Mahmud, Munshi Reaj v Minister for Immigration and Multicultural Affairs

[1998] FCA 1121

FEDERAL COURT OF AUSTRALIA

Migration – application for short stay business visa – whether applicant seeking to remain in Australia for any legitimate business purpose  – whether applicant had adequate funds for personal support.

Migration Act 1958, s 31
Migration Regulations, part 456 of Schedule 2

MUNSHI REAJ MAHMUD V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS 

NG 303 OF 1998

JUDGE:	BEAUMONT J
DATE:	28 JULY 1998
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 303 of 1998

BETWEEN:	MUNSHI REAJ MAHMUD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		BEAUMONT J
DATE OF ORDER:		19 JUNE 1998
WHERE MADE:		SYDNEY

ORDERS:

1. Application dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 303 of 1998

BETWEEN:	MUNSHI REAJ MAHMUD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	28 JULY 1998
PLACE:	SYDNEY

SUPPLEMENTARY REASONS FOR JUDGMENT

BEAUMONT J:

On 19 June 1998 I dismissed Mr Mahmud’s application summarily, giving only brief reasons.  An appeal against that order having been lodged, I have now prepared supplementary reasons for judgment.

INTRODUCTION

Before the Court was an application for an order of review of a decision of the Immigration Review Tribunal (“Tribunal”) with respect to the refusal to grant a short stay business visa. The applicant, a citizen of Bangladesh, arrived in Australia on 2 December 1996. He held a subclass 456 visa business (short stay) visa. That visa was to expire on 3 March 1997, but it was extended for a further three months to 3 June 1997. A further application for an extension of his visa was lodged by the applicant on 4 June 1997. Were that extension to be granted, the applicant’s visa would have expired on 3 September 1997. On 24 July 1997, the Minister’s delegate refused the application for an extension. An application for internal review of this decision was made to the Migration Internal Review Office on 21 August 1997, and a review officer affirmed the decision on 27 October 1997. The applicant then applied for review to the Tribunal on 18 November 1997, which also, on 13 March 1998, affirmed the decision under review. The application for review of the Tribunal decision was filed in the Court on 8 April 1998.

The applicant was unrepresented at the hearing, and appears to have not had the benefit of legal assistance at any stage, although he had previously studied law in New Zealand.  In support of his application, the applicant submitted that the Tribunal failed to consider documentation proving his business activities.

THE LAW

The criteria for the grant of visas are set out in the Migration Regulations (“the Regulations”), pursuant to s 31(3) of the Migration Act 1958 (“the Act”). The criteria for the grant of a subclass 456 visa are set out in Part 456 of Schedule 2 of the Regulations. The criteria that must be satisfied at the time of application are as follows:

“456.21          Criteria to be satisfied at time of application

456.211The applicant:

(a)seeks to enter, or remain in, Australia temporarily for business purposes;  and

(b)proposes in the application to remain in Australia for not more than 3 months on any single occasion;  and

(c)has adequate funds for personal support during the period of his or her stay in Australia on each such occasion. (emphasis added)

456.212The applicant does not intend to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents.

456.213The applicant does not intend to engage in:

(a)any course:

(i)leading to the completion of a primary or secondary education program;  or

(ii)leading to a degree, diploma, trade certificate or other formal award;  or

(b)any other course (other than a language training program) completion of which may be unconditionally credited towards, or accepted as a prerequisite for, a course of studies at a higher educational institution within or outside Australia.

456.214If the application is made in Australia:

(a)the applicant:

(i)is the holder of a substantive temporary visa other than a Subclass 426 (Domestic Worker (Temporary)-Diplomatic or Consular) visa;  or

(ii)does not hold a substantive visa and:

(A)immediately before ceasing to hold a substantive visa was the holder of a substantive temporary visa except a visa of Subclass 416;  and

(B)satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005;  and

(b)the applicant has complied substantially with the conditions (if any) to which the visa held, or last held, by the applicant is, or was, subject.”

THE TRIBUNAL’S REASONS

The Tribunal said:

“The Tribunal does not accept that Mr Munshi seeks to remain in Australia for any legitimate business purpose.  He has had nearly eighteen months to organise his visits to the student associations and has failed to do so.  The letters he has provided do not indicate any form of sponsorship or need for his activities but merely appreciation of his contribution and a willingness to refer him to other organisations.  Aside from his own evidence, there is nothing to support his claim to have any personal attributes or business background in the organising of student activities.

The Tribunal is further doubtful of the ‘business’ nature of his talks to students.  There is no evidence of a need for him to be in Australia to talk to student groups.  He has also had ample opportunity to do so and the Tribunal does not accept his assertion that in the time he has been in Australia he has been unable to do so.

Mr Munshi has not submitted any plans for how he is to conduct this ‘business’ and in what way, if any, there is a need for him to be in Australia for this business.  The Tribunal is also of the view that he has not shown he has adequate funds for personal support while he is in Australia.  He has requested a fee waiver from the Tribunal and has submitted evidence of a bank account in debit.”

On the basis of these findings, the Tribunal concluded that subclause 456.211 of the Migration Regulations was not satisfied. Given the failure of the application on that criterion, it was not necessary to proceed to consider the other requirements, both at the time of application and of making the decision.

THE APPLICATION FOR JUDICIAL REVIEW

By his application for an order of review filed 8 April 1998, the applicant claims he is aggrieved by the decision of the Tribunal because –

The Tribunal asked [for] some documents to prove my activities and I did it but they turned down my claim.

The grounds upon which he claimed relief ought to be granted were as follows. The applicant provided evidence to the Tribunal of his activities in Australia, and in particular that he was sponsored by the Australian Federation of Islamic Councils, the Muslim Association of Western Australia, the University of Sydney and the University of New South Wales, but the Tribunal was not satisfied.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW

I cannot accept that there was any reviewable error in the Tribunal’s decision.

Paragraph 211 sets out three cumulative requirements: (1) the applicant must seek to remain in Australia for less than three months; (2) for business purposes; (3) and have adequate funds for personal support during this period. The Tribunal made two findings in relation to these findings: firstly that the applicant was not in Australia for any legitimate business purpose, and secondly that he had not shown adequate funds for personal support. I will now consider each of these in turn.

(a)Whether the applicant was seeking to remain in Australia for any legitimate business purpose.

This was a finding of fact, not of law, and was clearly open. The applicant had been in Australia for eighteen months. He informed the Tribunal that he had “spoken” to the Universities of Canberra and Queensland since his arrival in December 1996. This constituted the total of the applicant’s “business” in the considerable period of time he had been in the country, and it was therefore open to the Tribunal to find that Mr Mahmud had no genuine “business” in Australia.

Mr Mahmud provided two letters to the Tribunal subsequent to the hearing. These appear to form the basis of his claim for review. As has been noted, the Tribunal made the following findings regarding those letters:

“The letters he has provided do not indicate any form of sponsorship or need for his activities but merely appreciation of his contribution and a willingness to refer him to other organisations.”

The first of those letters was from The Australian Federation of Islamic Councils Inc. It commended Mr Mahmud’s activities with some student organisations in Sydney, and stated that they would like to refer him to some Islamic organisations in Western Australia and Queensland. Specifically, they said that they “would like him to visit these states during the month of March and April 1998”. Given that these remarks were merely a referral and not an offer of work, it was properly open to the Tribunal to accord it, and the nominated dates, little weight.

The second letter was from The Islamic Council of Western Australia. It did contain this invitation:

“We therefore invite you to conduct a series of seminars and training camps to our Muslim youth in W.A.

We hope you will accept our invitation and let us know your availability so that we can prepare a timetable for the seminars”.

But no dates were mentioned, and a timetable had not been arranged. Given Mr Mahmud’s history in arranging these talks to students, it was legitimate for the Tribunal to be sceptical of the likelihood of these seminars eventuating, at least in the short term.

Furthermore, Mr Mahmud had not submitted to the Tribunal any plan, itinerary, or schedule for the conduct of his “business”. Nor was there any indication of in what way, if any, there was a need for him to be in Australia for this business.

(b)Whether the applicant had adequate funds for personal support

Again, I find no error of law in the Tribunal’s finding that Mr Mahmud had not shown adequate funds for personal support while in Australia. The facts that he requested a fee waiver for his application before the Tribunal, and submitted evidence of a bank account in debit (though both occurred after he submitted his application), were logically probative in assessing the credibility of his claim of financial support from a relative in America.

(c)Whether the applicant intended to stay in Australia for less than three months

Though the Tribunal made no specific finding on this point, this may have been another ground for dismissing the application. Mr Mahmud had been in Australia for eighteen months – six times the three month limit.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             August 1998

Solicitor for the Applicant:	Mr Mahmud appeared in person
Counsel for the Respondent:	David Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 June 1998
Date of Judgment:	28 July 1998 (Orders made 19 June 1998)