Borra v Minister for Immigration & Anor
[2013] FCCA 1216
•4 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BORRA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1216 |
| Catchwords: MIGRATION – Application for extension of time – application eight months out of time – whether explanation for delay explained – applicant applied for Ministerial intervention – consideration of applicant’s assertions of bias – application refused. |
| Legislation: Migration Act 1958, s.351 |
| Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 |
| Applicant: | NAVEEN BORRA |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICUTURAL AFFIARS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 365 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 28 June 2013 |
| Date of Last Submission: | 28 June 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2013 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r.701 of the Federal Circuit Court Rules 2001, the name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.
The applicant’s application for an extension of time filed 22 March 2013 be dismissed.
The applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 365 of 2013
| NAVEEN BORRA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By order of Registrar Allaway, made on 15 May 2013, the originating Application for Review filed 22 March 2013 was listed for hearing before the Court under r.44.12 of the Federal Circuit Court Rules 2001 (“the Rules”). Inter alia r.44.12(1) empowers the Court on a hearing of this sort to:
“(a) if it is not satisfied that the application has raised an arguable case for the relief claimed-dismiss the application.”
For the reasons that follow, I do not think that the applicant has satisfied me that he has an arguable case for the relief claimed, and I will dismiss that application accordingly.
The application filed 22 March 2013, lists the grounds of application as follows:
“1. Tribunal decision is jurisdictional error under the Migration Act 1958
2. I have not been given one extra day by tribunal member to submit the relevant document
3. Tribunal member was very rude and he has not given me chance to explore the situation”
The Affidavit in Support filed on the same date, relevantly asserts:
“1. Tribunal decision is jurisdictional error under Migration Act 1958
2. Tribunal member has not given a chance for me to explain”
The orders made by Registrar Allaway did not provide for the preparation of a Court Book (“CB”) or for written submissions. Accordingly, the only material that the Court had at the commencement of the hearing that gave any indication as to the matter was the decision record dated 7 June 2012 of the Migration Review Tribunal (“the Tribunal”) annexed to the applicant's affidavit. From the decision record, it is apparent that the applicant applied for a Student (Temporary) (Class TU) visa on 9 October 2010. A delegate of the Minister refused to grant the visa on 8 February 2011 and notified the applicant of the decision, by letter, on the same day. The decision of the delegate is not set out, or referred to in any great detail in the Tribunal's decision, but it is clear that the applicant failed to satisfy the delegate that he satisfied the financial requirements set out in the Migration Regulations 1994 (“the Regulations”).
The Tribunal's decision commenced by indicating the application for review and set out the “Relevant Law”. The applicable regulations were set out in full. The Tribunal noted, at paragraph 15, under the heading, "Other requirements", that:
“The Tribunal must also be satisfied that, while the applicant holds the visa, he or she will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.”
At paragraphs 16-18, the Tribunal set out some background material taken from the applicant's file and the decision of the delegate. I note that the documentation initially provided by the applicant to evidence funds was found to be non-genuine following investigations by Post in New Delhi.
The Tribunal's decision goes on to note that the applicant had subsequently appointed a registered migration agent to support his Application for Review, and the receipt of various materials.
The Tribunal noted that by letter dated 16 November 2011, the Tribunal had informed the applicant that it had considered the material before it but was unable to make a favourable decision on the basis of that material alone. The applicant was invited to attend a hearing scheduled on 2 February 2012 and, relevantly, was invited to provide evidence that he had satisfied the financial capacity requirements of Schedule 5A for the purposes of cl.572.223 of the Regulations.
Relevantly, the Tribunal noted (paragraph 22) that it had subsequently received documentation from the Allahabad Bank which indicated:
(a)The applicant's father Borra Appa Rao (it would appear, that Borra is the family name of the applicant and Naveen his personal name) deposited $43,535 (in Indian rupees) on 12 January 2012, which, matured on 26 February 2012;
(b)A copy of a letter dated 13 January 2012 from the Allahabad Bank confirming the sanction of a loan of INR 2,025,000 ($38,942) to the applicant's father secured against a term deposit of INR 2,250,000;
(c)Documents showing a transfer of $1,000 to the applicant dated 13 January 2012; and
(d)An income certificate in respect of the applicant's father.
The Tribunal noted that the applicant appeared before the Tribunal on
2 February 2012 and was represented in relation to the review by his migration agent who did not, however, attend the Tribunal hearing.
The Tribunal recorded at paragraphs 25-27:
“25. The applicant gave oral evidence and provided an account of his study history in Australia. He also stated that he understood the reason for the delegate’s decision to refuse him related to the financial document he provided with his visa application. He stated that he learnt that the document was not genuine but as his father was unfamiliar with banking procedures, he engaged an agent recommended by a friend. When he was advised by the Department that the loan document was fraudulent he was given only one day to respond. He would have liked to have a week to put the financial arrangements in place.
26. Asked if he wishes to rely on that document as evidence of funds, the applicant said he does not rely on that document. He relies only on the documents he has provided to the Tribunal.
27. At the hearing, the applicant provided the Tribunal with the following documents:
· A sale agreement dated 11 January 2012, whereby Borro Appa Rao agreed to sell real estate to the purchaser for a total of INR 2,800,800 ($53,846) and that the purchaser has paid an advance of INR 2,300,000, and that the sale to be completed within 45 days (sic);
· Statement of income relating to income from agricultural land of INR 450,000 per annum.
· Copies of statements from the Commonwealth Bank of Australia in respect of an account held by the applicant;
· A statement of financial support dated 13 January 2012 from Borra Appa Rao and Borra Sunanda (the applicant's mother); and
· Copies of financial documents provided to the Tribunal:
o Letter dated 13 January 2012 from the Allahabad Bank indicating that a demand loan was sanctioned to Mr Borra Appa Rao in the amount of INR 2,025,000 secured by a term deposit made on 12 January 2012 in the amount of INR 2,250,000 and disbursed the amount of INR 2,025,000 on 12 January;
o Copy of the term deposit receipt in the amount of INR 2,250,000 made on 12 January 2012 and maturing on 28 February 2012;
Electronic inter-bank transfer of $1000.”
The Tribunal calculated the amounts thus reached, and recorded at paragraph 29:
“The Tribunal asked the applicant what evidence he relies as the acceptable source of funds on to demonstrate that he has the funds required in accordance Schedule 5A. He replied that he relies on the letter of 13 January 2012 from Allahabad Bank referring to a loan.”
At paragraphs 31-34, the Tribunal continued:
“31. The Tribunal then discussed at length with the applicant the security used for the loan, the relevance of it to cl.572.223(2)(a)(iii), and expressed concern as to whether the “loan” is in fact in place and concern about the source of the money which was used as security.
32. The applicant stated that the loan was disbursed into his father's savings account and referred to another letter from the bank dated 20 January referring to an amount of INR 53,500 being transferred to the applicant on 13 January 2012. The applicant also stated that he believes the loan account remains in place despite the reference in the bank's letter that it was fully disbursed on the same day it was established.
33. The applicant said he could obtain further documents from the bank and the purchaser of his mother's land to clarify the information. The Tribunal indicated that the bank’s statement appears to be clear and a written statement from the purchaser named in the agreement of sale may not add much to the reliability of the evidence. It indicated that an executed deed of sale is evidence which is capable of verification with Indian authorities, but an agreement of sale is not.
34. At the time of writing this decision, the Tribunal had not received any further submissions or material from the applicant or his representative.”
That last paragraph (paragraph 34) will require further consideration. The gravamen of the Tribunal's deliberations is set out in paragraphs 39 and 40 as follows:
“39. The applicant submitted a letter from the Allahabad Bank referring to a “demand loan” in an amount equivalent to $38,942 being sanctioned to the applicant's father on 12 January 2012 and fully disbursed on the same day. The bank's letter does not indicate to where or how the money was disbursed. The applicant stated that it was disbursed into his father's savings account and referred to a letter from the same bank referring to a transfer of INR 53,000 on 13 January 2012. This letter does not provide any other information or a balance in the account. The Tribunal indicated that on the basis of the bank's letter referring to the loan, it is not satisfied that the loan existed after it was fully disbursed on 12 January 2012. On this basis the Tribunal is not satisfied that the applicant has given evidence in accordance with the requirements of Schedule 5A for Subclass 572 and assessment level 4 to which the applicant is subject, in relation to the financial capacity. Accordingly, the applicant does not meet cl.572.223(2)(a)(i).
40. In the alternative, if the loan account continues to exist, the tribunal also expressed concern about the source of the funds which established the term deposit account for 45 days commencing on 12 January 2012. The amount of INR 2,250,000 represented around 5 years of gross income for the applicant's father based on evidence of income he submitted. The applicant argued that the source of funds was from the sale of land his mother owns. The Tribunal indicated that it cannot rely on "an agreement of sale" as evidence of sale of land. It had further concerns that the arrangement was entered into one day before the term deposit and loan were established and the advance payment was INR 2,300,000 representing more than 80% of the total price of INR 2,800,000; and he claimed was paid fully in cash to his mother. The Tribunal does not accept the evidence of the source of security and therefore is not satisfied that the applicant, while he holds the visa, will have access to the funds declared in accordance with Schedule 5A and does not satisfy cl.572.223(2)(a)(iii).”
The Tribunal went on to dismiss the application accordingly.
In his oral submissions in Court, the applicant asserted that he had applied to the Tribunal through the agency of his migration agent. The Tribunal requested documents and the applicant left the matter in the agent's hands. The agent said that no documents were required.
When the applicant went to the Tribunal, he was asked questions and the Tribunal requested further financial documentation. He said he had already sent them but asked for one week extra to get the time to get further documents, but this was refused.
The applicant said the Tribunal told him there were so many cases from India, that the Tribunal did not give him any time, and that he had had minimal assistance from his agent.
He said that he had raised procedural fairness with the Minister (in his s.351 letter) but was refused. He explained the delay in his application as arising from the fact that he had not been told about time limits for applications, that it was hard to apply for Judicial Review and had been told that it was expensive. He had applied for fee waiver. He said the matter arose just out of a lack of knowledge and a lack of funds.
Counsel for the first respondents noted that the application was eight months out of time. The applicant had asserted he was told to seek s.351 relief and had been unsuccessful.
Counsel submitted that the fact of the application to the Minister involves acceptance of the decision and cited Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 and, SZJYR v Minister for Immigration and Citizenship [2010] FCA 135, in this regard.
Counsel submitted that there was no acceptable explanation for the delay, albeit that it was conceded that there was no practical prejudice to the Minister should the Application for Extension of Time be granted. From subsequent discussion between the parties, it appears that the applicant's letter to the Minister, seeking to access a s.351 Review, may have been sent on 2 July 2012, and a reply received (see exhibit A1 dated 15 March 2013).
Because the applicant raised serious questions as to bias and unfair conduct during the hearing, I have listened to a CD of the hearing provided by the first respondent. It should be noted that the words spoken by the Tribunal member are clear and easy to hear, but that that is by no means always the case with the applicant. Nonetheless, from the words said by the Tribunal member, there is generally little doubt as to what it was the applicant was saying.
It is quite clear that the Tribunal member did not, at least in my opinion, make any remarks to the effect that there were so many cases from India. The most the Tribunal member did, at any stage, was to observe that he had come across cases involving similar issues to the applicant's before. This is scarcely surprising and would not in my view in any way indicate any improper lack of capacity on the Tribunal member's part to bring an unprejudiced mind to the case.
The applicant has also complained that he was not given one extra day by the Tribunal member to submit the relevant documents, a claim advanced in his application and again in his oral submissions.
The Tribunal member conducted the proceeding very much on a step-by-step basis indicated to the applicant at the start. The Tribunal addressed successive matters that the applicant had to satisfy, and eventually arrived at the financial capacity considerations.
It is certainly the case that the Tribunal had very significant reservations about the nature of the loan upon which the applicant ultimately relied, and also an interrelated issue as to the security for the loan, these being matters recorded, ultimately, in the Tribunal's decision, which I infer was given at a later date.
It is certainly clear also, that from a point some considerable time before the end of the proceeding, the Tribunal was saying in terms that were fairly decided, that the applicant had not, on the materials as they then stood, satisfied him as to the financial capacity considerations.
In particular, the Tribunal expressed problems with the fact that the loan had been disbursed within a day, and that a sale of property document, relied upon by the applicant, was only an agreement to sell not a registered executed contract, such as would normally be available.
It is not possible to meaningfully paraphrase the entirety of the, approximately, hour and a quarter hearing. It is only necessary for me to say that while it is certainly the case that the Tribunal did come to what was a concluded view and, indeed, told the applicant this at the hearing, there is nothing in the Tribunal's conduct that in my opinion suggests that the applicant was not given a fair opportunity to put his case.
When the applicant asked for more time, the Tribunal member essentially said that the applicant had already had plenty of time. The Tribunal member said (and I suspect it is probably correct although the documents are not before me) that the applicant had had since 2010 to provide the documentation now sought in 2013 at the Tribunal hearing.
The Tribunal also made it clear that certain sorts of further documentation that might be provided by the applicant would not be sufficient, and although that was clearly, in one sense, a pre-judgment, it was not in the circumstances of the case in my view an unreasonable one.
A decision to adjourn is, of its nature, a discretionary one, and I would certainly not form the view on the materials, as they stand, that the Tribunal's decision in this regard was unreasonable or not open to it.
In my view, the Application for an Extension of Time ought not be granted.
First of all, I do not think the applicant's prospects of success are great. I have dealt with the criticisms advanced of the Tribunal's conduct at the hearing above, and these are in substance the only matters upon which the applicant relies.
Further, to the extent that the applicant says that he would produce further documentation, if given the opportunity to do so, the history of the matter, including the provision of fraudulent documentation by the applicant in the past (even if by his agent) and the contiguity of the documents advanced by the applicant at the Tribunal, and rejected, to the hearing itself, would all be strong militating factors against the applicant succeeding.
Further, and finally, even if I accept the applicant's version of the events following the decision entirely (and of course it has not been tested by cross-examination), the fact is, there appears to be binding authority to the effect that the submission of s.351 application is effectively an acceptance of the Tribunal's decision. In Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, von Doussa J said at [9]-[10]:
“9. There was a significant delay for that period. I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister's power under s 417. The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequence of the delay that occurred.
10. The delay therefore is not adequately explained. That, alone, in my view, would be sufficient to refuse the application for an extension of time.”
In SZJYR v Minister for Immigration and Citizenship [2010] FCA 135, Besanko J said at [12]:
“The application for an extension of time is approximately 49 days outside the prescribed period. The application is supported by an affidavit of the first applicant. In that affidavit, the first applicant deposes to the fact that he wrote to the Minister for Immigration and Citizenship on 2 November 2009 asking him to intervene in his case. Although it is not expressly stated in his affidavit, it seems that it is by reference to that act that he explains his failure to lodge his appeal within the prescribed period. That is not a satisfactory explanation for the delay: M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520.”
The observations of Justices von Doussa and Besanko were not qualified and appear to apply indistinguishably to the circumstances of this case.
If for no other reason, I would be required on that authority to regard the eight month delay in this application as fatal to the applicant's case.
For all of the above reasons, the application must be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 4 September 2013
7
3
4