Mohd v Minister for Immigration and BORDER PROTECTION

[2015] FCCA 1507

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHD v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1507

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13
Migration Regulations 1994 (Cth)

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: MOHD ZAIDI BIN MOHD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3109 of 2014

Judgment of: Judge Emmett

Hearing date: 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Sydney

Delivered on: 3 June 2015

REPRESENTATION

The Applicant appeared in person with the assistance of a Malay interpreter

Solicitors for the Respondents: Mr Stephen Speirs
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3109 of 2014

MOHD ZAIDI BIN MOHD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 10 November 2014, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal dated 10 October 2014 and handed down on 13 October 2014 (“the MRT”).

2. On 5 March 2015, the applicant attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 27 May 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 27 May 2015.

1. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court, as well as the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

2. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.

3. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

5. The first respondent, in written submissions, summarised the background of the applicants’ claims and the MRT’s decision, as follows:

   “Background

   On 26 September 2013, the Applicant, applied for a student visa.

   On 26 February 2014, the student visa was refused by a Delegate.

   On 18 March 2014, the Applicant sought review of the Delegate's decision by the Tribunal.

   By letter dated 26 August 2014, the Tribunal invited the Applicant to appear before it on 2 October 2014 to present evidence and arguments.  On 1 October 2014, the Applicant provided to the Tribunal a medical certificate stating that he was unfit for two days.  The Tribunal re-scheduled the hearing for 9 October 2014. The Applicant appeared before the Tribunal on that day.

   On 10 October 2014, the Tribunal affirmed the Delegate's decision.

   This current application, filed on 10 November 2014, seeks to challenge the legal correctness of the Tribunal's decision.

   Applicant's claims

   At the Tribunal hearing, the Applicant provided a letter of offer issued on 4 September 2014 for a Certificate IV in Business, a Diploma of Business and an Advanced Diploma of Business with course dates from 22 September 2014 until 12 November 2017.  The Applicant gave the following evidence:

   i.   he was not currently studying and had last studied in December 2013;

   ii.   in the last 10 months, he undertook a five week English course and sat the International English Language Testing System exam;

   iii. he did not work during the period he was not studying. His parents and friends provided him with financial support;

   iv.  he had not studied during the period 31 October 2012 to 23 July 2013 and December 2013 to October 2013; and

   v.    he had difficult paying fees whilst at TAFE.

   Tribunal's findings

   The Tribunal found that the Applicant did not satisfy the essential criterion set out by clause 572.223(1)(a) of the Migration Regulations 1994 (Cth) (Regulations) and thus did not intend "genuinely to stay in Australia temporarily". Specifically, the Tribunal held that the Applicant had no genuine interest in studying and premised this conclusion on the following bases:

   a.evidence indicated that the Applicant did not study during the period:

   i.31 October 2012 to 23 July 2013, a period of approximately 10 months; and

   ii.December 2013 to October 2014, a period of approximately 10 months,

   and therefore had not studied for a total of 20 of the 27 months that he had been in Australia which showed "a lack of genuine interest in studying";

   b.the Applicant was not currently studying. This was despite the Applicant having provided to the Tribunal at the hearing, a "letter of offer" for Certificate IV in Business, a Diploma of Business and an Advanced Diploma of Business with overall course dates commencing from 22 September 2014. The Tribunal noted that the "letter of offer" was obtained after the hearing invitation letter was dispatched on 26 August 2014, thus reflecting a disingenuous intention to study; and

   c.the Applicant's evidence lacked credibility because it changed throughout the hearing and was contradictory.

   In coming to the conclusion that the Applicant did not intend “genuinely to stay in Australia temporarily", the Tribunal rejected the Applicant's explanation that he had received advice not to study until his visa application was finalised. The Tribunal stated that it was disinclined to accept this explanation given that studying or being subject to an offer of enrolment was a fundamental prerequisite for the provision of a student visa.

   The Tribunal having considered the Applicant's circumstances, immigration history and other matters it considered relevant, was not satisfied that the Applicant intended to genuinely stay in Australia temporarily and did not meet clause 572.223(1)(a) of the Regulations. The Tribunal affirmed the delegate's decision.”

6. The applicant was unrepresented before the Court this morning, although had the assistance of a Malay interpreter.

7. On 10 November 2014, the applicant filed an affidavit in support of his initiating application. That affidavit annexed a copy of the MRT’s decision but otherwise did no more than restate claims made before the Tribunal. On that basis, the solicitor for the first respondent opposed the affidavit on the ground of relevance and the affidavit was rejected on that basis. The solicitor for the first respondent tendered the MRT’s decision record and that document was marked Exhibit 2R.

8. The applicant sought to read an affidavit filed by him on 26 November 2014. Again, that affidavit did no more than restate the applicant’s claims and attach post-hearing material. I explained to the applicant that the issue before this Court was whether or not the decision of the MRT was affected by a mistake that goes to its jurisdiction and that a failure by the MRT to consider material that was not yet available and which was not put before it by the applicant could not demonstrate a jurisdictional error. For that reason, the affidavit was rejected, together with the annexures.

9. The solicitor for the respondent tendered paragraph 32 of the applicant’s affidavit of 26 November 2014 as evidence of the applicant’s admission that he was not studying for a 20-month period. That paragraph was marked Exhibit 1R.

10. Otherwise, the applicant confirmed to the Court this morning that he relied on the grounds contained in the applicant’s application for judicial review, filed on 11 October 2014. Those grounds are as follows:

    “1. MRT has failed to consider my application as they have to find out which the reason given why my student visa cannot granted as I given an evidence on my affidavit.

    2. MRT has failed to consider my application on the basic of the natural and justice procedure raw fairness.

    3. Injustice and inhuman to TAFE officers willing to given in correct information to DIAC student visa application. Finally I have to be canceled and my case to the tribunal and court.

    4. DIAC has to consider my case and to investigate with the all paper work given as the proof of my study and fees before make and accept a record or complaint from the TAFE and finally for the decision and heading before I get back my visa.

    5. Information not to study at all while I am holding a bridging visa to MRT case are considering from TAFE then I cant study at all till I get my student visa back.” (errors in original)

11. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

12. The claims that I understand the applicant to be asserting the MRT should have investigated further were claims that he was given different information about where he may or may not study by two different officers of TAFE. The applicant confirmed that Grounds 1 and 4 are intended to be a complaint about the failure of the MRT to investigate his claims further. Otherwise, the applicant had nothing further to say in support of any of those grounds.

13. The MRT, in its decision record, referred to the applicant’s evidence about what he was told at that time as follows:

    “11. The Tribunal raised that the Department had found that the applicant did not study between 31 October 2012 and 23 July 2013. The applicant initially disputed this evidence, but then agreed that he had not studied during the relevant period. The applicant also agreed that he had not studied during the period from December 2013 until the date of hearing in October 2014. In relation to why he did not study, throughout the hearing the applicant gave changing and contradictory evidence as to whether or not he had been advised that he could or could not study during this period. The Tribunal stated that it found it difficult to accept that the applicant had ever been advised that he could not study whilst waiting on the outcome of his Student Visa appeal, as the applicant must be studying or subject to an offer of enrolment in order to be granted a Student Visa.”

14. Ultimately, the MRT did not accept that the applicant was advised not to study during the period that he was awaiting the appeal as it is a prerequisite for the provision of a student visa that an applicant be studying or subject to an offer of enrolment. The MRT found that conduct to demonstrate a lack of genuine interest in studying. Based on the evidence before it, the MRT was not satisfied that the applicant intended genuinely to stay in Australia temporarily, as required by cl.572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth).

15. To the extent that the applicant complains that the MRT failed to investigate his claims further about what he was told by various officers, in light of the MRT’s findings, no such obligation arose. In any event, it is well-established that there is no general obligation on a MRT to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

16. The duty imposed on the MRT by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

17. The MRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

18. It is well established that the MRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the MRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

Conclusion

1. While I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The MRT referred to the relevant law in affirming the decision under review.

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 11 October 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  18 June 2015