Malik v Minister for Immigration

[2015] FCCA 1847

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALIK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1847

Catchwords:
MIGRATION – Judicial review – decision of Migration Review Tribunal – Indian citizen – student visa – bank loan documents – whether bogus documents – whether denial of procedural fairness – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Part 5, Division 5, ss.97, s.357A, 360(1), 474, 476

Migration Regulations 1994 (Cth), Schedule 4, cl.4020, Schedule 2, cl.572.224

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421, (2001) 65 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Patel v Minister for Immigration & Border Protection [2015] FCAFC 22
Pavuluri v Minister for Immigration & Border Protection [2014] FCA 502; (2014) 221 FCR 74; (2014) 142 ALD 256
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Strestha v Minister for Immigration & Anor [2013] FCCA 710

Tran v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 297

Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252

Applicant: ANUJ MALIK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 286 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 12 February 2015

Date of Last Submission: 12 February 2015

Delivered at: Perth

Delivered on: 10 July 2015

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr B Dube

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 286 of 2014

ANUJ MALIK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application for judicial review

1. This proceeding commenced on 19 September 2014 by the applicant (“Mr Malik”) filing an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking judicial review (“Judicial Review Application”) of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision (at Court Book (“CB”) 118-127) was made on 3 September 2014. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”). The Delegate’s Decision (at CB 58-65) was made on 9 August 2013. The Delegate’s Decision was to refuse to grant Mr Malik a Student (Class TU) visa (“Student Visa”) under the Migration Act.

Background to the Judicial Review Application

1. The background to the Judicial Review Application is as follows:

   a)Mr Malik is a citizen of India: CB 1;

   b)Mr Malik lodged the Student Visa application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection (“Department”)) electronically on 14 March 2012: CB 8 and 61;

   c)on 9 August 2012, the Delegate’s Decision was to refuse to grant Mr Malik the Student Visa: CB 54-65;

   d)the Delegate was satisfied that Mr Malik had “provided a bogus document … namely a fraudulent financial document”, and that Mr Malik “was responsible for providing this fraudulent documentation and false/misleading information”, to the Department: CB 64, and therefore did not meet cl.4020 of Schedule 4 to the Migration Regulations1994 (Cth) (“Migration Regulations”), being Public Interest Criteria 4020 (“PIC 4020”) or cl.572.224 of Schedule 2 to the Migration Regulations: CB 64-65;

   e)the primary criteria that Mr Malik needed to satisfy at the time of the Delegate’s Decision included the requirements of cl.572.224 of Schedule 2 to the Migration Regulations. The criterion required, amongst other things, that Mr Malik satisfied PIC 4020;

   f)on 28 August 2012 Mr Malik lodged an application for review of the Delegate’s Decision with the Tribunal: CB 66-79;

   g)in a letter dated 30 August 2012 the Tribunal acknowledged receipt of the application: CB 80-81, and, at CB 80, advised Mr Malik:

   If you wish to provide material or written arguments for the tribunal to consider, you should do so as soon as possible.

   h)on 18 July 2014, and pursuant to s.360(1) of the Migration Act, Mr Malik was invited to attend a Tribunal hearing scheduled for 3 September 2014 to give evidence and present arguments relating to the issues under review, and was requested to:

   Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.

   CB 111-112; and

   i)on 3 September 2014 Mr Malik attended the Tribunal hearing, and gave oral evidence and presented arguments: CB 113-116.

Tribunal Decision

1. In the Tribunal Decision the Tribunal noted that part of the Delegate’s Decision which said as follows:

   d.An officer in New Delhi contacted the Bank of Baroda and spoke with a bank employee, who provided the following information in relation to the letter confirming the personal loan:

   i.No loan has been issued to Mr Prateek Malik.

   ii.No personal loan letter was issued to Mr Prateek Malik.

   iii.The letter head always has branch contact numbers, branch code, and branch address, which the letter the applicant provided had none of that information.

   ivThe code on the stamp is not a branch code but is an area Pin code for Sonepat Kundli, in the state of Haryana.

   v.Bank of Baroda does not issue person loans at “2% over PLR min 12% payable monthly” without any security and their letters include a loan account number and reference numbers.

   CB 119 [5(d)].

2. In the Tribunal Decision the Tribunal found that:

   a)there was evidence that Mr Malik had given, or caused to be given, to the Minister and the Tribunal, a bogus document in relation to the Student Visa application in the form of a letter dated 29 April 2012 allegedly by the Bank of Baroda (“Bank Letter”: which is at CB 41) regarding a loan to Mr Malik’s brother in amount of Rs 1,700,000: CB 119 [5(a)] and CB 122 [19]. The Tribunal was therefore not satisfied that Mr Malik had satisfied PIC 4020(1): CB 122 [21];

   b)it was not necessary for the Tribunal to conclude that Mr Malik was aware that the information was purposely untrue in order for PIC 4020 to be engaged: CB 122 [13];

   c)did not accept Mr Malik’s explanation regarding his contact with the Bank of Baroda in April and May 2013 and did not accept that the Bank would not provide an account holder with details of its loans, at his request: CB 122 [16]-[17];

   d)accepted information provided to the Department from the Bank of Baroda: see [3] above:

   i)that no loan had been made to Mr Malik’s brother; and

   ii)as to the basis upon which the Bank Letter did not comply with letters issued by the Bank of Baroda: CB 122 [18];

   e)the Bank Letter was a document which purports to have been, but was not, issued by the Bank of Baroda: CB 122 [19];

   f)the Bank Letter was given to the Department by Mr Malik: CB 122 [19];

   g)it was not satisfied that there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to warrant waiving the requirements of PIC 4020(1): CB 122 [23]; and

   h)Mr Malik did not satisfy PIC 4020 for the purposes of cl.572.224(a) of Schedule 2 to the Migration Regulations: CB 122 [24].

3. On the basis of the above findings the Tribunal affirmed the Delegate’s Decision not to grant Mr Malik the Student Visa: CB 123 [26].

Judicial Review Application

1. The following grounds of review are set out in the Judicial Review Application:

   (a) Not taking into consideration relevant material

   i. The Migration Review Tribunal failed to take into consideration that my brother, Prateek Malik and I had no intention as such to provide bogus documents. We were unaware of the fact that the documents in relation to proof of finance were not genuine. My brother took the help of a bank agent to organise for a personal loan to sponsor my studies and due to considerable delay of such documents, once received: they were immediately transmitted to the Department of Immigration and Border Protection. My brother took the services of such bank agent and had reasonable belief that the loan was genuine and the documents depicted only genuine information as to the nature of the loan and the bank which approved of such loan.

   ii. I expressed my surprise to have been notified by the Department of Immigration and Border Protection that the documents were not real. As I mentioned earlier, my brother and I had no intention to mislead the Department in any ways, for reasons which I asked the Department to provide me additional time to arrange for another loan, request which was ultimately ignored. I submit that this shows my real concern that I did not deliberately engage in misleading action, as claimed by the Department and I was ready to go ahead and apply for another loan to be able to pursue my studies. This was requested in a letter in reply to invitation to comment on the information received by the Department. Neither did the Department nor the Migration Review Tribunal considered this request in reaching a decision.

   b) There was a denial of procedural fairness

   i. The Migration Review Tribunal was not fair and reasonable in reaching a decision because action was biased due to non-consideration and ignorance of issues that was central to the decision. This support (sic) the issue mentioned above, note (a). Moreover, the Migration Review Tribunal gave less weight to my evidence and the genuineness of the intention of both my brother and I with regards to genuine attempt of getting a loan by means of a bank agent.

2. The Court will refer to the above grounds as “ground (a)(i)”, ground (a)(ii)” and “ground (b)” respectively.

3. A Registrar of the Court made orders on 26 November 2014 permitting Mr Malik to file and serve an amended Judicial Review Application or any affidavit evidence by 21 January 2015. No amended Judicial Review Application or any affidavit was filed by Mr Malik.

Consideration

Legislation and legislative instruments

1. Clause 572.224 of Schedule 2 to the Migration Regulations provides that an applicant for a student visa must satisfy PIC 4020.

2. PIC 4020 relevantly provided as follows at the time of the Tribunal Decision:

   4020     (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, 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.

3. Section 97 of the Migration Act defines ‘bogus document’ as a documents that the Minister reasonably suspects is a document that:

   a)purports to have been, but was not, issued in respect of the person; or

   b)is counterfeit or has been altered by a person who does not have authority to do so; or

   c)was obtained because of a false or misleading statement, whether or not made knowingly.

Case law

1. In Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”) the Full Court of the Federal Court found as follows with respect to the character or quality of documents or information to which PIC 4020 is directed:

   It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could not explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended and accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.

   Trivedi at [32]-[33] per Buchanan J (with whom Allsop CJ at [1] and Rangiah J at [56] agreed).

   In Trivedi it was further said:

   In my view, it is not necessary … to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.

   Trivedi at [43] per Buchanan J.

2. In Patel v Minister for Immigration & Border Protection [2015] FCAFC 22 (“Patel”) the Full Court of the Federal Court was dealing with an appeal from this Court in relation to circumstances where the appellant had submitted a test form purporting to show test scores demonstrating English language proficiency which differed from a verified test form showing different test scores for English language proficiency which were below the requisite level for the grant of a visa. The question arose as to whether the submitted test form was a bogus document for the purposes of PIC 4020, and whether the Tribunal was required to make inquiries about the authenticity of the non-verified test form submitted by the appellant to the Tribunal.

3. In Patel, Justice Buchanan, who delivered the primary judgment of the Full Court in Trivedi, summarised Trivedi as follows:

   In Trivedi …, a Full Court decided that “an element of fraud or deception is necessary in order to attract the operation of PIC 4020” (see at [33]) and “that PIC 4020 is directed to information or documents which are purposely untrue” (see at [49]). It was also held that it was not necessary, in order to engage the operation of PIC 4020, that a visa applicant “was knowing or complicit in the deceptive character of the information … furnished” (see at [43], [45], [50], [52]).

   Patel at [7] per Buchanan J.

4. In Patel the appellant’s position was that she was not responsible for any alteration or forgery of the submitted test form, and she was unable to explain the lack of conformity between the non-verified and verified test forms. But, as Justice Buchanan observed, whether the appellant was responsible for any alteration or forgery of the document “was not the test to be applied”: Patel at [13] per Buchanan J.

5. In Patel, in relation to the consideration in that case by the Tribunal of the allegedly bogus document, it was observed that:

   … it is clear that the … [Tribunal] gave direct consideration to whether the document was a bogus document within the meaning of s 97 of the Act and whether PIC 4020 was engaged in relation to it. There was no error in that analysis, whether by reference to the judgment of this Court in Trivedi or otherwise which discloses jurisdictional error.

   Patel at [19] per Buchanan J.

6. The Full Court of the Federal Court also observed that a difficulty which confronted the argument of the appellant in Patel was that the Tribunal had explained the basis for its reasonable suspicion by reference to the online verification system for the test results and given the appellant an opportunity to respond to the content of both the verified and non-verified test record documents. It was said that given the limited facts presented by the appellant the state of reasonable satisfaction was a conclusion readily open to the Tribunal: Patel at [36]-[37] per Flick J. Justice Flick went on in Patel to observe at [44] that:

   …. There was an obvious conflict. The conflict was brought to the attention of the Appellant and she was given an opportunity to respond. She has been afforded procedural fairness to respond to that material upon which the Tribunal conducted its “review”.

7. In Patel it was also held that there was, in the circumstances, no duty which would have required the Tribunal to make further inquiries, there being no duty to make such inquiries unless an obvious inquiry might reveal a critical fact the existence of which is easily ascertained and which in some circumstances might supply a sufficient link to the outcome to constitute a failure to review: Patel at [20]-[22] per Buchanan J and [39]-[46] per Flick J.

The nature of jurisdictional error

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

Ground (a)(i) – the intentions of Mr Malik and his brother

1. The Tribunal’s findings of fact were:

   a)that the Bank Letter purported to have been, but was not, issued by the Bank; and

   b)Mr Malik had provided the Bank Letter to the Department.

   Those findings precluded Mr Malik from satisfying the no evidence of a bogus document provided to the Department or Minister conditions set out in PIC 4020(1).

2. Insofar as ground (a)(i) suggests that the Tribunal fell into jurisdictional error by not having regard to the belief of Mr Malik that the document was genuine, this ground cannot be sustained: Trivedi at [32]-[33] per Buchanan J; Patel at [19] per Buchanan J.

3. The Tribunal gave direct consideration to whether:

   a)the Bank Letter was a bogus document as defined in s.97 of the Migration Act;

   b)PIC 4020 was engaged in relation to the Bank Letter.

   That manner of analysis was correct: Patel at [19] per Buchanan J, and the findings made by the Tribunal were open on the evidence before the Tribunal. Mr Malik’s protestations that he was unaware of the bogus nature of the Bank Letter was not a matter which the Tribunal was required to accept, or have regard to, once it had established, based on the information from the Baroda Bank, that the Bank Letter was false, and there is no jurisdictional error in the Tribunal’s approach in this regard: Trivedi at [32]-[33] per Buchanan J; Patel at [19] per Buchanan J and [36]-[37] per Flick J.

4. Ground (a)(i) is not made out, and, therefore does not reveal jurisdictional error.

Ground (a)(ii) – request for further time and opportunity to obtain further loan

1. Ground (a)(ii) appears to allege that:

   a)Mr Malik did not believe the Bank Letter was bogus, and did not deliberately give that bogus document to the Tribunal;

   b)Mr Malik had requested that he be given an opportunity to apply for a further bank loan to enable him to continue to pursue his studies; and

   c)neither the Delegate nor the Tribunal considered Mr Malik’s request in making the Delegate’s Decision or the Tribunal Decision.

2. The Court notes the following chronology:

   a)on 2 July 2012 the Delegate wrote to Mr Malik and invited him to comment on information it had received which suggested that the Bank Letter was a bogus document: CB 44-47;

   b)Mr Malik responded to the Delegate on 9 July 2012 in which he relevantly stated “Please tell me what I should do now? If you want me to arrange funds then I’ll apply for a new loan right away and it should not take more than 25 days. I’ll arrange it straightaway”: CB 53;

   c)Mr Malik provided no information to the Delegate prior to the Delegate’s Decision being made on 9 August 2012: CB 58; and

   d)in its letters to Mr Malik dated 30 August 2012 and 18 July 2014 the Tribunal invited him to provide any further documents or submissions that he wished to reply upon. No further material was provided by Mr Malik.

3. Mr Malik’s request for further time was not directly responded to prior to the Delegate’s Decision (which was more than 25 days after Mr Malik’s correspondence). That does not constitute jurisdictional error in the Tribunal Decision because any alleged error in the Delegate’s Decision is irrelevant as, provided the Tribunal Decision is not flawed, a full review process will cure any defects and irregularities in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 at [36]-[44] per Hely, Gyles and Allsop JJ; Pavuluri v Minister for Immigration & Border Protection [2014] FCA 502; (2014) 221 FCR 74; (2014) 142 ALD 256 at [52] per Mortimer J.

4. It was for Mr Malik to make his own case, he had ample time to do so, and if he wished to provide further material he should have brought it to the attention of the Tribunal: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] per Allsop, Jacobson and Graham JJ; Strestha v Minister for Immigration & Anor [2013] FCCA 710 at [73] per Judge Nicholls.

5. Mr Malik’s belief with respect to the bogus document does not assist in establishing jurisdictional error for the reasons set out in relation to ground (a)(i) above.

6. Mr Malik had an opportunity to make further submissions to the Tribunal, and to make whatever submissions he desired to the Tribunal, but further submissions as to applications for, and the availability of, bank loans would not have assisted him in meeting the criteria in PIC 4020, namely that there was no evidence that a bogus document had been provided by him to the Minister or an officer of the Department, and for that reason, any such further evidence would have been irrelevant. The Court notes that that evidence would not have gone to the exception related to compelling, or compassionate and compelling, circumstances: PIC 4020(4), and in relation to that exception, Mr Malik made no submissions and put no evidence to the Tribunal.

7. Ground (a)(ii) is not made out, and does not reveal jurisdictional error in the Tribunal Decision.

Ground (b)(i) – an assortment of grounds

1. Mr Malik appears to assert in this ground that:

   a)the Tribunal was biased because it was not fair and reasonable and did not consider relevant material;

   b)the Tribunal gave less weight to his evidence than it should have; and

   c)he and his brother made a genuine attempt to obtain a loan to enable him to study in Australia.

2. As to bias, actual bias exists where the Tribunal has a pre-existing state of mind which disables the Tribunal from undertaking, or rendered it unwilling to undertake, a proper evaluation of the material relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421, (2001) 65 ALD 1 at [35] and [72] per Gleeson CJ and Gummow J (“Jia Legeng”). Mr Malik has made no attempt to comply with the requirement that his serious allegation of bias be firmly and distinctly made and clearly proven: Jia Legeng at [72] per Gleeson CJ and Gummow J. Ordinarily a party would need to show some conduct on the part of the Tribunal, apart from the Tribunal’s expression of its reasons, which would indicate that the Tribunal has been guilty of pre-judgment or was in any way biased: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44] per Tamberlin, Mansfield and Jacobson JJ; Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [18] per North and Lander JJ.

3. There is no particularisation of the alleged bias, and Mr Malik has made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made and clearly proven. In the above circumstances, there is no basis upon which this Court can find that the Tribunal was biased, either on an actual or apprehended basis, and the allegation of bias is simply not made out.

4. The evidence before the Court does not provide any support for the claim that the Tribunal approached the matter with a closed mind. It cannot be said that the Tribunal did not take a fresh look at Mr Malik’s claims or that it prejudged those claims. No bias can be established from the mere fact of a finding adverse to Mr Malik in this case: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. As to the weight to be given to the evidence, it is for the Tribunal to identify the material that it finds relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ. In the absence of further particularisation by Mr Malik this aspect of ground (b)(i) cannot be made out. For the same reasons, as set out in relation to grounds (a)(i) and (a)(ii) the genuineness of the intention of Mr Malik and Mr Malik’s brother to obtain a loan is irrelevant, and particularly so once it has been established that Mr Malik gave a bogus document to an officer of the Department.

5. As to the allegation that bias was due to a failure to consider, or ignorance of, relevant material, that ground cannot be made out because the material allegedly not considered is not particularised in any way. If it was intended to refer to the seeking of further information concerning the obtaining of a bank loan by Mr Malik or Mr Malik’s brother, that is simply not relevant for reasons set out above in relation to ground (a)(ii), and therefore cannot give rise to bias or a failure to consider relevant material, because the material is irrelevant.

6. To the extent that Mr Malik alleges that the Tribunal was biased, there is no substance to this serious allegation.

7. To the extent that ground (b)(i) asserts a want of procedural fairness by the Tribunal, that ground cannot be made out. The Tribunal requested any relevant documents, and had a hearing to which Mr Malik was invited to appear, and did appear, and in which he made submissions in relation to the issues upon which the Tribunal ultimately determined his application for review of the Delegate’s Decision. No want of procedural fairness arises in such circumstances: Migration Act, Part 5, Division 5 and s.357A; Patel at [44] per Flick J.

8. In the above circumstances ground (b)(i) is not made out, and reveals no jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. The Court has concluded that Mr Malik has failed to make out each of the grounds of the Judicial Review Application. Consequently, no jurisdictional error is established in the Tribunal Decision. The Tribunal Decision is therefore a privative clause decision within the meaning of s.474 of the Migration Act. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  10 July 2015