Umar v Minister for Immigration
[2015] FCCA 1665
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UMAR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1665 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – applicant failing to provide Tribunal with proof of completion of Year 12 schooling – applicant asserting Tribunal told him it would obtain his previous visa applications (which included Year 12 certificate) – transcript of hearing obtained – clear Tribunal did not make assertions attributed to it by applicant – whether applicant misled by what Tribunal said – Tribunal not misleading applicant – no jurisdictional error shown. |
| Legislation: Migration Act 1958, ss.54, 55, 352(4) |
| Shrestha v Minister for Immigration and Border Protection [2014] FCCA 2709 WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 SZOPF v Minister for Immigration and Citizenship [2010] FMCA 924 Muin v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | RANA MUHAMMAD UMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 315 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 22 April 2015 |
| Date of Last Submission: | 18 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Hutton |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 315 of 2014
| RANA MUHAMMAD UMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed 24 February 2014, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 3 February 2014. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa. The grounds of application set out in the initiating application are as follows:
“1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
Particulars
a. A copy of his secondary schooling results, that is Year 12 certificate was provided when the applicant made his application for a student visa and therefore the tribunal is wrong when it concludes that the applicant has not given evidence in accordance with 5A406 being the other requirements in Schedule 5 for subclass 572 at assessment level 4 and that he does not satisfy the requirements of cl.572.223(2)(a).”
The affidavit in support of the application relevantly merely repeats the particulars just set out and annexes a copy of the Tribunal’s decision.
Although the applicant was given the opportunity by orders made by Registrar Caporale on 21 May 2014 to file any further materials or written submissions, he did not do so and the only written submissions filed are those of the first respondent on 7 April 2015.
The Court Book (“CB”) shows that the application for a Student (Temporary) Visa dated 28 August 2012 included at CB 3 a notification that the applicant had received HSSC as his highest educational qualification. Counsel for the first respondent conceded that this was a reference to a Year 12 qualification.
The decision of the delegate is at CB 17-22. It assessed the applicant against the grant of a subclass 572 visa. The delegate was unable to accept that the applicant had provided evidence as to his financial capacity as required under Schedule 5A405.
The applicant applied for review to the Tribunal and was invited to attend a hearing on 9 October 2013. So far as the CB reveals the matter, no material was forwarded to the Tribunal before the hearing itself. Following the hearing, the applicant forwarded further documentation to the Tribunal which appears to be date-stamped
13 November 2013 as to receipt.
Although the materials provided, which are relevantly at CB 51-57, addressed health insurance, available finance and a command of English (I note that he had not, in fact, achieved a score of at least 6 in all required components), the applicant did not forward his Year 12 certificate.
The Tribunal considered the applicant’s claim at CB 63-66. Relevantly, at paragraph 5 CB 63, the Tribunal noted:
“On 12 September 2013 the Tribunal wrote to the applicant inviting him to appear before the Tribunal to give evidence and present arguments relating to the issues in his case. The applicant was invited to provide to the Tribunal document(s) to show that he is currently enrolled in a course, or has an offer of enrolment in a registered course as required for the grant of a student visa, documents that show his past studies in Australia, including copies of attendance certificates, academic transcripts and certificates of completion, evidence he meets the English language proficiency requirements and evidence that demonstrates that he has sufficient funds, or access to funds to pay his course fees, living costs and travel costs for the duration of his studies, and evidence he has successfully completed secondary schooling to the Year 12 level.”
The Tribunal’s paraphrase of what it had sought is correct (see CB 40).
The Tribunal noted that the applicant had not brought any material relating to his financial capacity to the hearing and gave the applicant four further weeks to provide such evidence. At paragraph 9 (CB 64), the Tribunal said:
“The Tribunal said that it would give him an additional four weeks until 15 November 2013 to provide the evidence requested in the hearing invitation letter to establish that he satisfies the requirements of cl.572.223 including the Schedule 5A requirements. It emphasised that it was essential that the evidence he provides to the Tribunal meets all the Schedule 5A requirements otherwise the Tribunal will not be in a position to make a decision in his favour. It suggested that before he sends the evidence that he obtains advice from a migration agent to ensure that the evidence meets all the requirements of Schedule 5A.”
The Tribunal noted at paragraph 10 the receipt of the documents to which I have earlier referred from the applicant. The Tribunal noted at paragraph 13 (CB 65) that to meet the requirements for subclass 272 visa the applicant would need to establish English language ability, financial capacity and other prescribed matters including the evidence of schooling to Year 12.
Put shortly, the Tribunal accepted the applicant’s standard of English and accepted his financial capacity. The Tribunal noted, however, at paragraph 19 (CB 65):
“The applicant has not provided evidence to the Tribunal that he successfully completed secondary schooling in Pakistan to the year 12 level. Therefore, cl.5A406 is not met.”
On this footing, the Tribunal dismissed the application for review.
When the matter was before this Court, the applicant, who represented himself, made a number of submissions not previously foreshadowed. First, he asserted the Tribunal had told him that the Tribunal would itself get documentation from his previous visa applications. It should be noted that the first respondent concedes that a Year 12 certificate had been included with a previous application. The applicant also complained that it was the first respondent’s fault for not providing all the relevant material to the Tribunal and he also asserted that he had submitted documents from his previous applications in this matter before the Tribunal.
Counsel for the first respondent pointed out that there was no evidence that the Tribunal had told the applicant that it would obtain documentation from his previous visa applications. Insofar as it was the fact that the applicant had, on a previous visa application, provided a Year 12 certificate, the first respondent relied upon written submissions. In this regard, counsel referred to ss.54 and 55 of the Migration Act 1958 (“the Act”) and the decision of this Court in Shrestha v Minister for Immigration and Border Protection [2014] FCCA 2709, which had considered the operation of those sections.
It is sufficient to say for these purposes that in that case, Judge Manousaridis came to the view that the only information that the first respondent and, by extension, the Tribunal was required to consider was the information in the particular application before the Tribunal and that a previous skills assessment (the equivalent of the Year 12 certificate in this case) was not relevant (see Shrestha at [23]-[24]). For the reasons set out by Judge Manousaridis in that decision, I further accept that the Tribunal cannot be taken to have constructive knowledge of materials in the applicant’s prior applications.
Insofar as it might be asserted that there was a failure on the first respondent’s part to provide relevant material by reference to s.352(4) of the Act, the first respondent relied upon written submissions at paragraph 31. I accept the first respondent’s submission that the effect of ss.54 and 55 is to limit the scope of the first respondent’s obligations. Furthermore and in any event, an error of this sort, as the first respondent submits, belongs to the secretary, not the Tribunal and does not vitiate the Tribunal’s decision. (See WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 at [51]-[52], SZOPF v Minister for Immigration and Citizenship [2010] FMCA 924 at [95] and Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [173], [183] and [251].
In reply, the applicant asserted again that the Tribunal has said it would collect documents from his previous application but failed to mention this in the written decision.
The transcript and the submissions arising therefrom
The transcript of the proceeding is annexed to the affidavit of Jonathon Charles Hutton affirmed 4 May 2015. It was obtained because the applicant made the assertions set out in paragraphs 14 and 18 above to the effect that the Tribunal told him that it would itself get documentation from his previous visa applications.
Transcript was forwarded to the parties and both have responded with further submissions. On 14 May 2015 the applicant filed an affidavit which relevantly annexes what he says is his secondary schooling certificate in Pakistan 12 years level. Additionally he filed written submissions.
In part the submissions are argumentative and seek to re-agitate matters not properly before this Court. Relevantly for this purposes, the applicant refers to a passage on page 8 of the transcript where the Tribunal member says at line 35 the applicant should send:
“Current COE’s, evidence that you meet the English language requirements and evidence that you have sufficient funds to support you during the time you’re here in Australia.”
The applicant’s written submissions assert that he had, and has, in his possession his certificate of study in Pakistan Year 12 and that it was a mere misconception on his part that the same could not be produced at the relevant time.
The first respondent’s submissions were filed on 18 May 2015 and speak for themselves. I should indicate in a general way I accept the force of all the matters asserted in them.
It is clear as the first respondent submits that on 12 September 2003 the Tribunal wrote to the applicant requesting inter alia that he provided evidence that he had successfully completed secondary schooling to the Year 12 level (CB 39). It is clear that the applicant never provided that document in the currency of his application to the Tribunal. When one reads the transcript it is apparent from P-5 line 43 that the Tribunal told the applicant none of the documents, which the applicant asserted at the Tribunal he had provided in relation to financial documents, were on the Tribunal’s file. Indeed it is plain from P-6 that there was nothing relevantly received from the applicant on the file. This was repeated later on P-6 line 30.
At the bottom of P-6 the applicant asserted:
“That’s why I didn’t bring any because I did an email, having my health insurance, bank statement, (indistinct) and everything within it.”
The Tribunal member responded that the material had not been received (P-7 line 5) and repeated the same matter P-7 line 30. The Tribunal member gave the applicant four weeks to provide documentation and it should be noted that at P-7 line 38 it is clear that that particular emphasis at that time was on the financial information required. However, at P-7 line 73 the Tribunal member said:
“Because whereas I am willing to give you the additional time,
if I receive the information and it doesn’t meet all of these things that are set out in the letter that we sent to you, then I am not going to be able to give you a favourable decision. So it’s probably not a bad idea for you to gather all of the information that we are referring to here which also includes funds, English language proficiency, all of the requirements of Schedule 5A. You might want to, it is open to you, to perhaps check with the migration agent just make sure that you do have all of the right documents and then if you send them to me by – let’s say by Friday, 15 November. So I’ll say by Friday, 15 November to provide evidence that you meet the requirements of Schedule 5A. So that gives you about five weeks to get that all together and like I said, Mr Umar it’s important that if you want a favourable decision from the Tribunal, that you do in fact satisfy all of the requirements of Schedule 5A. So I am willing to give you that additional time on the basis that, from what you said, it seems that the Department didn’t see that information that could well be the case, so I am willing to look at it afresh but you must have everything there that I need to see.”
Following that assertion a short exchange took place which then led to the Tribunal member saying at P-8 line 30:
“Right. Well, it won’t hurt to throw in that as well. If you send me what you say you that you sent to the Department and then the current evidence as well of what you are studying now… current COE’s, evidence that you meet the English language requirements and evidence that you have sufficient funds to support you during your time you are here in Australia.”
Of course this passage is a fuller extract of that set out by the applicant in his written submissions.
It is clear that the applicant was required to provide to the Tribunal his completion of Year 12 certificate. It is clear that the certificate had been sought as is shown in CB 39.
Wholly contrary to the applicant’s oral submissions before the court, the Tribunal very clearly did not tell the applicant that it would get all the information from his prior visa applications. The submissions of the first respondent in this regard are in my view entirely correct.
What the Tribunal did tell the applicant was that he needed to provide evidence that he met all aspects of the Schedule 5A requirements. While the applicant and the Tribunal had some discussion as to certain particular aspects of the requirements, the Tribunal was careful in my view to make clear that the applicant was required to address all the matters in Schedule 5A and indeed encouraged the applicant to seek advice from a migration agent to make sure that he did. In the ultimate the applicant’s failure to do so is what led to the objection of his application and while one may sympathise with the applicant struggling to deal with the law in another country and not a uncomplicated set of regulations in any event, ultimately it was his own failure to advance his case properly that led to its dismissal.
Conclusion
I do not think that the Tribunal fell into jurisdictional error by dealing with the applicant’s claim in the way that it did. It follows that the application must be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 26 June 2015
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