Bashyal v Minister for Immigration

[2015] FCCA 1590

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASHYAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1590

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – whether the Tribunal had provided the applicant with sufficient notice to provide information – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Application for adjournment – application dismissed.

Legislation:  

Migration Act 1958 ss.360, 362B, 476

Applicant: SAGAR BASHYAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 872 of 2015

Judgment of: Judge Street

Hearing date: 9 June 2015

Date of Last Submission: 9 June 2015

Delivered at: Sydney

Delivered on: 9 June 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr K. Eskerie

Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 872 of 2015

SAGAR BASHYAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in respect of a decision of the Tribunal made on 2 March 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.  The application identified the following grounds:

   1. The Tribunal failed to provide adequate opportunity to the Applicant and this resulted in a miscarriage of justice and has vitiated the procedural fairness .

   Particulars

   The Tribunal failed to provide additional time as the applicant could not attend the hearing on the particular day and did not adjourn the matter . This has resulted in denial of opportunity and failure to adhere to the principles of natural justice and the provisions of law resulting in miscarriage of justice. The applicant was self represented at the time of hearing and was not clear about the procedure undertaken by MRT. It is submitted that the MRT failed to inform the applicant as to the documents required to prove the financial capacity.

   2. The Tribunal failed consider the documents which were already on record to prove that the applicant complied with Migration Regulations 573.223

   Particulars

   The Tribunal failed to consider the evidence on record submitted before the delegate which proves that my father Mr Mohan Prasad Bashyal has adequate funds in an eligible bank account. I proved the relationship of father and son by submitting the original relationship certificate issued by the government authorities in Nepal and also a letter from my father stating that the funds will be made available for the study . I state that none of these documents were taken cognisance of by the Tribunal and the matter was disposed off without deliberating the validity or the evidentiary value of these documents.

2. Contrary to the first ground, it is clear that the Tribunal invited the applicant to attend a hearing by a letter dated 29 January 2015 sent to the applicant’s then authorised address and it is clear the applicant received that notification of hearing to be held on 27 February 2015. That notification identified particular documents that the applicant needed to provide to assist the processing of the application and further identified:

   If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.

3. The applicant failed to attend the hearing.  The applicant failed to provide any further documents.  It was in those circumstances that the Tribunal relevantly noted the delegate’s decision in which the delegate by email sent on 1 April 2014 identified documents that were required that, relevantly, under financial capacity said:

   You need to show that you have access to $34,285.25.  You must show that the money has been in your account for more than three months.

4. The delegate did not receive any information in response to that email and, relevantly, said:

   On 01/04/2014, you were sent an email requestion you to provide evidence of funds in the amount of $34,248.25. You were also requested in that same email, (if the funds were not in your own name) to show how you can access this money from Australia. You were provided with a 28 day time period to provide all requested documents/evidence.

   On 12/05/2014 we reviewed an email from you (date 09/05/2014, in which you provided some supporting documents. The financial documents you provided were bank/financial documents in another person’s name (your father). However, you did not provide as per out request, evidence to demonstrate how you could access these funds from Australia.

   On 19/05/2015, you were emailed again and specifically requested to provide evidence of how you access these funds (by way of providing your bank statements showing that funds from your sponsor had been transferred to you). You have not provided this evidence.

5. The delegate concluded that the applicant did not satisfy the criteria identified under cl.573.223.  The delegate then considered the applicant against other subclasses and found the applicant did not satisfy the primary criteria and it was in those circumstances the delegate refused to grant a Student (Temporary) (Class TU) visa to the applicant. 

6. Relevantly, the Tribunal then held:

   5. The Tribunal wrote to the applicant on 29 January 2015. He was invited to a hearing on 27 February 2015. He was asked to provide information in support of the application, including evidence that he met the financial capacity requirements for the student visa. He was asked to provide the information 7 days after receiving the letter.  On 19 February 2015, the applicant’s migration agent returned the hearing invitation letter which indicated that the applicant would be attending the hearing. None of the information requested was provided and an officer of the MRT contacted the applicant to request the information. The applicant stated that the information would be submitted.  However, no information was provided and the applicant did not attend the hearing.

   6. The issue in the present case is whether the applicant meets the time of decision criteria for the grant of the visa. Specifically, the requirements of cl.573.223(2)(a) of Schedule 2 to the Regulations relating to financial capacity.

   7. The Tribunal asked the applicant to submit evidence to demonstrate that he met the requirements for the grant of the visa. He was invited to attend a hearing to discuss the issue. However, no information was provided and the applicant did not attend the hearing. He did not contact the Tribunal to explain his absence. The Tribunal is satisfied that the applicant has had sufficient time and opportunity to provide evidence in support of the application.

   8. The Tribunal has considered the information it has regarding the application. The delegate’s decision relates to a variety of reasons why the application was refused. None of the issues raised in the delegate’s decision have been addressed by the applicant in his review application and he did not provide any information to demonstrate that he met the requirements for the visa. On the limited information it has, the Tribunal cannot be satisfied that the applicant meets the Schedule 5A financial capacity requirements for the grant of the visa.  

   9. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of 573.223(2)(a) of Schedule 2 to the Regulations. The Tribunal has no information on which it could be satisfied that the applicant meets the requirements for any of the other subclasses within Class TU Student visa category.  As the Tribunal is not satisfied that the applicant meets the requirements for the grant of a student visa, it must affirm the decision under review.

   10. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

7. There is no substance in relation to ground 1 as it is clear that the applicant was invited to attend the hearing in compliance with s.360 and relevantly s.362B provides:

   Section 362B - Failure of applicant to appear before Tribunal

   (1)  If the applicant:

   (a)  is invited under section 360 to appear before the Tribunal; and

   (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   (2)  This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

8. In the circumstances of this case, it cannot be said that the decision of the Tribunal to proceed with the review lacks an evident and intelligible justification.  The decision was clearly open and can not be said to be unreasonable.  There is no jurisdictional error of a kind identified in ground 1.  In relation to ground 2, it is clear that the delegate had identified a deficiency in the evidence provided by the applicant and the same deficiency was clearly drawn to the applicant’s attention in the letter sent from the Tribunal on 29 January 2015.  Relevantly, in para.5, as follows:

   5. Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

   •    evidence of fees of current or proposed course/s you have already paid, or still owe for past courses

   •    evidence of funds from an acceptable source

   ○   if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the ate of your visa application

   ○   if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

   •    evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you

   •    evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given

9. There was no failure by the Tribunal to consider the material before it, and it was open to the Tribunal on the material before it to come to the adverse finding that was made.  There was no jurisdictional error of the kind identified in ground 2. 

10. The applicant formally sought an adjournment.  There is no utility in granting an adjournment as it is clear that the proceedings are doomed to failure and for the reasons given it is clear that there was no jurisdictional error by the Tribunal.  An adjournment in these circumstances would only unnecessarily increase the costs of the parties and utilise limited court time.  The application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 June 2015