Shaikh v Minister for Immigration

[2014] FCCA 1011

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAIKH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1011

Catchwords:
MIGRATION – Migration Review Tribunal – procedural fairness – jurisdictional error – student visa – genuine student – application dismissed.

Legislation:  
Migration Act 1958, ss.359AA, 359A

MZYFH v The Minister for Immigration and Citizenship [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

Applicant: REHANA GULAMMAIUDIN SHAIKH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 822 of 2013

Judgment of: Judge Riethmuller

Hearing date: 25 March 2014

Date of Last Submission: 25 March 2014

Delivered at: Melbourne

Delivered on: 23 May 2014

REPRESENTATION

Counsel for the Applicant: The Applicant appearing in person

Counsel for the Respondent: Ms Symons

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed on 11 June 2013 be dismissed.

2. The applicant pay the respondent’s costs, fixed at $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 822 of 2013

REHANA GULAMMAIUDIN SHAIKH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal of 15 May 2013.  The Migration Review Tribunal affirmed a decision of a delegate, dated 26 July 2011, refusing the applicant a student visa. 

2. The applicant is an Indian national who arrived in Australia on 6 April 2007 on a student visa that was valid until 15 March 2011, giving her, in substance, four years of study time.  On 11 March 2011 the applicant completed an application for a further student visa which initially only listed a Certificate 3 course. The visa regulations required (for a vocational education and training sector category) that a visa can only be granted if there is a package of courses of which at least one is a Certificate 4 level course. 

3. The applicant was advised of this issue on 19 March 2011.  In addition, the applicant was advised that the department records indicated that she had not been enrolled to study between 16 July 2009 and 18 July 2010 (a period of one year).  It later requested details as to what she was doing during this period. (See page 9 of the court book)

4. At page 10 of the court book, the relevant page of the letter setting out details of the requirements for evidence of funds for the applicant to support herself whilst she is in Australia is set out in some detail.

5. The applicant provided evidence that over the first two years of her stay in Australia she obtained a certificate 3 in hospitality (commercial cookery) conferred on 1 July 2009.  Thereafter she obtained a Diploma of Hospitality conferred on 30 May 2010, although some of the subjects listed in her statement of attainment for the Diploma of Hospitality were the same as the subjects she had completed in her Certificate 3 course. Other subjects were new, such as the subject “Prepare Sandwiches”.  These courses were done at a private institution.

6. She had previously been enrolled at the Holmesglen Institute in 2007 where she had successfully completed 14 of 21 subjects (not having passed “Prepare Sandwiches” at the Holmesglen Institute).

7. On 29 March 2011 she received a Certificate 4 in Business from another private institution, the Australian Education Academy Proprietary Limited.

8. On 26 June 2011 the applicant was served with notification that she had not obtained a student visa. That refusal was based upon her failure to demonstrate sufficient information to satisfy the delegate that she met the financial requirements required under the visa category. Her application to the Migration Review Tribunal was lodged by IEAC Migration from a migration consultant who was acting on her behalf.  In the application she asked that correspondence be sent to her representative.

9. On 17 August 2011 an officer of the Tribunal faxed the applicant’s representative a number of documents, including a printout from the database of courses that the Tribunal understood the applicant had undertaken.  The printout showed that the applicant had completed a general English course on 22 June 2007, a Diploma of Hospitality Management on 29 November 2009, a Certificate 4 in Business on 15 December 2010 and a Diploma of Management on 14 July 2011.  She had also enrolled in six other courses where the enrolment had been cancelled, a Diploma of Hospitality Management (culinary), a Diploma of Hospitality Management, a Diploma of Management and a Certificate 3 in painting and decorating.

10. Importantly, on 14 February 2013, prior to the Tribunal hearing in April 2013, the Tribunal sent the applicant’s adviser a letter enclosing a letter to the applicant, specifically identifying a number of issues with respect to the visa application, including:

    A certificate of enrolment is required by clause 572.222 to evidence that you are enrolled in or are the subject of a current offer of enrolment in a registered course as set out in clause 572.231, (2) evidence of all your academic achievements and evidence of your enrolment in a registered course or courses since your arrival in Australia as the holder of a student visa, for the purposes of clause 572.223(2)(a)(ii).  

11. The letter also specifically addressed the need to provide evidence of financial capacity, which was addressed in some detail (see pages 94 to 95 of the Court book). The applicant was also sent a hearing invitation, which was returned to the Tribunal on 27 March 2013, indicating that a hearing was required and that the applicant’s representative would be in attendance. 

12. At the first hearing before the Tribunal on 2 April 2013 the applicant appeared with her representative.  Detailed submissions were made by the representative on 26 March 2013 in writing, including evidence of a current enrolment with ALTEC, in an Advanced Diploma of Management, and a number of financial documents with respect to funds held by the applicant’s mother in India. This included evidence that the applicant held a Bachelor of Commerce attained at a university in India on 12 March 2006.

13. At the first hearing before the Tribunal considerable discussion took place around the studies the applicant had been enrolled in and had completed.  The applicant agreed that between July 2009 and July 2010 she had not been enrolled in or studied any courses. The applicant advised that she had further financial information at home to establish her financial capacity that she wished to place before the Tribunal.  This was the reason for the second hearing.    

14. In a letter dated 24 April 2013 the applicant was invited by the Tribunal to attend a further hearing. Prior to this letter being sent the following occurred:

    a)On 8 April 2013 the applicant’s agent provided the Tribunal with further financial evidence of the applicant’s capacity to satisfy the financial capacity requirements; and

    b)On 23 April 2013 the results of a referral were received by the Tribunal from the New Delhi Australia High Commission. The conclusion was that the financial support evidence was non-genuine and that the applicant did not have sufficient funds in order to support her whilst studying in Australia as claimed in her application.

15. Notice of the second hearing was given to the applicant via her migration agent on 24 April 2013.  This was also notified to her agent by email. A response was given, including evidence of disbursements from a loan and a written statement. On 14 May the hearing proceeded in the presence of the migration agent.

The Tribunal’s Findings. 

1. With respect to the financial requirements of the visa conditions, the Tribunal found:

   45. The Tribunal told Ms Shaik that the verification report was important because, subject to any comments or response she might make, it may be a reason or a part of the reason for the Tribunal to affirm the decision under review. She was therefore advised that in compliance with s.359AA of the Act, once the Tribunal had read the report to her, she would be given the opportunity to adjourn the hearing and discuss the matter with her agent before she responded.

   46. The Tribunal then read the verification report which stated that a Department officer had telephoned the relevant branch manager who confirmed that a loan of Rs.900,000 had been sanctioned to mother which she had transferred to her savings account. On 5 April 2013, she had withdrawn a loan from the savings account with a balance on the date of the enquiry, 17 April 2013, at Rs.5328. The Department officer had then telephoned Ms Shaik’s mother and asked why she had withdrawn the funds from the savings account. She responded that she had not withdrawn the funds and that they were still available. The Department officer then a game called the branch manager who verified that the loan amount had been withdrawn on 5 April 2013. The investigating officer concluded that Ms Shaik’s mother had provided false and misleading information and that Ms Shaik did not have funds to support study her stay in Australia as claimed.

   47. The hearing was adjourned briefly for Ms Shaik to discuss her response with her agent. On resumption of the hearing she told the Tribunal that her mother had transferred the funds to where she received a better interest rate. She said that when she had spoken to her mother sometime later her mother had replaced the funds in the account.

   48. The Tribunal referred to the verification report where the verifying officer having been told the funds had been withdrawn, rang and spoke to Ms Shaik’s mother and asked for the reason of withdrawing the funds from the savings account. She had responded that she had not withdrawn the funds from the account and that the funds were still available. Ms Shaik gave no response.

   51. To be eligible for the grant of a visa Ms Shaik needs to provide evidence she satisfies the Schedule 5A requirements detailed in 5A405, by providing evidence she has access to funds to support study and living expenses in Australia.

   52. The issue for the Tribunal is whether Ms Shaik meets the requirements of cl.572.223 of Schedule 2 to the Migration Regulations. The primary decision was based on Ms Shaik’s failure to provide satisfactory evidence she had the necessary financial capacity as loan funds had been granted to her mother had been transferred out of her savings account.

   53. Ms Shaik provided the Tribunal with evidence of a further loan granted to mother. The Tribunal told Ms Shaik that it intended to have the existence of funds verified. When after the hearing, the documents provided were sent the verification, the investigation revealed that a game the funds had been transferred to a savings account from which they had been withdrawn. When the verifying officer rang Ms Shaiks other, she claimed the funds had not been withdrawn from the account and were still available following which the officer again rang the branch manager who confirmed the funds had been withdrawn.

   54. On the basis of the above, the Tribunal finds that Ms Shaik has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which she is subject, in relation to the necessary financial capacity. Accordingly, Ms Shaik does not satisfy the requirements of cl.572.223(2)(a)(i).    

2. With respect to the question of whether or not the applicant was a genuine applicant for entry and stay as a student, the Tribunal said:

   56. The Tribunal considers it relevant that Ms Shaik had an enrolment and study gap of approximately twelve months whilst holding a student visa. It is a requirement that a student visa holder remains enrolled and studying whilst holding a student visa. Consideration may be given where there are exceptional circumstances beyond the visa holders control which led to the study gap.

   57. Ms Shaik told the Tribunal that she had not been enrolled for a period of approximately one year whilst holding her student visa due to stress she suffered as a result of a relationship breakup with her boyfriend.

   58. The Tribunal does not accept that relationship breakup between students constitutes and exceptional circumstance and therefore finds Ms Shaik has breached a condition of her previously held visa.

   59. On the basis of the above, the Tribunal is not satisfied that Ms Shaik is a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(a)(ii). 

3. As a result, the Tribunal found, for two separate reasons, that the applicant did not satisfy the essential requirements of the visa conditions and, therefore, refused the applicant’s application. 

Grounds of Application:

1. In an Application filed on 11 June 2013 the applicant sets out 2 grounds for review as follows:

   Ground One

   The Tribunal committed jurisdictional error when it denied the Applicant procedural fairness in failing to allow the Applicant opportunity to be heard or comment on the issue post-hearing verification about certain funds.

   Particulars

   Tribunal stated (MRT decision, p 10 at [53]) “… When verifying officer rang Ms Shaikhs (sic) mother, she claimed the fund had not been withdrawn from the account and were still available… following which the officer again rang the bank branch manager who confirmed that the funds had been withdrawn.”

   Ground Two

   The Tribunal committed jurisdictional error when it failed to put the Applicant on notice that the issue of 12 months gap in the enrolment (MRT decision, p 11 at [56]) was a determinative issue whilst the delegate’s decision had turned solely on the question of the level of funds thereby denying the Applicant procedural fairness and / or breached ss 359A, 359AA and / or 360 of the Act.

   Particulars

   The Tribunal whilst referred to the issue of gaps in the enrolment did not put the Applicant on notice that it was a determinative issue stated and in failing to allow the Applicant AN opportunity to be heard or comment on the issue exceptional circumstances which were matters not in issue before the delegate. The Applicant was denied opportunity to present arguments on this determinative issue.

Ground One

1. A careful reading of the Tribunal decision shows that the relevant part of paragraph 53 (quoted above) which is referred to in ground 1 is, in fact, a recounting of the fact finding that took place as explained in paragraphs 45 to 48.  It is not an independent factual inquiry that the Tribunal made after the hearing. When these allegations were put to the applicant, it is stated at the end of paragraph 48 that she gave “no response”.  For these reasons, the applicant’s claim that the findings in paragraph 53 demonstrate a failure to accord procedural fairness with respect to a post-hearing verification about funds cannot succeed.

Ground Two

1. A more difficult issue arises with respect to the Tribunal’s handling of its obligations under s.359A. The Tribunal recounts in paragraph 45 of its decision (see above) that the information in the verification report “may be a reason or a part of the reason for the Tribunal to affirm the decision under review”. The Tribunal elected to proceed to satisfy the requirements of s.359A by utilising the process set out in s.359AA. 

2. The precise terms of the sections are:

   S.359AA [Information and invitation given orally by Tribunal while applicant appearing] If an applicant is appearing before theTribunalbecause of an invitation undersection 360:

   (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) if the Tribunal does so the Tribunal must:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   S.359A [Information and invitation given in writing by Tribunal]

   (1) Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies by one of the methods specified in section 379A; or

   (b) if the applicant is in immigration detention by a method prescribed for the purposes of giving documents to such a person.

   (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

   (4) This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application for review; or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c) that is non-disclosable information.  

3. The section itself utilises the word “would” not the word “may”.  This presents an issue as to whether or not the Tribunal member complied with the terms of the section.

4. At the outset, it should be noted that the conduct of the Tribunal in putting the material to the applicant would have satisfied any requirements for procedural fairness in a common law sense, but for the modifications made to the common law by the complex statutory regime of the Migration Act. It is clear that the statutory regime replaces the common law in these respects, and must be complied with.

5. The precise operation of s.359AA has been considered by Bromberg J, when exercising the powers of the Full Court on appeal from a Federal Magistrate, in MZYFH v The Minister for Immigration and Citizenship [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409 (and I note that the minster did not seek to appeal the decision of Bromberg J). In that case, his Honour considered the equivalent section with respect to refugee cases, s.424AA. The wording of the two sections in the relevant respect is identical. His Honour said:

   62. Furthermore, paragraph (b) of s. 424AA speaks of both the relevance and the consequences of the information. Rather than ensuring that the appellant had an understanding of the consequences of the information being relied upon by the Tribunal, the appellant was here misled as to what that consequence would be. Given that the Tribunal had come to the view that s. 424AA was enlivened and thus that it had information before it which it considered “would” be the reason or part of the reason for affirming the decision that was under review, it was misleading of the Tribunal to tell the appellant that the information “could” form the reason or part of that reason.

   66. By telling the applicant that the information “could” form the reason or part of the reason, the Tribunal failed to ensure that the applicant understood the view that the Tribunal had arrived at, and the full gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly.

   67. In the circumstances of this case, the appellant may well have taken the view that the Tribunal would regard the evidence of Father Thomas to be of little consequence. As I have said already, it is unclear from the evidence that Father Thomas gave that he even knew of the appellant. Similarly, in relation to evidence of Father Peter, the appellant may well have thought that the Tribunal would not give that evidence very much weight. The evidence was unspecific, the basis for the assertions made was not given and the evidence was obviously tainted by Father Peter’s misconception that the appellant was one of the oath breakers who had not returned to India.

   68. In those circumstances, and because he was told that the evidence of the Fathers could, rather than would, be the reason or part of the reason for affirming the decision under review, the appellant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s. 424AA to seek additional time to provide his response. A full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make.

   69. For that reason as well, the Tribunal’s approach failed to ensure that the appellant was put into a position where he could understand both the relevance and consequence of the information. That failure denied the appellant the proper opportunity to comment on or respond to the information, which s. 424AA intends that he should have.

1. In response to this difficulty, counsel for the Minister provided evidence that an officer had listened to the hearing tape, and that the word utilised by the Tribunal at the actual hearing was “likely”, not the word “may”.  On either version, the difficulty remains that the word “would” was not utilised.

2. It appears to me that the reasons of Bromberg J are to the effect that if the form of words utilised by the Tribunal member conveys anything less than the precise sense conveyed by the word “would”, as utilised in the section, then the Tribunal member has not properly engaged s.424AA (which is in the same terms as s.359AA). In these circumstances, s.359A has not been fulfilled, as it is only fulfilled if s.359AA is properly engaged: see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415.

3. The sections use the phrase “would be the reason … for affirming”. Bromberg J has found that “could be the reason … for affirming” is not sufficient to convey the meaning required by the section. In this case “likely to be the reason … for affirming” is at issue. Whilst “likely to be” is more certain or of greater force than “could be” it nonetheless lacks the imperative sense of “would be”. Thus, applying SZMCD, the section has not been properly engaged.

4. I have, however, some sympathy for the Tribunal member conducting the hearing. But for the fact that the section uses the phrase “would be”, it could easily be understood as redolent of a closed mind, which is avoided by the phrase “likely to be”. Be that as it may, the legislation requires “would be” and thus that phrase must be used.

Alternative Basis for Decision

1. The question as to whether the applicant is genuine student was not an issue before the delegate.  However, a careful review of the hearing decision shows that the Tribunal discussed the applicant’s study history in Australia with her at the first hearing, and she agreed that she had not studied during the July 2009 and July 2010 period.

2. She provided an explanation relating to an alleged failure by her education provider to give her a release letter, referring to personal problems she had in a relationship when she broke up with a boyfriend (see paragraphs 29 and 35 of the decision).  It must have been apparent to her and her advisor at this point that her study history and the one year gap when she was in Australia on a student visa were a relevant issue before the Tribunal.

3. At the second hearing, the issue was raised again as the Tribunal recounts at paragraph 43, saying:

   43. The Tribunal told Ms Shaik that concerns remained about an apparent gap in studies and commented that it appeared she had not been enrolled between July 2009 and July 2010. Ms Shaik confirmed that she had not been enrolled or studying during this time and when the Tribunal asked her why she had not been studying, she responded that she had broken up with her boyfriend which had caused her stress that prevented her from studying. The Tribunal repeated circumstances for clarification and asked whether there was anything else that prevented her from studying during this period, she responded there was nothing else it was simply that the stress of the relationship breakdown means she was unable to study.

4. In the circumstances, I am not persuaded that the applicant was denied procedural fairness, as she was clearly put on notice of this issue at the first hearing, and therefore had from the first hearing to the second hearing to consider it, and was again taxed with the relevant circumstances of the second hearing.  There is nothing to indicate that she sought an adjournment of the second hearing to provide further material addressing this issue.  It does not appear to me that these matters are matters that fall within the ambit of ss.359A or 360 of the Act.

5. In the circumstances, I am not persuaded that the applicant has established error with respect to the Tribunal’s finding that she was not a genuine student.

6. In this case, the finding that the applicant was not a genuine student is an independent basis upon which the visa application was refused, regardless of the findings with respect to financial support.  As a result, regardless of the error made by the Tribunal in not complying with the technical scheme established by ss.359A and 359AA, the applicant would have failed in her visa application in any event. 

7. I must therefore refuse the current application. 

8. Costs ordinarily follow the event. In this matter, subject to any application to the contrary, I order that the applicant pay the respondent’s costs, fixed at the scale fee.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  23 May 2014