Ullah v Minister for Immigration and Anor

[2017] FCCA 2673

FEDERAL CIRCUIT COURT OF AUSTRALIA

ULLAH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2673

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants & Refugee Division) – Student (Temporary) (Class TU) visa – bogus document – no compelling circumstances to waive criteria – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 476

Migration Regulations 1994, Schedule 2, cl 500.217

Applicant: SAYED ATHA ULLAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1704 of 2017

Judgment of: Judge Street

Hearing date: 1 November 2017

Date of Last Submission: 1 November 2017

Delivered at: Sydney

Delivered on: 1 November 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1704 of 2017

SAYED ATHA ULLAH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 April 2017 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Bangladesh and applied for a student visa on 20 September 2016. Following the lodgement of the application, the applicant was sent a letter asking for further information dated 3 October 2016, specifically referring to a need for the applicant to have access to $20,830.00.

3. It was following the sending of that letter that the applicant provided to the Department, first, a document dated 19 September 2016 to “to whom it may concern” to certify that the father of the applicant maintains a particular bank account and identifying the alleged balance in that bank account. In addition to that document, there was provided a statement of account purportedly in the father’s name showing transactions. On 26 October 2016, the applicant was sent a letter from the Department identifying that the documents provided purportedly from the Mercantile Bank appear to be bogus.

4. The applicant’s response to that invitation was to identify that his mother was unwell and that his father had provided the document and that it was his father’s fault. The document purported to explain the hardship on his father in respect of his mother’s condition. No statement was provided by the father. No statement was provided by the mother.

5. On 5 January 2017, a delegate found that the applicant had provided a bogus document and that there were not compelling reasons for not refusing the grant of the visa.

The Tribunal’s Decision

1. The applicant applied for review on 18 January 2017. By letter dated 27 March 2017, the applicant was invited to attend a hearing on 27 April 2017. The applicant attended on that date to give evidence and present arguments.

2. The Tribunal, in its reasons, identified the background to the application and the delegate’s finding in relation to the bogus document. The Tribunal identified what occurred with the applicant attending the hearing and the applicant’s explanation again in relation to his mother’s illness and his father being at fault.

3. The Tribunal identified the requirements of public interest criterion 4020 pursuant to cl 500.217 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) for the grant of the visa. The Tribunal noted that the applicant did not dispute the accuracy of the information obtained by the Department that the account of the father did not exist. The Tribunal referred to the information obtained in that regard and found that the account and document that was provided was not issued for the applicant. The Tribunal was satisfied that the document had been altered in a material way by a person who did not have the authority of the Mercantile Bank Limited to do so. The Tribunal found the applicant has given a bogus document as defined in s 5(1) of the Act.

4. The Tribunal then turned to the applicant’s claim that he was unaware of the problem and his blaming of his father for the provision of the false documents. The Tribunal found it difficult to accept that the applicant’s father had no knowledge of the truth or otherwise of the document purporting to suggest that he had funds in an account that he did not have. The Tribunal was satisfied that the material was knowingly provided. The Tribunal found that there was an element of fraud or deception by the applicant’s father in providing the documents.

5. The Tribunal found that the applicant did not meet the criteria under cl 4020(1) and turned to the issue of whether there were compelling circumstances by reason of which the requirements of cl 4020(1) and (2) should be waived. The Tribunal identified and took into account the guidelines in relation to the exercise of that discretion.

6. The Tribunal referred to the applicant’s evidence in relation to his mother from the applicant and the applicant’s assertions in relation to his father. The Tribunal was not satisfied that the financial cost to the applicant, the time that he spent, and the benefit to him of his degree are compelling reasons that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or eligible New Zealand citizen to justify the grant of a visa.

7. Having considered all of the evidence, the Tribunal was not satisfied that there are compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or a New Zealand citizen to justify the grant of the visa. The Tribunal, therefore, was not satisfied that the requirements of PIC 4020(2) should be waived and, in those circumstances, affirmed the decision of the delegate.

Proceedings before this Court

1. The applicant filed an application for review on 1 June 2017. That application failed to identify any ground of alleged jurisdictional error. The application identified the applicant wanted a review of the decision of the Tribunal. This Court does not have power to review the merits of the decision of the Tribunal. This Court’s powers are limited to considering whether there was a jurisdictional error by the Tribunal.

2. On 29 June 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

4. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence and then hear submissions from the applicant, and then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. From the bar table, the applicant sought to maintain why it was that he was unaware of the bogus document and the hardship this would cause him and how apologetic his father was in relation to the circumstances. There is no statement from the father identifying any such apology and no record from the father identifying the conduct that he engaged in.

6. On the face of the material before the Court, there was a communication sent to the applicant identifying a need for a financial document, and it was the applicant who provided the “to whom it may concern” document, which, on its face, was a fraudulent document, and the accounts, which on their face were fraudulent documents.

7. Whilst it may be that they were provided by the applicant’s father in complete ignorance by the applicant, the sad reality is they were apparently fraudulent documents, and, on the material before the Court, the adverse finding by the Tribunal that they were bogus documents that were knowingly provided was open on the material, and it cannot be said to be an unreasonable finding on the face of the material before the Court.

8. The Tribunal complied with its statutory obligations in the conduct of the review and complied with the obligations of procedural fairness in the conduct of the review. The applicant addressed the Court in relation to the hardship that the decision of the Tribunal would impose upon him in not being able to pursue his study. The applicant was adamant in his enthusiasm to try and pursue his study in that regard, and the adverse consequences for his future welfare if not able to do so.

9. This Court explained to the applicant it does not have power to decide the case on compassionate grounds. There is just no scope for the Court to be able to do so. Whilst the Court does understand insofar as the applicant has identified the matter being his father’s fault, or one in respect of which he said his father has apologised to him, no other material was put forward before the Tribunal in relation to that apology or that responsibility or the steps that the father took in obtaining the fraudulent documents and concealing the same from the applicant.

10. It is, indeed, a tragedy that the applicant’s father provided documents that the applicant says he was unaware of which were fraudulent. Nonetheless, the decision of the Tribunal, on the face of the material before the Court, is not one that is affected by relevant legal error. Sympathy for the applicant cannot give rise to any entitlement to relief, because the Court does not have power to do so.

11. The application, on its face, fails to identify jurisdictional error. The applicant’s submissions, in substance, invited the Court to engage in merits review. This Court does not have power to revisit the merits. Nothing said by the applicant identified any jurisdictional error.

Conclusion

1. As the application fails to identify any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  6 November 2017