Zaman v Minister for Immigration

[2020] FCCA 2611

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAMAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2611

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v SZLIX (2008) 245 ALR 501

SZFDE v Minister for Immigration  (2007) 232 CLR 189

Applicant: MUHAMMAD AHSAN ZAMAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 526 of 2020

Judgment of: Judge Driver

Hearing date: 17 September 2020

Delivered at: Sydney

Delivered on: 17 September 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms H Musgrove of HWL Ebsworth Lawyers

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 526 of 2020

MUHAMMAD AHSAN ZAMAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Zaman, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 March 2020.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Zaman a student visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 10 September 2020, which I adopt. 

3. On 14 March 2018, Mr Zaman applied for a student (subclass 500) visa.[1]

   [1] Court Book (CB) 1

4. On 4 May 2018, the delegate refused to grant the application, based on a finding Mr Zaman did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[2]

   [2] CB 55

5. On 24 May 2018, Mr Zaman applied for review to the Tribunal.[3]

   [3] CB 61

6. By email sent to Mr Zaman’s authorised recipient and Mr Zaman on 29 October 2019, the Tribunal informed Mr Zaman that the MARA[4] registration of his nominated representative and authorised recipient had been cancelled on 23 October 2019.[5]  Mr Zaman did not respond to the Tribunal or appoint another representative or authorised recipient.

   [4] Migration Agents Registration Authority

   [5] CB 68

7. By email sent to Mr Zaman’s authorised recipient and Mr Zaman on 12 November 2019, the Tribunal invited Mr Zaman to provide information that he met the visa requirements.[6]  Mr Zaman subsequently submitted a completed Request for Student Visa Information form.[7]

   [6] CB 73

   [7] CB 82

8. By email sent to Mr Zaman’s authorised recipient and Mr Zaman on 23 January 2020, the Tribunal invited Mr Zaman to attend a hearing and requested that he provide documents that showed he was currently enrolled in a course of study.[8]

   [8] CB 93

9. On 10 February 2020, Mr Zaman appeared before the Tribunal to give evidence and present arguments.  Mr Zaman’s representative did not attend the hearing.[9]

   [9] CB 99

10. On the same day, 10 February 2020, the Tribunal affirmed the decision not to grant Mr Zaman a subclass 500 visa. The Tribunal made an oral decision,[10] which was reduced to writing on 20 March 2020.[11]

    [10] CB 106

    [11] CB 107

Tribunal decision

1. The issue before the Tribunal was whether Mr Zaman was enrolled in a full-time registered course, as required by clause 500.211 of Schedule 2 to Regulations.

2. The Tribunal observed it had requested Mr Zaman provide evidence of his enrolment in a full-time registered course and no such evidence had been provided.[12]  At the hearing, Mr Zaman confirmed that he was not currently enrolled in a registered course.[13]

   [12] CB 108 [9]

   [13] CB 108 [10]

3. On the basis of the available evidence, the Tribunal was not satisfied that at the time of its decision Mr Zaman was enrolled in a course of study and accordingly, found clause 500.211 was not met.[14]

   [14] CB 108 [11]

The present proceedings

1. These proceedings began with a show cause application filed on 4 March 2020.  Mr Zaman continues to rely upon that application.  The two grounds in it are:

   1. Department of home affairs did not invite me for a face to face interview before refusing the visa. Therefore i did not have natural justice and procedure fairness.

   2. AAT did not exercise its power to squash the decision taken by home affairs. It failed to examine the facts that i provided them during the interview. It did not take all the matters of fraud that had happened with me into consideration.

   (errors in original)

2. The application is supported by a short affidavit filed with it.  I also have before me as evidence the court book filed on 7 May 2020. 

3. Only the Minister filed pre-hearing written submissions.  I invited oral submissions from Mr Zaman this morning.  He told me of his travails with the people in whom he had put his trust.  Mr Zaman told me that he had paid a female agent money to enrol in his preferred course of study, but that the agent had kept the money and not paid the fees.  After he discovered this, he sought to restore the situation, and paid the money a second time.  It appears that the result was the same, the money was not passed on to the institution. 

4. Following that experience, Mr Zaman placed his trust in a migration agent who, it appears, was deregistered.  When that came to the attention of the Tribunal, the Tribunal informed Mr Zaman.  By the time Mr Zaman attended a hearing before the Tribunal, his problems were insuperable.  He was not enrolled in any course of study, and in the circumstances, the Tribunal was unable to grant him the visa sought. 

5. It is not entirely clear to me how much of the story told to me was conveyed to the Tribunal.  In any event, the Tribunal had no discretion to waive the enrolment requirement for the visa.  The Minister is not constrained by the visa criteria, and could make a more favourable decision if he was so minded.  That is beyond the scope of this proceeding.  The circumstances, in my view, do not suggest any arguable case of jurisdictional error by the Tribunal. 

6. The Minister’s submissions deal with the grounds advanced.  I agree with those submissions, and adopt them. 

7. As noted above, Mr Zaman relies on an application to show cause filed on 4 March 2020. The application raises two grounds, which can be summarised as follows:

   a)the Minister’s Department did not invite Mr Zaman to a face-to-face interview before refusing the subclass 500 visa;

   b)the Tribunal failed to examine the facts presented by Mr Zaman and did not take into consideration the fraud occasioned on him.

8. In respect of Mr Zaman’s first ground, this Court has no jurisdiction to review the delegate's decision under s.476(2) of the Migration Act 1958 (Cth).

Ground 2

1. Insofar as Mr Zaman alleges fraud by Ground 2, there is no material before the Tribunal supporting a conclusion of fraud on the Tribunal.[15] It is well established that to constitute jurisdictional error the fraud in question must be operative on the Tribunal’s exercise of its jurisdiction.  In Minister for Immigration v SZLIX[16] at [33], the Full Federal Court held:

   …But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.

   [15] SZFDE v Minister for Immigration (2007) 232 CLR 189 at [53]

   [16] (2008) 245 ALR 501

2. Accordingly, whatever failures occurred on the part of the agent in their provision of service to Mr Zaman, none intersected with the Tribunal such that it could be said that a relevant fraud occurred so as to constitute jurisdictional error.

3. I conclude that Mr Zaman is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) (Federal Circuit Court Rules).

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  Mr Zaman did not wish to be heard on costs.

5. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 21 September 2020