Huda v Minister for Immigration & Anor [2009] FMCA 659 (27 August 2009)

Last Updated: 31 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUDA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 659

MIGRATION – Alleged jurisdictional errors – failure of Tribunal to give applicant more time to provide evidence considered.

Migration Act 1958, s.359A Migration Regulations 1994

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

Applicant:

MIRZA MD NAZMUL HUDA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1448 of 2008

Judgment of:

Burchardt FM

Hearing date:

5 June 2009

Date of Last Submission:

5 June 2006

Delivered at:

Melbourne

Delivered on:

27 August 2009

REPRESENTATION

Counsel for the Applicant:

Mr S. Nagaretnam

Solicitors for the Applicant:

Logan Raj & Associates Lawyers

Counsel for the Respondents:

Mr B. Wee

Solicitors for the Respondents:

DLA Phillips Fox Lawyers

ORDERS

(1) That the application be dismissed.
(2) That the Applicant shall pay the First Respondent’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1448 of 2008

MIRZA MD NAZMUL HUDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the
   Migration Review Tribunal (“the Tribunal”) given on 21 October 2008.
2. In essence, the applicant makes four complaints about the Tribunal's decision:
   1. the Tribunal fell into jurisdictional error in failing to accept the applicant's evidence about his proficiency in English;
   2. the Tribunal committed jurisdictional error by failing to accept the applicant's evidence about his health cover in Australia;
   100. the Tribunal fell into error in failing to deal with the applicant's evidence about his finances;
   4. the Tribunal fell into jurisdictional error by failing to give the applicant sufficient time to produce the documentation the applicant has now produced.
3. For the reasons that follow, I do not think that any of these criticisms are made out and the application will be dismissed.

The History of the Matter

4. The following recitation of events is taken from the materials set out in the first respondent’s outline of submissions and is not controversial.
5. The applicant is a Bangladesh citizen who arrived in Australia in November 2000 on a student visa. He has since applied for and held various other student visas. His most recent student visa expired on 15 March 2007.
6. The applicant applied for a further temporary student visa on 14 March 2007 and it is the rejection of that application that has led to this proceeding.
7. By letter dated 11 April 2007 the delegate asked the applicant to submit documentary evidence that he had paid overseas student health cover, met English requirements and had adequate funds to support his living costs. The delegate repeated that request on 29 November 2007 and also in an interview held on 7 December 2007 (see CB 79).
8. The delegate's records show that the applicant was asked for these documents three times in writing and twice over the counter but did not provide them.
9. On 12 December 2007, the delegate refused the application because the applicant had not provided evidence in respect of these three matters (CB 10).
10. The applicant applied to the Tribunal for a review of the delegate's decision on 3 January 2008 which was the subject of a hearing in person on 3 September 2008. The applicant gave oral evidence before the Tribunal and provided a bank account statement, without letterhead, said to belong to his father and late grandfather.
11. Both at the hearing and in a subsequent s.359A letter, the Tribunal sought evidence about the three matters that had concerned the delegate. In response, the applicant provided, without any covering explanation, the following documents:
    1. a letter from Medibank Private showing that the applicant had health insurance from 28 September 2008 to 24 December 2008;
    2. a receipt for an IELTS test dated 1 October 2008;
    100. a certificate of completion of an English language course in Dhaka in 1997;
    4. a certificate of completion of an ELICOS program in January 2001 with a score of 2 in each of the four test components;
    5. a letter from a bank in Bangladesh dated 30 January 2008 giving the balance of the account (this being the account of the two people that the applicant said were his father and late grandfather); and
    6. a bank statement from MS Alam International from 1 January 2007 to 30 January 2007 with various balances.

The Tribunal's Decision

12. The Tribunal handed down its decision on 30 October 2008.
13. The Tribunal set out the relevant visa criteria about the English language requirement and in particular clause 572.223(2)(a)(i) and regulation 1.13(1). There is no suggestion that the Tribunal misdirected itself in this regard.
14. It is common cause that the applicant was required to meet the assessment level III standard of English as set out in Schedule 5,
    clause 5A407 of the Migration Regulations 1994 which in turn sets out six ways that the applicant could prove his proficiency in English.
    The Tribunal also set out clause 572.225 which requires the applicant to provide evidence of health insurance during the period of the applicant's intended stay in Australia.
15. The Tribunal found that the applicant did not meet the English language requirement. The Tribunal found at paragraph 29 (CB 84) that the applicant had not given evidence of having undertaken an IELTS test pursuant to paragraphs 5A407(a) or (b). That finding was plainly correct because the only documents provided were the ELICOS completion certificate (CB 58) and the British Council document from Dhaka (CB 59).
16. The Tribunal also found, correctly in my opinion, that on the materials provided, the applicant had not proved that he had met the exceptions provided in paragraph 5A407(c)(d)(e) or (f). The Tribunal further noted at paragraph 31 that:
    • “At the hearing of the Tribunal on 3 September 2008, the visa applicant claimed that he had the evidence of meeting the English language requirement. In his response to the Tribunal's letter, sent pursuant to section 359A, the visa applicant failed to provide evidence of having met the English language requirement. He clearly did not have the relevant evidence when he attended the hearing. The Tribunal is not required to delay making a decision on the prospect that the visa applicant may in the future provide evidence of having met the English language requirement.”
17. In my opinion, that finding was not only open to the Tribunal but was plainly correct.
18. The Tribunal went on to deal at paragraphs 32 to 34 with the issue of health insurance. The Tribunal noted that at the hearing on
    3 September 2008, the applicant claimed he had the evidence of the necessary health insurance and that he had subsequently provided a letter dated 28 September 2008 from Medibank Private. The Tribunal said:
    • “He clearly did not have this letter when he attended the hearing and has given no other evidence that he met requirements for the health insurance prior to 28 September 2008.
      • The Tribunal is not satisfied that the visa applicant has given "evidence of adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia”.”
19. Once again, on the material before the Tribunal that finding was plainly correct.
20. It is true, as the first respondent concedes, that the Tribunal did not deal with the issue of the applicant's finances. Given that the Tribunal had made two findings, either of which was fatal to the application, it was not in the circumstances in my opinion obliged to do so and certainly did not fall into jurisdictional error in this regard.

The Additional Evidence Sought to be put Forward by the Applicant

21. At the commencement of his submissions today, Mr Siva Nagaretnam, who appeared for the applicant, sought to tender two documents, the tender of which was resisted (albeit somewhat half-heartedly) by counsel for the first respondent.
22. The first was an IELTS test report form of a test apparently conducted on 17 January 2009.
23. It is perhaps arguably equivocal but since the administrator validating the test signed the document on 29 January 2009, it seems reasonable to presuppose that this 17 January 2009 date is the date of the test. Certainly counsel did not seek to persuade me otherwise.
24. The other document provided was a letter dated 28 May 2009 from Medibank Private, confirming that the applicant has health cover commencing 24 September 2008 and expiring on 24 March 2010.
25. I allowed these documents to be marked for identification in order that both sides could make any submissions as to their admissibility and/or relevance.
26. In my view, these documents cannot properly be received in this way as the documents themselves were plainly not before the Tribunal.
    In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8], Nicholson J said:
    • “It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in
      Servos v Repatriation Commission [1995] FCA 1137; (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos in a migration law framework.”
27. It is clear from Nicholson J's decision that this court in these circumstances has no capacity to permit the filing of evidence that was not before the Tribunal.
28. Even if the documentation were admissible, it would not overcome the difficulties the Tribunal identified.
29. The IELTS test result plainly took place well after the Tribunal's decision and a very long time after the application made in 2007.
    The terms of clause 5A407, read sensibly, require the test to have been taken within a period from two years before the date of the application and the date of the application itself. It does not contemplate an IELTS test taken after the date of application. Accordingly, the test taken by the applicant in January 2009 was never capable of satisfying the clause in any event.
30. Insofar as the Medibank Private document is concerned, counsel for the first respondent is correct to submit that it says nothing about the period prior to 24 September 2008 and therefore does not advance the applicant's case.
31. Insofar as the applicant has sought to raise (the matter was not pressed in oral submissions) the way in which the Tribunal dealt with the tax invoice from Monash College Pty Ltd (CB 57) which shows a receipt for an IELTS test apparently dated 1 October 2008, I accept counsel for the first respondent's submission. There is no evidence as to what the results of that test were, nor did the applicant in response to the s.359A letter seek to provide the same. I suspect they would have been the subject of the same conclusion that I have earlier referred to insofar as they took place well after the visa application.
32. Finally, I should say that I reject the submission made by counsel for the applicant that it was incumbent upon the Tribunal to give the applicant more time to provide documentation to it.
33. The history to which I have earlier referred shows that the Department and subsequently the Tribunal gave the applicant every proper opportunity to provide the documents that were necessary for the applicant to prove his case.
34. In all the circumstances, it is clear that the application is without merit and the application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 27 August 2009