CHHABRA v Minister for Immigration

[2013] FCCA 548

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHHABRA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 548

Catchwords:
MIGRATION – Application for judicial review – Tribunal affirmed decision not to grant a student visa – whether evidence showed compliance with requirement to show money deposit in financial institution – error of fact not amendable to review – no error of law – application dismissed.

Legislation:

Migration Act 1958, pt.5 of div.5, ss.359A, 424A.

Migration Regulations 1994, sch.2 cl.572.223, sch.5A101, 5A405

Cases cited:
Abebe v Commonwealth (1999) 197 CLR 510
Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1
Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant: PAWAN CHHABRA

First Respondent:	MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent	MIGRATION REVIEW TRIBUNAL

File Number: MLG 944 of 2012

Judgment of: Judge F. Turner

Hearing date: 20 May 2013

Date of Last Submission: 20 May 2013

Delivered at: Melbourne

Delivered on: 20 May 2013

REPRESENTATION

The Applicant appeared In Person with the assistance of a Hindi interpreter

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 3 August 2012 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 944 of 2012

PAWAN CHHABRA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 2 July 2012. That decision affirmed the decision of a delegate not to grant the applicant a Student (Temporary)(Class TU) visa.

2. The sole ground in the Application for judicial review is:

   (1)That the Migration Review Tribunal erred in law in rejecting my proof of funds as submitted to the Tribunal.

3. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

4. The Affidavit filed by the applicant on 3 August 2012 contends:

   a)That there was sufficient evidence before the tribunal to demonstrate that he had access to the equivalent of AUD$26,000.00 (at [9]); and

   b)That the Tribunal’s finding that government bonds were not money deposits in a financial institution for the purposes of sch.5A405 of the Migration Regulations 1994 (the “Regulations”) was wrong (Ibid at [10]); and

   c)That the Tribunal was wrong in rejecting the funds held in his father’s and his father’s business name (Ibid at [11]).

5. Schedule 5A405 to the Migration Regulations1994 (the “Regulations”) requires the applicant to show that he had funds from an acceptable source, sufficient to meet his course fees, living costs, school costs and travel costs.

6. Funds from an “acceptable source” pursuant to sch.5A405, means a money deposit that an acceptable individual has held for at least six months before the date of his application.

7. The applicant had to produce evidence that AUD$12,250.00 was held by an acceptable source on or before 22 December 2009. The application for a visa was made on 22 June 2010 (Court Book “CB” p.7 and 81).

8. The applicant has not established that the Tribunal erred in law in finding:

   a)That the evidence put forward did not establish that the applicant had the requisite funds (CB p.91.9); and

   b)That the term “money deposit” excludes government bonds (CB p.91.6).

9. The Tribunal stated that it had taken documents to be government bonds. The evidence does not show that they are a “money deposit” in a financial institution, as defined in sch.5A101.

10. The applicant has not established that the Tribunal erred in rejecting the funds held in the applicant’s father’s name, or the father’s business name. The Tribunal found that the account was in deficit at the relevant time, that is from 23 December 2009 to 22 June 2010 (CB p.91 [42]).

11. The above grounds are dismissed.

12. The requirements for sufficient financial capacity and English language proficiency are set out in cl.572.223 of Schedule 2 to the Regulations as set out at CB p.81 to 87. The Tribunal calculated that the total sum that the applicant had to demonstrate for the purposes of sch.5A405 was AUD$12,250.00 (CB p.90.6). That has not been established to be in error. The Tribunal found that the evidence provided by the applicant does not show that he had the required funds of AUD$12,250.00, but that he had funds of AUD$7,646.00 (CB p.91.9). Those findings of fact are not amenable to review. The Court will refer to authorities for that proposition later in this decision.

13. The Tribunal concluded that the applicant had not provided evidence of required funds. That finding of fact is not amenable to review.

14. There is no evidence that the applicant was denied procedural fairness, the limits of which are set out in Division 5 of Part 5 of the Migration Act 1958 (the “Act”). The applicant appeared before the Tribunal on 26 April 2010 with his representative (CB p.89 [24]).

15. The Court accepts the submissions for the first respondent in its written Contentions of Fact and Law that even though:

    “The Tribunal did not specifically mention that it has regard to two documents the applicant submitted in support of his case (listed at CB p.88) being:

    a letter from Canara Bank to the applicant’s father’s business dated 26 March 2012 (CB p.63) evidencing two deposits maturing in 2013 and 2014 respectively for the account 20592780061; and

    a statement for the same business for the period 1 January 2010 to 24 January 2012 for account 0172020010680.

    neither document establishes that funds were held 6 months prior to 22 June 2010. It cannot be said that the Tribunal failed to take into account relevant information in this regard. Alternatively, even if it were found that this material were relevant, and that the Tribunal did not consider it, no useful result would follow from the grant of the relief sought by the applicant.”

    It cannot be said that the Tribunal failed to take into account relevant information in this regard.

16. As stated by Kirby J in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [88]-[89]:

    “In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.

    When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”

17. Applying that decision to the current case, the documents not referred to do not relate to the relevant period. Therefore, even if the documents were considered, they could not change the conclusion as to funds held during the relevant period. SZBYR (supra) is applicable.

18. The Tribunal found that it was necessary for the applicant to show that six months prior to the date of application on 20 June 2010 (the beginning of the six month period), there is evidence of the required total amount of funds and that the funds were held for the relevant period (CB 91.1). An error of law in those conclusions has not been shown.

19. The Tribunal found that there was no clear evidence before it that the funds available to the applicant remained currently available (CB 91.3).

20. The Tribunal is entitled to accept or reject evidence as it thinks appropriate Lee (supra). An applicant must establish their case.

21. Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.

22. The Court refers to the following decisions:

    ·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:

    “… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”

    ·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.

23. The applicant has stated during submissions to the Court today that he has more information to put before this Court. The Court has told the applicant on a number of occasions that it cannot accept new information which does not go to jurisdictional error by the Tribunal.

24. Findings of fact by the Tribunal are not amendable to review. The Court refers to the following decisions:

    ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ.

    ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

    ·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

    “… there is no error of law… in making a wrong finding of fact…”.

25. In Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 RD Nicholson J stated at [24]:

    “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”

    The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.

    The Court does not make that finding in this case.

26. As stated in Lee (supra) at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

27. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

    And at [29]:

    “While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:

    ·     if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.”

28. The Court refers to the following passages in Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1 at pp.35 to 36:

    The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

    There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”

29. The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.

30. The applicant has not established “Wednesbury unreasonableness” in this case. The Tribunal found for the reasons it gave, that the applicant had not established that he had the required funds.

31. In submissions made to the Court today, the applicant has said that if the financial requirements have not been met, he can comply now. The Court cannot accept new material which was not put before the Tribunal.

32. An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]:

    “An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:

    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) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (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 56 FCR 377 in a migration law framework.”

33. Therefore, the Court cannot accept new material in this case.

34. The applicant then stated that he is prepared to submit anything to support his case. Again, the Court cannot accept new material.

35. The applicant stated that the company where he works is prepared to sponsor him. That is not a relevant matter as to whether the Tribunal made an error of law in reaching its decision. The applicant stated he was prepared to provide new material to the Tribunal after the hearing. The Tribunal considered material presented after the hearing (CB p.89 [29] and CB p.90 [30]). There was no denial of procedural fairness.

36. The letter at CB pp.38 to 39 invited the applicant to supply relevant material. In that letter (on CB p.38), the Tribunal stated that it “considered the material before it but is unable to make a favourable decision on this information alone”. The Tribunal invited the applicant to submit more material. There was no denial of procedural fairness in the Tribunal adopting that course.

37. The applicant says his migration agent never told him about the problems with the financial material and the date for compliance. That does not show an error by the Tribunal. The applicant says that he sent a letter to the Court. After looking through his documents, he handed to the Court a copy of his Application for judicial review filed 3 August 2012 and Affidavit filed 12 November 2012. He said he can now present new material. Again, the Court will not accept new material. The applicant complained that the Tribunal was happy with his material, but then decided against him.

38. Section 359A of the Act requires the Tribunal to put to an applicant particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. Section 359A(4)(b) states that this requirement does not apply, or that this section does not apply to information that the applicant gave for the purpose of the application for a review. For the purpose of s.424A, the word “information” does not encompass the Tribunal’s subjective appraisals.

39. As stated in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206] per Allsop J:

    “Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word “information”: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).”

1. The Court refers to the following passages in SZBYR (supra) at [18]:

   “Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”[1].

   does not encompass the tribunal’s subjective appraisals, thought processes or determinations... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

   [1]    [2004] FCAFC 123; (2004) 206 ALR 471 at 476-477, citing Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196; (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs[2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCAFC 266; (2002) 124 FCR 276 at 282-284.

2. It is clear from those decisions, that “information” does not refer to conclusions arrived at by the Tribunal. It is not open to the applicant to complain that the Tribunal did not put to him conclusions it was reaching on the evidence before it. The Court finds that the same interpretation of “information” in s.424A applies to s.359A.

3. The Court find’s that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 Act, there is no jurisdiction for this Court to interfere.

4. The application for judicial review is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Date:  17 June 2013