Bhatia v Minister for Immigration
[2011] FMCA 796
•14 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BHATIA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 796 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal to grant visa applicant Student (Temporary) (Class TU) Subclass 572 Visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.357A, 359A, 359AA, 360, 424, 425 Migration Regulations 1994 (Cth) regs. 1.03, 2.07AO, 5A405, 572 |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 |
| Applicant: | SANDEEP KUMAR BHATIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 639 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2011 |
REPRESENTATION
| Applicant: | The Applicant appeared in person with the assistance of a Hindi interpreter. |
| Counsel for the First Respondent: | Mr D. Hughes |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The Application filed on 5 April 2011 is dismissed.
The Applicant is to pay the First Respondent’s costs, of and incidental to the Application, fixed in the sum of $4,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 639 of 2011
| SANDEEP KUMAR BHATIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 3 May 2011, the solicitor for the First Respondent was required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”.
At the First Court Date directions hearing, the Applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material. The Applicant elected not to pursue this option and relied upon the original Application. The Applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. This order was not complied with.
Background
The Application filed in this Court on 5 April 2011, seeks judicial review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship (the “Minister”) who refused to grant the Applicant a Student (Temporary) (Class TU) Subclass 572 visa. The Applicant sought review before the Migration Review Tribunal (the “Tribunal”) and it is that decision of Tribunal Member Tim Connellan dated 3 March 2011, MRT Case Reference No. 1009890 that is the decision subject to judicial review in this Court. The Applicant is a citizen of India and was originally granted a Subclass 752 visa and arrived in Australia in April 2008. The original visa was valid until 28 July 2010. On
27 July 2010, the Applicant lodged an Application for a further Subclass 752 visa with supporting documentation (CB 1-43).
Requirement of evidence of financial capacity
At the time the Applicant’s application for a Subclass 752 visa was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. In the case of the Applicant, a subclass 572 visa was the appropriate subclass and there is no suggestion that the Applicant met the criteria for any other subclass. The criteria for a grant of the subclass 752 visa are set out in Part 572 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”). Class 572.22 of Schedule 2 to the Regulations sets out the criteria to be satisfied at the time of the decision for the granting of a subclass 752 visa. These criteria include, relevantly, that the Minister be satisfied that the Applicant is a “genuine Applicant for entry and stay as a student”. The requirement for Ministerial satisfaction are set out in Class 572.223(2) and relevantly include, for an Applicant who is not a person designated under reg.2.07AO, that:
572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
The delegate and the Tribunal found the Applicant did not satisfy this requirement.
Regulation 1.41 provides that the Minister must satisfy, by gazette notice, an “assessment level” for a kind of eligible passport, in relation to each sub-class of student visa, to which an Applicant for a student visa who seeks to satisfy the primary criteria, will be subject. The expression “highest assessment level” is defined in reg.1.03 and means, the highest assessment level amongst the assessment levels for the courses of study that an Applicant proposes to undertake. The relevant gazette notice was IMMI10/003 signed on 16 March 2010.
In relation to a subclass 572 visa, and an Indian passport, the notice specifies assessment level 4.
Clause 5A 405 of Schedule 5A to the Regulations sets out the evidentiary requirement for assessment level 4 for subclass 572, which relevantly includes:
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:
(i) course fees;
(ii) living costs;
(iii) school costs; …
An “acceptable source” is defined to mean, relevantly, a money deposit that an acceptable individual has held for at least six months immediately before the date of the Application. An “acceptable individual” includes the Applicant, a parent or grandparent.
Financial evidence provided by the Applicant
In setting out the following financial material I have quoted directly from the submissions prepared by Mr Hughes of counsel. I have not made further attribution as this would make the summary unwieldy. This information is extracted from the Court Book and each item contains a Court Book reference for that material. The Applicant provided in support of his visa application the following five documents relevant to the Applicant’s financial position:
a)A letter dated 12 July 2009 from HDFC Bank limited, HDFC Bank House, Senapati Bapat Marg, Lower, Parel (West ), Mumbai confirming the deposit of Rs 4,65, 293.66 in the name of Mrs Agit Kaur (CB 29-30);
b)An affidavit dated 14 July 2010 of Mrs Agit Kaur stating that she is the maternal grandmother of the Applicant and would bear the financial expenses of her grandson (CB 31);
c)A letter from Punjab National Bank dated 10 July 2010 stated that Mr Ram Chand, “S/o Mohinder Singh”, was the holder of a fixed deposit with the Bank for the amount of Rs 10,32,764.00 (CB 36);
d)An affidavit purporting to be by Mr Ram Chand stating that he was the grandfather of the Applicant and would bear the financial expenses of his grandson (CB 41); and
e)A document purporting to be a certified copy of an Election Committee of India Card of Mr Ram Chand, son of Mohinder Singh, aged 71 years (CB 37).
Collectively known as the “First Financial documents”.
On 28 July 2010, an officer of the Department of Immigration and Citizenship emailed the Applicant (CB 44 – 46) requesting that within 28 days he provide, inter alia, further documentary evidence showing that he had sufficient funds to meet the total cost of his proposed study and stay. In this regard, the officer noted that the affidavit and bank letters from his grandmother (see 7(a) & (b) above) were too old and that more recent documents must be provided. On 4 August 2010 the Applicant emailed to the Officer a letter from HDFC Bank Ltd dated 13 July 2010 confirming the deposit of Rs 4,35,000.00 in the name of Mrs Agit Kaur (CB 48) “the Second Financial document”.
On 5 August 2010, an officer of the Department emailed the Applicant inviting him to comment on information that the Department had obtained (CB 49-51);
a)The Department had conducted a check of the information provided by the Applicant, and a bank statement provided by Mr Ram Chand were referred to the Department’s overseas office for verification; and
b)An officer of the Department contacted Mr Ram Chand, who stated that he did not know the Applicant and had not sponsored the Applicant for a Student Visa in Australia.
On 11 August 2010 the Applicant replied by email (CB 49) as follows:
a)He had contacted his grandfather Ram Chand;
b)His grandfather confirmed that he had received the call from a person enquiring about Sandeep Kumar Bhatia;
c)The Applicant’s grandfather called the Applicant by the nickname “Prince”, and because he is 79 years old he cannot remember things correctly; and
d)The Department should contact Ram Chand again and enquire about the Applicant by referring to his nickname, and the names of the Applicant’s parents.
The Applicant attached to the email a further affidavit dated 7 August 2010 purporting to be by Mr Ram Chand “son of Mohinder Singh” (CB 54 – 55);
a)Confirming that he had received a telephone call from the Australian High Commission while he was travelling in a bus and when asked if he knew the Applicant wrongly answered in the negative because he knows the Applicant by the name “Prince”;
b)Stating that the person who made the telephone call did not identify other particulars about the Applicant such as the name of his parents; and
c)Inviting the Department to contact him and provide telephone numbers.
On 11 August 2010 an officer of the Department again contacted Mr Ram Chand at a number provided in the affidavit and by the bank. Mr Chand:
a)Again denied any relationship to the Applicant;
b)Denied that he had sponsored any relative to study in Australia.
On 12 October 2010 the delegate wrote to the Applicant informing him that his application for a subclass 572 visa had been refused (decision record, CB 60 – 65). The nub of the delegate’s decision was that, in light of the chronology set out above, the Applicant had not provided plausible evidence as to the Applicant’s funds and therefore had failed to meet the financial requirements for the grant of a subclass 572 visa (see CB 65).
Application for review by the Migration Review Tribunal
On 5 November 2010 the Applicant applied to the Tribunal for a review of the Delegate’s decision (CB 70-76) and the Applicant was invited to appear before the Tribunal on 19 January 2011 (CB 78 – 79). On 4 January 2011 the Tribunal received from Mr Sarvjot Singh, a registered migration agent, notice advising that the Applicant was represented by a migration agent (CB 124, para.32). On 17 January 2011 the Applicant’s migration agent emailed an officer of the Tribunal seeking a postponement of the hearing date due to medical reasons, namely that the Applicant had been advised to complete bed-rest for 10 days (CB 80). The email attached:
a)A handwritten letter by the Applicant stating that “from last week am on bed because of sickness”, and that he has “blood vomiting 2-3 times a day, having stomach and back pain”; and
b)Medical certificates.
On 24 January 2011 the Tribunal wrote to the Applicant granting the request for the postponement of the hearing and postponing the hearing to 22 February 2011 (CB 84). A copy was also sent to the Applicant’s migration agent (CB 86).
On 16 February 2011 the Applicant’s migration agent lodged the following further documents in support of the Applicant’s application for review (CB 87):
a)A letter dated 3 February 2011 from the Bank of India together with a Statement of Account, stating that Mr Parmjit Bhatia stands in credit in the sum of Rs 12,01,000 (CB 88 – 90);
b)An affidavit dated 9 February 2011 by Parmjit Bhatia, “son of Ram Chand”, deposing that (CB 91- 92):
i)The Applicant is his son; and
ii)He is willing to bare all tuition and living expenses for his son during his course of study within Australia;
c)A further affidavit of 9 February 2011 from Parmjit Bhatia “son of Sh. Ram Chand” deposing that (CB 102 – 103):
i)He is cultivating 10 acres of agricultural land under a five year contract; and
ii)His annual income from this source is about Rs 250,000.00 per annum.
d)A contract dated 21 January 2011 for the sale of land by “Parmjit son of Ram Chand, son of Mohinder Singh” for the sum of Rs9,35,000 (land sale contract) (CB 104); and
e)A letter dated 3 February 2011 from the State Bank of India accompanied by bank statements, stating that Parmjit Bhatia holds Rs13,50,863 on deposit, together with a loan facility in the amount of Rs12,00,000 (CB 106 – 111).
Collectively the “Third Financial documents”.
Tribunal hearing
The Applicant appeared before the Tribunal on 22 February 2011 to give evidence and present arguments (CB 125 at [38]). Again I rely upon the written submissions of Mr Hughes who has effectively summarised the contents of the Tribunal decision with the appropriate references to the paragraphs of that decision.
The Tribunal asked the Applicant to explain the circumstances that led to the delegate finding that the First Financial documents (see 7 above) from Mr Ram Chand were not genuine. The Applicant responded (CB 125 at [42] – [44]):
a)When he lodged his application, his grandfather agreed to sponsor him;
b)A problem subsequently arose as a result of a conflict between his father and his grandfather over property division;
c)His grandfather, when asked by a departmental officer said that he was not sponsoring anyone; and
d)His grandfather knows the Applicant as “Prince” and it may have been a misunderstanding.
The Tribunal brought to the Applicant’s attention that a departmental officer had spoken to Mr Ram Chand again, and Mr Ram Chand who owns the funds referred to in the First Financial documents (see 7 above) advised that he (CB 125 at [45]):
a)Is 20 years old;
b)Had no grandchildren; and
c)Had not sponsored the Applicant or anyone else.
The Tribunal read to the Applicant from a note dated 16 August 2010 made by an officer of the Department recording a conversation between the departmental officer and Mr Ram Chand (CB 126 at [46]). The note stated:
Mr Ram Chand stated that he received a call from the Applicant a few days back. The Applicant requested and pleaded to him that if he gets a call again from the Australian High Commission then please tell them that you are my grandfather and have sponsored me generally.
The Tribunal informed the Applicant that this information was of such importance that, subject to any comments that the Applicant may make, it may lead the Tribunal to believe that the Applicant was not a witness of truth (CB 126 at [47]). The Tribunal adjourned to enable the Applicant to consider his response.
Following the adjournment the Applicant admitted that (CB 126 at [52] – [54]):
a)The documents purported to be from Ram Chand and the First Financial documents were false documents;
b)His father had been referred to a false agent who had offered to provide sponsorship for a fee;
c)His grandfather’s name is Ram Chand and the agent had sourced and provided financial documents to another person with the same name;
d)He knew that this was wrong to have done this.
Collectively, “the Admissions”.
The Tribunal then drew to the Applicant’s attention at (CB 126 at [55] – [56]):
a)In the First Financial documents, Ram Chand is referred to as “Son of Mohinder Singh”. The Applicant agreed that this person was Ram Chand who was not his grandfather and who had been contacted by the Department; and
b)In the land sale contract provided with the Third Financial documents (see 16 above) the vendor is described as “Parmjit, son of Ram Chand, son of Mohinder Singh”. The Applicant agreed that this document was genuine and provided evidence in support of his father’s sponsorship.
The Tribunal advised the Applicant that this was beyond the realm of coincidence that both his grandfather and the other Ram Chand were both the sons of Mohinder Singh. The Applicant said that he was not aware of the name of his great-grandfather. The Tribunal asked the Applicant why he had requested a postponement of the first scheduled hearing. The Applicant replied that he was sick because he had been drinking heavily and had a hangover and felt dizzy.
The Tribunal decision
The Tribunal wrote to the Applicant on 4 March 2011 informing him that it had decided to affirm the Delegate’s decision (CB 116) (Record of Decision, CB 117 – 128). The Tribunal’s key findings and reasons are set out at CB 127 – 128. The Tribunal found that the Applicant had not provided evidence in accordance with the requirements of Schedule 5A of subclass 572 and assessment level 4 in relation to his financial capacity because:
a)The Tribunal did not consider the Applicant to be a reliable witness at the hearing; and
b)The Tribunal therefore was unable to be satisfied that the Applicant had access to funds required.
The reasons given for the Tribunal’s finding that the Applicant was not a reliable witness was (CB 127 at [65] – [73]):
a)The departmental enquiries indicated that the First Financial documents included documents that were bogus documents within the meaning of s.97 of the Act in that they purported to have been but were not issued in respect of the Applicant;
b)The Applicant insisted to the delegate, and maintained before the Tribunal that the documents were genuine;
c)It was only in the face of overwhelming evidence that the Applicant conceded that he had made a mistake by providing false documents (at [69], [72]);
d)The Third Financial documents provided to the Tribunal to further support his application included the land sale contract, which states that the Applicant’s grandfather was a son of a man Mohinder Singh;
e)The false documents submitted by the Applicant was in the name of a different man named Ram Chand who was also described as the son of Mohinder Singh;
f)The Tribunal had difficulty accepting that this could be a coincidence;
Accordingly the Tribunal found that the Applicant was not a reliable witness at the hearing. The finding led directly to a finding that the Applicant had not provided evidence in accordance with the requirement of Schedule A for subclass 572 and assessment level 4, and therefore did not satisfy the requirements of cl.572.223(2)(a)(i) of Schedule 2 of the Regulations.
Consideration
Mr Hughes in his written submissions correctly contends that the Tribunal made its findings based on the Applicant’s credibility and those findings were based upon logical and rational reasoning which are summarised at para.25 above. During the hearing, that reasoning process was put to the Applicant by the Tribunal member (CB 126 at [46] – [51]) and was granted an adjournment in order to consider those issues and prepare a response. It was during this process that the Applicant decided to admit that he had deliberately provided false documentation in support of his visa application and made those admissions (see [21] above) on the resumption of the hearing (CB 126 at [51] – [55]).
A Tribunal’s adverse credibility finding and consequential rejection of an Applicant’s claim, is a matter for the Tribunal par excellence, see Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407; per McHugh J at [67] where his Honour stated:
…a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
I am satisfied that the Tribunal findings in this respect were open to it on rational grounds on the materials before it and it discloses no error in its treatment of the Applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal’s reasons for decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concerns it had about aspects of the Applicant’s evidence and which it raised with him during the hearing. The Applicant was unsuccessful because of the view the Tribunal took of the facts and in particular its finding that he was not credible.
The heart of the Tribunal decision was its decision that the Applicant was not a reliable witness and that finding underpins the Tribunal’s ultimate finding that the Applicant had not given the required evidence in support of his student visa application. Significantly, the credibility finding was not raised by the Applicant and was not challenged in these proceedings. That credibility finding is sufficient to support the Tribunal’s overall decision.
Ground One
Ground One states:
The Tribunal failed to afford procedural fairness to the Applicant, and/or erred in finding that the Applicant had not complied the procedures it was required to follow under the Migration Act 1958 (“the Act”) for the grant of a student visa.
This ground is not particularised nor is there written or oral submissions presented in its support. No specific unfairness or unfair conduct is identified, nor is there any provision of the Act identified that is said to have been contravened. Section 357A of the Act provides that Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of natural justice hearing rule in relation to matters it deals with, namely the conduct of review by the Tribunal. Nothing has been advanced by the Applicant to suggest that the Tribunal has not complied with those provisions of the Act.
The material contained in the Court Book and particularly the Tribunal decision which is the only evidence before this Court and in the absence of any submissions it is clearly apparent that the Tribunal complied with the requirements of s.360 of the Act in that it invited the Applicant to a hearing and, at the request of the Applicant, postponed the initial hearing and rescheduled another to accommodate the Applicant’s ill health. The Applicant attended the rescheduled hearing and was provided every opportunity to present his evidence and address the questions raised by the Tribunal member. In accordance with the procedures set out in s.359AA(b)(iv), while the Applicant was appearing before the Tribunal because of invitation under s.360, the Tribunal orally gave the Applicant particulars of information that it considered would be the reason or part of the reason, for affirming the decision under review (CB 126 at [47]). The Tribunal adjourned to permit the Applicant time to consider his response. After the adjournment the Applicant made the admissions (see [21] above) accepting the force of the reasons given by the Tribunal member for not accepting the authenticity of the documents relied upon by the Applicant.
On a fair reading of the Tribunal decision, it is not apparent that any other section falls within the ambit of s.357A has not been complied with within the requirements of the natural justice hearing rule. Consequently, Ground One cannot be sustained and should be dismissed.
Ground Two
Ground Two states:
The Tribunal failed to accord procedural fairness, and/or failed to comply with s.359A(1) of the Act by not disclosing particulars of the information and documents in question from the financial sponsor or the manager of the financial institute (Veal v MIMIA (2005) 225 CLR 88 para. 20-24).
This ground is not particularised nor is there any written or oral submissions raised in support of this claim.
The manner in which this ground is pleaded it asserts s.359A requires the Tribunal member to disclose to the Applicant particulars of the First Financial documents (see [7] above), the Second Financial document (see [8] above) and the Third Financial documents (see [16] above). However, this is clearly a misunderstanding by the Applicant, or the unknown party preparing these grounds of review because s.359A does not apply to the indentified documents because they were provided to the Tribunal and the Department by the Applicant himself and consequently fall within the exception provided under s.359A(4)(b) and s.359(4)(ba) respectively. The other information that the Tribunal relied upon were the Department’s communications with Ram Chand because those communications were disclosed to the Applicant in accordance with the procedures set out in s.359AA. That material is clearly identified in the Tribunal decision (CB 125 – 126 at [44] – [47]). Consequently Ground Two cannot be sustained and should be dismissed.
Ground Three
Ground Three states:
The Tribunal failed to comply with the mandatory procedure proscribed by the Act in failing to comply with s.424AA(b)(iv) and s.425 of the Act.
These sections are located in Part 7, Division 4 which relates to the conduct of review by the Refugee Review Tribunal and have no application to the Migration Review Tribunal. The comparable provisions within the powers of the Migration Review Tribunal are ss.359AA and 360, respectively and have already been addressed in ground 1 above. It must be assumed that the Applicant or the unidentified assistant who prepared these grounds of review by mistake or lack of understanding of the jurisdiction, has incorrectly identified these sections as being applicable to the matter currently under review. In these circumstances, Ground Three cannot be sustained and should be dismissed.
Conclusion
It is acknowledged that the Applicant is a self-represented litigant and it was apparent at the Court hearing that the Applicant did not comprehend the issues ventilated and made no attempt to make oral or written submissions to support his application. It is noted that the Applicant was assisted by a registered migration agent in the earlier stages of his application but that assistance does not appear to have continued to the stage of the filing in preparation for the hearing before this Court as the grounds of review clearly do not relate to the contents of the Tribunal decision as they raise disputes which do not exist in that decision or are completely misinterpreted in respect to the operation of the Migration Act or the process of the Tribunal or review in this Court.
The Court was assisted by the written submissions of Mr Hughes of Counsel which have addressed all of the issues that are relevant in this application. Further, on a fair reading of the Court Book and in particular the Tribunal decision, it is not apparent from the face of those documents that any other jurisdictional error is apparent. Consequently, the Application should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 14 October 2011
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