Sarkar v Minister for Immigration
[2016] FCCA 2435
•15 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARKAR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2435 |
| Catchwords: MIGRATION – Application for Student (Temporary) (Class TU) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered the possible waiver of the requirement in Public Interest Criterion 4020(1) in sch.4 to the Migration Regulations 1994 (Cth) in regards to a letter from the applicant’s employer – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5, 97, 359A, 359C(1), 360(3), 363A Migration Regulations 1994 (Cth), cll.572.223(2), 572.224(a) of sch.2, reg.1.03, criterion 4020 of sch.4 |
| Applicant: | ABUL KHAYER SARKAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 460 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 15 September 2016 |
| Date of Last Submission: | 15 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Ms A Wong, Mills Oakley |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the Tribunal dated 4 February 2016.
A writ of mandamus issue directed to the second respondent requiring I to determine the application made to it for review of the decision of a delegate of the first respondent dated 14 June 2014 in accordance with the law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 460 of 2016
| ABUL KHAYER SARKAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The applicant applied for a Student (Temporary) (Class TU) subclass 572 visa on 8 October 2013. One of the criteria for the grant of that visa was contained in cl.572.224(a) of sch.2 to the Migration Regulations 1994 (Cth). That criterion required that the applicant satisfy public interest criterion (“PIC”) 4020, amongst others. Public interest criteria 4020(1), provides:
(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.
However, compliance with that criterion may be waived pursuant to PIC 4020(4), which provides:
(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.
At the time of the application, a bogus document was defined by reg.1.03 to have the same meaning as in s.97 of the Migration Act 1958 (Cth). Those provisions were later repealed and the definition now appears in s.5 of the Act, which is, effectively, the same as it once was:
Bogus document in relation to a person, means 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.
(Emphasis in original)
On 26 November 2013, an officer of the Department of Immigration (“Department”) wrote to the applicant requesting information in connection with his application for a visa. In response to that request, the applicant sent to the Department a number of documents, including a letter from the Islami Bank Bangladesh Limited in Dhaka, concerning a current account held in that bank by Vicar International Proprietor for Feroza Khatun and a number of statements of accounts in that bank.
On 5 May 2014, an officer of the Department wrote to the applicant in connection with his application inviting him to comment on certain information. That information included that integrity checks had been conducted by an offshore post in relation to the financial documents provided by the applicant and there was a conclusion that those documents were fraudulent. In particular, it noted that the bank certificate provided in the name of Ms Feroza Khatun was not held by her, and that she was not the proprietor of Vicar International. For those reasons, that person would not have access to those funds.
On 14 June 2014, the delegate of the Minister made a decision not to grant the applicant a visa on the basis that he had not satisfied reg.572.224(a) of the Regulations because the bank documents provided by him were bogus documents and the delegate was not satisfied that the compliance with PIC 4020 should be waived. The applicant then applied to the Migration Review Tribunal for a review of that decision. The functions of that Tribunal have been transferred to the Administrative Appeals Tribunal and that Tribunal completed the conduct of the review of the delegate’s decision.
Tribunal’s decision
On 22 December 2014, the Tribunal wrote to the applicant inviting him to provide certain information concerning the bank documents that he had provided to the Department and requiring that information to be provided by 19 January 2015. Although the applicant’s agent sought an extension of the time within which to comply with that invitation, no information was provided to the Tribunal in response to it. As a consequence, pursuant to the operation of ss.359C(1), 360(3) and 363A, the applicant was not entitled to appear at a hearing before the Tribunal, and the Tribunal had no power to invite him to do so.
In spite of that, the Tribunal did invite the applicant to a hearing which was ultimately conducted on 22 October 2015. After the hearing, the Tribunal wrote to the applicant inviting him to comment on, or respond to, information in accordance with s.359A of the Act. That information included the information concerning the provision of the financial and bank records to the Department, and the Department checks indicating, as noted above, that Feroza Khatun, who was the applicant’s mother, was not the proprietor of Vicar International and so did not have unfettered access to the Basic Bank account in the name of that company.
The applicant responded through his agents by letter dated 23 November 2015, which enclosed a statement by the applicant as well as a letter on the letterhead of Zucca and the company named Zhong Jin (Australia) Pty Ltd. That letter dated 21 October 2015 stated as follows (without correction):
…
I am the proprietor of this company. During the preceding year of 2014, Mr ABUL KHAYER SARKAR has been employed as per time worker. He has been working as a barista.
During this entire period, Mr ABUL KHAYER SARKAR has provided excellent service. He is a reliable and hard working individual who we can trust and rely on. All the customers like him as an individual which is really fruitful for our business. He is also putting tremendous contribution to grow this business. For any reason if we lose him from our business right now, it will impact on our business tremendously.
To our knowledge, Mr ABUL KHAYER SARKAR is a model individual who can be a good contributor in hospitality industry in this country
Therefore, we fully support him in every way and we hope that he will get an opportunity to build his career.
The Tribunal made its decision on 4 February 2016 affirming the decision of the delegate not to grant the applicant a visa.
Having referred to the criteria as well as the evidence before it, the Tribunal set out its reasons and finding. It first addressed the question of whether the applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular. It concluded that the applicant had done so by the provision of the bank certificate referred to above in the name of Feroza Khatun, as well as the relevant statements.
In light of evidence given by the applicant at the hearing that his mother, Feroza Khatun, was a housewife and that he did not know who Vicar International was, and his response that he was confused and unable to answer his questions, the Tribunal was satisfied that those were bogus documents. Further, it did not accept that the applicant was unaware the documents were bogus in light of the fact that the applicant’s mother was a housewife and he was not aware of who Vicar International was.
In summary, the Tribunal found that the applicant gave, or caused to be given to an officer of the Department, bogus documents in relation to his visa application and, in particular, as the information was directly relevant to an assessment of whether he satisfied the financial capability requirements found in cl.572.223(2). For that reason, the Tribunal found the applicant did not meet PIC 4020(1).
The Tribunal then turned to consider whether or not the requirement in that clause be waived. It accurately summarised the effect of PIC 4020(4) at [36] of its statement before setting out its reasons as follows:
[37]The applicant has submitted that he loves Australia and its culture and wishes to contribute to Australia. He would like to finish his studies without any stress. The applicant's advisor submitted that his client has been studying since he came, has completed a number of courses and his parents were his financial sponsors. In the past his parents were able to provide financial support and there was no evidence of any difficulties. The applicant would have access to funds, and he gave evidence of a genuine intention to complete his current course, a concession ought to be given.
[38]The Tribunal accepts that the applicant is the only son and that culturally he is required to care for his parents who live in Bangladesh. The Tribunal also accepts that the applicant's parents and sisters have both health and financial problems and that the inability to continue his studies will have an impact on his family and extended family. The applicant does not suggest that his family or extended family are Australian citizens, Australian permanent residents or an eligible New Zealand citizens.
[39]The Tribunal is not satisfied on the material before it that the applicant has provided any information to suggest that there are any 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, that justify the granting of the visa. The requirements of cl. 4020(1) should not be waived.
The Tribunal found, for those reasons that PIC 4020(1) should not be waived and, thus, as the applicant had not satisfied PIC 4020, did not meet the criteria for the grant of a visa and so the decision of the delegate was affirmed.
Consideration
The ground in the application lodged by the applicant is that the Tribunal failed to exercise its jurisdiction by failing to consider all aspects of his claims. That ground was not particularised and no written submissions were filed in support of the application, contrary to the orders made by the Court.
At the hearing, the applicant was unable to assist the Court in expanding on that ground or any other ground that might raise a jurisdictional error. However, as the applicant was unrepresented, I raised with the representative for the Minister the question of whether the Tribunal had considered, in connection with the possible waiver of the requirement in PIC 4020(1), the letter from the applicant’s employer. The Minister submitted that the Tribunal had considered the letter, principally because it had referred to the relevant part of the letter at [25] of its decision, and the balance of the reasons must be read as establishing that the Tribunal did not consider that that aspect of the letter or any other aspect of the letter would have sufficient impact as to meet the requirements for a waiver under PIC 4020(4).
The Minister noted that there was no suggestion in the letter that the owner of the company which was trading as Zucca, being the café where the applicant was working as a barista, was an Australian citizen, Australian permanent resident or eligible New Zealand citizen. I accept that that is the case; however, it is possible to infer from the letter itself that the person who described him or herself as the owner was, in fact, such a person. That is because, firstly, the company was described as Zhong Jin (Australia) Pty Ltd, suggesting that the company is registered in Australia. Secondly, the person described as the owner suggests possibly that the person was an owner of the shares in the company, and a possible inference arises there that as an owner of the shares in an Australian proprietary limited company, that person him or herself is either a permanent resident or citizen of Australia.
Thirdly, the company runs a business in Bunnerong Road, Eastgardens in New South Wales, suggesting a sufficiently close connection to Australia to allow the inference that that person is either a permanent resident or citizen of Australia. However, whether or not that is the case really was ultimately a question for the Tribunal. Similarly, although it could be said that the impact on the business, described only as tremendous, might not readily be described as a compelling and compassionate impact on a person’s interest.
In my view, it is possible that a Tribunal could be satisfied that an impact on a person’s ownership of a business could be sufficient to fall within that description in PIC 4020(4) in sch.4 to the Regulations. The question, then, really is whether the Tribunal did consider whether or not that letter might establish the basis for a waiver under that subclause. An indication that the Tribunal did consider that letter is found in [25], where the Tribunal clearly refers to it and summarises the impact of it, namely “if they lose him, it will impact on them tremendously”.
There is no question, then, that the Tribunal read and was aware of the letter. However, reading and awareness are not the same as consideration. There must be some mental process attached to the document and, in particular, an assessment of whether or not it satisfies the requirements for a waiver. The answer, in my view, is to be found by having regard to the Tribunal’s reasons as a whole in connection with the waiver provision.
Apart from [36], which I have said is an accurate summary of the provision, the Tribunal sets out, in [37] and [38], the effect of the balance of the applicant’s submissions in support of the submission why there should be a waiver. They were that he loved Australia and its culture and wished to contribute to Australia and that he would like to finish his studies without any stress and that he had been studying and that his parents were his financial sponsors.
It also referred, in [38], to the health and financial problems of the applicant’s parents and sisters but then found that there was nothing to suggest that the family or extended family were Australian citizens, Australian permanent residents or eligible New Zealand citizens. What is lacking, however, is any analysis at all in these paragraphs of the possible consequences of the letter from the employer.
Given that the only possible relevance of that letter and the reason for its provision to the Tribunal was in connection with the waiver provision in PIC 4020(4), one would have expected some analysis of it in the reasons for the Tribunal. However, that analysis is missing, and it is for that reason that I find, on balance, that the Tribunal did not consider that letter in connection with the waiver and for that reason did not complete its obligation to review the decision of the delegate. The Tribunal failed constructively to exercise its obligation to review and so fell into jurisdictional error.
Conclusion
For those reasons, there will issue a writ of certiorari and mandamus addressed to the Tribunal requiring it to complete the review of the application for review of the delegate’s decision. As the applicant is unrepresented, there will be no order as to costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 27 September 2016
0
3