Kaur v Minister for Immigration & Anor
[2013] FCCA 1641
•16 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1641 |
| Catchwords: MIGRATION – Application for adjournment refused – failure to comply with requirements of cl.5A508(1)(c) of the Migration Regulations 1994 – application dismissed. |
| Legislation: Migration Regulations 1994, Sch.2, cl.573.223; Sch.5A, cl.5A508(1)(c) |
| Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 NAKX v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 MZYZE v The Minister for Immigration & Anor [2013] FCCA 569 |
| Applicant: | BALWANT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 256 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 16 September 2013 |
| Date of Last Submission: | 16 September 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | No appearance by or on behalf of the Applicant |
| Counsel for the Respondents: | Ms Randall-Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application for adjournment be dismissed.
The Application filed by the Applicant on 4 March 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 256 of 2013
| BALWANT KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The Adjournment Application
The Court has before it this morning listed an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). That application was originally made to the Court in March 2013. It was previously listed for hearing and was adjourned by consent at that time. At the time that the matter was adjourned previously, the Applicant had a solicitor on the record. The Applicant’s solicitors withdrew on
27 May 2013.
After close of business on Friday 13 September 2013, the Court, and also the solicitor for the First Respondent, the AUSTRALIAN GOVERNMENT SOLICITOR (“the AGS”), received an email which purports to come from the Applicant, and which attached a medical certificate. The terms of the email which I have taken to be an application for adjournment state as follows:
I am writing this letter to adjourn my hearing which is scheduled on the 16/9/2013 at 11.30 am.[1]
The hearing was in fact scheduled at 10.00 a.m.
I apologise for delay in informing you. As I am not well from past few months due to my prolonged disease and because of this reason I could not arrange a lawyer. I arranged a lawyer now but he is going to overseas and will be available after mid october [sic]. As I need a professional to represent my case so I need some more time if possible til end of October [sic]. Currently, I am not feeling well so I would not be able to attend the hearing myself. Please adjourn my case and schedule a new date for my final hearing. I am attaching my medical certificate.[2]
[1] Email from the Applicant dated 13 September 2013.
[2] Ibid.
The Applicant seems to be seeking adjournment on two bases:
·first, that the Applicant has a solicitor who is not available, although, as I have indicated, there is currently no solicitor on the record; and
·second, that the Applicant is too ill to attend Court.
The medical certificate that is attached to the email is from a
Dr D Q TRAN (M.D.) (“Dr Tran”) from the Medical Dental Clinic in Springvale. The certificate says that he examined Ms Kaur on
13 September 2013, and that in Dr Tran’s opinion, “she is suffering from a medical condition”,[3] and that “she will be unfit for work from 13/9/2013 and up to and including 16/9/2013”,[4] although I note it is not beyond that date which conveniently happens to be the date that the matter is before the Court.
[3] Medical certificate signed by Dr Tran, Medical Dental Clinic, dated 13 September 2013.
[4] Ibid.
I have an affidavit that has been provided by MS RANDALL-SMITH (“Ms Randall-Smith”) the solicitor for the First Respondent in this matter, which indicates that Ms Randall-Smith attempted to follow up the email with the Applicant and was unable to satisfactorily obtain any further medical information. Ms Randall-Smith also put the Applicant on notice that the First Respondent would be opposing an application for adjournment.
In correspondence from my Chambers dated 16 September 2013, the Applicant was notified that:
·first, that the matter had been adjourned once before;
·second, that the application for adjournment was received in chambers after close of business on Friday;
·
third, that there has been no solicitor on the record since
27 May 2013;
·fourth, that the matter remained listed for hearing this morning, and that I would hear from the AGS in relation to the application; and
·fifth, that in the event that the Applicant was not present at court, orders could be made in her absence.
The First Respondent has drawn to the Court’s attention two judgments which I consider to be relevant to these proceedings. The first is the judgment of Judge Riethmuller in the matter of MZYZE v The Minister for Immigration & Anor [2013] FCCA 569 (“MZYZE”). In that matter, Judge Riethmuller was faced with a similar situation where the applicant had maintained an inability to attend by reasons of ill health. Judge Riethmuller considered a number of judgments in relation to the question of the granting of an adjournment, and in particular, his Honour went on to summarise the principles that arose out of those cases. At paragraph 24 of MZYZE, his Honour said the following:
Of course, it will be a rare case where a person is so ill as to prevent their attendance at a Tribunal hearing. Illness sufficient merely to make a person unfit for normal duties in a workplace would not be necessarily sufficient to show illness that prevented attendance, as is apparent from the cases on adjournment.
His Honour then cites a number of those cases, including the matter of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (“NAKX”). In that matter, the Court had received a medical certificate which stated:
This is to certify that on 13/12/2003 I examined the above person. In my opinion, he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.[5]
[5] [2003] FCA 1559 at paragraph 5.
There was a similar certificate in relation to a female appellant. Lindgren J in that matter said as follows:
The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing.
I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition should have that effect.[6]
[6] Ibid at paras.6-8.
In this case, the medical certificate is even less fulsome than those referred to by Lindgren J. It is not clear precisely what the qualifications are of the person giving the medical certificate. There is no actual condition specified and while the Applicant in her email refers to the fact that she has been suffering from a prolonged disease, there is no medical evidence either on the file, or in respect of this application that indicates what prolonged disease the Applicant may be suffering from.
Further, the medical certificate says the Applicant is “unfit for work”.[7] It says nothing about her capacity to attend this Court, and nothing about her capacity to participate in these proceedings. On the basis of all the material before me, I am not satisfied that I should grant the application to further adjourn this matter.
[7] Medical certificate signed by Dr Tran, Medical Dental Clinic, dated 13 September 2013.
Application for Review
This is an application for a review of a decision of the Tribunal of
6 February 2013. That decision affirmed a decision of the delegate of the Minister to refuse to grant the Applicant a Student (Temporary) (Class TU) visa. The Applicant now seeks orders for an order for certiorari and all required orders to grant her a student visa.
The Applicant is an Indian national. She has been in Australia, and has undertaken various courses of study, since January 2009.
The Applicant applied for a Student (Temporary) (Class TU) visa on
7 April 2011. The application was refused by the delegate on 27 June 2011. The delegate refused the application on two grounds;
·an inadequate explanation for a gap in study; and
·lack of evidence of regular income by an individual providing funds to the Applicant.
The Applicant applied to the Tribunal for review of the delegate’s decision on 13 July 2011. The Applicant attended a hearing before the Tribunal on 6 February 2013, and on that day she was notified that the Tribunal had affirmed the delegate’s decision not to grant the visa. The Applicant then applied to this Court for a judicial review on
4 March 2013.
The Tribunal’s decision
In its decision, the Tribunal found that at the time of the decision the Applicant was enrolled in a relevant course of study, and that the relevant subclass for the purpose of the review was a subclass 573 visa. The Applicant gave evidence of her enrolment, and evidence that she had access to funds for the purposes of cl.5A508(1)(c) of Sch.5A of the Migration Regulations 1994 (“the Regulations”). The Applicant had, however, not provided evidence that satisfied the Tribunal that the Applicant’s cousin’s regular income was sufficient to accumulate the level of funding that had been provided by her in accordance with cl.5A508(1)(c) of the Regulations.
The only evidence which the Applicant submitted in support of the requirements of that clause was a letter stating that her cousin earned about INR225,000 per year from selling milk. The Tribunal did not accept as plausible that this regular income was sufficient to accumulate the level of funding being provided by her to the Applicant.[8] In particular, the Tribunal questioned how her cousin could have deposited an amount equal to 6.5 times her annual income in two term deposits over three days.[9] The Tribunal therefore found that the Applicant did not satisfy the requirements of cl.573.223(2)(a)(i) of the Regulations.[10]
[8] Court Book, p.99 at para.41
[9] Ibid at para.42.
[10] Ibid at para.44.
Grounds
The grounds for a review as set out in the application are as follows:
1. Migration Review Tribunal fail to take the evidence provided by the Applicant at the Hearing.
2. MRT fail to take the accurate funds required as provided by the applicant
3. MRT fail to look at the applicants cousin income as a whole (wife & Husband)provided (sic)at the hearing
4. MRT fail to add the combine (sic) income of my cousin & her husband & they have been supporting me as a family.[11]
[11] Application filed 4 March 2013 at p.2.
The Applicant did not appear at the proceedings today, and, as the application for adjournment was refused, I am dealing with this matter on the basis of those grounds, and the submissions made by the First Respondent.
Submissions of the First Respondent
The First Respondent notes that the first ground of review is not particularised in relation to what evidence it was that the Tribunal had failed to take into account. Further, the First Respondent says the Tribunal took into account all the relevant evidence provided by the Applicant. Ground 2 appears to relate to evidence of the amount of funds as provided by the Applicant, which is not in issue as the Tribunal found that the Applicant had met those provisions.
Ground 3 and 4 allege that the Tribunal failed to have regard of the evidence of the income of the Applicant’s cousin, Ms HARPINDER KAUR (“Ms Kaur”). The Tribunal was not satisfied that the Applicant had provided evidence which demonstrated that the income of
Ms Kaur was sufficient to accumulate a level of funding being provided by her as required by cl.5A508(1)(c) of the Regulations. The Tribunal found the only evidence that the Applicant had provided in relation to her cousin’s regular income was a letter certifying that
Ms Kaur’s main occupation was dairy farming, that there were 12 dairy milk animals producing milk, and that that amounted to an income of INR225,000 per year.
The two term deposits that the Applicant was relying on were deposited within three days of each other, and collectively represented over six and a half years of income for her cousin. While the Applicant stated that:
·her cousin’s husband is well off;
·he receives income from many sources; and
·her cousin’s father-in-law also has several income sources,
the Applicant had not provided evidence to support this submission, and had previously indicated to the Tribunal that she was not relying upon any other sources of income. The Tribunal therefore concluded that the Applicant did not satisfy the requirements of the relevant clause of the Regulations. The First Respondent submits that the Tribunal’s findings were open on the material before it.
The Applicant also sought additional time to provide evidence of other sources of income, which was refused by the Tribunal. The
First Respondent submits that the circumstances in this case are clearly distinguishable from those considered by the High Court in
Minister for Immigration and Citizenship v Li(2013) 87 ALJR 618 (“Li”), so that it cannot be said that the result itself in this case bespoke error. The First Respondent submits that no error should be found in the Tribunal’s decision to refuse to adjourn the review to allow the Applicant to provide further evidence.
Conclusions
The criteria for the grant of the relevant visa are set out in Part 573 of Sch.2 of the Regulations. The issue in the present case is whether the Applicant met the criteria of cl.573.223 of the Regulations operative at the time, which relevantly provides that:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under Regulation 2.07AO:
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay in Australia having regard to:
(A)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matters.
(iii) The Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirement in Schedule 5A relating to the applicant’s financial capacity.[12]
[12] Migration Regulations1994, Sch.2, cl.573.223 (Court Book at page 44).
Clause 5A508(1) of the Regulations provides as follows in relation to financial capacity requirements:
1. 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 24 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 24 months; and
(b)evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and –
importantly in this case:
(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.[13]
[13] Migration Regulations 1994 at Cl.5A508 (Court Book at p.91).
The grounds of review contained in this application allege failure by the Tribunal to consider certain evidence in arriving at its findings of fact. It is not clear what evidence provided by the Applicant at the hearing was not taken into account by the Tribunal. The Tribunal summarised the material before it, both in terms of the documentary and oral evidence presented. The Tribunal found that the Applicant had not provided satisfactory evidence that the regular income of any individual providing funds to her was sufficient to accumulate the level of funding being provided by that individual.
The only documentary evidence of a regular income was a letter from the Dairy Development Inspector of Patiala which stated that her cousin was earning INR225,000 per annum.[14] On that basis, the amount deposited on 24 August 2012 and 27 August 2012 into two term deposits for the purposes of meeting cl.5A508(1)(a) of the Regulations would have taken her cousin six and a half years to accumulate. The only other evidence before the Tribunal was the Applicant’s oral evidence that:
her cousin’s husband is also very well off; they are rich and they have got a lot of income from many sources. Her [cousin’s] father-in-law … has got a lot of income sources … everything is grown, like wheat, milk products … and they don’t buy anything.[15]
[14] Court Book at p.81.
[15] Court Book at page 96, paragraph 26.
The Tribunal was within its jurisdiction when it refused to accept the oral evidence in satisfaction of the requirements of cl.5A508(1)(c) of the Regulations. While the Applicant did not expressly argue that she ought to have been granted an adjournment in order to provide further evidence, this was addressed by the First Respondent in submissions. As the Tribunal pointed out, the Applicant appeared before the Tribunal on 6 February 2013. The Applicant had been aware since the delegate refused her application in June 2011 that one of the reasons for the refusal was her failure to provide evidence of regular income of any individual providing her with funds such as to meet the requirements of cl.5A508(1)(c) of the Regulations.
The Tribunal made no jurisdictional error in failing to grant an adjournment for the purpose of allowing the Applicant to provide further evidence. For these reasons the application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 16 October 2013
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