Mohammed v Minister for Immigration
[2014] FCCA 637
•17 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHAMMED v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 637 |
| Catchwords: MIGRATION – Application for review of a decision not to grant a student visa – applicant not enrolled in any course of study for nine months – no evidence concerning source of funds – application dismissed. |
| Legislation: Migration Act 1958 (Cth), Part 5 of Div.5, s.360 Migration Regulations 1994 (Cth), cl.572.223 of Sch.2, cl.5A405 of Sch.5A |
| SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 |
| Applicant: | ABDUL MAJID MOHAMMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1100 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 17 March 2014 |
| Date of Last Submission: | 17 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 17 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application filed 17 July 2013 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1100 of 2013
| ABDUL MAJID MOHAMMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
Introduction
This is an application for judicial review of a decision of the
Migration Review Tribunal (“the Tribunal”) of 21 June 2013.
The decision of the Tribunal affirmed an earlier decision of a delegate of the Minister on 9 November 2011 to refuse to grant the Applicant a
Student (Temporary) (Class TU) visa. The Applicant seeks an order that the decision of the Tribunal be quashed.[1]
[1] Application of Abdul Majid Mohammed filed 17 July 2013, at p.2.
Background
On 13 October 2011, the Applicant applied for a student visa and, on
9 November 2011, a delegate of the Minister refused to grant that application. The delegate was not satisfied that the Applicant was a genuine applicant for entry and stay as a student, having regard to the fact that the Applicant had not studied for the period from
2 August 2010 to 5 May 2011, being a period during which the Applicant had held a student visa. The delegate was also not satisfied that the Applicant had provided evidence to satisfy the requirements of cl.5A405 of Sch.5A of the Migration Regulations 1994 (Cth)
(“the Regulations”) relating to financial capacity.
On 25 November 2011, the Applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal invited the Applicant to attend a hearing and to provide evidence of his enrolment since his arrival in Australia as the holder of a student visa. The Applicant was also asked to provide evidence that he would have access to the funds demonstrated, or declared, in accordance with the financial capacity requirements of cl.5A405 of Sch.5A of the Regulations for the proposed period of his stay in Australia by providing evidence of the source of funds used to create a money deposit or evidence of the regular income of a person providing those funds. The Tribunal advised the Applicant of the applicable regulations.
The Applicant attended the hearing before the Tribunal on
20 June 2013. Having heard from the Applicant, the Tribunal was not satisfied that the Applicant was a genuine Applicant for entry and stay as a student so as to satisfy the criteria of cl.572.223(2)(a)(ii) of Sch.2 of the Regulations, having regard to the fact that the Applicant had not studied for the period from 2 August 2010 to 5 May 2011.
The Tribunal explained its reasons for coming to that conclusion.
It acknowledged that the Applicant would have been distressed by the news of his father’s death on 20 August 2010, and that the fact that the Applicant was unable to pay his last respects to his father would have added to his distress.
It noted that the Applicant said he was depressed and unable to concentrate, however, it was also noted that the Applicant did not seek any professional help during this period of depression, nor did he seek advice from the Department of Immigration and Citizenship
(“the Department”) to determine what he could do so that he was not in breach of the enrolment conditions for his student visa. The Tribunal considered it was open to the Applicant, at any time during that period, to:
·Have sought professional help for his psychological state; or
·Enrol in a short course and to apply for a deferral; or
·Contact the Department and seek advice.
The Applicant did not take any of those options.
For those reasons, the Tribunal considered that the Applicant’s lack of enrolment was a course of action inconsistent with a person who claimed to be a genuine applicant for entry and stay as a student.
The Tribunal also found, having regard to cl.5A405 of Sch.5A of the Regulations, that the Applicant was required to give evidence that he had funds from an acceptable source that were sufficient to meet course fees. The Tribunal found that the evidence of the Applicant’s brother’s loan satisfied those requirements, however the Tribunal was not satisfied that, while the Applicant held the visa, he would have access to those funds.
The Tribunal noted that the Applicant did not have any evidence to support the claim that any funds came from his brother’s real estate business. The Tribunal also noted that the sum deposited by the Applicant’s brother, on one day, amounted to four times his brother’s annual income declared in his tax return and that, given the level of income of the Applicant’s brother, the Tribunal could not be satisfied, on the evidence, that the regular income of the Applicant’s brother was sufficient to accumulate the funds declared.
The Tribunal’s consideration of the income was to seek to establish the source of the funds which secured the loan, and upon which the loan might, or might not, continue to be available for the Applicant to access while holding the visa. The relative short investment period, in this case 30 days, for these term deposits added to the concerns of the Tribunal and the Tribunal was, therefore, not satisfied that the evidence established the source of funds which were used to secure the loan.
Grounds for review
The grounds for review as set out in the application are as follows:
1. S.477, Judicial review can be lodged in 35 days after tribunal review has been finalised
2. I am not happy with tribunal decision, applying for judicial review for legitimate decision
3. I do have exceptional (sic) circumstances beyond the application lodgement previously[2]
None of those grounds disclose a ground for judicial review.
[2] Application of Abdul Majid Mohammed filed 17 July 2013, at p.2.
The Applicant’s submissions
The Applicant made no written submissions in support of his application. In oral submissions to the Court, the Applicant stated that he had provided all of the necessary information to the Tribunal.
He had explained why he was unable to study for six or seven months. The Applicant also stated his brother had arranged the loan and agreed to sponsor him. He did not have any involvement in the arrangements, but knew that his brother bought and sold properties, and that he had the cash to deposit into the account.
The First Respondent’s submissions
The First Respondent submits that there were two independent bases for the Tribunal’s decision and it would therefore be necessary for the Applicant to establish that both of these bases were affected by jurisdictional error. The First Respondent noted that it was unclear what, if any, jurisdictional error the Applicant contended that the Tribunal had made in connection with its decision. The fact that the Applicant was unhappy with the Tribunal’s decision, and the existence of any new exceptional circumstances that were not raised by the Applicant with the Tribunal, were not relevant but suggested that the Applicant was seeking further merit review of the Tribunal’s decision. That was not a matter which came within the jurisdiction of this Court.
The First Respondent also noted, by reference to the decision in the case of SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 (“SZFNK”), that it was not incumbent upon the Court to independently consider, for itself, whether a self-represented litigant might have a case for the Court’s intervention.
The First Respondent submitted that the legislature in cl.572.223(2)(a)(ii) of Sch.2 of the Regulations proposed a substantial discretion in the Tribunal to identify any matters that it thought relevant, in the circumstances of a particular case, to the question of whether or not the applicant is a genuine applicant for entry and stay as a student.
The First Respondent referred the Court to the decision of Tamberlin J in Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571, where his Honour said, in relation to relevantly similar criteria:
The parameters within which the present decision is to be made include a broad reference to “any other relevant matter” and it should be borne in mind that the power is being exercised and the decision made by a Minister of State. This suggests that a narrow view is not appropriate as to what may be considered to constitute a relevant factor in reaching a determination.[3]
[3] (2003) 132 FCR 571 at para.11.
His Honour further stated:
… [t]he subject-matter for determination was whether the appellant was a “genuine” applicant for entry and stay as a student ...
… A determination of genuineness may relevantly involve a wide range of considerations …[4]
[4] Ibid, at para.12.
The First Respondent submits that an applicant’s conduct,
while previously holding a student visa, including in particular an applicant’s failure to enrol in a course of study for a substantial period while holding a student visa, is plainly a matter which it is open to the Tribunal to regard as relevant to whether an applicant is a genuine applicant for entry and stay as a student. The First Respondent further submits that it was open to the Tribunal not to be satisfied that the Applicant would have access to his brother’s funds for the duration of the period that he was to hold the visa, that is, until 2 March 2015, in circumstances where the term deposits that secured the loan were for very short periods, being 30 days, and expired on 30 June 2013.
The only evidence of the source of income from which the funds in the term deposits were accumulated was the Applicant’s oral claim that it was his brother’s real estate business and, having regard to the documentary evidence regarding the brother’s income from his
real estate business, the Tribunal could not be satisfied that the Applicant’s brother’s regular income was sufficient to accumulate the funds in the term deposits.
The First Respondent also submits that the Tribunal complied with the requirements of natural justice as set out in Part 5 of Div.5 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal complied with its obligation under s.360 of the Act to invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Applicant attended the Tribunal hearing and, both at that hearing and in the invitation, the Tribunal sufficiently identified the two issues on which the review ultimately turned.
Conclusions
The Applicant, in this case, has not identified any ground of judicial review. The fact that he is not happy with the Tribunal decision is not a reason for the Court to review the Tribunal’s findings.
An application for judicial review is not a review of the merits. As the First Respondent correctly points out, the Applicant must show a jurisdictional error on the part of the Tribunal with respect to both of the bases upon which the Tribunal determines that the Applicant failed to meet the criteria for the grant of the relevant visa. As the
First Respondent pointed out, by reference to the decision of Madgwick J in SZFNK, there is no obligation on a Court to consider, for itself, whether a self-represented litigant might, despite the inadequacy of his presentation, have a case for the Court’s intervention.
Nevertheless, a cursory examination of the material is sufficient to discern that the Applicant would have had difficulty establishing error on the part of the Tribunal with respect to either of the criteria referred to. The criteria for a subclass 572 visa contained in cl.572.223(2) of Sch.2. of the Regulations includes that the Tribunal is satisfied, at the time of the decision, that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the following requirements:
2. An applicant meets the requirements of this subclause if:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.[5]
[5] Migration Regulations 1994 (Cth), Sch.2, cl.572.223(2).
The Tribunal has a wide discretion with respect to the requirements that it be satisfied that the applicant is a genuine applicant for entry and stay as a student. In this case, the Tribunal took into account the impact of the Applicant’s father’s death and the distress this could have caused to the Applicant. It also took into account the length of time during which the Applicant failed to participate in any course of study; a period of some nine months. I note that the last date, on which the Applicant was enrolled, was 2 August 2010, which is some period of time before the Applicant was notified of his father’s death.
The Tribunal was of the view that the Applicant could have sought advice on what he could do so that he did not breach the enrolment conditions of his visa. It also noted that the Applicant had not sought any professional help for his psychological state. There was nothing in the Tribunal’s consideration of these issues which was outside of the scope of the matters the Tribunal was required to consider.
The Tribunal’s conclusions were not irrational, or without any basis, on the evidence before it.
With respect to the Applicant’s fulfilment of the requirements of cl.572.223(2)(a)(ii) of Sch.2 of the Regulations, the First Respondent noted the following:
11.4As at 23 June 2011, the applicant’s mother held two term deposits of a combined value of 2,400,000 rupees, both of which were made on 23 June 2011 and were to mature on
22 June 2012.
11.5As at 1 June 2013, the applicant’s brother had a loan from the State Bank of Hyderabad in the amount of 2,800,000 rupees, secured by four term deposits of a combined value of 3,120,000 rupees. Each of the term deposits were made on 31 May 2013 and were to mature on 30 June 2013.
The applicant’s brother also had “business of M/s National Real Estate”, and was earning an annual income of 795,108 rupees.
11.6The applicant said that the money in the brother’s term deposits “came from” the brother’s real estate business.[6]
[6] Outline of the First Respondent’s Submissions filed 25 February 2014, p.4, para.11, at subparas.11.4-11.6.
As the Tribunal noted, the Applicant’s brother had, therefore, made four term deposits in one day of a combined value of approximately four times his annual income from that business. Given the Tribunal’s findings in relation to those matters, where it found that:
·The Applicant had not produced any evidence to support the claim that the money came from his brother’s real estate business;
·The amount deposited in one day amounted to four times his brother’s annual income;
·The amount was for a relatively short investment period; and
·The evidence did not establish the source of funds used to secure the loan,
the Tribunal was within its discretion to find that the Applicant had failed to meet the requirements of cl.572.223(2(a)(iii) of Sch.2 of the Regulations.
I am satisfied that the findings were open to the Tribunal on the basis of the evidence before it. The Tribunal identified the issues about which it had concerns, and gave the Applicant an opportunity to respond to them. It found the Applicant’s response to be inadequate.
I am unable to find any jurisdictional error in either the way the Tribunal carried out its functions, or in the decision it has made,
and for those reasons, the application in this matter must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 1 April 2014
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