Uddin v Minister for Immigration

[2015] FCCA 2029

FEDERAL CIRCUIT COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2029

Catchwords:
MIGRATION – Student visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the applicant met the criteria for the grant of a student visa.

Legislation:

Migration Act 1958, ss.97, 474

Migration Regulations 1994, reg.1.03, cls.573.224, 573.323 of sch.2, cl.4020 of sch.4

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: MD JASHIM UDDIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3259 of 2013

Judgment of: Judge Cameron

Hearing date: 2 July 2015

Date of Last Submission: 2 July 2015

Delivered at: Sydney

Delivered on: 2 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N. Blake of Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3259 of 2013

MD JASHIM UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who, on 30 November 2012, applied for a Student (Temporary) (Class TU) Higher Education Sector subclass 573 visa. On 1 March 2013 a delegate of the first respondent (“Minister”) refused the applicant’s application on the basis that he did not meet Public Interest Criterion (“PIC”) 4020 and did not therefore satisfy cl.573.323 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant subsequently applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant law

1. The criteria for the grant of a subclass 573 visa are found in pt.573 of sch.2 to the Regulations. One of the primary criteria which has to be satisfied at the time of decision is cl.573.224, which provides that the visa applicant must satisfy a number of public interest criteria, including PIC 4020. Clause 573.323 is relevantly identical to cl.573.224 but applies to members of the family unit of a primary applicant and is known as a secondary entrant criterion.

2. PIC 4020 is found in sch.4 to the Regulations. At all relevant times, it provided:

   (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.

   …

   (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.

3. At all relevant times, “bogus document” was defined in reg.1.03 of the Regulations as having the same meaning as in s.97 of the Act, which at all relevant times provided:

   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.

Application for visa – primary decision

1. As previously recorded, the applicant applied for a subclass 573 visa on 30 November 2012.  On 13 December 2012, following a departmental request for further information, the applicant provided two documents from the Janata Bank in Bangladesh as evidence of his ability to financially support himself whilst in Australia.  The first document was a certification letter which stated that the applicant’s father maintained a savings account with the bank and the second document was a bank statement in his father’s name showing a credit balance in local currency exceeding AUD65,000 in value.

2. On 4 January 2013 the Minister’s department wrote to the applicant and advised him that it had made inquiries of Janata Bank which had advised that the account purportedly in his father’s name did not exist.  Janata Bank had also advised that the bank statement and certificate were not in its documents’ usual format. 

3. In his response of 31 January 2013 the applicant relevantly stated:

   Regarding your findings about my previous documents, I spoke to my father and he confessed that the findings are true. … Just before my visa application he had motor cycle accident and as a result he was physically and mentally unstable.  He had the money in his other accounts but the fund was not there for the 3 months period which you asked …. So he was very much worried about my visa and he spoke to his manager who promised him to help in this regard.  That’s how the papers came which I didn’t know even.

   The applicant provided medical documentation to support those claims as well as additional bank statements to demonstrate that he had sufficient funds.

4. In light of the bogus documents which had been submitted in support of his visa application, the delegate was not satisfied that the applicant met PIC 4020. He was also not satisfied that circumstances existed which justified the waiving of that criterion. Consequently, the delegate found that the applicant did not meet the requirements of cl.573.323 for the grant of a student visa.

Tribunal review

1. On 20 March 2013 the applicant applied to the Tribunal for a review of the delegate’s decision. In considering his application, the Tribunal noted that while the delegate had relied on cl.573.323 which was a secondary entrant criterion, the issue before the Tribunal was whether the applicant met PIC 4020 as required by cl.573.224 as he was the only, and therefore the primary, visa applicant.

2. The Tribunal found that the documents which had purportedly been issued by the Janata Bank were bogus documents as defined by s.97(a) of the Act. As such, the Tribunal found that the applicant did not satisfy PIC 4020(1). Further, the Tribunal was not satisfied that circumstances existed which justified the waiving of PIC 4020 as the applicant had not provided evidence of compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand resident. For those reasons, the Tribunal found that the applicant did not meet the requirements for the grant of a student visa set out in cl.573.224.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.I have provided genuine student papers.

   2.I have provided my bank statement.

2. Elsewhere in the application, the applicant essentially repeated those allegations and also asserted that he needed time to finish his studies.

3. Turning first to the latter point, the fact that the applicant needs more time to complete his studies is not a matter which can justify setting the Tribunal’s decision aside.  Significantly, the applicant did not suggest that the Tribunal had not considered that issue when deciding whether compelling or compassionate circumstances existed which would make waiver of the requirements of PIC 4020 appropriate.  Indeed, para.10 of the Tribunal’s decision records that it did have regard to that issue. 

4. The other matters raised by the applicant do not address the basis of the Tribunal’s decision or suggest that it was affected by jurisdictional error.  That the applicant provided material which was genuine and which showed a substantial balance standing to his credit in a bank account are not relevant to the issue on which his visa application turned, namely whether bogus documents had been supplied by him to the Minister’s department.  The Tribunal found that bogus documents had been provided and as no challenge to that finding is sought to be made, there is no reason to conclude that it was legally or factually erroneous.

Conclusion

1. The applicant has not demonstrated that the Tribunal’s decision was affected by jurisdictional error. 

2. Consequently, the application will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 30 July 2015