Raza v MIBP

[2015] FCCA 1623

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAZA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1623

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – citizen of Pakistan – student visa application – whether bogus documents – whether compelling or compassionate circumstances – whether denial of procedural fairness – whether failure to take relevant mater into consideration – whether any evidence of alleged non-existent bank account – whether compelling circumstances affecting the interests of Australia – whether delay in making decision a jurisdictional error – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Div.5, Pt.5, ss.65, 97, 359A, 359AA, 360(1), 474, 476

Migration Regulations 1994 (Cth), reg.1.03, Sch.2, cl.572.224, Sch 4, cl.4020

Batra v Minister for Immigration & Border Protection [2013] FCA 274; (2013) 212 FCR 84; (2013) 138 ALD 266
Chand & Orsv Minister for Immigration & Anor [2014] FCCA 751
Kandel v Minister for Immigration & Anor [2014] FCCA 1479
Lin v Minister for Immigration & Citizenship & Anor [2009] FCA 494; (2009) 176 FCR 371
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
MZXRE v Minister for Immigration & Citizenship [2009] FCAFC 82; (2009) 176 FCR 552
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257
Patel v Minister for Immigration & Border Protection [2015] FCAFC 22
Re Minister of Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68
SZKJV v Minister for Immigration & Citizenship [2011] FCA 80; (2011) 120 ALD 52
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Trivedi & Ors v Minister for Immigration & Border Protection& Anor [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Vyas & Anor v Minister for Immigration & Anor [2013] FCCA 1226; (2013) 281 FLR 247

Applicant: MUHAMMAD SHAHID RAZA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 311 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 17 February 2015

Date of Last Submission: 17 February 2015

Delivered at: Perth

Delivered on: 22 June 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr B Dube

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 311 of 2014

MUHAMMAD SHAHID RAZA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 3 October 2014, the applicant (“Mr Raza”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Migration Review Tribunal (“Tribunal”) made on 4 September 2014 (“Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), dated 20 August 2012 to refuse to grant a Student (Temporary) (Class TU) visa (“Student Visa”) to Mr Raza.

Background prior to Tribunal Decision

1. The background to the application is as follows:

   a)Mr Raza is a citizen of Pakistan, born 16 October 1988, who came to Australia on 1 September 2007 on a temporary student visa, who was granted a subsequent temporary student visa on 2 November 2010 which ceased on 19 May 2012, and who lodged the application for the Student Visa on 18 May 2012: CB 1-7 and CB 116 at [1]-[2];

   b)the then Department of Immigration and Citizenship (“Department”, now the Department of Immigration and Border Protection) wrote to Mr Raza on 5 July 2012: CB 62-65 (“Department’s Letter”) with respect to financial documents provided from the National Bank of Pakistan (“NBP”). The Department’s Letter stated:

   As there is evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, the following applicant(s) may fail to satisfy PIC 4020 with the result that the visa application may be refused.

   CB 62;

   c)the Department’s Letter identified the letter and bank statement from the NBP: CB 53-54 (“NBP Documents”). The Department’s Letter then noted that information received by the Department was that the NBP Documents were fraudulent. The Department’s Letter stated:

   You may provide comment on the information that is considered to be non-genuine, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020 and the grant of the visa.

   CB 63;

   d)by email dated 24 July 2012: CB 66-69. Mr Raza provided to the Department a letter from the MCB Bank: CB 70 (“MCB Bank Letter”) and an affidavit of his mother dated 21 July 2012: CB 71-72 (“Mother’s Affidavit”);

   e)the Delegate’s Decision made on 20 August 2012, refused to grant the Student Visa: CB 82-90. The Delegate was satisfied that Mr Raza had supplied false or misleading information, or incorrect documentation, to the Department and therefore did not meet Public Interest Criteria 4020 (“PIC 4020”) or cl.572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”);

   f)on 6 September 2012 Mr Raza lodged an application with the Tribunal for review of the Delegate’s Decision: CB 91-101;

   g)on 6 September 2012 the Tribunal wrote to Mr Raza and acknowledged receipt of the application: CB 102-103 and advised Mr Raza that:

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

   CB 102;

   h)under s.360(1) of the Migration Act, Mr Raza was invited by the Tribunal on 21 July 2014 to attend a Tribunal hearing scheduled on 3 September 2014 to give evidence and present arguments relating to the issues under review: CB 106-107, 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 107;

   i)on 14 August 2014 Mr Raza provided a Response to Hearing Invitation indicating he would take part in the Tribunal hearing: CB 108-109.

2. On 3 September 2014 Mr Raza attended the Tribunal and gave oral evidence and presented arguments at the Tribunal hearing: CB 110-113.

Tribunal Decision

1. In the Tribunal Decision the Tribunal first noted Mr Raza’s summary of evidence and arguments as follows:

   a.His visa was refused because the financial evidence he gave the Department was “not verifiable”. The [NBP] bank branch is in a rural area and keeps manual records for its accounts. The bank does not use computers because there is no electricity.

   b.His mother was his sponsor. She was told that the bank was in the process of a monthly audit when the Department made its enquiries. The bank said, during the audit, staff from the main branch were in the rural branch and perhaps they could not find the account in the manual system at the time of the Department’s enquiry.

   c.His mother was sick and his father works in the Middle East. It was difficult for his mother to travel to the rural branch of NBP without a companion, so she “moved her account” to a bank [MCB Band [sic] Ltd] with internet connectivity so that she could conduct transactions from her home.

   CB 116 at [6(a), (b) and (c)];

2. The Tribunal utilised the provisions of s.359AA of the Migration Act to put information to Mr Raza and invite his comment. Firstly, the Tribunal invited Mr Raza to comment on or respond to information in the Delegate’s Decision, namely, that on 19 June 2012 he provided evidence to the Department that was not considered to be genuine: CB 117 at [8]. Mr Raza explained that:

   a)staff members of the rural branch of the NBP were not present when enquiries were made about the existence of his mother’s account;

   b)the end-of-month manual audit was in progress and that local staff members were not there or helping the head office staff with the audit;

   c)the NBP employee who handled the enquiry could not find the account;

   d)the NBP was not expecting the verification enquiry, and was therefore not prepared for it; and

   e)he did not know how the enquiries were made, but if made in English, that could explain the outcome, as the staff at the NBP do not speak English: CB 117 at [9].

3. Secondly, the Tribunal invited the applicant to comment or respond to information concerning the NBP Documents, namely, that when the Australian Diplomatic Post in Islamabad contacted the NBP branch concerned the branch manager confirmed that no such account existed, and the documents were therefore fraudulent: CB 117 at [10]. See also CB 59-61. Mr Raza:

   a)said that his information about the audit was second-hand, as his mother was told that information: CB 117 at [11];

   b)suggested that the Australian Diplomatic Post did not speak to the branch manager, but that whoever was spoken to simply could not find the account, but it was there: CB 117 at [11];

   c)said that he did not know who was contacted within the branch or whether they communicated in English, Punjabi or Urdu, and he could not ring and ask what had happened and it was likely that there was some confusion in communication; and

   d)said that he did not know how long his mother had banked with the NBP as he had been in Australia since he was 17 years old and he cannot say for certain whether his mother still has an account at the NBP but he does not think so because she had opened an account with the MCB Bank, and gave him a letter which he gave to the Department: CB 117 at [12]-[13].

4. In response to questions from the Tribunal Mr Raza said that:

   a)he did not know he had to tell the Department that his mother had closed her account with the NBP and moved the funds to the MCB Bank: CB 117 at [14]; and

   b)the NBP could not release all of his mother’s funds from her account when she asked for it, so she transferred money from his father’s account into the new account she opened with MCB Bank, but he does not know how much money she took from the NBP account to put into the MCB Bank account: CB 117-118 at [15].

5. In relation to the Mother’s Affidavit Mr Raza said he did not know why his mother did not mention the audit and the manual process which may have led to her account not being located, but further said that his mother was not formally educated, and may have used a lawyer and an interpreter to prepare the Mother’s Affidavit, and maybe she forgot to add the information or did not think that it was important: CB 118 at [18]-[19].

6. The Tribunal explained the provisions of PIC 4020(4) of Schedule 4 to the Migration Regulations to Mr Raza, and in relation thereto Mr Raza said that:

   a)“his intellectual talent will not be used in this country” if his Student Visa is refused: CB 118 at [21];

   b)he wants to work in the area of occupational health and safety: CB 118 at [21];

   c)the Student Visa refusal has resulted in a “big psychological impact on him” and he has not continued his studies: CB 119 at [23];

   d)he has no family in Australia and his family and fiancé are in Pakistan: CB 119 at [24]; and

   e)he:

   i)has not studied and has not seen his family for two and a half years;

   ii)has been excommunicated by his family as he is not religious;

   iii)would not have the same freedoms that he has here if he were to return to Pakistan;

   iv)he could be killed and his safety could be threatened because he was not religious; and

   v)was unsure whether his family would allow him to marry his fiancé: CB 119 at [26].

7. In considering the claims and evidence of Mr Raza, the Tribunal:

   a)identified the issue in the review as whether Mr Raza met the requirements of PIC 4020 as required by cl.572.224(a) of Schedule 2 to the Migration Regulations for the purposes of the Student Visa: CB 119 at [28];

   b)dealt with the law with respect to whether a document was bogus, or information which was false or misleading in a material particular, as follows:

   30. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.97 of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in s.97 to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274.

   31. The requirement in PIC 4020(1) not to provide a bogus document, or false and misleading information, applies 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: PIC 4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged: Trivedi v MIBP [2014] FCAFC 42.

   CB 120 at [30]-[31];

   c)noted that:

   i)when the Australian Diplomatic Post contacted the manager of the Sargodha branch of the NBP the account in relation to which the NBP Documents were provided was said not to exist; and

   ii)Mr Raza’s explanation was that his mother terminated the account at the NBP and transferred the funds to the MCB Bank, but that no documentary evidence was provided to show when the NBP account was closed or when the MCB Bank account was opened: CB 120 at [32]-[33];

   d)noted the various explanations provided by Mr Raza as to why the NBP might not have been able to establish the existence of the NBP account, and found that whilst the local Sargodha branch may have kept manual records, the Tribunal was not prepared to accept that that would result in an inability for the manager to locate the account if it existed, and did not believe that an end-of-month audit would have contributed to this result: CB 120-121 at [34]-[35];

   e)found that the Australian Diplomatic Post in Islamabad had the expertise to verify bank accounts and in doing so would communicate with the appropriate person at the NBP in the appropriate language: CB 121 at [36];

   f)noted that the Mother’s Affidavit appeared to explain that her NBP account could not be verified at the relevant time because she had closed that account and opened the account at the MCB Bank, whereas the applicant’s evidence was that at the time of the enquiry by the Australian Diplomatic Post the mother’s NBP account was still open, but could not be located by the staff handling the enquiry, and that given the inconsistencies in the evidence provided by Mr Raza and in the Mother’s Affidavit, the Tribunal gave little weight to either: CB 121 at [37];

   g)preferred the evidence obtained by the Australian Diplomatic Post when it contacted the manager of the NBP’s Sargodha branch to verify the account and was told that the account did not exist: CB 121 at [38]. See the evidence at CB 60-61;

   h)found that there was evidence before it that indicated that Mr Raza had given, or caused to be given to the Minister and the Tribunal, bogus documents in relation to the Student Visa application in the form of the letter dated 19 June 2012 from the NBP confirming that Mr Raza’s mother had held an account with the NBP Sargodha branch and the bank statement for that account for the period 1 December 2011 to 19 June 2012: CB 121 at [39];

   i)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 requirement of PIC 4020(1): CB 121 at [44]; and

   j)found that Mr Raza did not satisfy cl.572.224(a) of the Migration Regulations and affirmed the Delegate’s Decision not to grant Mr Raza the Student Visa: CB 122 at [47].

Application for judicial review

1. Mr Raza filed the Judicial Review Application with the Court on 3 October 2014. The Judicial Review Application contains no grounds of review, but Mr Raza also filed an affidavit on 3 October 2014 (“Mr Raza’s Affidavit”) which makes numerous allegations concerning the Tribunal and the Tribunal Decision. Although not specifically framed as grounds, or grounds based on jurisdictional error, the Court has endeavoured to distil the allegations into grounds, which it has set out and considered below. Mr Raza’s Affidavit alleges that:

   a)the Tribunal did not give Mr Raza an opportunity to obtain and provide the documentary evidence of the initiation and termination of the NBP account and the MCB Bank accounts respectively when he was invited to appear before the Tribunal, and no specific requirements were “laid out” to him in order to obtain and present this evidence. Mr Raza says he would have been able to obtain the relevant bank documentation if he had been instructed to do so by the Tribunal, and therefore the Tribunal made a serious judgment error due to the lack of detail available during the hearing, primarily because the Tribunal had not instructed Mr Raza to bring specific details of the dates for the termination of the NBP account: Mr Raza’s Affidavit, pages 2, 3 and 4. This, in essence, amounts to an allegation of a denial of procedural fairness;

   b)the Tribunal did not take into account the “vivid details” provided by Mr Raza in relation to the circumstances leading to the switching of the bank accounts: Mr Raza’s Affidavit, page 3;

   c)the Tribunal:

   i)stated that the Australian Diplomatic Post staff in Islamabad had the expertise to verify the documents even where a month-end audit was in place, but has not provided any evidence to suggest that the individual at the Australian Diplomatic Post in Islamabad who spoke to the NBP spoke to the branch manager rather than the audit officer who would not have been familiar with the account registry; and

   ii)did not articulate the argument about the language barrier between the NBP staff and the Australian Diplomatic Post staff in Islamabad and gave the benefit of doubt to the staff at the Australian Diplomatic Post in Islamabad,

   and that there is a real possibility that the Tribunal did not have any evidence before it on this issue: Mr Raza’s Affidavit, pages 3-4;

   d)the Tribunal failed to consider the provision of the MCB documents indicating that Mr Raza had enough funds to support his stay in Australia for education purposes for the required period, and that it was unfair that no judgment had been made in this respect;

   e)the Tribunal did not explain the public interest criterion or the compelling and compassionate circumstances in detail and Mr Raza did not therefore know what they meant, and, under the heading “Compelling and compassionate circumstances”, sets out, in significant detail, allegations that the Tribunal Decision has, for example:

   i)“wrecked my life, aspirations and goals in life”;

   ii)deeply impacted on his relationship with his “loved ones” who consider him to have “failed them in their expectations of me”;

   iii)caused him to drop out of his Diploma in Business Management course when he started to study his degree and has consequently been deprived from finishing both qualifications; and

   iv)resulted in his not been able to see his mother, siblings, father, grandparents and fiancé since February 2012, and that he “suffer[s] from anxiety and confinement due to the psychological impact these unproductive years so far have left on me”,

   and says he would like to see his family again, and “live an ordinary, everyday life and finish my school so I could retain my social stature and ensure my productivity to the society as a whole”: Mr Raza’s Affidavit, pages 5-6, which matters it can be inferred Mr Raza says were not considered by the Tribunal; and

   f)the Tribunal Decision was delayed and “took almost 23 months to arrive”, and Mr Raza believes his case was not properly heard: Mr Raza’s Affidavit, page 5.

1. Mr Raza also broadly contends that the Tribunal Decision was incorrect or unjust because the Tribunal did not accept his various explanations concerning the NBP Documents.

Consideration – matters raised in Mr Raza’s Affidavit

1. In relation to the alleged denial of an opportunity to provide documentary evidence concerning the NBP and MCB Bank accounts the Court notes that Mr Raza was invited to and attended the Tribunal hearing. The Tribunal fulfilled its statutory obligation to Mr Raza under Division 5 of Part 5 of the Migration Act in the conduct of the review. Mr Raza was given the opportunity to appear before the Tribunal to give evidence and present arguments, and did so. Furthermore, the Tribunal’s letter of 21 July 2014 expressly:

   a)requested that Mr Raza provide all documents he intended to rely upon to establish that he met the criteria for the Student Visa; and

   b)said that the Delegate’s Decision set out the reasons why he did not meet the criteria and that he should have regard to the Delegate’s Decision in providing documents and preparing for the Tribunal hearing. In that regard Mr Raza was plainly put on notice of the issues that arose from the Delegate’s Decision.

2. The Delegate’s Decision referred to PIC 4020. It also referred to the fact that on 19 June 2012 Mr Raza had provided evidence to the Department that was considered to be of a non-genuine nature, and that on 5 July 2012 Mr Raza had been sent an email in which it was said to him that there was evidence suggesting that he had provided, or caused to be provided, a bogus document or false and misleading information and therefore PIC 4020 may not be satisfied and that his Student Visa may be refused. Mr Raza responded annexing an affidavit from his financial sponsor which the Delegate considered did not satisfy PIC 4020. In particular, the Delegate observed as follows:

   In the response provided to the adverse findings of the Australian High Commission in Islamabad, Pakistan, your financial sponsor, Ghulam Fiza states that the funds were simply withdrawn from the account that was found to be non-existent by the High Commission and therefore fails to acknowledge the fraudulent nature of the documents of concern. As your sponsor’s statement is inconsistent with the findings of the Australian High Commission, I am of the opinion that the claims made in it are of a misleading nature and cannot be regarded as compelling or compassionate reasons for providing fraudulent documents to this department.

   Information submitted also indicates that Muhammad Shahid Raza is seeking a waiver on the on the [sic] basis of compelling and compassionate circumstances. I have reviewed the statement provided by you, and find that there are no compelling circumstances affecting the interests of Australia, nor are there compelling and compassionate reasons that affect the interests of an Australian citizen.

   CB 90.

3. Under s.65 of the Migration Act the Tribunal had to be satisfied that the relevant criteria for the grant of a Student Visa had been met. It was not the task of the Tribunal to spell out what Mr Raza needed to do in order to satisfy those criteria.

4. The assertion that the Tribunal did not take into account the details provided by Mr Raza in relation to circumstances leading to the switching of the NBP and MCB bank accounts cannot be made out. The Tribunal noted the “various explanations” provided by Mr Raza, dealt with the expertise of the Australian Diplomatic Post in Islamabad, noted the explanation in the Mother’s Affidavit concerning verification of the NBP account and opening of the MCB account, and preferred the evidence obtained by the Australian Diplomatic Post from the manager of the NBP’s Sargodha branch as to the non-existence of the account at that branch: see [10(c), (d), (e), (f), (g) and (h)] above.

5. The suggestion by Mr Raza in Mr Raza’s Affidavit that the Tribunal did not have any evidence before it in relation to the verification of documents at the NBP Sargodha branch and that there was a “language barrier” is pure speculation, and the Tribunal was entitled to rely upon the evidence obtained from the Australian Diplomatic Post staff in Islamabad. The evidence to be relied upon or preferred, and the weight to be given to any such evidence, are all matters for the Tribunal, not this Court, and what Mr Raza seeks to have this Court do is engage in impermissible merits review of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.

6. The Tribunal did not need to consider the provision of the MCB documents and the funds allegedly in the MCB bank account because the issue was whether a document which was bogus, or information which was false or misleading in a material particular, had been supplied to the Minister for the purposes of the Student Visa application. Once that issue had been decided it was not relevant, for present purposes, that there were sufficient funds in the MCB bank account to support Mr Raza’s stay in Australia.

7. The assertion that the Tribunal did not explain PIC 4020 or the compelling and compassionate circumstances exception in detail is an allegation that cannot be sustained in circumstances where:

   a)the Delegate’s Decision indicates that Mr Raza submitted information to the Delegate with a view to seeking a waiver on the basis of compelling and compassionate circumstances; and

   b)the Tribunal Decision indicates that Mr Raza said he had no submissions to make in regard to the relevant issue of whether there were compassionate or compelling circumstances that affected the interest of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: CB 121 at [43]. From the Tribunal Decision it appears that the only submission that he made was that it would affect the interests of Australia if he were not granted the Student Visa because his “intellectual talent” would not be used in Australia in the long term and that he could make a valuable contribution to Australia in a professional capacity: CB 121 at [42].

8. In Chand & Orsv Minister for Immigration & Anor [2014] FCCA 751 (“Chand”) this Court accepted that Mr Chand was a valued employee and held an important position in a greengrocery business, and that his employers, who were Australian citizens, might be affected by the loss of his services in the business. The Tribunal was not satisfied however that that constituted compelling circumstances affecting Australia’s interests: Chand at [4] per Judge Driver.

9. In Vyas & Anor v Minister for Immigration & Anor [2013] FCCA 1226; (2013) 281 FLR 247 (“Vyas”) this Court held that the applicants’ claims affected her personally and not as an Australian citizen, permanent resident or eligible New Zealand citizen: Vyas at [18] per Judge Raphael.

10. In Kandel v Minister for Immigration & Anor [2014] FCCA 1479 this Court held that compelling circumstances affecting the interests of Australia were not demonstrated by reason of the departure of a specialist cook from a Nepalese restaurant in Perth, even where the Tribunal had accepted that there would some affect upon the business of the restaurant concerned and the interests of the proprietor who was an Australian citizen: Kandel at [22] per Judge Lucev.

11. The judgments of this Court in Chand, Vyas and Kandel are consistent with the meaning of “the interests of Australia” as connoting a more significant, objective and public interest than that associated with mere employment in Australia: Kandel at [22] per Judge Lucev, citing Re Minister of Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82 at 87 per Einfeld J, cited with approval in Lin v Minister for Immigration & Citizenship & Anor [2009] FCA 494; (2009) 176 FCR 371 at [94] per Foster J. That rationale must apply with even more force here where the person concerned, although a qualified chef, does not appear to have any tertiary qualifications related to his desire to enter the field of occupational health and safety: CB 118-119 at [21] and [22].

12. The Tribunal considered the available evidence and came to the view that the relevant circumstances did not satisfactorily establish that there were compelling circumstances that would affect the interests of Australia if Mr Raza was not granted a Student Visa. The assessment of the evidence and the weight to be given to the evidence in that regard was a matter for the Tribunal: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The conclusion reached by the Tribunal is hardly surprising: there is nothing to indicate that there would be compelling circumstances affecting the interests of Australia in the refusal of a Student Visa to a young man who wants to work at some time in the future in the area of occupational health and safety.

13. In all of the above circumstances, and having regard to the matters put by Mr Raza to the Tribunal, the Court is of the view that the Tribunal arrived at factual conclusions with respect to the issue of whether or not there were compelling circumstances affecting the interests of Australia based upon its assessment of those facts, as it was entitled to do, and that no jurisdictional error is thereby evinced. Furthermore, the matters now put as being compelling and compassionate circumstances Mr Raza advanced the matter no further. Even if this Court could take account of them and arrive at a factual determination, which it cannot as that is the task of the Tribunal, none of the matters now said to constitute compelling and compassionate circumstances for the purposes of PIC 4020(4) come close to satisfying the relevant criteria in PIC 4020(4).

14. Mr Raza also alleges that the Tribunal Decision was delayed, taking almost 23 months to arrive. Delay in the delivery of a Tribunal Decision may constitute jurisdictional error of a kind identified in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257 (“NAIS”).

15. The principles in NAIS were summarised by the Federal Court in SZKJV v Minister for Immigration & Citizenship [2011] FCA 80; (2011) 120 ALD 52 (“SZKJV”) as follows:

    … where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error.

    SZKJV at [33] per Reeves J.

16. In MZXRE v Minister for Immigration & Citizenship [2009] FCAFC 82; (2009) 176 FCR 552 (“MZXRE”) the Full Court of the Federal Court dismissed an appeal, with one Judge, Graham J, dealing with the issue of delay, the other two Judges (North and Rares JJ) dismissing the appeal for other reasons. In MZXRE Graham J said that a delay of eight months in handing down a Tribunal decision was not unfair: MZXRE at [82] per Graham J, and that the delay “was not so extreme that it should be inferred that there was a real and substantial risk that the Tribunal’s Member’s capacity to assess the appellant was impaired”: MZXRE at [83] per Graham J.

17. In dismissing the appeal in SZKJV the Federal Court observed that:

    a)the matter did not involve, solely or significantly, an assessment of demeanour, but rather an assessment of the evidence based on inconsistencies and contradictions in the evidence: SZKJV at [37] per Reeves J;

    b)the Tribunal made detailed findings on each of the various aspects of the claims made by the applicant, and none were bland assertions of a lack of credibility, or of implausibility, on the part of the applicant: SZKJV at [38] per Reeves J;

    c)there were no particular circumstances of urgency dictating a speedy Tribunal Decision and the delay was not “lengthy, significant, protracted or serious”, and at eight months was far less than the 54 months in NAIS: SZKJV at [42] per Reeves J; and

    d)in relation to the effect of the delay:

    As to the effect of the delay, the various decisions in NAIS show that the critical criterion is whether or not the procedures followed by the Tribunal resulted in unfairness to the appellant. In this respect, the central focus of attention must necessarily be the reasons of the decision-maker. In this case, the Tribunal's reasons are comprehensive and detailed. They extend over some 32 pages, including approximately six pages of findings and reasons. Those findings and reasons include extensive reference to the evidence and materials and contain carefully reasoned explanations as to why the Tribunal rejected each element of the appellant's claims in support of her application for a protection via. There is nothing on the face of the Tribunal's reasons to suggest that it took the path to easy resolution that Kirby J mentioned in his decision in NAIS. Nor is there any evidence of them being prepared with undue haste, or with a lack of proper consideration to the claims and issues raised by the appellant. In short, I consider there is nothing in the Tribunal's reasons to suggest the delay in this case resulted in any relevant unfairness to the appellant.

    SZKJV at [43] per Reeves J.

18. In this case Mr Raza asserts a delay in the order of 23 months. That delay, is, however between the time of lodging the application for review with the Tribunal and the Tribunal Decision. The delay between the Tribunal hearing the application for review and the Tribunal Decision is only one day. For the purposes of assessing whether or not the Tribunal fell into jurisdictional error by reason of a delay in the Tribunal Decision it is the delay between the Tribunal hearing and the handing down of the Tribunal Decision that is relevant: NAIS; SZKJV. In this case, there is effectively no delay, as the Tribunal Decision was handed down the day after the application for review was heard by the Tribunal. Why there was a delay of just three days short of two years between the application for review being lodged with the Tribunal and the Tribunal hearing is not a matter which is explained in the Tribunal Decision, but as indicated above it is irrelevant for the purposes of this Court determining whether or not there is jurisdictional error in the Tribunal Decision by reason of delay. One might think that the administrative delay might have worked in favour of Mr Raza by giving him more than adequate time to obtain evidence and put together a case to put before the Tribunal in response to the findings in the Delegate’s Decision. But, as indicated above, whatever the cause of that delay it is not a jurisdictional error in the Tribunal Decision reviewable by this Court.

19. Finally, the Tribunal Decision demonstrates that it did comply with its obligations under s.359A of the Migration Act. For the purposes of s359A of the Migration Act “information” does not include the “existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (“SZBYR”) approving and quoting observations of the plurality in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [24] per Stone and Finn JJ. Further, it “does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by references to those gaps, etc.”: SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ . Accordingly, the Tribunal was not obliged to put to Mr Raza the basis of its findings that it was not satisfied as to his explanation that the documents were not bogus. Despite this, the Tribunal did discuss with Mr Raza the issues relating to the explanations he gave regarding his mother’s bank accounts. Whilst such information was not required to be put to Mr Raza for comment, no error is revealed in the Tribunal’s cautious approach: SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 at [30] per Dowsett, Bennett and Edmonds JJ.

20. For all of the above reasons, the matters raised in Mr Raza’s Affidavit do not establish jurisdictional error in the Tribunal Decision.

Consideration – bogus documents

Legislation and legislative instruments

1. Section 97 of the Migration Act defines “bogus document” as a document 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.

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

3. 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.

Case law – bogus documents

1. In Trivedi & Ors v Minister for Immigration & Border Protection & Anor [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”) the Full 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).

1. In Trivedi it was further said that:

   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 enquiries 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 to observe 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”.

   Patel at [44] per Flick J.

7. In Patel it was also held that there was, in the circumstances, no duty which would have required the Tribunal to make further enquiries, there being no duty to make such enquiries unless an obvious enquiry 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.

8. The Tribunal found that the NBP Documents were bogus documents. There was evidence which the Tribunal:

   a)accepted, and which was that:

   i)the manager of the Sargodha branch of the NBP said that the relevant account in the NBP Documents did not exist;

   ii)there was no documentary evidence to show that the NBP account was closed or when the MCB bank account was opened; and

   iii)the Australian Diplomatic Post in Islamabad had the expertise to verify bank accounts and in doing so would communicate with the appropriate person at the NBP in the appropriate language; and

   b)did not accept, namely Mr Raza’s various explanations of events,

   all of which the led the Tribunal to the finding that the NBP Documents were bogus. That was a finding which was open to the Tribunal on the evidence. The Tribunal did not fall into jurisdictional error by not having regard to the belief of Mr Raza that the document was genuine: Trivedi at [29]-[33] per Buchanan J; Batra v Minister for Immigration & Border Protection [2013] FCA 274; (2013) 212 FCR 84; (2013) 138 ALD 266.

9. Having identified that a document is a bogus document the further element required to be established is that Mr Raza has given, or caused to be given, that document, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth. That the NBP documents were given to an officer by Mr Raza was not in dispute.

10. The points raised by Mr Raza are, in light of the findings made by the Tribunal and open to be made by it on the evidence before it, no more than an impermissible plea for merits review. The Tribunal made findings of fact that were open to it for the reasons that it gave and the Court cannot review the merits of the Tribunal Decision: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

Conclusion and order

1. Because there is no jurisdictional error in the Tribunal Decision, it is 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-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  22 June 2015