent what error the applicants consider that the Tribunal made by reference to the decision in Berenguel. That case involved the construction of what was reg 1.15B of the Regulations, which was found not to require that the relevant test be satisfied before the visa application was lodged (as opposed to the time of decision) (at [25]-[27]). The present case concerns a different criterion, in PIC 4020(1). There does not appear to be any basis for finding that this assessment took place by reference to the wrong timeframe.
For these reasons, ground 2 cannot succeed.
Ground 3
Ground 3 contended that the Tribunal misunderstood either the meaning of false or misleading evidence and/or information that was submitted by the applicants. This was said to have resulted in the Tribunal erring “in assessing visa applicants as genuine student and capable to afford tuition fees”.
The ground appears to involve some misunderstanding of the basis of the Tribunal’s decision. The Tribunal was not assessing the Applicant against the genuine student criterion, nor upon his ability to afford tuition fees more generally. The Tribunal assessed whether the Applicant met the requirements in PIC 4020.
The Tribunal did so by assessing whether there was evidence that the Applicant had relevantly provided “information that [was] false or misleading in a material particular” (at [24]). This was the correct test. The Tribunal also, correctly, acknowledged that the test required “an element of fraud or deception by some person”, by reference to Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169 at [33]. It is apparent from the Tribunal’s reasoning that “it was untrue that the loans submitted would be available” (at [22]), and that the money “was never intended to be for the applicant to access while studying” (at [24]), that the Tribunal found that this requirement was satisfied.
Ground 3 is therefore unable to succeed.
Ground 4
Ground 4 contended that the Tribunal failed to consider the explanations that had been provided regarding the withdrawal of funds and later deposits which were said to have been for the purposes of the student visa.
The Tribunal did consider the explanations that were provided in this regard, at [12]-[24] of its decision. The Tribunal did not accept those explanations. The Tribunal’s reasoning in this regard has been set out in some detail earlier in these reasons, and summarised in relation to ground 1. As I have stated in relation to ground 1, the applicants have not demonstrated that this reasoning was relevantly closed to the Tribunal. Nor have they demonstrated any basis for finding that any claim or centrally relevant evidence before the Tribunal in this regard was not considered.
In these circumstances, ground 4 is unable to succeed.
conclusion
For these reasons, the application before this Court must be dismissed.
If successful, the Minister sought costs fixed in the amount of $6,400. I accept that this amount is reasonable, being an amount that is substantially below the Court’s scale.
I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the parties.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 7 February 2023
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