Khan v Minister for Immigration

[2013] FCCA 1527

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1527

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

Legislation:  

Migration Act 1958 (Cth), ss.359A, 368D
Migration Regulations 1994 (Cth)

Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Rahman v Minister for Immigration and Citizenship [2012] FCA 1312
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356

Applicant: MD MAHABUB RAHMAN KHAN

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 637 of 2013

Judgment of: Judge Barnes

Hearing date: 10 September 2013

Delivered at: Sydney

Delivered on: 10 September 2013

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 637 of 2013

MD MAHABUB RAHMAN KHAN

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

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 26 February 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. The Applicant lodged the visa application in question on 30 September 2010.  He indicated that he intended to undertake specified courses of study up to 29 August 2012, with the Australian Hair and Beauty College Pty Ltd.  He provided the Department with certificates of enrolment for the courses in question, together with other documentation in support of his application, including financial information.

3. The delegate raised with the Applicant the need for further information in relation to matters such as his financial capacity and study and health records. He provided some further documentation. However on 17 November 2010 the delegate refused to grant the Applicant the visa. The delegate found that the Applicant had not complied substantially with the conditions of his last substantive visa as required under cl.572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) because he had not provided any evidence that he was enrolled in a course of study between 4 November 2008 and 23 August 2010 and nor did he meet any of the criteria for any other subclass of student visa within Class TU.

4. The Applicant sought review by the Tribunal.  The Tribunal acknowledged receipt of his application by letter of 2 December 2010.  It informed him that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.  By letter of 4 February 2013 the Tribunal invited the Applicant to attend a hearing on 26 February 2013. In addition it specifically invited him to provide specified information including, relevantly, a certificate of enrolment to show that he was currently enrolled in a registered course, as well as an explanation for not studying for a specified period in the past and evidence of past studies.  He was invited to provide such information as soon as possible, but no later than two days before the hearing date and informed that if he was unable to do so the Tribunal would require good reason to grant additional time.

5. The Applicant did not provide the requested information.  However he attended the Tribunal hearing on 26 February 2013.  The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal account in its reasons for decision. 

6. The Tribunal set out the applicable subclasses in Class TU.  It considered subclass 572 as the only subclass in respect of which the Applicant had advanced any claims.  The Tribunal observed that there was no suggestion the Applicant met the criteria for any other subclass and found that he did not.

7. The Tribunal acknowledged that the delegate had refused the visa on the basis that the Applicant did not meet cl.572.235 of Schedule 2 to the Migration Regulations in relation to substantial compliance with the conditions of his last visa. However it saw the issue before it as whether, at the time of decision, the Applicant had given the Tribunal a certificate of enrolment relating to a course of study as required under cl.572.222.

8. The Tribunal noted that the Applicant had been asked to provide a certificate of enrolment showing that he was currently enrolled prior to the hearing and that at the hearing the Applicant had confirmed that he was not currently enrolled in a course of study, did not have a current certificate of enrolment and that he last studied in 2010. 

9. The Tribunal recorded that at the hearing it explained to the Applicant that the issue in his review was that he was required to provide a certificate of enrolment showing that he was enrolled in an acceptable course to meet the criterion in cl.572.222 and that he would be unable to meet one of the criteria for a student visa if he did not have a valid certificate of enrolment.  The Applicant responded by explaining his problems with the college and personal problems he had when he studied at Windsor College in 2008.  He claimed that “[a]fter this he did not feel like doing any study and felt lost”, and that he wanted to do some further study now and get a certificate of enrolment and have a chance to prove himself. 

10. The Tribunal also recorded that at the hearing it advised the Applicant that it had considered his request for further time to provide a certificate of enrolment, but declined to grant him such extra time.  It observed that as it put to him at the hearing, he had applied for a student visa in September 2010.  It had been refused in November 2010.  He had not been studying since 2010 and according to the Tribunal had had plenty of time to enrol in a course of study.  The Tribunal also referred to the fact that in the hearing invitation of 4 February 2013 the Applicant had been asked to bring a certificate of enrolment to the hearing and that he had taken limited steps to obtain a certificate of enrolment.

11. In its findings and reasons the Tribunal stated that it had carefully considered the Applicant’s request for further time to obtain a confirmation of enrolment but that, as discussed at the hearing, he had applied for a student visa in September 2010, had been advised in the hearing invitation that he needed to provide a current certificate of enrolment and had taken limited steps to obtain such a confirmation of enrolment.  For these reasons, after considering this request the Tribunal decided not to grant the Applicant further time to provide a certificate of enrolment but to make a decision on the review based on the evidence before it. 

12. The Tribunal then addressed the criterion in cl.572.222.  It found that the Applicant did not meet subcl.572.222(1) as there was no current certificate of enrolment before it to show that the Applicant was enrolled in an acceptable course.  As the Applicant failed to meet cl.572.222 at the time of the decision, the Tribunal found that the decision under review must be affirmed. 

13. The Applicant sought review of the Tribunal decision by application filed in this court on 28 March 2013.  He filed a supporting affidavit in which he purported to give an explanation of his circumstances, including prior to the visa application in issue.

14. There are three grounds in the application.  The Applicant did not file an amended application or written submissions.  He had very little to say today by way of submission, except to refer to the circumstances in which he claimed his problems with study arose prior to the time of the present visa application.

15. The first ground in the application is that the Tribunal “exceed[ed] its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration [the Applicant’s] oral evidence in relation to [his] course enrolment issue”.  As indicated, the only evidence before the Court as to what occurred at the Tribunal hearing is the summary contained in the Tribunal’s decision.  There is no evidence that the Applicant put any material in writing before the Tribunal in relation to his course enrolment.  The Applicant does not suggest that the Tribunal’s account of the hearing is inaccurate.

16. It is apparent that at the hearing the Tribunal, as it recorded, made clear to the Applicant that the determinative issue on review was whether or not he had a current certificate of enrolment and that the Applicant confirmed that he was not currently enrolled in a course of study and had last studied in 2010.  Insofar as the Applicant is contending that the reason he failed to have a certificate of enrolment should in some way have been addressed by the Tribunal in its reasons for decision, what was in issue was a criterion that simply required the Applicant to provide a current certificate of enrolment.  The Tribunal had regard to that criterion.  The reasons the Applicant gave for difficulties with his studies and why he did not have a certificate of enrolment did not have to be addressed by the Tribunal in relation to the visa criterion in issue.  On the Applicant’s own evidence, he did not meet the requirements of cl.572.222 at the time of the Tribunal decision.  The Tribunal had, as the Minister’s solicitor pointed out, no discretion to waive this requirement and there was nothing else for it to consider in relation to whether the Applicant met that criterion.

17. Moreover it is clear from the Tribunal’s reasons that it was aware of the Applicant’s evidence in that respect and that it had regard to all of the evidence before it in considering his request for further time to provide a certificate of enrolment.  Ground one is not made out.

18. Ground two is that:

    [the Tribunal] exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving [the Applicant] the opportunity to submit [his] explanations for any adverse information that the tribunal may have including the opportunity to provide a new current CoE. If [the Applicant] would be given the opportunity to explain that could have led to a different decision by the tribunal. 

19. This ground is not made out.  It is clear from the Tribunal reasons for decision that it invited the Applicant to provide a certificate of enrolment in the hearing invitation letter.  At the hearing it raised this as a dispositive issue.  It gave him the opportunity to explain the absence of a certificate of enrolment and it also considered his request for further time to provide a certificate of enrolment.

20. In particular, the Tribunal ensured that at the hearing the Applicant was sufficiently alerted to the determinative issues arising on the review and had an opportunity to respond in the manner considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. It did so in circumstances where the Applicant was put on notice of this issue by the express reference to the need for a certificate of enrolment in the hearing invitation.

21. I have considered whether any issue is apparent under s.359A of the Migration Act 1958 (Cth) (the Act). However there is nothing in the material before the Court to suggest that there was any information that would be the reason, or part of the reason, for affirming the decision under review within the obligation in s.359A(1) of the Act which the Tribunal was required to put to the Applicant. The reason for affirming the decision under review was, in effect, that the Applicant did not meet the criterion for the subclass of visa for which he applied that he hold a current certificate of enrolment. The absence of information is not information within s.359A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]). In any event, the Applicant told the Tribunal at the hearing that he did not have a current certificate of enrolment. Hence, even if such material were to be information, it would be within the exception to s.359A in s 359A(4)(b) of the Act. More generally, having regard to the basis for the Tribunal decision, this is not a case in which the Tribunal was under an obligation to put to the Applicant any information it had, for example from departmental data sources in relation to past study by the Applicant.

22. Nor is there anything in the material before the Court to suggest that the Tribunal otherwise failed to comply with its obligations under Division 5 of Part 5 of the Act or otherwise exceeded its jurisdiction or constructively failed to exercise its jurisdiction. 

23. I have also considered in this context the extent to which this ground may be seen as taking issue with the Tribunal’s decision not to grant extra time to the Applicant to obtain a current certificate of enrolment.  As discussed above, the Tribunal expressly considered, but refused, the Applicant’s request for more time.  It did so in circumstances where it had notified the Applicant of the requirement for a current certificate of enrolment in its hearing invitation letter of 4 February 2013.  He had not produced a certificate of enrolment at or before the hearing on 26 February 2013.  He had been advised that good reason would be required to grant additional time.  Moreover, as the Tribunal put to him, he had applied for a student visa in September 2010.  It had been refused in November 2010.  He had not studied since 2010.  The Tribunal was of the view that he had had plenty of time to enrol and to obtain a certificate of enrolment.

24. The Tribunal found that the Applicant had taken limited steps to obtain a certificate of enrolment in circumstances where the only evidence was that he had not felt like doing any study, but that at the time of the hearing he “now” felt like doing some further study and getting a certificate of enrolment and having a chance to prove himself.  There is no evidence that the Applicant informed the Tribunal of any steps that he had taken or that a certificate of enrolment had been applied for or sought or was in some way pending. 

25. The Tribunal has a discretion to consider whether or not to adjourn a review to grant an applicant additional time in circumstances such as the present.  However as pointed out by Yates J in Rahman v Minister for Immigration and Citizenship [2012] FCA 1312 at [49], the mere fact that an applicant requests additional time does not of itself mean that the Tribunal is obliged to indefinitely postpone finalisation of its review.

26. Moreover in this case the Tribunal gave adequate reasons for refusing the Applicant’s request for more time and took into account the evidence before it in that respect.  It has not been established that the Tribunal fell into error in concluding that after the lengthy period of time between the visa application and the Tribunal review the Applicant should have been able to provide the necessary evidence (see Rahman at [52]).

27. There was an “evident and intelligible justification” for the Tribunal’s decision to refuse the Applicant’s request for more time in the sense considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76]. The circumstances in this case are quite different from those before the High Court in Li in which the Applicant had sought an adjournment where an internal review of a decision by Trades Recognition Australia not to grant a favourable skills assessment was underway. 

28. As Gageler J pointed out in Li at [113] it is only in rare cases that a Court will find a Tribunal has acted unreasonably by refusing a request for further time to obtain evidence. This is not such a case. It has not been established that the Tribunal acted unreasonably or that its approach to the Applicant’s request for further time, or more generally, to any other aspect of his application for review, gave rise to a jurisdictional error in the manner contended for in ground two of the application or otherwise.

29. Insofar as the Applicant may be seen as attempting in the affidavit accompanying his application or in oral submissions today, to provide to the Court some explanation for the difficulties he experienced in relation to his prior study and the circumstances which led to him not studying and not having a current certificate of enrolment, such explanations seek impermissible merits review and are not relevant to the issue of whether the Tribunal fell into error in determining that it was not satisfied that he met a criterion for the class of visa for which he applied which simply required a current certificate of enrolment.

30. The Applicant contended that the Tribunal’s decision was not a bona fide attempt to act within authority.  This may be seen as addressing ground three which is that the Tribunal denied the Applicant natural justice in that it was biased or there was an apprehension of bias in the making of the purported decision. 

31. An allegation of bias must be distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531; [2001] HCA 17). There are no particulars in relation to this ground. In any event neither actual or apprehended bias has been made out on the material before the Court.

32. It is well-established that it is a rare case in which the Court will find bias based simply on the decision-maker’s reasons (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17]). The Tribunal’s reasoning is not such as to establish an apprehension of bias. The Tribunal clearly took a fresh look at the Applicant’s claims. It cannot be said that it prejudged those claims or that there was an apprehension of bias from the perspective of the reasonable, appropriately informed lay observer. Nor does the fact that the Tribunal made an oral decision on the day of the hearing demonstrate bias, having regard to the nature of the issue before the Tribunal and the fact that such procedure is expressly contemplated by s.368D of the Act. Neither actual nor apprehended bias is made out.

33. As none of the grounds relied on by the Applicant have been made out the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED  

1. The Applicant has been unsuccessful, and the Minister seeks costs in the sum of $5,000.  The Applicant indicated that he needed time to pay.  It is appropriate that as an unsuccessful Applicant he meet the costs of the First Respondent.  These are not circumstances in which it is appropriate to make an order specifying the time by which payment should be made.  However the Applicant’s indication of the need for time to pay may be a matter taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is reasonable having regard to the nature of this and other similar matters.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  9 October 2013