Anam v Minister for Immigration and Border Protection [2016] FCA 1022

FEDERAL COURT OF AUSTRALIA

Anam v Minister for Immigration and Border Protection [2016] FCA 1022 Appeal from: Application for extension of time: Anam v Minister for Immigration and Anor [2016] FCCA 388

File number(s): NSD 438 of 2016

Judge(s): SIOPIS J

Date of judgment: 5 August 2016

Date of hearing: 5 August 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 23

Counsel for the Applicant: The Applicant appeared in person.

Counsel for the First Respondent: Ms N Blake

Solicitor for the First Respondent: Clayton Utz

ORDERS NSD 438 of 2016

BETWEEN: MD KHAIRUL ANAM Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 5 AUGUST 2016

THE COURT ORDERS THAT:

1. The application is dismissed. 2. The applicant is to pay the costs of the first respondent to be fixed at $4,800.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J: 1 This is an application for an extension of time to appeal against the orders of the Federal Circuit Court of Australia which dismissed the applicant's application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal affirmed the decision of a delegate of the first respondent to refuse the applicant's application for a student visa. 2 The delegate refused the student visa on the grounds that the applicant had failed to satisfy, at the time of the decision, Public Interest Criterion 4020 (PIC 4020) and so had not satisfied cl 572.224(a) of Sch 4 to the Migration Regulations 1994 (Cth) (the Regulations). PIC 4020(1) relevantly provided as follows: (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to: (a) the application for the visa; or (b) a visa that the applicant held in the period of 12 months before the application was made. 3 At the time that the delegate and the Tribunal made their respective decisions, reg 1.03 of the Regulations provided that the term "bogus document" had the same meaning as in s 97 of the Migration Act 1958 (Cth), which provided: bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false or misleading statement, whether or not made knowingly. 4 The relevant facts are that the applicant provided to the Department of Immigration and Border Protection (the department) a bank statement dated 5 December 2012 purporting to reflect the entries and balances in his father's bank account from a bank in Bangladesh. The document was provided in support of the applicant's student visa application to show that the applicant had sufficient funds to support himself during his intended stay in Australia. 5 The department carried out an integrity check which reported that there was a serious discrepancy between the balances reflected in the bank statement provided by the applicant and the actual funds available in the bank account in question. 6 Before the delegate, the applicant said that there had been a mistake in the spelling of his father's name on the bank statement and also the bank account number on the bank statement, which his father had not noticed before the applicant provided the bank statement to the department. The applicant submitted to the delegate another bank statement which was in his father's name and had a different account number, but from the same bank. However, the transactions recorded in both the bank statements were identical. 7 The delegate found that the falsity in the information related not to the name on the bank statement of 5 December 2012 but to the discrepancy between the amounts recorded in the bank statement and the actual funds available in the bank account. The delegate went on to find that the bank statement dated 5 December 2012 was a bogus document.