Zaman v Minister for Immigration
[2012] FMCA 620
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZAMAN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 620 |
| MIGRATION – Application for review of decision of Migration Review Tribunal made out of time – no application under s.477(2) – consideration of merit – dismissed as incompetent. |
| Migration Act 1958 (Cth), ss.359A, 360(1), 360A, 362B, 379A, 476, 477 Migration Regulations 1994, Schedule 2, cl.572.223, cl.572.224, Schedule 4 |
| Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 |
| Applicant: | SHER ZAMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 47 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 29 June 2012 |
| Date of Last Submission: | 29 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zaman in Person |
| Counsel for the first Respondent: | Ms Whittemore |
| Solicitors for the first Respondent: | Sparke Helmore |
| Counsel for the second Respondent: | Ms Whittemore |
| Solicitors for the second Respondent: | Sparke Helmore |
ORDERS
The Application filed 19 January 2012 be dismissed as incompetent pursuant to s.477(1) of the Migration Act 1958.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 47 of 2012
| SHER ZAMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an Application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 13 December 2011. The Applicant seeks an order that the decision of the Tribunal affirming a decision of the delegate of the Minister to refuse to grant him a Student visa be quashed. The Applicant also seeks that the Student visa be granted - an application not within the jurisdiction of this Court to grant. The First Respondent raises a preliminary issue that the application is incompetent having not been made within the 35 days prescribed by s.477(1) of the Migration Act 1958 (“the Act”).
Section 477(1) of the Act requires that an application to the Court for a remedy to be granted in exercise of the Court’s jurisdiction under s.476 in relation to a migration decision must be made within 35 days of the date of that decision. Subsection (2) provides that the Court may, by order, extend that 35-day period as the Court considers appropriate if:
a)an application for that order has been made in writing to the Court specifying why the Applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
As the application was lodged on 19 January 2012 it was two days out of time. Before determining that the application should be dismissed as incompetent, there being no application in writing specifying why in the interests of the administration of justice an extension of time should be granted, I formed the view that I should consider if the application had any merit, that being an essential consideration in deciding if such an extension of time should be granted. I therefore deal with that issue.
Background
The Applicant is a citizen of Pakistan who first entered Australia in July 2006 as the holder of a Student (Temporary) Class TU (Subclass 572) visa. That visa was valid until 30 September 2007. He was granted two further student visas the last one being valid until 23 November 2009. He applied for a further visa on 23 November 2009. The visa application was initially refused on 28 April 2010 on the basis that the Applicant had not satisfied public interest criteria (“PIC”) 4005 for the purposes of cl.572.224 of the Migration Regulations 1994 (“the Regulations”).
That decision was set aside by the Tribunal and remitted to the delegate with a direction that the Applicant had undertaken a medical examination and x-ray in relation to the requirements of PIC4005.
On 12 May 2011 the delegate sent an email to the Applicant requesting further information from him and resent this email to a different email address on 20 May. On 3 June the Applicant appointed a migration agent to assist him in his application and that representative emailed the delegate attaching documents for her consideration. Additional documents were then provided on 8 June 2011.
On 10 June 2011 a delegate of the Minister again refused to grant the Applicant a (Subclass 572) visa. In this case the delegate was not satisfied that the Applicant met the criteria of cl.572.223(2)(a)(ii) of Schedule 2 of the Regulations. That clause specifies that a primary criteria for the granting of the visa is that the Minister is satisfied that the Applicant is a genuine applicant for entry and stay as a student having regard to:
a)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
b)any other relevant matter.
The delegate considered that the Applicant had been in Australia for some 59 months with study gaps totalling 18 months and with no evidence to support the reasons advanced for his lack of studies. Given the Applicant’s:
·lengthy study gaps,
·numerous changes and cancellations of enrolment,
·changes in discipline areas,
·non‑completion of substantial studies in Australia,
·apparent lack of academic progress, and
·decision to again temporarily suspend his studies,
the delegate concluded that he could not be satisfied that the Applicant was a genuine student as required by cl.572.223(2)(a)(ii). Accordingly, the delegate found that the Applicant did not meet the criteria for the grant of a visa.
On 10 June 2011 the Applicant lodged an application with the Tribunal to review that decision. By letter dated 5 September 2011 the Tribunal invited the Applicant to attend a hearing before the Tribunal on 27 October 2011. The Applicant did not respond to the hearing invitation and did not attend the hearing and the Applicant indicated to the Court today that he had not received the letter.
By letter dated 28 October 2011 the Tribunal wrote to the Applicant pursuant to s.359A of the Act. This letter referred to information from department records including the Provider Registration and International Student Management System (“PRISMS”) records. The Tribunal attached those records to the letter. The Tribunal noted that the PRISMS records indicated that the Applicant had substantial breaks in study totalling 18 months and that there had also been numerous changes to and cancellations of his enrolment. The Tribunal explained that the information was relevant as it may cause the Tribunal to find that the Applicant did not genuinely intend to enter and stay in Australia as a student.
On 7 November 2011 the letter dated 5 September inviting the Applicant to the interview was returned to the Tribunal as unclaimed. On 7 December 2011 the Applicant responded to the letter dated 28 October and provided that letter to the Tribunal. In a decision made on 13 December 2011 the Tribunal affirmed the delegate’s decision to refuse the Applicant’s visa application. On 19 January 2012 the Applicant sought a judicial review of that decision. It is that matter which is before the Court today.
The Tribunal’s decision
The Tribunal was not satisfied that the Applicant was a genuine Applicant for entry and stay as a student as required by cl.572.223(2)(a)(ii) of the Regulations. The Tribunal noted that the Applicant had arrived in Australia on 17 July 2006 as the holder of a (Subclass 527) visa and the only course he had completed since his arrival was a Diploma of Information Technology which was completed in July 2007. Further the Applicant had 10 certificates of enrolment cancelled for various reasons including deferment, suspension for student misbehaviour, non‑payment of fees and unsatisfactory attendance.
The Tribunal noted the Applicant’s submission that the breaks in his enrolment and cancellations of enrolment were as a result of his “mental stress, home sickness and depression” but found that there was lack of evidence before the Tribunal about these alleged conditions and the periods of time when the Applicant was so affected.[1] Based on all the evidence before it the Tribunal found it could not be satisfied that the Applicant met the requirements of the Regulations for the granting of the visa and accordingly affirmed the decision of the delegate not to grant the Applicant a (Subclass 572) visa.
[1] Zaman v Minister for Immigration and Citizenship and Another, Court Book, page 168, at paragraph 35.
Grounds of review
The application for judicial review contained three grounds of review. The first was that the Tribunal erred in its decision dated 13 December 2011, the second was that the delegate erred in its decision dated 10 June 2011 and the third ground says, “please refer to attachment A”.[2] Attachment A contains some 23 paragraphs and I will go to those shortly. The Applicant was given the opportunity to address the Court today as to why he had not made a written application for an extension of time, having been notified by the First Respondent of his need to do so, why he had not lodged his application for a review within the time specified by the Act and if he had anything to add to the material already before the court or in response to the First Respondent’s written submissions.
[2] Zaman v Minister for Immigration and Citizenship and Another, Application filed 19 January 2012.
In relation to his reasons for not lodging his application for review within the time specified or for making a written application for an extension of that time the Applicant stated that he was suffering from stress and financial problems. He produced no material in support of those statements. In relation to the matters concerning the merit of the Application the Applicant indicated that he wished to rely on the material he had previously provided.
As the First Respondent has pointed out, attachment A contains a number of assertions of error by the delegate of the First Respondent and the Tribunal. Ground 2 and the first four paragraphs in attachment A allege error in the delegate’s decision. Pursuant to s.476(2) of the Act, the Court has no jurisdiction to review the delegate’s decision made on 10 June 2011 as it is a primary decision. Accordingly, ground 2 of the grounds and the first four paragraphs of attachment A provide no basis for the Court to exercise jurisdiction.
Attachment A also alleges at paragraph 5 that the Tribunal failed to consider that the delegate failed to give due and proper consideration to a psychologist report. The Tribunal was conducting de novo merits review of the delegate’s decision and considered this evidence afresh. The issue of how the delegate dealt with the evidence was therefore not material.
Attachment A also alleges at paragraph 6 that the Tribunal failed to understand that the delegate made an unlawful decision in revisiting matters that had already been complied with in the previous decision dated 28 April 2010. The Applicant submitted that the only outstanding matter related to PIC 4005.
However, as the First Respondent points out, once an administrative decision is set aside for jurisdictional error the whole of the relevant decision-making process must take place again.[3] Accordingly, the Tribunal was entitled to review the entirety of the matter and determine whether the Applicant met the criteria for a grant of a visa.
[3] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.
Paragraphs 19 and 20 of attachment A also deal with matters considered by the previous delegate and the previously constituted Tribunal. They are not matters which can properly found a ground for a review of the decision the Tribunal made on 13 December 2011. The matter was remitted by the previously constituted Tribunal for reconsideration. That reconsideration was limited only by the direction that “the Applicant had undertaken a medical examination and x-ray in relation to public interest criteria 4005 of schedule 4 to the Regulations”.[4]
[4] Zaman v Minister for Immigration and Citizenship and Another, Migration Review Tribunal, Statement of Decisions and Reasons, dated 13 December 2011, Court Book, page 165 at paragraph 20.
The matters which are therefore relevant to the consideration by the Court are paragraphs 7 to 18 and paragraphs 21 to 23 of the Applicant’s material. Some of these are rather repetitive and simply restate the matters complained of by the Applicant. Paragraphs 7 to 12 deal with the issue of the invitation to attend the hearing and the Applicant’s failure to respond. Paragraphs 13 to 17 deal with how the Tribunal treated the Applicant’s letter of 7 December. Paragraphs 18, 21 and 23 deal with how the Tribunal dealt with the Applicant’s mental health issues and paragraph 22 is a general claim of lack of procedural fairness in the Tribunal’s finding that the Applicant was not a genuine student.
The First Respondent’s submissions
The First Respondent notes that a number of the matters raised by the Applicant relate to the Tribunal’s invitation to appear at a hearing on 27 October 2011. The Tribunal invited the Applicant to appear at the hearing by correspondence dated 5 September 2011 and sent by registered post to the address provided by the Applicant in his application for review. It did so in accordance with s.379A(4) of the Act. It was dispatched within three working days of the date of the letter in accordance with s.379A(4)(a) and the hearing invitation otherwise complied with the requirements of the Act.
The Applicant did not respond to the invitation and failed to appear at the scheduled date, time and place for the hearing. On 7 November 2011, the letter dated 5 September 2011 was returned as unclaimed. The Tribunal proceeded to make a decision on the review without taking further action to enable the Applicant to appear, and it was entitled to this in accordance with s.362B of the Act.
The First Respondent submits that the fact that the Applicant was unaware of the hearing, and that the Tribunal may have had notice of this is of no legal relevance. The authorities are clear that the reason for non-attendance at a hearing does not matter. If there is compliance with s.360(1) and s.360A, the Tribunal may proceed under s.362B of the Act to consider and decide the matter without conducting any further inquiries.[5] There is no obligation on the Tribunal to make any inquiry as to the failure on the part of the Applicant to appear or to search the papers lodged with it to discover if there might be some other avenue of communicating with the Applicant.[6]
[5] NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592.
[6] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at paragraph [39].
The First Respondent also refers to that part of attachment A where the Applicant asserts that the Tribunal had not properly informed itself of the Applicant’s reasons for non-completion of studies and the Applicant’s mental stress and depression, and that the Tribunal failed in its duty by not inviting the Applicant to further comment on, and clarify the matters that were unclear in his submission dated 7 December 2011.
The First Respondent submits that it is well settled that whilst there is no onus of proof in administrative inquiries and decision-making[7] it is for an Applicant to provide their evidence and arguments in sufficient detail to enable the decision-maker to establish the relevant facts.[8] The decision-maker is not required to make the Applicant’s case for him, nor was it obliged to prompt and stimulate an elaboration which the Applicant chooses not to embark upon.[9] Accordingly, these arguments must also fail.
[7] Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275.
[8] Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214.
[9] SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499.
The First Respondent also refers to paragraph 22 of attachment A where the Applicant alleges that the Tribunal did not afford him procedural fairness in not allowing him to comment on the issue of the Applicant not being a genuine student. The First Respondent submits the Tribunal was not required to put this information to the Applicant as it was an issue the Applicant was already on notice of as a result of the delegate’s finding.
Conclusions
The Application was clearly out of time. While no written application for an extension was made, that could have been rectified by the Court giving the Applicant leave to make such an application in writing today. No application for leave was made. I have, nonetheless, determined to consider if such an application would be granted considering the usual criteria of reasons for the failure to lodge and whether the application has merit rather than simply dismissing the application summarily. The Applicant’s reasons for the failure to lodge were given as stress and financial hardship. These do not constitute, in my view, an acceptable explanation for the delay in lodging the application.
I, therefore, turn to the question of merit. As previously indicated, a number of the matters raised by the Applicant as grounds for judicial review related to the actions of the delegate, or a failure by the Tribunal to consider aspects of the delegate’s decision-making. These are not matters which can be the subject of judicial review firstly because it is not the role of the Court to consider the actions of the delegate or their reasons for decision, and, secondly, because the role of the Tribunal is not to determine if the delegate acted appropriately, but to consider the application afresh, which is what the Tribunal did in this case. The Applicant also raises a number of issues about the notification of the invitation to appear at the Tribunal hearing and the failure of the Tribunal to attempt to contact him by some other means.
The invitation to attend the Tribunal hearing was sent to the Applicant at the address he had provided. The material before the Court shows that the Tribunal complied with the requirements of s.379A(4). The Tribunal was not required to do any more than that. Prior to that letter being returned to the Tribunal, the Tribunal wrote again to the Applicant at the same address in the following terms:
I am writing about the application for review made by you in relation to a decision to refuse to grant a Student (Temporary) (Class TU) visa.
In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on, or respond to certain information which the Tribunal considers would, subject to your comment or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that the Tribunal has not made up its mind about the information.
The particulars of the information are:
· On 10 June 2011 the delegate of the Minister decided to refuse your application for a Student (Class TU) Vocational Education and Training Sector visa for reason that the delegate was not satisfied that you met the requirements for the visa class sought. Specifically, the delegate was not satisfied on the information available to her that you were a genuine applicant for entry and stay as a student as required by clause572.223(2)(a)(ii).
· The delegate’s decision refers to Departmental records and PRISMS records (Provider Registration and International Student Management System) which are also before the Tribunal, and which indicate that you have been in Australia since July 2006 as the holder of a Student visa and subsequent Bridging Visa with study rights. The PRISMS records (attached) indicate that you have had substantial breaks in your study totalling eighteen months. There have also been numerous changes to, and cancellations of your enrolment, changes to the field or disciplines of your study, and non-completion of courses.
This information is relevant to the review because if the Tribunal finds that your history of study indicates that you do not genuinely intend to enter and stay in Australia as a student, this may be a reason for finding that you do not meet the relevant criteria for the grant of the visa and therefore for affirming the decision under review.[10]
[10] Zaman v Minister for Immigration and Citizenship and Another, Letter from Migration Review Tribunal, dated 28 October 2011, Court Book, page 130.
The Applicant was therefore clearly on notice that those were relevant issues in terms of the Tribunal’s consideration. The Applicant clearly received that correspondence because he then wrote to the Tribunal on 7 December, and his letter states:
I really appreciate that you give me chance to respond or comment on regards my substantial gaps in my study. I respect rules and regulations of Australia as being student of that great country.
My whole family is educated and also want me an educated person. From start till now my intention to come in this country to get an Australian certificate or degree which will be a rare assets for me and go back. During my stay in Australia a few worse circumstances impacted adversely on my ability to pursue my studies.
I humbly request you to consider my application seriously. My substantial breaks changing of fields cancellation of enrolments happened due to lot mental stress, home sickness and depression…[11]
[11] Zaman v Minister for Immigration and Citizenship and Another, Letter from Sher Zaman dated 7 December 2011, Court Book, page 160.
The Tribunal was under no obligation to seek further comment from the Applicant. It gave the Applicant the opportunity to provide any evidence or make any submission he wished in response to the issues raised and it was up to him to make the most of that opportunity. The Applicant also contends that the Tribunal did not give him the opportunity to comment on its lack of satisfaction that he was a genuine student. Not only was the Applicant clearly on notice that this was an issue because it was the reason given by the delegate for his refusal of a Student visa, but it was also clearly raised in the letter of 28 October 2011.
The only other issue raised by the Applicant relates to the report provided by Mr Efraimidis, a psychologist the Applicant saw on 2 June 2011. That report is at page 79 to 81 of the Court Book. That report noted that the Applicant attributed the gap in his studies from March 2010 to late April 2011 “to the psychological impact of his application to extend his international student visa.”[12] The Tribunal referred to this at page 166 of the Court Book. The Tribunal also had before it the Applicant’s letter of 7 December 2011 which stated that his mental stress, home sickness and depression resulted in substantial breaks in his studies. The letter does not specify when he says this mental stress, home sickness and depression occurred. The report of Mr Efraimidis does not suggest that the Applicant suffered any mental stress, home sickness or depression prior to the period specified, that is, after March 2010. Mr Efraimidis refers, in fact, to the reasons given to him by Mr Zaman for discontinuing his courses previously in these terms:
Mr Zaman then commenced his studies in the Advanced Diploma of Hospitality Management at AVETA Institute in October 2007. He attended this course for approximately six months, until April 2008. Mr Zaman stated that he discontinued his studies due to realising that this course was failing to meet his professional aspirations. In June 2008, Mr Zaman commenced the Certificate III in Printing and Graphics at ALTEC Institute of Technology. He continued his studies until February 2009. Mr Zaman stated that he once again found himself realising that this course was not fulfilling professionally.[13]
[12] Zaman v Minister for Immigration and Citizenship and Another, Court Book, page 79.
[13] Zaman v Minister for Immigration and Citizenship and Another, Court Book, page 79.
Neither of those indicates that the reasons for discontinuance were as a result of mental stress, home sickness or depression. Mental stress, home sickness and depression clearly does not explain the substantial gaps in study and the frequent cancellations of enrolment that occurred prior to March 2010. It would also appear to be inconsistent with the evidence during that period, that is, March 2010 to April 2011 he was able to fulfil the requirements for a Certificate IV in Spoken and Written English (Further Study) which was issued on 31 March 2011.
The Tribunal’s conclusion that the Applicant had not explained the numerous changes to, and cancellations of his enrolment, the changes to the field or discipline of his study, and his non-completion of the courses over a significant period of time was consistent with the material that was before the Tribunal.
I am not satisfied that any of the grounds raised by the Applicant provide a basis for the Court to conclude that the Tribunal had made a jurisdictional error and its decision should therefore be quashed. Having reached that view, even if I were to allow the Applicant leave to make a written application for an extension of time to lodge his application, I would not as a matter of discretion grant such an extension of time. As the Application was not made within the time specified, it is incompetent and should therefore be dismissed. The First Respondent has sought an order for costs in relation to the Application, and I am satisfied that in the circumstances such an order is appropriate.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 13 July 2012
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