Kaur v Minister for Immigration & Anor

[2016] FCCA 1013

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1013

Catchwords:
MIGRATION – Review of a decision by the Migration Review Tribunal (as it then was) – application for a Student (Temporary) (Class TU) visa – show cause hearing – no merit – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.12(1), 44.13(1)

Migration Act 1958 (Cth), s.97

Migration Regulations 1994 (Cth), Sch. 2: cl. 572.224, Sch. 4: 4020, 4020(1), 4020(2), 4020(3), 4020(4), 4020(5)

Applicant: BALJINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 588 of 2015

Judgment of: Judge Hartnett

Hearing date: 12 April 2016

Delivered at: Melbourne

Delivered on: 12 April 2016

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Hornsby

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 588 of 2015

BALJINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. By application filed by the Applicant on 24 March 2015, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 2 March 2015.  The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa (‘the visa’). 

2. The grounds of the application are as follows:-

   “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 Regulation 1994(The Regulations) and the reason mentioned I did not satisfy the Public Interest Criteria, Item 4020 of Schedule 4 to the regulations.

   2.  I have applied to MRT to reconsider the decision made by the delegate, at the time of making the 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 the 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 be 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.”

3. As can be seen from the above, no legal error, let alone a jurisdictional error capable of review by this Court, can be identified in these grounds.  Rather, what the Applicant seeks to do is obtain a review of the merits of the Tribunal decision. That is not the function of the Court as is said often in the Court.  As a preliminary observation, the grounds of review do not raise an arguable case for relief. 

4. In response filed by the First Respondent on 17 April 2015, the First Respondent sought dismissal of these proceedings pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). In submissions filed on 5 April 2016 by the First Respondent, the First Respondent seeks that the dismissal of the application is accompanied by a costs order in favour of the First Respondent.

5. The Court has before it otherwise the evidence as contained in the Court Book and an affidavit sworn by the Applicant on 24 March 2015 which annexes the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal.

6. The matter proceeded before Registrar Allaway on 8 July 2015.  The Applicant was required in orders made that day by consent, to file and serve written submissions prior to the show cause hearing. The Applicant has filed no written submissions and on the hearing this day, when given an opportunity she made no relevant oral submissions. 

7. Before the Court is a show cause hearing.  The issue for determination by the Court on such a hearing is whether the application raises an arguable case for the relief claimed.[1] The Applicant is confined to the relief sought and the grounds raised in the application for judicial review.[2] If the Court is not satisfied it may dismiss the application.[3]

   [1] Federal Circuit Court Rules 2001 (Cth), r 44.12(1).

   [2] Ibid r.44.13(1).

   [3] Ibid r.44.12(1).

Background

1. On 8 March 2012, the Applicant applied to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for the visa. Having regard to the courses that the Applicant proposed to undertake as a student, the relevant class was subclass 572. In order to be granted the visa, the Applicant had to meet a range of criteria, including cl.572.224 of Sch.2 to the Migration Regulations 1994 (Cth), (‘the Regulations’). Clause 572.224(a) required, amongst other things, that the Applicant satisfy Public Interest Criterion (PIC) 4020. PIC 4020 required that there be no evidence that the Applicant had provided to the Minister or his officers a “bogus document” or information that was false or misleading in any material particular in relation to the visa application. PIC 4020 is set out below:-

   “(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.

   (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)  However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)  The applicant satisfies the Minister as to the applicant's identity.

   (2B)  The Minister is satisfied that during the period:

   (a)  starting 10 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)  However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (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.

   Note:  For the definition of bogus document, see subsection 5(1) of the Act.”

2. 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.

3. 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.

4. 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.

5. 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. 

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. On 20 December 2013, the delegate refused to grant the visa on the basis that the Applicant did not meet PIC 4020 and, therefore, the requirements of cl.572.224 of the Regulations were not met.

The Tribunal

1. On 8 January 2014, the Applicant applied to the Tribunal for a review of the delegate’s decision.  The Applicant appointed a migration agent to represent her and provided a copy of the delegate’s decision with her review application. On 9 January 2014, the Tribunal wrote to the Applicant to acknowledge receipt of the application for review.

2. On 14 January 2015, the Tribunal wrote to the Applicant to invite her to appear at a hearing before it scheduled for 2 February 2015. The hearing invitation also made clear to the Applicant that a determinative issue on review was whether the Applicant satisfied PIC 4020 and the Applicant was invited to prepare submissions and to provide relevant material in this regard.

3. By letter dated 3 March 2015, the Tribunal notified the Applicant of its decision, dated 2 March 2015, to affirm the delegate’s decision to refuse the visa application.

4. Having regard to the totality of the evidence before it, the Tribunal was satisfied the Applicant had given or caused to be given to the Minister a bogus document as defined in s.97 of the Migration Act 1958 (Cth) (‘the Act’) and therefore did not meet PIC 4020(1). The Tribunal made the following factual findings:-

   a)It did not accept the Applicant’s claim that the bank letter was issued by mistake as a result of her father’s common name, noting that her father’s affidavit confirmed that he took out a loan secured against a term deposit and that the Applicant had confirmed the term deposit, to which the bank letter referred, was held by her father.

   b)The Tribunal had regard to the fact that the State Bank of India had confirmed on two occasions that it did not issue the letter provided by the Applicant.  The Tribunal 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.

   c)The Tribunal found, further, that the Applicant had 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 preferred the confirmation from the State Bank of India that it did not issue the letter of 20 March 2012 and gave that evidence greater weight.  Accordingly, the Tribunal found that the letter of 20 March 2012, purporting to be from the State Bank of India, was fraudulent.

   d)Finally, the Tribunal had regard to the Applicant’s claim that the document in question was given to her by her father and that it was not her mistake.  The Tribunal had some doubts about that claim but, in any event, stated it was not necessary for the Applicant to know or be directly involved in any falsehood for the purposes of PIC 4020.  This was a correct application of the law.

5. The Tribunal then went on to consider whether the requirements of PIC 4020(1) or (2) should be waived.  That consideration was conducted by the Tribunal pursuant to PIC 4020(4).  The Tribunal considered the Applicant’s claims as to the waiver being:-

   a)she wanted to complete her studies, which she had had to leave for the past one and a half years;

   b)she had lived in Australia for the last three years under stress without gaining anything;

   c)the Department kept her waiting for two years without deciding her visa application;  and

   d)she has cousins who are Australian citizens.

6. The Tribunal was, however, not satisfied the Applicant’s evidence constituted compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an eligible New Zealand citizen or an Australian permanent resident justifying a grant of the visa.

7. Accordingly, the Tribunal did not waive the requirements of PIC 4020(1) and, therefore, found that the Applicant did not satisfy cl.572.224 of the Regulations.

8. 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. 

9. The proceedings are dismissed and costs shall follow the event.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  29 April 2016