Gill v Minister for Immigration

[2014] FCCA 2148

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2148

Catchwords:
MIGRATION – Application of judicial review of MRT decision – whether student applicant met financial requirements – alleged negligence of migration agent – fraud on Tribunal not alleged – applicant now possibly meeting financial capacity requirements – no jurisdictional error in Tribunal’s decision – application dismissed.

Legislation:  
Migration Act 1958 (Cth)

Applicant: AMRIT KAUR GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2347 of 2013

Judgment of: Judge Burchardt

Hearing date: 23 July 2014

Date of Last Submission: 23 July 2014

Delivered at: Melbourne

Delivered on: 19 September 2014

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed 24 December 2013 be dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2347 of 2013

AMRIT KAUR GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By a decision dated 9 December 2013, the Migration Review Tribunal (“the Tribunal”) affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.  The matter before the Court is the applicant’s application for judicial review of that decision.

2. The grounds set out in the application filed 24 December 2013 are:

   “1.    MRT Refuesl [sic] for All document provided to MRT would like to complete my studies which is finished.  In April 2014.”

3. The affidavit in support appends the decision of the Tribunal and further repeats word for word the matters set out in the application.

4. Given the applicant’s obvious language and other difficulties, it is no surprise that the applicant has not taken advantage of the opportunity provided to her by the orders of Registrar Caporale made 19 March 2014 to file any amended application or written submissions.

5. Scarcely surprisingly, given the lack of particularity in the grounds of application, the first respondent’s outline of submissions filed 15 July 2014 is somewhat general in its terms.

6. I note from those written submissions that the applicant is a citizen of India who arrived in Australia on 28 February 2008 on a student visa.  Between July 2010 and January 2012 the applicant was neither studying, nor enrolled in a registered course.

7. The applicant was not represented during the earlier stages of the matters that have given rise to this hearing.  I note from the decision of the delegate that she failed to provide a response to the delegate about a number of matters, including her enrolment in course, satisfaction of the financial and English requirements and overseas student health cover.  The delegate found comprehensively against her. 

8. By the time of her application to the Tribunal, the applicant had obtained the assistance of an agent, Aussie Migration and Visa Consultants.  That organisation forward to the Tribunal a substantial tranche of materials (CB143-219).  Relevantly, documents relating to the applicant’s capacity to meet the financial requirements was enclosed.

9. The agent also forwarded material relating to the applicant’s enrolments (CB231-235) and what purported to be “Original Latest Finance Documents” and “Original Finance Documents submitted earlier to MRT” (CB251-293).

10. The Tribunal’s decision is short and is set out relevantly at CB294-298.  The Tribunal focused upon the financial capacity requirements.  The Tribunal calculated the amount of funds to be demonstrated by the applicant to be a total of around $10,000 based on the information contained in the certificate of enrolment provided by the applicant (paragraph 13, CB296).

11. It is appropriate to set out what the Tribunal had to say thereafter in full, at paragraphs 14-20:

    “14.  The applicant gave evidence in relation to the requirements set out in Schedule 5A around April 2013.  At the hearing held on 31 October 2013, the Tribunal indicated that financial statements from April 2013 cannot be accepted as current evidence of funds.  The Tribunal granted an extension of time requested by the applicant’s representative of around one month to receive further documents.  The Tribunal reminded the applicant and her representative that if the evidence of funds to be provided is of ‘money deposit’, it will be necessary to show that the funds were held for at least 3 months immediately before the date of the visa application and evidence of the regular income of the person or persons providing the funds as there was no claim or evidence that the applicant has successfully completed at least 75% of her principal course and she indicated that she proposes to undertake a further course in a Bachelor degree.  The applicant’s migration agent replied that he understood this requirement. 

    15.  The Tribunal subsequently received additional financial documents and other material.  

    16.  Of all the financial documents, some in the name of the applicant and others in the name of the applicant’s mother, only one account with the Oriental Bank of Commerce held in the applicant’s mother’s name bearing the account number 07392191013369 shows a ‘savings history’ of three months before the date of the visa application and a balance at July 2013, nearest date available to current date.  However, during the ‘at least three month period immediately before the date of the application’, the amounts shown as balance include a balance of INR 10,683 or equivalent to $195.  The closing balance at July 2013 is INR 310,000 or equivalent to $5,600.  The other evidence of funds in accounts held by the applicant or her mother do not show that the funds were held for the three months immediately before the date of the visa application.  The applicant also provided documents of sale of property – where the applicant sold a house to her mother and another individual sold a house to the applicant’s mother, valuation reports of those two houses; and documents relating to life insurance maintained by the applicant’s mother. None of these documents relating to sale and purchase of property, or life insurance are evidence of funds from an acceptable source in accordance with Schedule 5A.  The applicant also provided evidence of her mother’s regular income.  These included tax return documents showing income for two separate years at INR 130,000 and 160,000.  A lease agreement was also provided identifying the applicant’s mother as ‘landlord’, but the document does not show the rental paid.

    17.  In respect of the evidence of funds provided, the low balance of INR 10,683 or around $195 is the amount which can be taken as evidence in accordance with Schedule 5A.  This is insufficient pay the expenses set out in Schedule 5A and calculated on the basis of the enrolment provided.  In these circumstances it is not necessary to make a finding on whether the regular income was sufficient to accumulate the funds being provided. 

    18.  On the basis of the above, the applicant has not given evidence in accordance with the Schedule 5A requirements for Subclass 572 and assessment level 4, and therefore does not satisfy cl.572.223(2)(a). Not meeting this crucial criterion means the application cannot succeed.

    19.  While the requirements of ‘genuine applicant as a student’ for the purposes of cl.572.223(2)(b) and ‘substantial compliance’ in relation to not maintaining enrolment for a period of about 18 months for the purposes of cl.572.235 were discussed during the hearing as they were issues arising in the review, having found that the applicant does not meet cl.572.223(2)(a), it is not necessary to consider other criteria. 

    20.  For these reasons, the Tribunal finds the criteria for the ground of a Subclass 572 visa are not met.  As explained earlier in these reasons, the subclass of student visa that may be granted is determined by the applicant’s principal course.  As there is no evidence that the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.”

12. When the matter came before the Court the applicant sought to file a folder of materials.  Although self-evidently these matters were not before the Tribunal and therefore not strictly admissible, I felt it appropriate to grant the applicant leave to do so.  This is because, in part, the documentation concerned constitutes written submissions, and, in part, because it seemed to me to be fair to allow the applicant to say what she wanted to say. 

13. The gravamen of the written submissions relevantly for these purposes consists of an assertion that the applicant’s agent had misunderstood the nature of the financial requirements and caused inappropriate documentation to be filed.  The applicant asserted, relevantly:

    “My case is destroy because of wrong Guideness [sic] which agent I met for student visa he put wrong information like wrong email and in MRT my representative don’t know how old funds I have to show otherwise if I know I can show bank loan before which I provide you now…

    In next step in MRT hearing I provide everything and the entire document which is required for student visa.  And Mr Haddad was satisfied with everything he just asked for finicl [sic] document, again, which was I provided them as soon as possible, the mistake is happened from my representative he didn’t know my fund should be three month old when I lodged my application if he don’t that’s way I even don’t know anything.  Because of my representative mistake my MRT will be refused.”

    The applicant also referred to documents lodged within the folder, which were designed to show that she does indeed meet the financial capacity requirements in the regulations. 

14. In oral submissions, the applicant referred to the error made by the agent and said (as she did in the written submission) that she wishes to continue her study.

15. Counsel for the first respondent submitted that the key issue before the Tribunal was the financial capacity issue, and that it was clear on the face of the materials that the applicant’s material was insufficient.

16. Counsel submitted that what the applicant was asserting was negligence on the agent’s part, but not fraud.  It was submitted that the applicant needed to show financial capacity and tried to do so, but simply failed.  Counsel submitted that the applicant might indeed now satisfy the financial capacity tests, but submitted strongly that the negligence by the agent (if such it was) did not vitiate the Tribunal’s decision. 

17. Regrettably for the applicant, even if what she says about her agent’s conduct is true, that conduct did not amount to fraud upon the Tribunal.

18. The Tribunal was well-seized of the task it was required to conduct, and while the applicant, not surprisingly, has taken issue with the particular findings made by the Tribunal, it seems to me that the Tribunal’s observations about the nature of the applicant’s visa and what she was required to do to satisfy the financial capacity requirements were correct.

19. In circumstances where counsel for the Minister concedes the applicant may well now meet the financial capacity requirements, an outcome that effectively deprives the applicant of a successful conclusion to which she might otherwise have been entitled is not in any way an attractive one.  Nonetheless, the matter before this Court is whether the Tribunal fell into jurisdictional error in discharging its functions.  In my view, it is clear that it did not. 

20. It therefore follows that this application must be dismissed with costs. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  19 September 2014