Kaur v Minister for Immigration and Border Protection
[2016] FCA 866
•1 August 2016
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2016] FCA 866
Appeal from: Application for extension of time and leave to appeal: Kaur v Minister for Immigration & Anor [2016] FCCA 1013 File number: VID 421 of 2016 Judge: TRACEY J Date of judgment: 1 August 2016 Catchwords: MIGRATION – application for extension of time and leave to appeal from decision of the Federal Circuit Court – whether applicant identified appealable error – whether request for impermissible merits review Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a)
Migration Act 1958 (Cth), s 97
Migration Regulations 1994 (Cth), Sch 2, cl 572.224
Cases cited: Kaur v Minister for Immigration & Anor [2016] FCCA 1013 – cited
Trivedi v Minister for Immigration and Border Protection (2014) FCR 169 – cited
Date of hearing: 1 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr B Hornsby of Sparke Helmore Counsel for the Second Respondent: The Second Respondent entered a submitting appearance save as to costs ORDERS
VID 421 of 2016 BETWEEN: BALJUNDER KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
1 AUGUST 2016
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time within which to seek leave to appeal from the decision of the Federal Circuit Court be granted.
2.The applicant’s application for leave to appeal be refused.
3.The applicant pay the first respondent’s costs of the applications.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
TRACEY J:
This is an application for an extension of time and leave to appeal from the decision of the Federal Circuit Court (“FCC”) dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) (as it then was): Kaur v Minister for Immigration & Anor [2016] FCCA 1013.
On 8 March 2012, the applicant applied for a Student (Temporary) (Class TU) visa.
On 20 December 2013, a delegate of the Minister refused to grant the applicant a Student (Temporary) (Class TU) visa because the applicant failed to satisfy the requirements of cl 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The relevant requirement was that the applicant met Public Interest Criterion 4020 (“PIC 4020”)
PIC 4020 relevantly provided that, in order to satisfy the criterion:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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.
(2)The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)…
(2A) …
(2B) …
(2BA)…
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(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.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
The term “bogus document” was defined, at the relevant time, in s 97 of the Migration Act 1958 (Cth) to mean:
… a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
The FCC recounted the circumstances surrounding the delegate’s review of the applicant’s application at [9]-[17] of its reasons:
“[9]In this case, the delegate’s decision records that, among documents provided by the Applicant in April 2012, as evidence that she met the relevant financial capacity requirements, were the following:-
a)State Bank of India term deposit advice, dated 9 September 2008 for account number 30482955822, held in the name of the Applicant’s father, Gurdev Singh, for the principal amount of INR 2,717,100 from 9 September 2008 to 9 August 2013.
b)State Bank of India letter, dated 20 March 2012, advising that the term deposit referred to in (a) above was still in place, had no loan against it, and could be withdrawn at any time.
[10]The delegate’s decision further indicates that the above documents were referred for integrity checks in May 2012, during which the State Bank of India advised that the term deposit was used to secure an overdraft facility of INR 3,400,000 on 31 October 2011, the amount of which had been fully withdrawn. The State Bank of India advised that the letter of 20 March 2012 was fraudulent.
[11]The Department, on 20 June 2012, wrote to the Applicant inviting her to comment on adverse information in relation to the State Bank of India documents.
[12]The Applicant provided a response on 17 July 2012 claiming that, due to her father’s common name, the State Bank of India had made an error. She also provided alternative evidence for funds from another bank.
[13]The Department again referred the matter to the State Bank of India who, on 7 August 2012, provided information advising, amongst other things, that:
a)there were no funds available to withdraw from the overdraft facility or the term deposit;
b)the bank did not issue a letter stating that the term deposit could be withdrawn as the term deposit was used to secure the overdraft facility.
[14]The Applicant was invited to comment on the above information, which she did on 7 November 2012. The Applicant claimed the documents provided were not bogus and that her father was a “layman civil person” who did not have deep knowledge of bank regulations and procedures and that he had made a mistake but corrected it when he realised.
[15]On 21 March 2013, the Department sent the Applicant a further request for information requesting evidence to show that she met the financial requirements of the visa. In response, the Applicant again sent the earlier evidence provided by her of a new bank loan from the Punjab and Sind Bank that had been issued in her father’s name.
[16]On 13 September 2013, the Department sent a new invitation to comment to the Applicant stating that, while the Applicant had provided new bank documents, it did not negate the fact that she had provided to the Department a fraudulent document from the State Bank of India in support of her visa application.
[17]On 10 October 2013, the Applicant responded to the Department reiterating that her father did not know much about paperwork, that the bank staff gave her father the wrong documents, that it was a misunderstanding, and that her father had now changed banks and arranged new loans. The Applicant also told the Department that it was a very “messy financial system” in India. She claimed that the documents provided by the State Bank of India were not fraudulent or non-genuine, but rather just wrongly identified by the bank and handed over to her father.”
On 20 December 2013, the delegate concluded that the applicant did not satisfy PIC 4020 because she had provided a bogus document. She, therefore, refused to grant the visa on the basis that the requirements of cl 572.224 of the Regulations had not been met.
The applicant applied to the Tribunal for review of the delegate’s decision.
The Tribunal affirmed the delegate’s decision and published its reasons on 2 March 2015.
The Tribunal concluded that the letter of 20 March 2012 was fraudulent. Its findings on the available evidence was canvassed in [21] of its reasons:
“The [T]ribunal found the applicant’s evidence regarding the alleged mix up at the bank and her father’s ignorance of paperwork and bank regulations to be vague and lacking in detail. She has been unable to substantiate her claim that bank staff did in fact issue the letter in question to her father. Having regard to the evidence before it, the tribunal prefers the confirmation from the State Bank of India that it did not issue the letter of 20 March 2012 and gives this evidence greater weight. Accordingly, the [T]ribunal finds that the letter of 20 March 2012 purporting to be from the State Bank of India is fraudulent.”
Given this finding, and on the basis that the applicant need not have known or been directly involved in any falsehood, the Tribunal found that she did not meet PIC 4020(1). See: Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 at 179 (Buchanan J, with whom Allsop CJ and Rangiah J agreed).
It went on to consider whether the requirement might be waived for compelling circumstances affecting the interests of Australia or for compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, which would justify the granting of the visa: PIC 4020(4).
The applicant submitted that the requirement should be waived under PIC 4020(4) because of her desire to complete her studies, because she had lived in Australia for the previous three years under stress without gaining anything, because of the Department’s delay for two years before deciding her visa application and because she had cousins who are Australian citizens.
The Tribunal found that none of these reasons constituted compelling or compassionate circumstances within the meaning of PIC 4020(4).
On 24 March 2015, the applicant filed an application to the FCC seeking judicial review of the Tribunal’s decision. She advanced the following grounds:
1.I have applied for a Student Visa on 08.03.2012, with relevant documents. The delegate refused to grant the visa on 20 December 2013 on the basis that I did not satisfy the requirements of cl. 572.224 of Schedule 2 of the Migration Regulations 1994 (The Regulations) and the reason mentioned I did not satisfy the Public Interest Criteria, Item 4020 of Schedule 4 of the regulations.
2.I have applied to MRT to reconsider the decision made by the delegate, at the time of making application; I have given documents of my funds to delegate.
3.Tribunal refused my application saying that I did not satisfy PIC PIC (sic) 4020 for the purpose of cl. 572.224. I have explained them that I have applied for visa on 08.03.2012 department took long time to give decision of my visa, they gave me decision on 20 December 2013. Department asked me for documents I have provided all the documents required by department, with regards to Funds my family supported me for studies and living, I have had funds during that time and now also, I am not sure why authority is not satisfied with my funds. I am currently studding (sic) and I have mostly finished my studies, if I will lose my visa all my studies I have done so far will have no use, also I am clear with my future that I want to complete my studies here and start my own business in India.
4.I request honourable authority to please consider my application and my future as if I won’t able to finish my study I will lose my better career and life which I will have if I will be able to complete my study, given me an opportunity I will present all documents before honourable justice.
In a response filed by the Minister on 17 April 2015, the Minister sought dismissal of the proceedings pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). As a result, the FCC held a show cause hearing on 12 April 2016.
The FCC judge considered that “no legal error, let alone a jurisdictional error capable of review by this Court [could] be identified in [the applicant’s] grounds.” Her Honour summarized the evidence before the Tribunal and the Tribunal’s findings and concluded, at [26]:
“There are no grounds, as set out in the application, which raise an arguable case for relief. The Tribunal correctly applied the relevant law to the facts of the matter at hand, properly considered the Applicant’s evidence and its findings of fact were open to it on the evidence before it. It gave clear, logical reasons as to those findings.”
Having reached this conclusion, the FCC dismissed the application pursuant to r 44.12(1)(a) of the FCC Rules.
On 6 May 2016, the applicant filed an application for an extension of time and leave to appeal from the FCC decision. In her affidavit in support of the application for an extension of time, the applicant stated that she was “totally broke” and “stress[ed]” due to the court and tribunal proceedings and she was experiencing “health issues with severe neck pain” and that she did not know what to do following the dismissal of her application.
In her application for leave to appeal, the applicant stated:
“1.The applicant visa 572 subclass was REFUSED by DIBP on the basis of applicant has not met the criterion of schedule 5A of Migration act 1958, as financial documents are not met and submitted financial documents by applicant father and found fraudulent without applicant involvement. As Department of Immigration And Border protection (DIBP) has information thought that Applicant is not satisfying the 572 visa subclass criterion, and also PIC 4020 has been imposed on the basis of bogus document and DIBP could not give applicant chance to prove it as it wasn’t applicant problem and it was father’s problem. Since then, Applicant has lost valuable time and she has lost lot of money, she should have been allowed to prove himself to his document genuine.
2.However, Department has sent a letter to applicant regarding Refusal of visa through the migration agent; according to that letter applicant has lodged the review at Migration review tribunal. Even applicant is intent to do further submission in regarding funds and explanation from Applicant. Here, there is no mistake has been found from Immigration side or applicant side, it was total mistake was from father of the Applicant as father (Sponsor) has handed the responsibility to get a loan for his daughter education in Australia to someone. Differently, tribunal did not give applicant enough time to provide submission in this regard. Migration Review Tribunal did not regard any truth said by Applicant or any material submitted by applicant. Therefore, applicant comes to federal circuit court for legitimate decision but honourable judge Hartnett has been misguided by solicitors of DIBP, it has been found by applicant on hearing date on 12th April 2016. Solicitors did not let applicant explain what she wanted to give information in front of judge. Applicant felt as it is unjust. And further there wasn’t any natural justice given or anything such conversation has been discussed which could be positive side of Applicant in the court room.
3.The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal, but Administrative appeal Tribunal has made applicant ineligible to lodge any new application in Australia. According to letter received by mail applicant has lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn’t been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?
4.The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at Administrative Appeal tribunal if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection).
5.Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal circuit court has court hasn’t even looked at applicant claims as there was big barrier “Judicial review has been made which has not been proved by applicant to make they are genuine documents provided by father”, but she has exceptional circumstances beyond his control.”
In her draft notice of appeal, the applicant stated, amongst other things, under the heading “Grounds of appeal”:
“Applicant has lodged the Tribunal review and in the hearing, the Tribunal she as expressed to a number about her difficulties and Tribunal had the applicant’s evidence. It pointed out the vague nature of the applicant’s initial claims and wondered why more specific claims had not been made in line with the evidence given in the hearing. I have provided enough response. I have submitted evidence that letters had been received from parents and other friends from India. Applicant thinks this is not Natural Justice as the way decision made by Tribunal and Federal circuit court previously. Tribunal simply say that “The tribunal has considered the applicant’s evidence but does not find any of the reasons set out above to constitute compelling circumstances that affect the interests of Australia, or are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
The Applicant has lodged the Judicial Review application filed seeks judicial review of a decision of the Administrative Appeal Tribunal (“the Tribunal). The Tribunal has affirmed the decision of the delegate of the first respondent not to grant the applicant a Student visa. Federal circuit court judge “Hartnett”, has made his view that “the Tribunal was well seized of its task, which was decided that there is no merit in the Case. And case was dismissed. Applicant exceptional circumstances have not been considered and further she felt unhappy as there wasn’t merit given to the case. The Tribunal applied itself to that task, in my view, entirely appropriately, bearing in mind the particular circumstances revealed by the application and the applicant’s evidence to the Tribunal. It follows that the application is without merit and must be dismissed.” I do have Exceptional circumstances beyond my control going to India and being illegal in Australia. I can’t go to India and decision made by Hartnett need to be reviewed.”
The Minister submitted that the applicant’s grounds for leave to appeal and the proposed grounds of appeal amounted to a request for impermissible merits review of the Tribunal’s decision.
To the extent that the applicant sought to advance an argument that the Tribunal had denied her natural justice, the Minister noted that she had attended a hearing before the Tribunal to give evidence and make submissions. He contended that the applicant had failed to identify with sufficient particularity any alleged request to provide submissions to the Tribunal or to the FCC. The applicant had been given an opportunity to make written and oral submissions to the FCC but she did not avail herself of these opportunities.
Ms Kaur did not file any written submissions in this Court. She did, however, attend the hearing this afternoon and made oral submissions. She had the assistance of an interpreter.
Ms Kaur said that a “mistake” happened “because of her father.” By this I understood her to be referring to the creation and publication of what was said to be a bogus document. She also said that she was “innocent” in relation to the production of the document. She assured the Court that she was now in a position to pay her fees for future study.
I am prepared to accept that Ms Kaur has explained satisfactorily the delay in lodging her application for leave to appeal. I am not, however, disposed to grant her leave because, as the Minister correctly submits, she has not identified any appealable error on the part of the FCC. Her grounds of appeal and supporting oral argument did no more than reargue the merits of her case.
The applicant’s application for leave to appeal must be refused with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 2 August 2016
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