Siddiqui v Minister for Immigration and Border Protection

[2015] FCA 309

FEDERAL COURT OF AUSTRALIA

Siddiqui v Minister for Immigration and Border Protection [2015] FCA 309

Citation:	Siddiqui v Minister for Immigration and Border Protection [2015] FCA 309
Appeal from:	Siddiqui v Minister for Immigration and Border Protection [2014] FCCA 2411
Parties:	MOHAMMAD WASIM SIDDIQUI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	NTD 41 of 2014
Judge:	MANSFIELD J
Date of judgment:	7 April 2015
Date of hearing:	9 March 2015
Date of last submissions:	27 March 2015
Place:	Adelaide (heard in Darwin)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	T Liveris
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 41 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MOHAMMAD WASIM SIDDIQUI
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	7 APRIL 2015
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay to the first respondent costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 41 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MOHAMMAD WASIM SIDDIQUI
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	7 APRIL 2015
PLACE:	ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant appeals from a judgment of a Federal Circuit Court (FCC) Judge in Siddiqui v Minister for Immigration and Border Protection [2014] FCCA 2411, delivered on 17 September 2014 (the FCC decision). By the FCC decision, an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) to refuse the appellant’s application for a student visa was dismissed with costs.

2. The grounds of appeal and the notice of appeal to this Court do not identify any apparent error on the part of the FCC, or indeed on the part of the Tribunal.  They are as follows:

   I was not familiar with Australian court procedure and due to that I didn’t submit required documents in right way, didn’t respond in adequate manner and going through mental pressure as well.

   The orders sought are to be given “a chance to clarify my circumstances and situation that I gone through so that I can come up with all the documents & record”.

3. In the appellant’s circumstances, it is nevertheless incumbent upon the Court to endeavour to identify whether he can make out error on the part of the FCC, and if so whether that should result in an order setting aside the decision of the Tribunal.

4. For the reasons which are set out below, the contrary is the case.  In my view, no error is shown by the Tribunal in its consideration of the appellant’s application, and the FCC dismissed the application for judicial review of the Tribunal’s decision for entirely proper reasons.

5. To indicate why that is so, it is necessary to refer to the application which was the subject of consideration by the Tribunal, and the procedural events leading up to its decision.

   THE VISA APPLICATION

6. The appellant applied for a Student (Temporary) (Class TU) visa (the visa) on 16 May 2012.

7. He had previously been granted a Student (Class TU) Higher Education Sector visa off-shore on 12 July 2007, and which was valid until 3 March 2011.  Pursuant to that visa, he apparently arrived in Australia on 1 August 2007.  Whilst in Australia, he was granted a further TU 572 Vocational Education and Training Sector student visa on-shore on 21 June 2011, valid until 18 May 2012. 

8. As noted, on 16 May 2012, he applied for the visa.

9. The delegate first considering his application for the visa investigated his student experience.  It was noted that he had been enrolled in a Diploma of Hospitality Management from 23 July 2007 to 26 June 2009, and thereafter had “held numerous enrolments in various short-term courses” which were cancelled either due to non-commencement of studies or due to the appellant notifying cessation of the studies.  The delegate ascertained that the appellant did not attend any course of study from 6 December 2009 to 17 March 2011, a total of 16 months.  There was a further period of non-study from 16 July 2011 to 25 June 2012, when (at that time) he said a Certificate IV in Business was due to commence.  The delegate noted that his study gap during the period of the earlier two visas therefore totalled some 27 months.  The appellant apparently had then produced to the delegate evidence of enrolment in a Certificate IV Diploma in Business at another institute, due to commence on 26 June 2012.

10. The delegate sought information from the appellant to address his lack of academic progress, his periods of non-study, and the genuineness required for temporary entry criteria, that is cl 572.223 in Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). It requires the Minister (by the delegate) to be satisfied that the appellant was a genuine applicant for entry and stay as a student. The delegate also noted that the appellant had never commenced a course in the higher education sector in Australia, despite holding a Student (Class TU) Higher Education Sector Subclass 573 visa from 12 July 2007 to 3 March 2011 which required him to have undertaken studies in that sector.

11. The delegate was not satisfied that the appellant was a genuine applicant for entry and stay as a student who genuinely intended to stay temporarily in Australia. The delegate therefore was not satisfied that cl 572.223 of the Regulations was satisfied. The delegate refused to grant the visa. It was from that decision that the matter was taken to the Tribunal for review.

    THE TRIBUNAL DECISION

12. The Tribunal approached the appellant’s application for the visa in a slightly different way, focusing upon whether, at the time of its decision, the appellant met the enrolment requirements for the visa.

13. The Tribunal wrote to the appellant on three separate occasions requesting him to provide, by a detailed set of queries, evidence of enrolment, statements as to gaps in his academic studies, and evidence regarding how he met the English language and financial capacity requirements for the grant of the visa.  Along that path, the appellant had not responded at any time (and has still not provided) the information which was requested.  Initially, the Tribunal had proposed to conduct a hearing of the application on 17 March 2014.  At the request of the appellant, that hearing was deferred to 1 April 2014.  It was further deferred to 15 May 2014 at his request.

14. The appellant attended the hearing on 15 May 2014.  He gave a combination of reasons why he had not responded by the provision of the information requested.  He was unable to identify any course in which he was then presently enrolled, or to explain why he could be granted a student visa when he was not enrolled in any course. 

15. The Tribunal concluded that, because the appellant acknowledged that he was not enrolled in any course, that was the fact.  Accordingly, there was no evidence before the Tribunal that the appellant was at the time enrolled in, or had a current offer of enrolment in, any relevant course of study so that he did not meet the criteria specified relevantly in cl 572.231 of the Regulations (or of its equivalents for other subclasses of a student visa if cls 570.232, 571.232, 573.231, 574.231 and 575.231 of the Regulations).  It also noted that there was no evidence that the appellant met the criteria for other subclasses of the Student (Class TU) visa.  It did not accept that the appellant was unaware of the need to provide evidence, such as evidence of his enrolment, having regard to the three clear requests to him to provide such information.  At one point he had said that he proposed to seek legal advice, but had either not done so or been unable to do so.  He had had the hearing re-scheduled on two occasions at his request.  The Tribunal thought the appellant had intentionally prolonged the process of the review application, and more importantly that he had had reasonable opportunity to prepare and present his case in support of his application.  Consequently, it was not satisfied that the criterion requiring evidence of enrolment or a current offer of enrolment in any applicable or relevant course was made out, and the visa application was refused.

16. The Tribunal also observed that, had the appellant provided evidence of enrolment, he would have also have needed to demonstrate that he met the financial capacity requirements and a genuine applicant for entry and stay in Australia as a student, and that he had made no attempt to demonstrate that he could meet those requirements.

17. Consequently, the Tribunal affirmed the decision not to grant the visa to the applicant.

    THE APPLICATION TO THE FEDERAL CIRCUIT COURT

18. The application to judicially review the Tribunal decision failed to identify jurisdictional error on the part of the Tribunal in the FCC.

19. The grounds of application for an extension of time to seek review from the Tribunal decision, and then on the proposed review, were simply “grant of student visa”.

20. That application was made on 6 June 2014, following the decision of the Tribunal 15 May 2014, so that it was marginally out of time.  The appellant sought an extension of time because he said he was not well at the time of the Tribunal decision due to the death of his father.  The FCC did not explicitly refer to the issue as to whether an extension of time ought to have been granted, but determined his application for judicial review on the merits.

21. After reciting in summary the history referred to above, the FCC appears, appropriately, to have identified that any asserted jurisdictional error could only relate to whether the appellant was accorded procedural fairness by the Tribunal.  The application to the FCC did not itself identify any matter which might have been within the concept of jurisdictional error.  It concluded at [6] of its reasons:

    It could not be said that the applicant was not on notice that he had not supplied the required information before the Tribunal, and it is of some significance that he has been in Australia for some years and been on student visas previously.  Therefore the process could not be new to him.  I am satisfied that the applicant was given procedural fairness and was given more than one opportunity to rectify the defects in his application and has not done so.  There is nothing I the decision of the Tribunal that reveals any error of law, and in my view, it was inevitable that the delegate and the Tribunal reached the decisions that they reached because without the applicant supplying the required documents and information, the delegate and the Tribunal could not be satisfied that the applicant met the legislative requirements for a student visa.

    THE APPEAL

22. As with the FCC, the Court has jurisdiction to grant relief only if it finds that the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157 v Commonwealth (2003) 211 CLR 476. It does not have power to reconsider on the merits the decision of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

23. In my view, the history indicates that the FCC correctly identified that the only possibly arguable jurisdictional error, in the circumstances, was the Tribunal’s possible failure to accord procedural fairness to the appellant.

24. In fact, it is apparent from the material before the Tribunal that the documentary material requested by it from the appellant had been requested first by the delegate of the respondent on 18 May 2012, and then by the Tribunal on three occasions and it had not been provided.  There was no suggestion to the FCC that that history was not correct.  Nor was there any suggestion that the appellant had access to documents of a character that might make any difference to the outcome of his application.  The FCC had regard to the history of the matter, including the appellant’s assertions of mental pressures associated with family issues progressively, and did not fail to take that matter into account.

25. As I have noted, the ground of review to the FCC did not identify any error at all, and it appeared simply that the appellant misconceived that the FCC could rehear the visa application and that he should be given a further opportunity to present the material which he had previously chosen not to present.  Even then he did not present it.

26. In my view, it is clear that there is no error in the finding of the FCC that the appellant was afforded procedural fairness.  In my view there is nothing exposed in the material before the Court on this appeal, or before the FCC, which would have identified anything else which might have revealed an error of law on the part of the Tribunal which would warrant its decision being set aside.

27. Finally, I note that the appellant has further demonstrated his unpreparedness to respond to invitations or directions for the provision of information or submissions in this Court.  Following the institution of this appeal, on 14 October 2014 he was directed to file and serve an outline of his submissions not less than 10 working days before the hearing (listed for 9 March 2015).  He did not do so.  Instead, two working days before the hearing, that is 5 March 2015, he sent an email asserting that he could not attend the scheduled hearing because he was mentally and physically unfit “due to my medical conditions” which he described as suffering from depression and anxiety leading to severe panic attacks.  He provided a medical certificate of 4 March 2015 saying that he was unfit for work between 3 and 12 March 2015.  It did not identify any illness other than “a medical condition”.  He was informed by the Registry by return email that he should not assume that his appeal would not proceed on the hearing date, as the medical certificate did not say that he was unable to attend Court on that day.  He subsequently provided a further email on 6 March 2015 re­asserting his inability to attend the hearing because his grandmother had passed away a few days previously and he could not leave his mother.  He said that he was unable to concentrate on his “daily and personal life” as he was depressed.  He referred to having an appointment with a consultant psychiatrist at a later date.  As that email was received only the last working day before the hearing, the hearing was not adjourned.  He was informed by the Registry that the material submitted concerning his illness would be brought to the Court’s attention to be considered at that time.

28. At the hearing, the appellant attended with a friend.  The appellant indicated that he was able to speak and understand English.  He asked that the friend be permitted to speak on his behalf.  That permission was given, with the consent of counsel for the Minister.

29. There was no explanation given for why the appellant had not responded to the request for information on 18 May 2012 over a lengthy period (in excess of two and a half years).  There was no explanation as to why he could not have provided his written submissions as directed by the Court.  Through his friend, he simply requested further time to provide material to the Court and nominated a period of two weeks within which he would do so.  He did not say what that material might be.

30. In the light of those circumstances, the Court directed that the remainder of the hearing take place on written material, and allowed him a further three weeks within which to file and serve any written submissions he might wish to make.  The Court made it plain to the appellant that it was not empowered to re-hear his application for the visa on the merits, and that his submission should be focused on demonstrating error on the part of the FCC, and in turn jurisdictional error on the part of the Tribunal.

31. The appellant provided a written submission, but no supporting documentation, on 27 March 2015.

32. To indicate that the further written submission of the appellant has been considered, I refer briefly to its contents, with a few comments:

    (1)an asserted belief that documents are produced “in court room not before”, but it may be observed that no documents were produced to the Tribunal at its hearing nor attempted to be produced to the FCC or on this appeal;

    (2)attempts to secure legal assistance unsuccessfully;

    (3)some history of what the appellant has done in Australia since 2007, but no real attempt to explain the breaks in study periods referred to by the delegate and the Tribunal in correspondence; and

    (4)some family history, some personal observations, and a plea to be or to become eligible for permanent residency in Australia.

33. The further submission does not address the question whether the decision of the FCC was erroneous, or whether the decision of the Tribunal was made through jurisdictional error on its part.

34. There is, therefore, despite the extra time allowed, no basis shown for this appeal succeeding.

35. In those circumstances, and for the reasons given, the appeal is dismissed.  The appellant is to pay the first respondent’s costs of the appeal.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:        7 April 2015