Husnain v Minister for Immigration

[2016] FCCA 401

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSNAIN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 401

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulation 1994 (Cth), cl.572.223 of Schedule 2, cl.5A405 of Schedule 5A

Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619; [2014] FCA 915
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Citizenship v SZLIX & Anor (2008) 245 ALR 501; [2008] FCAFC 17
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35

Applicant: RANA AFAQ HUSNAIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 428 of 2014

Judgment of: Judge Barnes

Hearing date: 21 July 2015

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 428 of 2014

RANA AFAQ HUSNAIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 4 February 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. The Applicant, a citizen of Pakistan, applied for a student visa on 8 March 2013.  The delegate wrote to the Applicant seeking evidence of his financial capacity.  

3. The Applicant provided the delegate with some documents and subsequently advised that his proposed financial supporter was his cousin. 

4. The delegate found that the proposal that the Applicant’s cousin be his financial supporter did not meet the requirement that funds for his support be from an “acceptable individual” and refused the visa on the basis that the Applicant had been unable to provide evidence that he would have access to funds in accordance with the Schedule 5A requirements as required by the criterion in cl.572.223(2) in Schedule 2 to the Migration Regulations.

5. The Applicant sought review by application lodged with the Tribunal on 1 May 2013.  In his review application he nominated a named migration agent as his representative. 

6. On 17 September 2013 the Tribunal wrote to the Applicant, care of his nominated representative, inviting him to attend a Tribunal hearing on 28 October 2013 and to provide all documents on which he intended to rely to establish that he met the criteria for the visa (including documents demonstrating he had sufficient funds or access to funds to pay course fees, living costs, school costs and travel costs over the relevant period and, relevantly, evidence of funds from an acceptable source and of the regular income of any person providing funds to him and that person’s relationship to him).

7. The letter also advised that if the Applicant was not able to attend the hearing he should advise the Tribunal as soon as possible and that the Tribunal would only change the date if satisfied he had a very good reason for being granted an adjournment.  He was also advised that if the Tribunal did not advise him that an adjournment had been granted he must assume that the hearing would go ahead and that if he did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

8. The Tribunal received a completed Response to Hearing Invitation Form on 2 October 2013 indicating that the Applicant would attend the hearing, but that his representative would not do so.  There is no evidence that any of the requested documentation referred to in the letter of 17 September 2013 was provided to the Tribunal prior to the hearing.

9. On the day of the hearing (28 October 2013) the Applicant appointed a new representative.  The Courtbook contains a completed appointment of representative/authorised recipient form.  The Courtbook also contains a Tribunal case note recording that the newly appointed representative attended the counter to request a postponement of the hearing “so that they would have time to prepare”, that the member decided to refuse the request and that the representative was advised that “any extensions of time” should be discussed with the member at the hearing.

10. The Applicant and his new representative attended the Tribunal hearing on 28 October 2013.  The only evidence of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.  The Tribunal recorded that the Applicant provided a number of documents in relation to his past studies and enrolment. 

11. The Tribunal recorded that the Applicant stated that his father was supporting him and when asked at the hearing what type of documents he would be relying on to meet the financial requirements he stated that he would provide his father’s bank account statement to show his father had funds which could be transferred to him in Australia.  The Tribunal stated that it had explained that if he was relying on a money deposit the funds had to have been held in the account for six months before the date of visa application and discussed with the Applicant the level of funding he was required to show. 

12. The Tribunal also recorded that it explained that it had to be satisfied that the regular income of the Applicant’s father was sufficient to accumulate the level of funding being provided and asked the Applicant to provide evidence of his father’s regular income.  The Applicant was recorded as requesting further time to provide bank statements.  It is apparent that he was given the opportunity to provide further evidence after the hearing.  

13. On 29 October 2013 (the day after the hearing) the Applicant advised that he no longer wanted the representative he had appointed on 28 October 2013 to represent him. 

14. On 5 November 2013 the Tribunal received a facsimile letter from Mr Khan, a solicitor with Juris Australia Lawyers who was the Applicant’s original migration agent.  The letter addressed the financial capacity requirements and enclosed an “account statement of the applicant’s father”, a letter from the father’s bank, evidence of sale of a property of ownership of agricultural land and of a payment of agricultural tax (and English translations).  The Applicant’s solicitor claimed the funds “are available in applicant’s father account (sic)” and would be provided when required by the Applicant, that his father had recently received Rs 33,00,000.00 being the proceeds of sale of property and that (errors in original):

    The applicant’s father also own agriculture land which provide regular incomes periodically from leased land and income is appeared in bank account.  The agriculture tax payment receipts are further evident of ownership and regular income of the owner. 

15. It was submitted that the Applicant had access to sufficient funds to continue his studies.

16. According to a Tribunal Case Note, on 4 February 2014 a Tribunal officer telephoned Mr Khan and informed him that he was not currently listed as the Applicant’s representative and that the Applicant did not currently have a representative or authorised recipient listed, given that he had appointed another representative for a brief period and had then withdrawn the authorisation for that person to act.  The Tribunal officer advised Mr Khan that the Tribunal would send further correspondence direct to the Applicant.  The Tribunal officer also recorded that he unsuccessfully attempted to call the Applicant on several different telephone numbers. 

The Tribunal Decision

1. In its reasons for decision the Tribunal described the information and submission received from the  Applicant’s original representative and observed that the bank account statement in the name of the  Applicant’s father dated 30 October 2013 showed a current balance and transactions for the period from 7 September 2012 to 7 May 2013.

2. It stated that the issue on review was whether the Applicant was a “genuine applicant for entry and stay as a student” having regard to prescribed matters (see cl.572.223 in Schedule 2 to the Regulations and Schedule 5A to the Regulations).

3. The Tribunal found that the Applicant satisfied the English language proficiency and educational requirements in Schedule 5A.  It then considered his evidence of financial capacity. 

4. The Tribunal indicated that it had calculated course fees, living and travel costs for the Applicant for 24 months to be $19,825 (equivalent to PKR 1,830,505).  It acknowledged that the Applicant had provided evidence of a money deposit.  It was satisfied the deposit holder was the Applicant’s father and that he was an acceptable individual within the Regulations.  It was also satisfied that the account had contained at least PKR 3,500,000 since 7 September 2012, which was more than three months before the date of the application.  On this basis the Tribunal was satisfied that the Applicant had given evidence that he had funds from an acceptable source that were sufficient to meet his course fees, living costs and travel costs and that he met the requirements in clauses 5A405(1)(a) and (b).

5. However, the Tribunal pointed out that under cl.5A405(1)(c) the Applicant was also required to provide:

   …evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual. 

6. The Tribunal found that in this case the Applicant’s father was providing funds.  It referred to the submission that the father had received the proceeds of sale of a property in the amount of PKR 3,300,000.  The Tribunal found that the sale of land occurred in August 2013, but it considered that such sale was a one-off transaction which could not be relied on as evidence of the “regular income” of the Applicant’s father.

7. The Tribunal addressed the representative’s submission that the Applicant’s father owned agricultural land which provided regular income periodically from leased land that appeared in the bank account and that the payment of agricultural tax was also evidence of ownership of land and regular income.

8. The Tribunal considered the information in the father’s bank account statement.  It recorded that the statement showed that the balance brought forward was PKR 200,000 as at 7 September 2012 and that there were deposits of PKR 3,300,000 on 7 September 2012, PKR 1,000,000 on 10 December 2012, PKR 800,000 on 6 February 2013 and PKR 200,000 on 7 May 2013. 

9. The Tribunal had regard to the fact that the account statement dated 30 October 2013 indicated that no deposits had been made in the 5 month period between May 2013 and 30 October 2013.  It found:

   Given the limited number of deposits made during the 11 month period covered by the account statement, namely from September 2012 to October 2013, the inconsistency of the amounts deposited into the account and the variation between the opening balance and closing balance, namely from 200 000 to 55 000 000, in the space of several months, the Tribunal is unable to be satisfied that the funds were accumulated through the regular income of the applicant’s father.

10. The Tribunal accepted that the documents in relation to agricultural tax showed that the Applicant’s father owned agricultural land and paid tax on it, but found that these documents did not show what his income actually was and found that while it had been submitted that the father’s income was from leased land, there was no evidence of a lease agreement or information about a lease arrangement. 

11. The Tribunal was not satisfied that the Applicant had given evidence that the “regular income” of his father was sufficient to accumulate the level of funding being provided and found that he did not meet cl.5A405(1)(c).  On this basis it found that the Applicant had not given evidence in accordance with the Schedule 5A requirements for subclass 572 and Assessment Level 4 and hence that he did not satisfy cl.572.223(2)(a) in Schedule 2 to the Migration Regulations.

12. As the Tribunal found that the criteria for the grant of a Subclass 572 were not met and there was no evidence that the Applicant was eligible to be granted a student visa of another subclass, it concluded that the decision under review must be affirmed.

13. The Applicant sought review by application filed in this Court on 25 February 2014.  He did not file a transcript of the Tribunal hearing or written submissions.  He made oral submissions.  The First Respondent provided written and oral submissions.

14. There are two grounds in the application for review. 

Ground One

1. The first ground is that the Tribunal erred “by incorrectly concluding that the applicant is not a genuine student”. 

2. The particulars to this ground state that the Tribunal’s conclusion that the Applicant was not a genuine student was “inappropriate”.  The Tribunal was said to have ignored the evidence that the Applicant had completed all his qualifications since arrival in Australia.  It was contended that “at the very least there was no complaint lodged or pending by his education provider in respect of his attendance or associated misconduct in respect of his study”.

3. The Applicant did not elaborate on this ground in submissions. 

4. As the First Respondent submitted, this ground mischaracterises the criterion in issue and also the basis for the Tribunal’s decision. 

5. The criterion in issue was cl.572.223 which, as it stood at the relevant time, provided:

   572.223

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)     the applicant’s circumstances;  and

   (ii)     the applicant’s immigration history;  and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant;  and

   (iv)any other relevant matter;  and

   (b)The applicant meets the requirements of subclause (2).

   (2)     An application meets the requirements of this subclause if:

   (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant;  and

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted;  and

   (ii)any other relevant matter;  and

   (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.  

6. In other words, under paragraph 572.223(1)(b) the criterion in cl.572.223(1) that the Minister be satisfied the applicant is a genuine applicant for entry and stay as a student requires the Minister to have regard to whether the applicant meets the requirements of subclause (2) (as well as the circumstances in cl.572.223(1)(a)).  In turn, cl.572.223(2) requires the applicant to give the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant (cl.572.223(2)(a)). In addition the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to the matters stated in cl.572.223(2)(b) and that the applicant will have access to the funds demonstrated or declared (cl.572.223(2)(c)).  These requirements are cumulative. 

7. In this case the Tribunal decision turned on whether or not the Applicant met the requirements of subclause 572.223(2)(a) which related to the evidence he was required to provide under the applicable part of Schedule 5A of Schedule 5 to the Migration Regulations.  Whether or not the Applicant’s history of study suggested that he was a “genuine student” was not determinative.  The Tribunal did not base its conclusion that the Applicant was not a genuine applicant for entry and stay as a student within cl.572.223(1) on matters relating to his past study history.  Nor was its decision based on cl.572.223(2)(b).  Rather, it found that the Applicant did not satisfy the criterion in cl.572.223(2)(a) in that he had not given evidence (in relation to financial requirements) in accordance with the applicable Schedule 5A requirements.  As this meant that he did not meet all of the applicable criteria for the only relevant subclass of visa it was not necessary for the Tribunal to also consider whether he met the requirements of cl.572.223(2)(b) or to address his past study history. 

8. Ground 1 is not made out. 

Ground Two

1. Ground 2 is that the Tribunal erred by taking into account “irrelevant consideration (sic) and ignoring the evidence”. 

2. The particulars to this ground are (errors in original):

   2.2 On paragraph 27 and 28 of the subject decision the Tribunal failed to consider the income and assets of the applicant’s father submitted in the DIBP and presented in the Tribunal.

   The Tribunal comments in respect of applicant’s father’s assets and income appeared in the financial documents are inappropriate and unfounded.

3. The Applicant submitted that this was the “main ground”.

4. First, insofar as the particulars to this ground refer to documents submitted to the Department, those documents related to the financial circumstances of the Applicant’s cousin, not his father.  The documents in relation to the Applicant’s father were provided to the Tribunal on 5 November 2013. 

5. On its face, the assertion that the Tribunal failed to consider the income and assets of the Applicant’s father is misconceived.  The Tribunal summarised and addressed the evidence provided about the Applicant’s father’s finances in its reasons for decision.  In particular, it considered the information in the account statement, but was unable to be satisfied that the funds were accumulated through the “regular income” of the father (given the number of and gap in deposits, the inconsistency in the amounts deposited and the variation in the balance).  The Tribunal’s findings about the father’s income were open to it on the material before it for the reasons that it gave.  In that respect it is notable that one of the requirements of cl.5A405(1) is evidence that the “regular income” of any individual providing funds to the Applicant was sufficient to accumulate the level of funding being provided by that individual.

6. In oral submissions the Applicant explained that his concern was that the Tribunal had not understood the nature of his father’s income.  He claimed that his father was a farmer and hence did not receive a consistent regular salary.  Rather, he was said to receive a variable income every three months when the crop was sold which would appear in the bank account after every three months.  The Applicant also explained that his father’s income was not a salary and would vary depending on the crop and the price received.  He appeared to assert that this had not been understood by the Tribunal.  However there is no evidence that this explanation about the nature of the income of the Applicant’s father was given to the Tribunal.  I also note that the Tribunal observed that there had been no deposits into the father’s account in the 5 month period to 30 October 2013.  The explanation the Applicant now provides does not establish jurisdictional error on the part of the Tribunal. 

1. In addition, the Applicant contended that the assertion in Mr Khan’s letter of 5 November 2013 that his father owned agricultural land which provided regular income periodically from leased land was incorrect, as his father owned land but it was not leased out.  He speculated that perhaps his adviser had made an assumption or perhaps it was a typing error, but claimed that he had not made such a claim himself.  He took issue with the fact that the Tribunal had referred to the absence of any evidence of a lease agreement in circumstances where there was no lease and he had not said that the land was leased to anyone. 

2. First, insofar as the Applicant appeared to take issue with what he contended was an incorrect statement by his former adviser, he acknowledged that this person was helping him at the relevant time in communicating with and providing documents to the Tribunal (albeit he was no longer formally his authorised representative or migration agent).  There is no suggestion that the adviser who sent the submission of 5 November 2013 acted without authority from the Applicant.  Nor is there any evidence to suggest that the Applicant disavowed the submission apparently made on his behalf by this adviser while the matter was before the Tribunal.  Indeed the Applicant relied on the documents annexed to that submission.  There is nothing on the material before the Court to support any contention that the asserted mistake was such as to amount to a fraud on the Tribunal in the sense considered in SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35. It is well-established that mere negligence or inadvertence on the part of a migration agent will not of itself be sufficient to give rise to such fraud (see Minister for Immigration and Citizenship v SZLIX & Anor (2008) 245 ALR 501; [2008] FCAFC 17 at [33]).

3. The Tribunal accurately recorded and considered the submission made in relation to the claim that the Applicant’s father owned agricultural land which provided regular income periodically from leased land.  In the absence of evidence of a lease or further information, this aspect of the evidence did not go to show the “regular income” of the Applicant’s father.  No jurisdictional error is apparent in that respect.  In addition, the Tribunal considered the account statement tendered in support of the financial capacity requirements as set out above, but was unable to be satisfied that the funds therein were accumulated through the regular income of the Applicant’s father.

4. Insofar as the Applicant’s complaint is that the Tribunal erred in having regard to whether his father had a “regular income”, it was required to do so in accordance with cl.5A405(1)(c) of Schedule 5 to the Migration Regulations.  The Tribunal recorded that it raised the need for evidence of his father’s regular income with the Applicant during the hearing. 

5. It was asserted in the particulars to ground 2 that the Tribunal’s comments in respect of the Applicant’s father’s assets and income were “inappropriate and unfounded”.  This may be intended to be a reference to the Applicant’s present claim that the father did not receive an income from leased property.  However there is nothing to suggest that the Tribunal’s findings concerning the Applicant’s father’s assets and income, in particular whether the Applicant had given evidence as to the sufficiency of his father’s regular income within cl.5A405(1)(c), were not reasonably open to it on the material before it. 

6. I note that there is no transcript of the Tribunal hearing in evidence and no suggestion that anything that occurred in the hearing was supportive of this ground.  Nor is there anything in the material before the court to support an allegation of actual or apprehended bias (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] and [127]).

7. Ground 2 is not made out.

8. As the Applicant is self-represented I have considered whether any other issues arise on the material before the Court, in particular whether there was any jurisdictional error in relation to the Tribunal’s consideration of the adviser’s request on the day of the hearing for a postponement of the Tribunal hearing. 

9. The Tribunal’s reasons for decision do not explain why it did not grant a postponement of the hearing on the day of the hearing.  In Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619; [2014] FCA 915 at [110], Mortimer J suggested that the court can have regard to the outcome of the exercise of power in its factual context as presented and can evaluate for itself the justification or intelligibility of the outcome (bearing in mind, as her Honour stated, the constraints applicable to the role of a supervising court).

10. In this case, on 17 September 2013 the Applicant was (by facsimile sent to his then migration agent) invited to a Tribunal hearing scheduled some six weeks later, on 28 October 2013.  He was also advised in the letter of 17 September 2013 of the need to provide supporting documentation including, relevantly, information in relation to his financial capacity.  The Applicant should also have been aware from the delegate’s reasons for decision (which attached a copy of relevant provisions of the regulations) of the applicable requirements.  On 2 October 2013 the Applicant responded to the hearing invitation. 

11. As the Minister submitted, the Applicant would have had at least a month following receipt of the invitation to appoint a new representative to appear (if he wished to do so) and to prepare for the Tribunal hearing.

12. However on the day of the hearing, 28 October 2013, the Applicant appointed a new representative who sought a postponement of the hearing.  A file note records that this request was refused and the new adviser informed that any extensions of time should be discussed at the hearing.

13. The new adviser attended the hearing.  Relevantly, the Tribunal explained the financial requirements, including the fact it had to be satisfied that the father’s “regular income” was sufficient to accumulate the level of funding being provided.  It granted the Applicant time to provide further documents to support his case and asked him to provide evidence of his father’s regular income.  There is no evidence to suggest that the Applicant raised any issue with the Tribunal about his father’s occupation and/or the regularity of his income or the time provided to submit further information. 

14. Insofar as any issue of the reasonableness of the refusal of the postponement request can be seen to arise, it cannot be said that the Tribunal’s exercise of its discretionary power in relation to such an adjournment application was not exercised reasonably in this case (see Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18, Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, and Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640). In the factual context, having regard in particular to the period of notification of the hearing invitation, the time of appointment of a new adviser, the time of the request for a postponement and, importantly, the opportunity that was afforded to the Applicant to provide financial information after the hearing, the Tribunal’s decision that a postponement of the hearing would not be granted was not arbitrary, capricious, without commonsense or “plainly unjust” in the sense considered in Li or Singh such that unreasonableness could be inferred. 

15. The Applicant also complained that the Tribunal did not accord him an opportunity to comment on deficiencies it ultimately perceived in the material he provided through his former agent on 5 November 2013. This may be seen an assertion that for the Tribunal had to comply with s.359A of the Act. The Tribunal is not obliged under s.359A to put its thought processes to an Applicant for comment (see generally SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 [17] to [18]). Nor was it obliged to invite him to a further hearing.

16. As indicated, the Tribunal recorded that at the hearing it advised the Applicant of the financial capacity requirements, in particular the need to provide evidence of his father’s “regular income”.  He was thus put on notice of the relevant dispositive issue.  No jurisdictional error is apparent in this respect. 

17. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  4 March 2016