DASS v Minister for Immigration

[2014] FCCA 752

FEDERAL CIRCUIT COURT OF AUSTRALIA

DASS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 752

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal failed to afford the applicant procedural fairness – allegation that Tribunal’s decision was affected by fraud – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2, Sch.5A
Migration Amendment Regulations 2001 (No.6), reg.4

SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35
Minister for Immigration v SZLIX [2008] FCAFC 17
SZSJA v Minister for Immigration and Border Protection & Anor [2013] FCAFC 158
SZIVK v Minister for Immigration and Citizenship [2008] FCA 334

Applicant: BHAGWAN DASS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 844 of 2013

Judgment of: Judge Nicholls

Hearing date: 21 February 2014

Date of Last Submission: 21 February 2014

Delivered at: Sydney

Delivered on: 14 April 2014

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The title of the first respondent is amended to read “Minister for Immigration & Border Protection”.

2. The application made on 23 April 2013 and amended on 29 July 2013 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $3,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 844 of 2013

BHAGWAN DASS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 April 2013, and amended on 29 July 2013, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 28 March 2013, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a “Student (Temporary) (Class TU)” visa (“the visa”) to the applicant.

Background

1. The Minister has filed a bundle of relevant documents in these proceedings (“the Court Book” ‑ “CB”). The applicant applied for the visa on 13 July 2010 (CB 1 to CB 6). The delegate noted that the applicant had applied for a “subclass 572 visa” and assessed the applicant against the criteria relevant to that subclass (CB 9). The delegate refused the grant of the visa 13 September 2010 (CB 9 to CB 10).

2. The applicant applied for review of the delegate’s decision to the Tribunal on 5 October 2010 (CB 14 to CB 20). He appointed a registered migration agent as his representative to assist him for that purpose (CB 17).

3. The applicant was invited to a hearing before the Tribunal by letter dated 25 January 2013, which was sent to his representative as the “authorised recipient” (CB 29 to CB 32). The letter also invited the applicant to provide the following:

   1)A certificate of enrolment with an educational provider pursuant to cl.572.222 of the Migration Regulations 1994 (Cth) (“the Regulations”).

   2)Evidence of academic achievement and enrolment in a registered educational course.

   3)“Current” evidence that the applicant satisfied the English language, financial capacity and the “other” requirements set out in Sch.5A to the Regulations for the purposes of cl.572.223(2)(a)(i) of the Regulations.

   4)Evidence of access to funds for the purposes of Sch.5A and cl.572.223(2)(a)(iii) of the Regulations.

4. The applicant attended a hearing before the Tribunal on 19 February 2013 (CB 37 and see [19] at CB 75 to [32] at CB 77). His representative was present and made submissions ([23] and [28] at CB 76). The applicant provided some documents at the hearing. He sought, and was granted, additional time to provide further documents ([30] at CB 76 to [32] at CB 77 and CB 40 to CB 65).

5. The Tribunal affirmed the delegate’s decision on 28 March 2013. In its decision record the Tribunal noted that the issue in the disposition of the review was whether the applicant met the criterion in cl.572.223 at Sch.2 to the Regulations.

6. Relevant to ground one of the amended application (see below at [13]), I note that the Tribunal stated (at [6] at CB 69):

   “…So far as relevant to the present matter, that criterion requires that at the time of the decision, the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause(2) [of cl.572.223]…”

7. The Tribunal found that the applicant did not meet an essential requirement of cl.572.223 of Sch.2 to the Regulations. The Tribunal concluded (at [46] at CB 78):

   “…As explained earlier in these reasons, the subclass of Student visa that can be granted to an applicant is determined by the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course. The relevant subclass in this case is Subclass 572. As the tribunal has found the applicant does not meet cl.572.223, it follows that the applicant cannot be granted a visa of that subclass…”

8. The reasoning that informed this is as follows:

   1)Having regard to the relevant instrument “in force at the time of application” the Tribunal assessed the “assessment level” for the applicant’s subclass of visa (reg.1.41 of the Regulations – Level 4).

   2)The applicant was, amongst other things, required to present evidence that he had funds from an acceptable source sufficient to meet relevant costs and fees associated with his study and stay in Australia (cl.5A405 of Sch.5A to the Regulations at the relevant time as set out by the Tribunal at [12] at CB 72 to CB 74).

   3)The Tribunal calculated the amount of funds, in respect of which the applicant was required to provide evidence of holding, or to which he had access.

   4)While the applicant provided some evidence of funds held on deposit, there was no evidence that it had been “held” “for 6 months immediately before the date of the application” (see “funds from an acceptable source”, reg.5A405(2)(aa) of Sch.5A to the Regulations at the relevant time).

   5)The Tribunal considered the only exception to this requirement and found the applicant did not satisfy it ([41] at CB 78).

9. The Minister’s written submissions, filed in these proceedings, provide further useful detail from the Tribunal’s decision. I adopt [10] – [18] of those submissions for the purposes of the judgment:

   “[10] At the time of the visa application, the applicant was studying a Diploma of Management course.  As evidence of his financial capacity, the applicant provided evidence of an education loan in the name of Sunil Sharma, whom the applicant claimed was his brother. The applicant did not provide evidence of this relationship and the delegate refused the application on this basis. The applicant provided the MRT with evidence as to his relationship to his brother, but at the hearing told the MRT that the education loan relied upon before the delegate was no longer available.  

   [11] The applicant told the MRT that he had not finished the course he had been studying at the time of application because the college had closed down and that he intended to complete the course at a different college.  

   [12] Following the MRT hearing, the applicant provided the MRT with confirmations of enrolment for a Diploma of Management and a related Advanced Diploma of Management for courses which were to start on 11 March 2013 and end on 27 April 2014. Course fees were identified as being $6,600, with $1,100 having already been paid.

   [13] Following the hearing, the applicant provided a statement signed by his brother Sunil Sharma stating that he would provide the applicant with funds of $34,000. The applicant provided a deposit receipt from Axis Bank showing that IDR 1 900 000 (approximately $33,495) was deposited on 11 April 2011  and a letter from Axis Bank referring to this bank account stating that the account was currently active and that there was no loan against the deposit.

   [14] For the purposes of clause 5A405 (1)(a), the MRT found that the applicant's outstanding course fees amounted to $5,500, his living costs for the period of his study between April 2013 and May 2014 were $19,500, and travel costs were $900. The MRT found that the applicant therefore needed to provide evidence of funds of $25,900.

   [15] The MRT accepted that the money deposit held by the applicant's brother at Axis Bank was sufficient to meet the fund level required. However, the MRT found that the funds were not 'funds from an acceptable source' as they had not been held for 6 months immediately before the date of application.   The visa application was filed on 13 July 2010 and the funds therefore needed to have been held since January 2010.  The deposit at Axis Bank was made on 11 April 2011, being after the date of the visa application.

   [16] The MRT found that the applicant had not otherwise submitted any evidence of funds from an acceptable source, noting that the applicant had given evidence that the loan relied upon before the delegate was no longer available and that the applicant's own bank account did not show that the funds were held 6 months before the visa application was lodged.

   [17] The MRT concluded that the applicant did not satisfy the requirements of clause 572.223(2)(a)(i), and that the visa must therefore be refused.

   Legislative framework

   [18] The decision of the MRT in the present case is a privative clause decision as defined by section 474(2) of the Act. Section 474 operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.”

Before the Court

1. The applicant appeared at the first Court date in this matter in person. He was assisted by an interpreter in the Hindi language. In essence, the sole ground of the application took issue with the merits of the Tribunal’s decision. The applicant explained that this had been drafted with the assistance of a migration agent in “Harris Park”.

2. Notwithstanding the nature of the ground, the matter was set down for final hearing. The applicant was given the opportunity, in orders made at the first Court date, to file an amended application. An amended application was filed by the applicant on 29 July 2013. It is in the following terms:

   “1. The Tribunal committed jurisdictional error when it applied the criteria relevant at the time of the application (Clause 5A405) (CB 78, para 40-42) in assessing the Financial capacity of the Applicant and/or erred in not properly putting this issue to the Applicant thereby denying procedural fairness (whilst it did find that the Applicant had the requisite level of funds under clause 572.223).

   Particulars

   The Applicant contends that the Tribunal misconstrued the Clause 5A405 in applying the clause as it stood at the time of application instead of construing and applying clause 5A405 as it stood at the time of the decision. The Cl 5A405 did not require the Applicant to satisfy time of application criteria (and there is no requirement to demonstrate that the fund held for 6 months under Regulations current at the time of the decision and thus the Tribunal committed jurisdictional error).

   2. The Migration agent failed to advice the Applicant about the hearing and thereby preventing the Applicant from attending the hearing and presenting the Applicant’s case constituting fraud on the Tribunal within the meaning of SZFDE case.”

   [Emphasis in the Original.]

3. At the hearing the applicant again appeared in person. He was assisted by an interpreter in the Hindi language. Ms M. Stone appeared for the first respondent.

4. The applicant expressed a number of complaints before the Court regarding what had occurred before the Tribunal. They can be summarised as follows:

   1)His migration agent gave him “bad advice”. This was explained as being that the migration agent did not properly advise the applicant about the documents “necessary” to submit to the Tribunal.

   2)The Tribunal asked him to provide evidence of funds, and he complied with this.

   3)His agent obtained the “wrong” Certificate of Enrolment (“COE”) and that is why the Tribunal, or possibly he, became confused.

   4)The Tribunal proceeded on the basis that he was required to provide evidence of relevant funds being held for six months prior to the application being made, yet the Regulations had been amended to provide for three months as the relevant period.

5. Item 1 at [15] above is dealt with below in the consideration of ground two.

6. Item 2 at [15] above does not reveal jurisdictional error. It is the case that the Tribunal did advise the applicant of the need to provide certain documentary evidence. It is also the case that the applicant did provide some documents.

7. As is set out above, however, the applicant’s relevant circumstances changed over the time of the processing of his application for the visa and during the conduct of the review (see in particular [38] at CB 77).

8. To the extent that the applicant’s complaint about documents related to the provision of the “wrong” COE, as was made separately at item 3 at [15] above, then the Tribunal’s decision ultimately did not turn on the provision of any COE.

9. This complaint is best explained with reference to the Tribunal’s account of the hearing with the applicant, which must also be understood in light of the change in the applicant’s circumstances over time. At [22] (at CB 75 to CB 76), the Tribunal said:

   “The applicant was now proposing to complete his Diploma of Management at the Australis Institute of Technology in Parramatta and then also complete his Advanced Diploma of Management. He had been incorrectly enrolled in a Certificate IV in Financial Studies by his education agent. The tribunal noted that the applicant had been enrolled in the Diploma and Advanced Diploma of Business but his agent had told him that these were the same or similar courses to that which he desired, being a Diploma and Advanced Diploma of Management.”

10. The applicant requested, and was given, additional time to provide further relevant information. He provided certain COE’s, which were consistent with what he had told the Tribunal at the hearing as to the educational course that he wanted to study (CB 64 to CB 65). The Tribunal had regard to these documents. It made findings that the applicant was enrolled in the “correct” courses. Its subsequent analysis proceeded on that basis (see in particular [33] at CB 77).

11. The basis for the Tribunal’s affirmation of the delegate’s decision was that there was no evidence before it that the required level of funds, available to him for his support and study while in Australia, was held for a period of six months in a relevant financial institution prior to the date of the application for the visa as was required by the relevant regulations at the time of application (see 572.223(2)(a)(i) of Sch.5A to the Regulations at that time). This matter was also the subject of the fourth item (at [15] above) raised by the applicant orally before the Court and is dealt with below.

12. No “confusion”, ultimately, and relevant to its decision, on the part of the Tribunal in regard to the documentary evidence is apparent on what is before the Court. If the applicant meant to say that he was confused, then in the circumstances any such confusion could not be said to arise due to any conduct on the part of the Tribunal. No jurisdictional error is revealed in this regard.

Consideration of Ground One

1. The exact nature of the complaint in ground one is not clear. Two alternative complaints could possibly be said to arise.

2. First, as the Minister submitted, a complaint that the Tribunal applied the “incorrect” version of cl.5A405 of the Regulations. The Minister agrees that the version of cl.5A405 of the Regulations at the time of visa application (13 July 2010) was different to the version in force at the time of the Tribunal’s decision (28 March 2013). The applicant’s ground could be understood as being that the Tribunal should have applied the later version of cl.5A405 of the Regulations when it made its decision.

3. I agree with the Minister’s submissions that the amendments made to, amongst other matters, cl.5A405 of the Regulations, did not apply to the applicant’s circumstances or case. The relevant amendments were made by Migration Amendment Regulations 2011 (No.6) (“the Amendment Regulations”). In particular, the amendments provided ([26] of the Minister’s written submissions):

   “[26.1] Subclause 5A405(1) was amended by the Migration Amendment Regulations 2011 (No 6), regulation 4 and schedule 2 items 35 and 36.

   [26.2] The definition of 'funds from an acceptable source' was amended by the Migration Amendment Regulations 2011 (No 6), regulation 4 and schedule 2 item 37.”

4. Pursuant to reg.4 of the Amendment Regulations, the amendments only applied to applications for visas made on or after 5 November 2011 (reg.4(2) of the Amendment Regulations). The later version of cl.5A405 of the Regulations, therefore, did not apply to the applicant’s application for the visa which plainly had been made earlier than that date. Therefore, contrary to the assertion in the complaint, the Tribunal applied the version of cl.5A405 of the Regulations applicable to the applicant’s circumstances. No error is revealed.

5. In any event, as the Minister correctly submits, even if the later version of cl.5A405 of the Regulations had been applied it would not have assisted the applicant. The relevant change to the clause was to require that the funds be held by an “acceptable person” for, at least, three months immediately before the date of the application, as opposed to the earlier version which provided for a period of six months.

6. The funds in question, relied upon by the applicant before the Tribunal, were held in a money deposit created after the date of his application for the visa and, therefore, would not have met the three month requirement (see CB 60 to CB 63, [32] at CB 77 and [39] – [40] at CB 78).

7. The second possible view of the complaint in ground one, which I have considered essentially in an abundance of caution, was to take the complaint as being one derived from the difference between “time of application” and “time of decision” criteria set out at cl.572 of the Regulations.

8. This complaint would, however, misunderstand the nature of the Tribunal’s relevant findings concerning the assessment of the applicant’s “financial capacity”. The ground possibly asserts that the Tribunal erred in applying cl.5A405 of the Regulations as it stood at the time of the application, rather than as it stood at the time of the decision (with respect to cl.572.223 of the Regulations). The ground directs attention to [40] – [42] at CB 78 of the Tribunal’s decision record.

9. The complaint (if it is to be understood in this way) would appear to confuse the need to apply the relevant requirement as at the date of the decision, with any separate requirement to be considered, albeit at that time, as to whether the applicant had presented evidence, at the earlier time, that the required funds were held for a period of six months prior to the date of the application.

10. As the Tribunal set out, relevant to the matter before it was whether the applicant met the criterion in cl.572.223 of the Regulations. The Tribunal directed attention to that criterion and its requirement as “at the time of the decision” (see [6] at CB 69).

11. In this case, the requirement for evidence of funds held in the period of six months prior to the making of the application for the visa was a time of decision requirement. At the time of the decision, cl.572.223 of the Regulations (dealing with criteria to be met as at the time of the decision) required the applicant to give evidence in accordance with the requirement in Sch.5A of the Regulations (for the relevant assessment level).

1. The relevant Sch.5A requirements included, in the applicant’s case, that he give evidence that funds were “held” in a money deposit for at least six months prior to the application (cl.5A405(2)(aa) of the Regulations at that time). There is no legal error in the Tribunal’s approach.

2. Ground one also asserts a denial of procedural fairness. On the evidence before the Court the issue of the evidence of funds was raised at the hearing before the Tribunal. The applicant has provided no evidence to challenge the Tribunal’s account of the hearing (see [27] at CB 76):

   “The requirements within Schedule 5A for financial capacity were discussed with the applicant. That the relevant costs and fees involved would be determined by the course the applicant was enrolled in and the length of likely stay in Australia was discussed. The requirement that where a money deposit was relied upon evidence that being held by an acceptable individual for the period of 12 January 2010 to 12 July 2010 was also identified.”

3. There was a possible inference in the applicant’s claim that he should have been given more time by the Tribunal to provide further documentary evidence. However, as referred to above, the Tribunal agreed to this request. The applicant submitted his additional documents. The Tribunal considered these documents. No failure of procedural fairness is evident in these circumstances.

Ground Two

1. Before the Court, the applicant did not address ground two of the amended application in the terms set out there. Contrary to the assertion in the applicant’s ground that he was denied the opportunity of a hearing before the Tribunal by the conduct of his migration agent, he, and his adviser, actually attended a hearing before the Tribunal (see CB 37, CB 40, CB 46, and see the Tribunal’s account of the hearing before the Tribunal). The applicant has provided no evidence to contradict this evidence. In these circumstances the factual premise in his ground as stated cannot be made out.

2. Before the Court, the applicant’s complaint about the migration agent was different. He said that he had been given “bad advice” and the migration agent had submitted the “wrong COE”.

3. As set out above, this matter was discussed at the Tribunal hearing. The applicant told the Tribunal he had been “incorrectly” enrolled in a particular course by his “education agent” ([22] at CB 75 to CB 76). The applicant was subsequently enrolled in the “correct” courses, he gave evidence of this to the Tribunal, and the Tribunal proceeded to consider the review on that basis.

4. It should be noted that while ground two refers to certain conduct on the part of the “migration agent”, the account of the hearing reveals that the applicant’s representative before the Tribunal, and who attended the hearing with the applicant, was different to the “education agent” who had given him the “bad advice” ([22] at CB 75 to [23] at CB 76). That also appeared to be the applicant’s position before the Court. That “bad advice” appeared to be that the courses in which he had initially been enrolled were not the same as the courses in which he wanted to enrol.

5. It is the case that “fraud” by a third party can “stultify” the process of review before the Tribunal (SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35 at [49] (“SZFDE”) and see Minister for Immigration v SZLIX [2008] FCAFC 17 and SZSJA v Minister for Immigration and Border Protection & Anor [2013] FCAFC 158 at [65]).

6. However, the present circumstances do not rise to such a case. As set out above, the matter of the “wrong courses” was raised at the hearing with the Tribunal (see [22] at CB 75 to [23] at CB 76). The applicant’s complaint of “bad advice” from his “education agent” included that the two sets of courses were “the same or similar” ([22] at CB 76). The applicant did not point to any evidence to support his claim that the agent was “wrong” in saying that the courses were similar.

7. In any event even if the two sets of courses were not the same or similar, and therefore the agent was “wrong”, in so stating, this still leaves the applicant’s complaint far short of showing the type of conduct referred to and explained in the relevant authorities. This is so even taking into account that fraudulent conduct is “infinite in variety” (SZFDE at [8] and SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 at [33] per Finkelstein J). The evidence before the Court, and the applicant’s oral complaints to the Court at their highest, are that the agent was mistaken in, or in error as to, his view of the two sets of diplomas.

8. Second, and in any event, it cannot be said that the process before the Tribunal was affected by any such error given that the matter was addressed at the Tribunal hearing and the applicant was given the opportunity to provide the documents that he wanted. In this sense, the conduct or process of the review cannot be said to have been “stultified” (SZFDE at [49]) by the action of the “education agent”.

9. I note further, and in any event, that the issue dispositive of the review turned on the applicant’s evidence of financial capacity, and not the courses (whether “correct” or not) in which he was enrolled, or in which he had been previously been enrolled. No jurisdictional error is revealed by ground two.

Conclusion

1. In the circumstances it is appropriate that the application made on 23 April 2013, and amended on 29 July 2013, be dismissed. I will make an order accordingly.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  14 April 2014