Kaur v Minister for Immigration - [2012] FMCA 1243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1243

MIGRATION – Review of Migration Review Tribunal’s decision – invitation and notice of hearing sent to authorised recipient on the record, but applicant appointed a new authorised recipient – new authorised recipient details not received by Tribunal – requisite documents sent to authorised recipient on the record – Tribunal complied with statutory requirements – applicant unaware of hearing – hearing conducted in her absence – Tribunal’s decision made on basis of available evidence – applicant claims to have been denied opportunity to argue her case – issue concerned whether funds offered were from an acceptable source – application dismissed.

Migration Act 1958, ss.360, 360A, 362B, 379A(4), 379G(1)
Migration Regulations 1994, cl.572.223(2)(a), Schedule 5A

Kaur v MIAC [2010] FMCA 822
MIAC v Manaf [2009] FCA 963
SZJDS v MIAC [2012] FCAFC 27
Zaman v MIAC [2012] FMCA 620

Applicant:

RAJWINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 765 of 2012

Judgment of:

O'Dwyer FM

Hearing date:

21 December 2012

Date of Last Submission:

21 December 2012

Delivered at:

Melbourne

Delivered on:

21 December 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Brown

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 25 June 2012 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,417.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 765 of 2012

RAJWINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

This matter comes before me today on an application by Ms Kaur (“the applicant”) to review the decision of the Migration Review Tribunal (“the Tribunal”) on the 22 May 2012; which decision affirmed an earlier decision of the first respondent’s delegate not to grant the applicant a Student (Temporary) (Class TU) visa (“the Visa”).

Background

The applicant is a 33 year old female citizen of India who arrived in Australia in May 2008 as the holder of a subclass 573 Higher Education Sector visa valid until 3 November 2010.
On 31 October 2010 she applied for the Visa. That application was refused and on 3 May 2011 she applied, through a migration agent, to the Tribunal for a review of the delegate’s decision. The applicant was invited to attend the hearing by way of a letter from the Tribunal dated 11 April 2012 to her migration agent, which was held on 22 May 2012. After she failed to attend the hearing, the Tribunal determined the review on the available evidence before it and handed down its decision on the same day, affirming the decision under review.

The legislative framework

For the purposes of this determination there are three aspects of the legislative framework that are pertinent; first, in respect of the legislative imperative to invite an applicant to appear before the Tribunal to give evidence and present arguments; secondly, in respect of the service of documentation and thirdly, in respect of the requirement to satisfy the first respondent that the applicant has access to funds from an acceptable source during the period of the prospective visa.
Section 360 of the Migration Act 1958 (“the Act”) stipulates the requirement for an invitation to an applicant to attend a hearing and s.360A provides for a notice of the hearing date to be provided. Significantly, however, s.362B of the Act authorises the Tribunal to conduct the hearing should an applicant fail to appear after having been invited to do so and sent a notice of the date and place of the hearing.
The service requirements are governed by s.379G(1) of the Act which provides for an “authorised recipient” to be given any document otherwise to be given to an applicant; s.379A(4) of the Act provides for any document to be served by despatching the same by pre-paid post to the last address for service by the recipient; and if there is an “authorised recipient”, then to that authorised recipient, but not to the applicant.
In respect of the requirement for the granting of the Visa concerning access to funds, it is governed by cl.572.223(2)(a) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) which by referral to Schedule 5A of the Regulations requires that the applicant satisfy the first respondent that while she holds the Visa, she will have access to the “funds from an acceptable source” as defined. The question for the Tribunal was whether the applicant was able to satisfy the first respondent as to her access to funds from an acceptable source at the time of considering the application.

The delegate’s decision

In support of her application, the applicant provided evidence from the State Bank of India, being a letter dated 27 October 2010 which confirmed an overdraft was available, which overdraft was secured by term deposits. However, after the Australian High Commission in Delhi made contact with the State Bank of India it was discovered that the term deposit had been withdrawn on 28 and 29 October 2010. Accordingly, she was asked to comment and provide evidence that would satisfy the first respondent as to an acceptable source of funds. The clear implication being that the purported access to an overdraft facility was not an acceptable source as it would lapse when the term deposit was withdrawn.
In response, the applicant provided a letter from the Indian Bank that on 26 February 2011 an overdraft facility was available to her father, which again was secured by fixed term deposits due to expire on

27 and 29 April 2011 respectively.
The delegate determined on 13 April 2011 that he was not satisfied by the applicant's response that she had access to funds from an acceptable source as the identified overdraft facility she had access to did not satisfy cl. 572.223(2)(a) of the Regulations. Accordingly, the delegate was not satisfied that the requirement in respect of funding under Schedule 5A of the Regulations was met.

The Tribunal’s decision

The Tribunal addressed the qualifying criteria required for the granting of the Visa and determined the issue was the question of being satisfied about access to funds from an acceptable source as required under the Regulations. The Tribunal shared the concern of the delegate that the overdraft granted against the security of a fixed deposit only remains available while the collateral funds are in place. The Tribunal had regard to the "latest evidence" provided by the applicant, that being the overdrafts which were secured against the 60 day fixed term deposits in the Indian Bank and which were due to mature on 27 and 29 April 2011. The Tribunal considered it reasonable to assume that once the deposit matured, the bank would no longer have collateral security and the overdraft facility would cease to exist with the result that the applicant would no longer have access to funds. Accordingly, in the absence of further evidence or documentation, the Tribunal was unable to find that the applicant could satisfy the first respondent that she had access to an acceptable source of funds as required by of

cl. 572.223(2)(a) and as she did not satisfy that criterion, he affirmed the earlier decision of the delegate.

Grounds for review

The grounds specified in the application for review are as follows:
1) That the Migration Review Tribunal made an error in deciding my case. The decision of the Migration Review Tribunal was affected by jurisdictional error because I was not present at the hearing of 22 May 2012 as my migration agent or I had not received notice of hearing.
2) The Tribunal incorrectly assumed that once the term deposit matures, the bank would no longer have collateral security and the overdraft facility would cease to exist, meaning that I would no longer have access to funds. The Tribunal failed to take into account that the term deposit could be renewed and was in fact renewed and was current at all relevant times, until the funds were transferred to me in Australia in December 2011.
If required, the term deposit could have also been made for a longer period.
3) The Tribunal incorrectly found that I did not have access to funds to satisfy the visa requirements. Funds of $22,232 were transferred to me from India in December 2011.
4) The Tribunal also failed to take into account that I had already paid my course fee and my living expenses up to date.
5) I had evidence of sufficient funds firstly in India and then in Australia (when the funds were transferred to me from India) but I was not given the opportunity to attend at the hearing and provide evidence of funds to the Tribunal.
The first respondent in submissions sought to group the five grounds into three; namely:
a)Grounds 1 and 5: The Tribunal erred by not sending an effective hearing invitation to her or her new migration agent, thus denying her a hearing;
b)Grounds 2 and 3: The Tribunal incorrectly assumed that the applicant would not have access to funds to satisfy the Visa requirements; and
c)Ground 4: The Tribunal failed to take into account that the applicant had already paid her course fees and living expenses to date.
I am satisfied that the first respondent’s grouping of the grounds is appropriate and I intend to address them in the same fashion.
In respect to grounds 1 & 5, the background to the applicant’s failure to appear at the hearing appears to be as a result of the following. Before the invitation for the hearing was sent out, the applicant was notified by her then migration agent Mr Bhallinder Singh that he was ceasing to act as a migration agent and that he was transferring her file to a new migration agent, Mr Vikram Porus of Swastik Migration and Education Services.
Whilst attending on her new migration agent on 3 February 2012,

Mr Porus had the applicant execute a number of documents - she says two - one of which was a “change of contact details” form. She states that she was left with the belief and understanding that her new agent would then forward the necessary notices onto the Tribunal and, not unreasonably, she expected her new agent would be informed of a hearing date of her review at the Tribunal. I am satisfied she was not informed by her new agent, or indeed her former agent, of the hearing date and accordingly, through no fault of hers, she did not attend on

22 May 2012 when the review proceeded without her having an opportunity of putting her case.
There being no appearance by the applicant, the Tribunal member conducted the review without input from her. An issue, therefore, arises as to whether the notification was properly sent by the Tribunal advising of the hearing date and whether she was denied a proper hearing.
In response to information provided by Mr Porus, the Tribunal has searched its records and checked the receipt of faxes on the particular day that Mr Porus suggested the “change of contact details” for the applicant was said to have been sent to the Tribunal.
The result of that search, I am satisfied, is confirmation that a fax was sent from Mr Porus on that day, but it related to another client.

There appears to be no evidence before me that I can act upon to say that proper notification of the change of contact details of the applicant, specifying the new agent’s address for service of documents, was ever sent to the Tribunal. The end result is that the address remaining on the Tribunal’s file for the service of an invitation to attend a hearing and notice of the date and place of the hearing was that of the first agent, Mr Bhallinder Singh. Mr Singh remained the authorised recipient.

It is further said that Mr Bhallinder Singh did not receive the notice.

As stated, the applicant did not receive the invitation, but I note that under the provisions for service of such notices, the applicant is not to be served where on record there is an authorised recipient agent who has provided an address for service. It is acknowledged that the invitation that was sent to Mr Singh by the Tribunal was returned to it after the hearing took place on 6 June 2012.
The law on this particular aspect is quite clear. There is a very strict application of the law concerning the service of documents (invitations and notices of hearing) and where the Tribunal has complied with the regime stipulated, there is no scope for argument based on the actual non-receipt of such documentation.[1] On the basis of the submissions made and evidence it is conceded there appears to be compliance with the legislative framework in respect of service of the notice of hearing. And in that regard the Tribunal was entitled to consider the matter in the absence of an appearance by the applicant on 22 May 2012

(see s.362B) The reality of the applicant not actually receiving notice of the hearing in these circumstance does not invalidate the Tribunal’s decision.
[1] As examples of strict application of the legislative regime, see MIAC v Manaf [2009] FCA 963; Kaur v MIAC [2010] FMCA 822; SZJDS v MIAC [2012] FCAFC 27; Zaman v MIAC [2012] FMCA 620
Grounds 2 & 3 can be summarised as the Tribunal incorrectly assuming that the applicant would not have access to funds to satisfy the Visa requirements. When considering those two particular grounds one has to have regard to the nature of the evidence that was before the Tribunal on 22 May 2012. In my view, having regard to those matters, particularly as to an early history where an overdraft was secured by a term deposit that was subsequently withdrawn and also just generally having regard to the situation where an overdraft and access to funds is secured by fixed term deposits due to expire on a pre-determined date which is considerably less than the time of the visa, there does not, on the face of it, exist an acceptable source of funds. There is the potential for the overdraft to be withdrawn at the expiration of the fixed term and prior to the expiration of the Visa period.
That is not to say, of course, as was indicated by the applicant, that the fixed term could not be rolled over into another fixed term throughout the duration of the visa period or indeed, extended to cover the visa period. But on the latest evidence before the Tribunal, without an input from the applicant, it was open to the Tribunal, in my view, to find that an overdraft secured as it was, was not an acceptable source of funds.
The final ground (ground 4) states the Tribunal failed to take into account that the applicant had already paid her course fees and expenses to date. I accept the first respondent’s contention in respect of this ground; namely, the task for the Tribunal was whether the applicant could satisfy the first respondent that the funds offered were in compliance with cl. 572.223(2)(a) and were from an acceptable source. It was a necessary criterion to be met before the granting of the Visa and consideration of the fact that the applicant had paid her tuition fees and living expenses is not a relevant consideration when determining the question of whether the funds were from an acceptable source. This ground is not made out.

Conclusion

For the above reasons, the applicant has failed to show an error on the part of the Tribunal and the application filed on 25 June 2012 should be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Date: 23 January 2013