Uddin v Minister for Immigration and Border Protection
[2015] FCA 1375
•26 November 2015
FEDERAL COURT OF AUSTRALIA
Uddin v Minister for Immigration and Border Protection [2015] FCA 1375
Citation: Uddin v Minister for Immigration and Border Protection [2015] FCA 1375 Appeal from: Uddin v Minister for Immigration & Anor [2015] FCCA 2029 Parties: MD JASHIM UDDIN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL, formerly MIGRATION REVIEW TRIBUNAL File number: NSD 860 of 2015 Judge: KATZMANN J Date of judgment: 26 November 2015 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1)
Migration Act 1958 (Cth) ss 29(1), 65, 496(1), 97
Migration Regulations 1994 (Cth) Sch 2 cll 573.223(1A)(c), 573.224(a), Sch 4 Pt 1 PIC 4020Cases cited: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169Date of hearing: 26 November 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 23 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms N Blake of Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 860 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MD JASHIM UDDIN
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL, formerly MIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
26 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs in the amount of $3,000.
3.The name of the second respondent be amended to read “Administrative Appeals Tribunal, formerly Migration Review Tribunal”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 860 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MD JASHIM UDDIN
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL, formerly MIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE:
26 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Migration Act 1958 (Cth) confers power on the Minister to grant permission to “non‑citizens”, known as a visa, to travel to and enter and/or remain in Australia: s 29(1). The criteria for the grant of visas are prescribed to some extent by the Migration Act and otherwise by the Migration Regulations 1994 (Cth). In the event that an applicant satisfies the Minister that he or she meets the prescribed criteria, the Minister is bound to grant the application; if not, he is bound to refuse it: see s 65.
Jashim Uddin is a non-citizen, that is, he is not an Australian citizen. He is a citizen of Bangladesh. On 30 November 2012 he applied for a Student (Temporary) (Class TU) visa. His application was considered against the various subclasses within this class and the relevant subclass was deemed to be the Higher Education Sector (subclass 573). On 1 March 2013 a delegate of the Minister refused the application on the basis that it did not meet the relevant criteria. I interpolate that the power of the Minister to grant a visa, like all his powers under the Act, may be delegated: s 496(1). Mr Uddin then applied to the Migration Review Tribunal for a review of the delegate’s decision. As a result of recent legislative changes, that function is now performed by the Administrative Appeals Tribunal: see Tribunals Amalgamation Act 2015 (Cth).
The Tribunal affirmed the delegate’s decision, whereupon Mr Uddin applied to the Federal Circuit Court seeking an order that the decision be quashed and a writ of mandamus issue to the Tribunal or the Minister, so that it be determined according to law. The primary judge dismissed the application and Mr Uddin appealed from that judgment.
For the reasons which follow the appeal must be dismissed.
One of the prescribed criteria for the grant of a subclass 573 visa is that the Minister is satisfied that, while the applicant holds the visa and for the duration of his or her stay in Australia, the applicant will have sufficient funds to meet the costs and expenses required to support him or her and each member of his or her family unit: Migration Regulations Sch 2 cl 573.223(1A)(c). Another prescribed criterion is Public Interest Criterion 4020 (PIC 4020): Sch 2 cl 573.224(a). PIC 4020 is to be found in Sch 4 to the Regulations. PIC 4020(1) relevantly requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, or the Tribunal a “bogus document” or information that is false or misleading in a material particular in relation to the application for the visa. At the relevant time, reg 1.03 defined “bogus document” as having the same meaning as in s 97 of the Act. (The definition now appears in s 5.) Section 97 of the Act relevantly stated that:
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.)
Subsection (1) applies irrespective of whether the Minister became aware that the document was bogus or the information false or misleading in a material particular because of information given by the applicant: Sch 4 cl 4020(3). Moreover, as long as someone knew or intended that the document or information was false, it is immaterial that the applicant did not: Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169.
PIC 4020(4) permits the Minister to waive compliance with subclause (1), but only if he is satisfied that 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” to justify the grant of the visa.
On 4 December 2012 the Minister’s Department emailed Mr Uddin asking, amongst other things, for evidence of his ability to support himself financially while he was in Australia. Mr Uddin submitted a number of documents, including what purported to be a bank statement from Janata Bank Limited and a certificate purportedly signed by the manager of one of its branches in Dhaka. The certificate stated that Md. Tara Miah (who is said to be Mr Uddin’s father and his visa sponsor) held a savings deposit account at that branch and specified the balance of the account as at 10 December 2012. The information was referred to the Immigration Office in Dhaka for verification. An officer there contacted the bank and was informed by one of its employees that the bank did not hold any accounts for Md. Tara Miah and that the bank statement and the certificate furnished by Mr Uddin were not in the customary format used by the bank.
On 4 January 2013 the Department wrote to Mr Uddin to advise him of the results of the investigation, indicating that it was led to believe that he had provided fraudulent documents to meet the visa criteria and that he had done so in order to demonstrate an inflated financial capacity. It offered him the opportunity to comment on these matters and to indicate whether there were any compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident or an eligible New Zealand citizen to justify the grant of the visa (“the waiver conditions”).
Mr Uddin responded by email on 31 January 2013 admitting, in effect, that the information supplied by the bank was true and that the documents from the bank were bogus. His explanation was as follows. Just before he applied for the visa his father had had an accident which rendered him “physically and mentally unstable”. His father had the money in his other accounts but it was “not there for the 3 months period which you asked from the immigration”. Worried about his son’s visa, his father spoke to “his manager” who promised to help him: “That’s how the papers came which I didn’t know even”. Mr Uddin attached medical records relating to his father and other evidence designed to show that he had sufficient available funds in any event. He asked for forgiveness, pleading ignorance of his father’s conduct at the relevant time. He did not respond to the invitation to address the waiver conditions.
Mr Uddin confirmed in writing to the Tribunal that the documents from the Janata Bank were false and repeated the explanation he had given to the Department. Once again he ignored the waiver conditions and tried to impress upon the Tribunal that he had the necessary funds. He affirmed that false documents had been provided on his behalf but said that he wanted to finish his degree. Apparently he was then studying for a bachelor’s degree in accounting.
The Tribunal considered that the documents purportedly from the Janata Bank were “bogus documents” within the meaning of the Regulations, found that there was no evidence to show the existence of any of the grounds upon which a waiver could be exercised, and refused to grant the visa because Mr Uddin did not satisfy PIC 4020. Although the Minister’s delegate had expressed himself a little differently, in substance this was the same basis upon which he had refused to grant Mr Uddin’s application.
In his application to the Federal Circuit Court Mr Uddin listed two grounds, which read, without alteration:
1. I have provided genuine student papers.
2. I have provided my bank statement.
Elsewhere in the application Mr Uddin also stated that he needed time to finish his studies.
The primary judge’s reasons for dismissing the application essentially appear in four paragraphs: [2], [14]‑[16].
First, at [2] his Honour observed that the court was unable to rehear the visa application; its task was limited to deciding whether the Tribunal’s decision was affected by jurisdictional error as that was the only basis upon which it could be set aside. In this respect he referred to s 474 of the Migration Act and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Secondly, at [15] his Honour addressed the statement that Mr Uddin needed time to finish his studies:
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.
Thirdly, at [16] his Honour dealt with the remaining matters:
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.
Consequently, at [17] his Honour concluded that Mr Uddin had not demonstrated that the Tribunal’s decision was affected by jurisdictional error. Significantly, neither this conclusion nor the bases upon which it was reached was challenged in the appeal.
The notice of appeal contains two grounds:
1. This is my last semester to finish my study.
2. Need some extra time to finish my study.
The jurisdiction of this Court to hear an appeal from the Federal Circuit Court in a case such as this is given by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The appeal is in the nature of a rehearing, which means that error on the part of the primary judge must be shown: see, for example, SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129. In his notice of appeal, Mr Uddin did not complain of any such error, he did not file any submissions, and at the hearing he had nothing to say in support of the appeal. Indeed, he conceded that the appeal must fail. He explained, in effect, that the appeal had been brought for the ulterior purpose of buying himself time to complete his degree and, having completed his degree, there was no point in prosecuting the appeal.
Furthermore, the primary judge was undoubtedly correct. The findings of the Tribunal were well and truly open on the material before it.
For these reasons the appeal must be dismissed. Mr Uddin should pay the Minister’s costs. The Minister applied for an order that a sum be specified and that that sum be $3,400. The application was supported by an affidavit of Nicole Blake, who appeared for the Minister on the appeal. The figure of $3,400 represents the highest amount Ms Blake said was likely to be recovered on taxation, the range being from $2,960 to $3,400. I am satisfied that an order for a specified sum should be made but I am not persuaded that it should be for the sum sought. As the appeal was plainly hopeless, little time is likely to have been spent and little intellectual energy expended in the preparation of the Minister’s submissions. I would reduce the sum to $3,000. There will be orders accordingly.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 26 November 2015
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