Kaur v Minister for Immigration and Border Protection
[2016] FCA 540
•20 May 2016
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2016] FCA 540
Appeal from: Kaur v Minister for Immigration & Anor [2015] FCCA 2568 File number: VID 793 of 2015 Judge: JESSUP J Date of judgment: 20 May 2016 Catchwords: MIGRATION – Appeal from Federal Circuit Court – Whether application for leave to appeal should be treated as Notice of Appeal given filed more than 14 but fewer than 21 days after judgment sought to be appealed from – Where appellant’s visa application subject to evidence of sufficient financial support – Whether primary Judge erred in consideration of public interest criterion 4020 – Appeal dismissed. Legislation: Federal Court Rules 2011 (Cth) rr 35.13, 36.03
Migration Act 1958 (Cth) ss 29, 31, 476
Migration Regulations 1994 (Cth) cll 2.03, 572.222, 572.223, 572.224 of Sch 2, 4020 of Sch 4, 5A408 of Sch 5A
Cases cited: Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 Date of hearing: 4 May 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Appellants: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Ms C Symons Solicitor for the Respondents: Sparke Helmore ORDERS
VID 793 of 2015 BETWEEN: RAVINDER KAUR
First Appellant
MAJINDER SINGH SIDHU
Second Appellant
GURNAAZ KAUR SIDHU (and another named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
20 MAY 2016
THE COURT ORDERS THAT:
1.The Application for Leave to Appeal filed on 19 November 2015 be treated, nunc pro tunc, as an appeal, regularly filed on that day, from the judgment of the Federal Circuit Court given on 29 October 2015.
2.The appeal be dismissed.
3.Save for costs the subject of previous orders of the court, the appellants pay the costs of the respondent Minister.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JESSUP J:
This proceeding was commenced on 19 November 2015 by the filing of an Application for Leave to Appeal from a judgment of the Federal Circuit Court of Australia given on 29 October 2015. In that judgment, the Federal Circuit Court had rejected the application of the then first applicant, Ravinder Kaur (“the appellant”), for leave to rely on an amended application and had dismissed her originating application. The appellant was assisted by a legal practitioner at the time and was, it appears, advised to file the application for leave to appeal to which I have referred. Presumably that was intended to relate to the primary Judge’s rejection of the appellant’s application to amend. The appellant had, of course, a right to appeal against the dismissal of her case, but, for some reason, that right was not exercised.
The Application for Leave to Appeal was filed on the 21st day after the judgment of the Federal Circuit Court. It was, therefore, out of time: Federal Court Rules 2011 (Cth) (“the Rules”), r 35.13(a). However a Notice of Appeal filed on 19 November 2015 would have been within time: r 36.03(a). The 14-day limit for which r 35.13(a) provides has led to many a stumble on the part of practitioners, not to mention litigants in person, as the appellant now is. The practitioner who advised the appellant to file the Application for Leave to Appeal appears not to have been cognisant of this shorter time limit; and it appears not to have occurred to him or her to advise the appellant to exercise the right of appeal which she undoubtedly had in the circumstances. The result of all of this was that the respondent Minister originally submitted that the application which was in fact filed was incompetent, and that time should not be extended.
The context for these issues in this court is that the primary Judge’s decision not to give leave to amend was based wholly upon his Honour’s assessment of the strength of the new grounds upon which the appellant then sought to rely. In substance if not in form, his Honour decided the matter before him as though those were the appellant’s grounds. Likewise, all the grounds which the appellant takes in this proceeding are expressed as challenges, on the merits, to his Honour’s reasons for rejecting her application to amend. The position thus reached is that, again in substance if not in form, the appellant seeks to prosecute her appeal against the primary Judge’s judgment by which her application was dismissed, that judgment dealt with the case which she wanted to run on the merits, she has articulated her grounds of appeal against that judgment, and she filed the relevant document within the time limited for the commencement of an appeal.
When the matter is laid out in this way, there really is no defensible basis upon which to hold the appellant out from prosecuting her appeal. Rather than go through the hoops made necessary by the form and timing of the appellant’s institution of the present proceeding, I propose to order that her Application for Leave to Appeal be treated, nunc pro tunc, as a Notice of Appeal regularly filed conformably with Div 1 of Pt 36 of the Rules.
The case which the Federal Circuit Court dismissed was for a remedy which fell within the jurisdiction of that court under s 476 of the Migration Act 1958 (Cth) (“the Act”), that is to say, for prohibition, mandamus or an injunction against an officer of the Commonwealth. The officer was the member who constituted the Migration Review Tribunal (“the Tribunal”) (which was replaced as the second respondent by the Administrative Appeals Tribunal in the Federal Circuit Court, it now being that tribunal which is the relevant party to the present appeal) when, on 11 July 2014, it affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellant and other members of her immediate family Student (Temporary) (Class TU) visas. Although there were three such other members, the Tribunal dealt with the matter as though it was the appellant’s own circumstances which were governing apropos the whole family group. Likewise, those other three members are also joined in the present Application for Leave to Appeal, but the success of their appeals will depend on the court’s disposition of the appellant’s appeal.
By s 29(1) of the Act, “the Minister may grant a non citizen permission, to be known as a visa, to … travel to and enter Australia … [and to] remain in Australia.” By s 31(1), there are to be “prescribed classes of visas” and, by subs (3) of the same section, “the regulations may prescribe criteria for a visa or visas of a specified class.” By cl 2.03 of the Migration Regulations 1994 (Cth) (“the Regulations”), the primary criteria and, where relevant, the secondary criteria for the grant to a person of a visa of a particular class are those set out in Sch 2 to the Regulations. Relevantly to a visa of the kind for which the appellant applied, the criteria to be satisfied at the time the decision (to grant or not to grant the visa) was made are to be found in cl 572.222-572.234 of Sch 2.
One of those criteria is that the visa applicant satisfies “public interest criteri[on] … 4020 ….” That criterion, to be found in Sch 4 to the regulations, provides in part as follows:
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-reveiwable 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.
It was because she did not satisfy this criterion that the appellant failed in the Tribunal. The Tribunal found that there was evidence that the appellant had given, in relation to her application for the visa, information that was false or misleading in a material particular. The information related to “the availability of funds for the period of her visa”.
Another criterion for the grant of a visa of the kind which the appellant sought was that the Minister was 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” (cl 572.223(2)(c) of the Regulations). Clause 5A408(1), to be found in Sch 5A, provided, at the relevant time, as follows:
The applicant must give, in accordance with this clause:
(a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa)a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 18 months; and
(b)evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c)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.
The substantive provisions of the Regulations to which I have referred are relevant only for the context which they provided for the decision which the Tribunal made. It was not her failure to meet the requirements of those provisions which formed the basis of that decision: it was, as mentioned above, her failure to satisfy public interest criterion 4020. The exact placement of the appellant’s provision of false or misleading information in the adverse conclusion reached in her case was not, I would have to say, clearly exposed in the reasons of the Tribunal (and even less so, with respect, in the reasons of the Federal Circuit Court).
The purely factual aspects of the case were not, it seems, controversial. In her visa application, the appellant made a declaration in the following terms:
I have access to sufficient funds to support myself and my family unit members (regardless of whether they are accompanying me to Australia) for the total period of my stay in Australia.
As to what followed the making of that application, the Tribunal said:
On 3 April 2013 the applicant provided to the delegate evidence of her financial capacity to undertake study in Australia, being a loan sanction letter from Andhra Bank in the name of Jaspreet Singh for an amount of INR 2520000. This document was sent to the Australian High Commission in New Delhi for verification and investigation confirmed that the funds were completely withdrawn on 25 April 2013.
The loan sanction letter to which the Tribunal referred was dated 28 March 2013. It was addressed to the appellant’s brother, but relied on by the appellant herself. In that letter, the bank confirmed that it had sanctioned a credit facility in the sum referred to. The “due date” on the facility was 25 March 2016, which I take to have been an indication that the facility had been put in place for three years.
Contrary to the impression that would have been given to the Minister by the provision of this letter, in the context of the appellant’s declaration, this credit facility was not retained as a source of funds for the appellant during her stay in Australia. Inquiries made by the Australian High Commission in India revealed, and appellant does not dispute, that the facility was fully drawn and the loan account closed within a very short period after the loan sanction letter had been used by the appellant in connection with her visa application. At various stages of the prosecution by the appellant of her application for a visa, and for review in the Tribunal, the appellant has given different explanations as to the purpose to which these funds were put, but it is clear that they thereupon became unavailable as a source of funds in relation to her stay in Australia.
Of the events and circumstances to which I have just referred, the Tribunal said:
The Tribunal does not accept that the applicant ever intended or planned to have access to such funds from the loan which she relied on as evidence of meeting this provision. This is supported by the applicant’s own evidence that neither she nor her brother realised that the funds had to be kept in the bank. The Tribunal finds that it is that information – the applicant’s reliance on the loan to meet the requirements of cl. 572.223(2)(c) and to have access to the funds for the duration of her visa period – that was false or misleading at the time it was given.
The main area of controversy in the Federal Circuit Court related to the Tribunal’s finding that, at the time when the appellant provided the details of the loan fund to the Minister in relation to her application for a visa, the funds were available. That information, the Tribunal held, was neither false nor misleading. But the information which the appellant gave went further than a mere statement that certain funds were then available by way of a credit facility: it extended to a statement that the funds would continue to be available, no doubt as a source from which drawings could be made as required, for the duration of her stay in Australia. In putting the matter in these terms, I am, of course, making specific what I would hold to be implicit from the declaration which the appellant completed and the letter which she supplied, but the meaning conveyed by those documents was clear.
There can, in my view, be no doubt but that there was evidence from which the Tribunal was entitled to conclude that the information given to the Minister was misleading at least.
In this appeal, the appellant frankly said that she was not contending that the decision of the primary Judge was wrong, but nonetheless she was not satisfied with the application of public interest criterion 4020 to her circumstances. An appeal is the means by which the errors of a court are corrected: if a primary Judge is not wrong in his or her decision, there would, at least in the normal case, be no question of error. In the submissions which the appellant made, she did not attempt to engage with the grounds of appeal on which her appeal was based. Those grounds, which, as I have said, seem to have been prepared with some degree of professional assistance, do allege error, and I should say something about them, notwithstanding the way in which the appellant conducted her case.
One ground is that the arguments advanced on the appellant’s behalf in the Federal Circuit Court were not taken into account insofar as they proposed that a situation in which information provided to the Minister “becomes false or misleading subsequently” does not engage public interest criterion 4020. Another ground is that the primary Judge erred by not considering that that criterion “cannot be applied retrospectively”.
Of these grounds, which effectively amount to the same point, the primary Judge said:
24.Cl.572.223(1)(b) requires the Minister to be satisfied that the applicant meets the requirements of subclause (2), being that the applicant gives the Minister evidence in accordance with the requirements of Sch. 5A and at (c) that the Minister is satisfied that the applicant will have access to the funds for the duration of the visa. There are, therefore, two limbs to be satisfied. There is a dual consideration based on the information which cannot be false or misleading. Firstly, whether the funds are available from an acceptable source? In this respect the applicant’s evidence was not false or misleading. Secondly, however, and separately, there is a requirement flowing from the information that the funds be available for the duration of the loan.
25.The Tribunal found that, even if based on honest mistake, the applicant did not intend the funds to be available for the required period of the visa. The lack of intention in this respect was a finding open to the Tribunal and probably the only one open given the applicant’s own evidence. The Tribunal found that there was “never any intention” to retain these funds. Hence cl.572.223(2) was not satisfied. The information required is prospective in its intent. That is, at the time it is given it should not be false or misleading in respect of the requirement that the funds be retained for the period of the visa. If, as is clear, the applicant’s information was proposed to satisfy schedule 5A408, then it was false or misleading.
For my own part, I would not have built a response to the appellant’s point around the requirements of cl 572.223(2) of Sch 2, or of cl 5A408 of Sch 5A, to the Regulations. The appellant did not fail in the Tribunal because she did not comply with these requirements. Indeed, they did not operate as primary legal obligations cast upon people in her position: they were criteria against which her application for a visa had to be assessed. However, and here looking at substance rather than form, those requirements were reflected in the declaration which the appellant was required to give, and did give, to the Minister, and in the documentary support which she provided in the form of the loan sanction letter. That was where the misleading information was to be located. Apropos these grounds of appeal, however, the point made by the primary Judge was well-made. This was not a situation in which information subsequently became misleading. On the findings of the Tribunal, it was misleading at the time it was given because it had, to use his Honour’s expression, two “limbs”, the second of which involved a statement that the funds referred to had been secured on the basis that they would be available for the period of the appellant’s stay in Australia. In this respect there was, in my view, no error made by the primary Judge.
Another of the grounds of appeal is that his Honour erred in not holding that findings of fraud and deception were required to attract the operation of public interest criterion 4020, the appellant relying in this respect on the judgment of the Full Court in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169. Of this aspect of the appellant’s case, the primary Judge said:
38. The Tribunal here at [17] finds:
The tribunal has formed the view that the funds demonstrated or declared were never going to be available for that period and it was always the intention of the applicant and her brother to withdraw the funds, at the latest upon the grant of the visa (my emphasis).
39.The “purpose” of the information was to address the requirement of the section including for the retention/availability of funds and therefore the duration of the visa. The Tribunal found an intent on the applicant and her brother contrary to the purpose. The conveyance of the information was therefore false in the context of the requirements of the section. Such is entirely consistent with the Tribunal’s other findings as to the lack of “realisation” at paragraph [16] and there was no need for the Tribunal to move on to a consideration of fraud or mala fides. Notably, such terminology is not evidenced in the section itself. Consequently, I find no merit to these grounds of complaint.
[His Honour’s emphasis.]
In my view, the reasoning of the Federal Circuit Court does not disclose error. On the findings which the Tribunal made, there really could not be any doubt as to the presence of what Buchanan J described (220 FCR at 179 [43]) as “purposeful falsity” (understanding his Honour’s compendious reference to “falsity” as encompassing also the condition of being misleading). Indeed, the controversy in the present case did not lie along the Trivedi axis at all: rather, as dealt with above, it related more to the content of the information which the appellant gave in connection with her visa application. Once the point was reached, as it was when the Tribunal made its findings of fact, that the information included the ongoing availability of the funds which had been arranged on the appellant’s behalf, there could be no issue as to the purposefulness of the misleading nature of that information.
The appellant has some other grounds of appeal but, with respect to those involved, they are little more than makeweights. All I need to say is that they are of no substance.
For the above reasons, the appeal should be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 20 May 2016
SCHEDULE OF PARTIES
VID 793 of 2015 Appellants
Fourth Appellant:
GURBAAZ SINGH SIDHU
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