KAUR v Minister for Immigration
[2018] FCCA 3138
•1 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3138 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error - whether the Administrative Appeals Tribunal complied with s.359AA of the Migration Act 1958 (Cth) in giving adverse information to the Applicant for comment – whether the Administrative Appeals Tribunal’s complied with Public Interest Criterion 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), Schedule 2 cl.573.224, Schedule 4 Public Interest Criterion 4020 |
| Cases cited: Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 Arora v Minister for Immigration and Border Protection [2016] FCAFC 35 |
| First Applicant: | SUMEET KAUR |
| Second Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APEALS TRIBUNAL |
| File Number: | SYG 3213 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 12 October 2018, 1 November 2018 |
| Date of Last Submission: | 1 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2018 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Counsel for the Respondents: | Mr Greg Johnson |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3213 of 2016
| SUMEET KAUR |
First Applicant
GAGANDEEP SINGH
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 6 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 28 October 2015 refusing the applicants Student (Class TU) (Subclass 573) visas (“Student Visa”). The first named applicant (“the Applicant”) was the primary visa applicant. The second named applicant is the Applicant’s husband.
The issues arising for determination are whether the Tribunal complied with s.359AA of the Act in giving adverse information to the Applicant for comment and whether the Tribunal’s consideration of Public Interest Criterion 4020 (“PIC4020”) of Schedule 4 to the Migration Regulations 1994 (Cth) (“the Regulations”), being a mandatory criterion of the Applicant’s visa, was met.
Background
On 7 March 2015, the Applicant lodged an application for a Student Visa with the Department of Immigration and Border Protection (“the Department”).
On 10 March 2015, the Department requested that the Applicant provide more financial information which the Applicant did on 16 April 2015.
On 4 August 2015, the Department invited the Applicant by letter, to comment on adverse information, being that the bank account in New Delhi identified by the Applicant for the purposes of establishing her financial capacity had been closed the day after it was opened and there was no overdraft.
On 28 October 2015, the Delegate refused the Applicant’s application for a Student Visa.
The Delegate found that there was evidence that the Applicant had provided or caused to be provided to the Department a bogus document or false or misleading information in relation to her visa application and therefore did she did not satisfy PIC4020 of the Regulations. PIC4020(1) and PIC4020(4) are as follows:
“4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa.
Accordingly, the Delegate was not satisfied that the Applicant met cl.573.224 of Schedule 2 of the Regulations and refused the applicants’ visa application.
On 4 November 2015, the applicants’ migration agent emailed the Tribunal asserting that the Delegate had overlooked a response from the Applicant to the Delegate’s invitation to comment on information that documents provided by the Applicant were fraudulent. In support, the Applicant provided a statement from the Punjab National Bank, dated 27 August 2015, attesting to the genuineness of the Fixed Deposit Receipt (FDR) and confirming an overdraft limit; as well as a “Confirmation of Deposit” on Punjab National Bank letterhead together with various medical records relating to the Applicant’s mother.
On 17 November 2015, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 11 August 2016, the applicants attended a hearing before the Tribunal (“the First Hearing”).
On 18 August 2016, the Tribunal sent the applicants documents referred to above to New Delhi for verification.
On 29 August 2016, at the First Hearing, the Applicant said she was not feeling well as she was 6 months pregnant and requested that the hearing be postponed to another date. The Tribunal advised the Applicant that it did not have anything further to discuss with her but invited the Applicant to provide further submissions in writing. The Tribunal noted that the Applicant had not provided any medical documents to indicate she had any medical condition that made her unfit to give evidence.
However, upon a request post-hearing, the Tribunal agreed to delay its decision to allow the Applicant to undergo psychological assessment and to provide further submissions.
On 29 August 2016, the applicants’ migration agent sent a post-hearing submission to the Tribunal attaching a psychologist report in respect of the Applicant and other medical and education related documents.
On 5 October 2016, the Applicant provided further material including purported bank documents. However, the Tribunal noted that the documents had no logo but bore a small stamp that read “Punjab National Bank”
On 27 October 2016, the applicants attended a further hearing before the Tribunal (“the Second Hearing”).
On 6 November 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Student Visa.
On 18 November 2016, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal’s decision
The Tribunal’s decision is accurately summarised in the written submissions of counsel for the first respondent as follows:
“TRIBUNAL’S DECISION
10. On 6 November 2016 the Tribunal decided to affirm the decision under review: CB 245.
11. The Tribunal had regard to the documents and submissions advanced to it by the applicant, observing that it had held two hearings which the applicant had attended to give evidence. There were two primary questions for the Tribunal on review: first, had the applicant given, or caused to be given to the Tribunal a bogus document, or information that is false and misleading in a material particular; secondly, did there exist compelling circumstances affecting the interests of Australia, or compassionate and compelling circumstances affecting the interests of an Australian citizen or other relevant person such that the Tribunal should waive the requirements of PIC 4020: PIC 4040(4).
12. The Tribunal considered the applicant’s explanations given at the second hearing as to the allegation that the documents she gave to the Tribunal were not genuine. The Tribunal noted the applicant had submitted that her mother had received the documents from the bank ‘in good faith’ and there was evidence from the applicant’s husband that the problem arose because the manager at the bank had changed. The Tribunal attached greater weight to the advice from the New Delhi office after its consultation with the relevant bank that the applicant’s documents were not genuine: [36]; CB 251. The Tribunal found further that its concern about the applicant’s truthfulness and the general credibility of her evidence was compounded by the inconsistencies in the logos and web addresses on the bank documents she had submitted: [37]; CB 251. The Tribunal rejected the applicant’s explanations of the problems with the documents identified by the Tribunal.
13. The Tribunal concluded that the applicant did not meet PIC 4020(1): [39]; CB 252. The Tribunal considered whether there were compelling circumstances or compelling and compassionate circumstances as set out in PIC 4020(4) in order to justify waiving the requirements of PIC 4020(1). The Tribunal took into account the submissions advanced by the applicant in this respect, but was not satisfied that any such circumstances existed: [42]-[44]; CB 252.”
The Proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
On 23 March 2017, the applicants attended a directions hearing before a registrar of this Court. The applicants were provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language. The applicant were also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
The Applicant attended a hearing before me on 12 October 2018. At that hearing, I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and reach different findings or conclusions. I also explained to the Applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The Applicant confirmed that she relied on the grounds contained in an Application filed on 18 November 2016 as follows:
“1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars
a. The Applicant applied for a review on or about 17 November 2015. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.
b. The Applicant appeared for the hearing with evidence of her compelling and compassionate circumstances. The Tribunal was bound by cl.4020(1), (2) and (4) of Public Interest Criterion 4020 as required by cl 573.224 of Schedule 2 to the Migration Regulations 1994 to consider compelling and compassionate circumstances but the Tribunal failed to consider her circumstances in a reasonable manner and denied procedural fairness.
c. The Applicant made several requests to the Second Respondent to allow additional time to obtain further information but the Tribunal did not even consider that application or that the information that could be provided.
d. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account the Applicant's compelling and compassionate circumstances.
2. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations when considering the compelling and compassionate circumstances applicable to waive PIC4020.”
Each of the grounds was interpreted for the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
At the heart of the Applicant’s complaint was the Tribunal’s failure to grant her more time, that she had told the truth, and that she did not know that any of the documents provided by her were false or misleading.
In its decision record the Tribunal stated that it drew to the Applicant’s attention documents purportedly from the Punjab National Bank in respect of which it had received information that the documents were not genuine as the FDR Account did not exist: it had been opened on 7 April 2015 but was closed as no funds were received and there was a zero balance. The Tribunal also noted inconsistencies in the logo headers and website addresses on the two bank letters submitted. The Tribunal provided the Applicant with copies of those documents and invited her to comment or respond to the information.
It was not clear from the Tribunal’s decision record whether there had in fact been compliance with s.359AA of the Act in giving this adverse information to the Applicant.
The Tribunal was able to avoid compliance with s.359A(1) by engaging in the procedure set out in s.359AA(1) of the Act. That sub-section provides, if an applicant is appearing before the Tribunal pursuant to an invitation under s.360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Accordingly, the hearing before me on 12 October 2018 was adjourned to today, 1 November 2018, and the following orders made:
“THE COURT NOTES THAT:
The matter is stood over on the basis that the first respondent will obtain a transcript of the applicants’ second hearing of the Administrative Appeals Tribunal on 27 October 2016 for the purpose of considering the issue of compliance with s.359AA of the Migration Act 1958 (Cth).
THE COURT ORDERS THAT:
1. In the event that the first respondent contends that the Administrative Appeals Tribunal complied with s.359AA of the Migration Act 1958 (Cth), the first respondent is to file and serve a transcript of the Tribunal hearing together with written submissions by 24 October 2018.
2. In the event that the applicants discontinue the proceeding by 29 October 2018, the proceeding will be dismissed and the applicants will be ordered to pay costs in the amount of $1000.
3. The matter is otherwise stood over for final hearing on 1 November 2018 at 10:15am, before me.”
On 24 October 2018, the first respondent filed the affidavit of Charlotte Elizabeth Saunders, sworn 23 October 2018, annexing a transcript of the Second Hearing.
At the hearing this morning, the Applicant reiterated her complaints about the failure of the Tribunal to give her further time. The Applicant also read an affidavit by her sworn/affirmed 31 October 2018. That affidavit again restated the Applicant’s claims. The Applicant also stated that her complaints against the bank in India are scheduled for hearing on 12 November 2018 and that the Tribunal had erred in failing to give her an adequate opportunity to demonstrate the errors of the bank. The Applicant also stated that she provided the documents to the Tribunal in good faith.
I again explained to the Applicant that the only issue before this Court was whether the decision of the Tribal was made according to law and if its findings and conclusion were open to it on the evidence and material before for the reasons it gave, then the fact that the Applicant may disagree is not sufficient to establish jurisdictional error on the part of the Tribunal. I explained that even if the hearing in India on 12 November 2018 is favourable to the Applicant that is not a matter capable demonstrating error on the part of the Tribunal if, as stated above, its findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
The Applicant referred the Court to the transcript where her advisor had requested at the Second Hearing for “a little further time” for the Applicant to check with the bank directly about the mistakes the Applicant asserted were made by the bank. The advisor asked for two weeks. The Tribunal member responded that the Applicant was aware that this had been an issue for a very long time and the Applicant had had ample opportunity to check with the bank and that the Tribunal had otherwise given her “several extensions”. Nevertheless, the Tribunal member offered 1 more week which was accepted by the Applicant’s advisor.
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s request for a further 2 weeks, and granted 1 week in the context of other extensions of time provided to the Applicant and where the Applicant had been invited to 2 hearings and had provided material to the Tribunal in light of concerns expressed to the Applicant in writing and orally.
The transcript of the Tribunal’s Second Hearing makes clear that the adverse information about the bank documents and the inconsistencies in those documents was given to the Applicant for comment in accordance with s.359AA of the Act. The Tribunal identified the current information for the Applicant, explained its relevance and informed the Applicant that she could respond immediately or could say if she needed more time, which would then be considered by the Tribunal. The transcript makes clear that the Applicant chose to respond orally at the hearing to the Tribunal’s concerns. Nevertheless, the Applicant was given 1 more week at the end of the hearing as referred to above.
In the circumstances, the Tribunal complied with the statutory regime identified in s.359AA of the Act in giving the adverse information to the Applicant for comment. In those circumstances, there was no need to give that information to the applicants in writing in accordance with s.359A of the Act.
Otherwise, the Tribunal made findings and reached conclusion that were open to it on the evidence and material before and to which it applied the correct law. The Tribunal complied with the statutory regime in inviting the Applicant to 2 hearings. As stated above, the Applicant was given further time at the close of the Second Hearing. In the circumstances, there was no denial of procedural fairness to the Applicant by the Tribunal.
To the extent that the grounds assert that the Tribunal failed to take into account relevant considerations when determining whether there were compelling circumstances to waive PIC4020(1) of the Regulations, the Applicant did not identify what those considerations may have been. The Tribunal had regard to the Applicant’s submission in considering whether it should waive PIC4020, both written and oral. However, ultimately the Tribunal was not satisfied that the Applicant’s circumstances were compelling circumstances or compelling and compassionate circumstances as required by PIC4020(4) of the Regulations. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
The Applicant also asserted that the information she gave to the Tribunal, which it found to be false or misleading, was given by her in good faith. The Tribunal correctly stated that while PIC4020 of the Regulations refers to information that is false, in the sense of purposely untrue, it is not necessary for the Tribunal to conclude that the Applicant was aware that the information was purposely untrue in order for PIC4020 of the Regulation to be engaged. An element of fraud or deception by some person is necessary to attract the operation of PIC4020 of the Regulations (see Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; Arora v Minister for Immigration and Border Protection [2016] FCAFC 35).
The Tribunal’s decision is not affected by jurisdictional error, and accordingly, is a privative clause decision, for the purposes of s.474 of the Act, the application should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 1 November 2018
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