Sarkar v Minister for Immigration
[2018] FCCA 230
•1 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARKAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 230 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.359AA, 359A, 359B, 379A, 379G Migration Regulations 1994 (Cth) |
| Cases cited: Kaur v Minister for Immigration [2014] FCA 1276 Patel v Minister for Immigration [2015] FCAFC 22 Sarkar v Minister for Immigration & Anor [2016] FCCA 2435 Trivedi v Minister for Immigration [2014] FCAFC 42 |
| Applicant: | ABUL KHAYER SARKAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1482 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with item 2, Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1482 of 2017
| ABUL KHAYER SARKAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant, Mr Sarkar, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Sarkar a temporary student visa. Background facts relating to the visa application and the Tribunal’s decision on it are set out in the Minister’s outline of legal submissions filed on 25 January 2018.
On 8 October 2013, Mr Sarkar, who is a citizen of Bangladesh, lodged an application for a student (Subclass 572) visa.[1] In support of that application (and in response to a request from the Minister’s Department), Mr Sarkar provided a bank statement from Basic Bank Ltd (the bank) in the name of “Vicar International” (the business) for the period 15 July 2013 to 30 November 2013, and a letter from the bank dated 30 November 2013 stating that Mr Sarkar’s mother (Ms Feroza Khatun) was the proprietor of the business and maintained that account.[2]
[1] Court Book (CB) 1-7
[2] CB 72-75
It was a primary criterion for the grant of the visa that Mr Sarkar satisfied, amongst other things, PIC 4020 and clause 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). PIC 4020(1) essentially requires there be no evidence that Mr Sarkar has given, or caused to be given, a bogus document or information that is false or misleading in a material particular. PIC 4020(4) allows this requirement to be waived if there are 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.
On 5 May 2014, the Minister’s Department invited Mr Sarkar to comment on adverse information received from an offshore post, namely that integrity checks revealed the financial documents he provided in support of his application were fraudulent as Ms Khan was not the proprietor of the business and not the holder of the bank account.[3] He was invited to comment on his ability to meet PIC 4020 in light of this information.
[3] CB 78-81
On 2 June 2014, Mr Sarkar responded to the invitation to comment and denied providing “any bogus or misleading papers”.[4] He also provided further evidence of finances and stated that his mother was recently diagnosed with cancer and money was spent from “that account” for her treatment.[5]
[4] CB 82-83
[5] CB 84-96
On 14 June 2014, the delegate refused to grant the visa on the basis that Mr Sarkar did not meet PIC 4020 and consequently clause 572.221 of Schedule 2 to the Regulations. The delegate found that Mr Sarkar had given or caused to be given a bogus document or information that was false or misleading in a material particular, namely the documents from the bank.[6] Further, the delegate was not satisfied that there were grounds to justify the waiver of PIC 4020.
[6] CB 97-108
The Tribunal’s review
On 4 July 2014, Mr Sarkar applied to the Tribunal for review, and provided a copy of the delegate’s decision with the application.[7] Mr Sarkar was legally represented in the review proceedings.
[7] CB 109-120; item 11(b) of the Index
On 21 October 2015, Mr Sarkar’s solicitor provided a Confirmation of Enrolment certificate (CoE) to the Tribunal, for an Advanced Diploma of Business at Warwick Institute of Australia.[8]
[8] CB 131-132
On 22 October 2015, Mr Sarkar’s solicitor provided further documents to the Tribunal namely, a submission and statement from Mr Sarkar which reiterated his motivations for undertaking hospitality studies, and various educational documents.[9]
[9] CB 133-154
On 22 October 2015, Mr Sarkar attended a hearing before the previously constituted Tribunal with his representative and a Bengali interpreter.[10]
[10] CB 155-157
On 5 November 2015, Mr Sarkar was invited to comment on or respond to information pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act).[11] The invitation set out the particulars of the information, explained the relevance of the information to its assessment of whether Mr Sarkar met PIC 4020. The invitation complied with ss.359A(1) and 359B and was sent to Mr Sarkar’s solicitor by email to the address provided by Mr Sarkar in the application for review, in accordance with ss.379A(5) and 379G.[12] The invitation required Mr Sarkar to respond by 23 November 2015, being the period prescribed by regulation 4.17(4).
[11] CB 159-162
[12] CB 116
On 23 November 2015, Mr Sarkar’s solicitor responded and provided a statement from Mr Sarkar and a letter from his employer.[13] In his statement, he sought to explain the provision of the documents, and stated that his father was facing a “money crisis” and organised the bank statement but did not tell him about it. He stated that his family in India were suffering from difficult personal and financial circumstances and sought an opportunity to finish his study. The letter from his employer stated that Mr Sarkar was a reliable and hard working employee and that his departure would impact on the business “tremendously”.[14]
[13] CB 163-167
[14] CB 165-166
On 4 February 2016, the previously constituted Tribunal affirmed the delegate’s decision under review.[15] This decision was remitted by this Court by orders made by Judge Smith on 15 September 2016 on the basis of a failure to consider the letter from Mr Sarkar’s employer in determining whether to grant a waiver of the requirement in PIC 4020(1).[16]
[15] CB 168-178
[16] Sarkar v Minister for Immigration & Anor [2016] FCCA 2435
On 6 October 2016, the Tribunal (reconstituted) wrote to Mr Sarkar and informed him that it was reconsidering his application for review, as the Federal Circuit Court had remitted the application for review.[17]
[17] CB 179-181
On 29 March 2017, Mr Sarkar was invited to attend a hearing before the reconstituted Tribunal, scheduled for 13 April 2017, which he accepted.[18]
[18] CB 182-187
On 10 April 2017, Mr Sarkar provided a CoE certificate to the Tribunal, for an advanced Diploma of Business at Warwick Institute of Australia.[19] On 13 April 2017, Mr Sarkar attended the scheduled hearing with a Bengali interpreter.[20]
[19] CB 188-189
[20] CB 191-193
The Tribunal decision
On 18 April 2017, the Tribunal affirmed the decision under review on the same basis as the delegate, namely that Mr Sarkar did not meet PIC 4020 and consequently clause 572.221 of Schedule 2 to the Regulations.[21] The Tribunal set out the relevant law in its decision and correctly observed that an element of fraud or deception by some person was necessary to attract the operation of PIC 4020.[22]
[21] CB 194-202
[22] CB 198, [11]; CB 201; Trivedi v Minister for Immigration [2014] FCAFC 42; Kaur v Minister for Immigration [2014] FCA 1276 at [57] and [61] per Barker J; Patel v Minister for Immigration [2015] FCAFC 22
The Tribunal discussed with Mr Sarkar his study, immigration history and the reason his visa had been refused. Mr Sarkar confirmed that he understood his visa was refused because the “bank statement he had provided in support of his visa application was not right”. However, Mr Sarkar said “he did not understand much” the documents submitted by his father and “just sent them” to the Minister’s Department.[23] The Tribunal put information to Mr Sarkar pursuant to s.359AA in relation to the financial documents he submitted to the Minister’s Department and that integrity checks had found them to be fraudulent.[24] Mr Sarkar responded that he was not “an expert or lawyer” but asked the Tribunal to be “realistic” and consider his present situation, namely that his family was still providing money to support him.[25]
[23] CB 198, [12]
[24] CB 198, [13]
[25] CB 199, [15]
The Tribunal noted that Mr Sarkar’s evidence that “Vicar International” was a family business and Mr Sarkar maintained that his parents continued to financially support him.[26] Mr Sarkar confirmed the documents he submitted were provided by his father. He declined to comment on information that the documents were fraudulent.[27] On the basis of the information before it, the Tribunal found that there was evidence before it that Mr Sarkar had given, or caused to be given a bogus document to the Minister’s Department in relation to his student visa application.[28] Accordingly, the Tribunal found that Mr Sarkar did not meet clause 4020(1) of Schedule 4.[29]
[26] CB 199, [15]
[27] CB 199, [17]
[28] CB 199, [18]
[29] CB 199, [19]
The Tribunal observed that the requirements of clause 4020(1) could be waived where there are compelling circumstances that affect the interest of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that justify the grant of the visa.[30] Mr Sarkar said he was “not that important a person” as to affect the interests of Australia and was a “simple man with a clear record”. He asked the Tribunal to take into account that he had been studying hospitality for a long time and was now studying an Advanced Diploma of Leadership and Management which would give him good knowledge of management. He submitted that he had lengthy experience as a part-time barista at Zucca Café and had the support of his employer, who provided a letter of support. He stated that he believed he could make a contribution to Australia.[31]
[30] CB 199, [20]
[31] CB 200, [23]
The Tribunal accepted that the loss of an experienced and well-liked employee may have a “temporary impact” on the business, but found that staff movement was part of general business operations.[32] The Tribunal was not satisfied that these factors rose to the level of compelling compassionate or compelling circumstances to justify the grant of the visa, and concluded that PIC 4020(1) was not satisfied.[33] For these reasons, the Tribunal found that Mr Sarkar did not satisfy clause 572.221 of Schedule 2 to the Regulations and affirmed the decision under review.
[32] CB 200, [25]
[33] CB 200, [26]
The present proceedings
These proceedings began with a show cause application filed on 15 May 2017. Mr Sarkar continues to rely upon that application. There is one ground in the application, which is the assertion that the Tribunal failed to exercise its jurisdiction by failing to consider all aspects of Mr Sarkar’s claims.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 7 July 2017.
Only the Minister prepared pre-hearing written submissions in accordance with orders made by a Registrar.
I invited oral submissions from Mr Sarkar this morning. He told me that he is a well-qualified and diligent student who wishes to contribute to Australian society. He has apparently completed the studies he was undertaking at the time of the Tribunal decision and is now undertaking a Diploma of Marketing and Communication at Warwick Institute. He hopes to be able to undertake an advanced diploma in those subjects after completion of the current course in November this year. I explained to Mr Sarkar that if the Tribunal decision is a valid one, only the Minister can change it.
I invited submissions from him on the legal issues, but he was unable to make any. The sole ground in the show cause application may have been advanced in the knowledge of the defective first Tribunal decision, which was set aside by orders of this Court. The Tribunal, as presently constituted, did not make the same mistake. The Tribunal expressly considered the correspondence from Mr Sarkar’s employer. In my opinion, the present Tribunal did not overlook any element or integer of Mr Sarkar’s claims.
The conclusions reached by the Tribunal, both on the breach of the condition on Mr Sarkar’s visa and its exercise of discretion were open to it on the material before it.
I otherwise agree with the Minister’s submissions on the ground of review.
To the extent that Mr Sarkar contends that the Tribunal failed to consider his claims in relation to whether PIC 4020(1) should be waived pursuant to PIC 4020(4), such a contention cannot succeed. The Tribunal expressly discussed the requirements of the PIC 4020 with Mr Sarkar, including that the compelling circumstances must affect the interests of Australia, and the compelling or compassionate circumstances affect the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen, and gave him examples as outlined in the Departmental guidelines.[34] Mr Sarkar stated that he was “not that important a person” as to affect the interests of Australia but relied on his employer’s support.[35] The Tribunal expressly considered Mr Sarkar’s submissions including in relation to his employment.[36] However, the Tribunal was not satisfied that these factors rose to the level of compelling circumstances that affect the interest of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen to justify grant of the visa.[37] Accordingly, this ground must fail.
[34] CB 199-200; [20]-[22]
[35] CB 200, [23]
[36] CB 200, [24]
[37] CB 200, [25]
Conclusion
I conclude that Mr Sarkar is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Sarkar indicated he may need to pay the costs by instalments, but he did not oppose a costs order in principle.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with item 2, Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 February 2018
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