Khangura v Minister for Immigration

[2016] FCCA 1539

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHANGURA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1539

Catchwords:
MIGRATION – Judicial review – student visa – bogus document – PIC 4020.

Cases cited:

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Applicant: RUPINDER SINGH KHANGURA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1657 of 2015

Judgment of: Judge Harland

Hearing date: 14 June 2016

Date of Last Submission: 14 June 2016

Delivered at: Melbourne

Delivered on: 23 June 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the application filed 20 July 2015 is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1657 of 2015

RUPINDER SINGH KHANGURA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Tribunal which affirmed a delegate’s decision to refuse the applicant’s application for a temporary student visa.

2. The applicant filed the application for judicial review on 20 July 2015.  The Registrar of the Court made the usual directions on 9 December 2015.  The applicant has not filed any written submissions.  The applicant confirmed receiving the written submissions from the Minister’s counsel. 

3. The applicant said that he had not been given a written decision from the Tribunal.  I note that his initiating application for judicial review does not attach the written decision.  It attaches the notice of the refusal.

4. It is apparent from the Court Book (“CB”) that the Tribunal member delivered oral reasons immediately after the hearing and then produced brief written reasons on 31 July 2015.  The written reasons are brief, consisting of 18 paragraphs and being less than two pages long. 

5. The applicant attended for hearing in person and did not require the assistance of an interpreter.  I gave the applicant the opportunity to read the decision and to re-read the Minister’s submissions.  Before doing so, I explained the nature of judicial review proceedings. 

6. The applicant applied for a temporary student visa. One of the visa requirements is that the applicant has sufficient means of financial support.

7. The delegate and the Tribunal found that the applicant provided bogus documents to the Department being documents said to be from two banks.  The delegate and the Tribunal relied on documents from two banks indicating that the funds the applicant referred to as having in the bank did not exist.  The applicant’s explanation, which includes providing evidence from his parents, was that his parents had deposited the funds in the bank account but withdrew the funds for, what he referred to, as a “compulsory domestic affair” without telling him but had since reinstated the funds.

8. The applicant said in his written submissions provided to the Tribunal that his parents were old and unwell and uneducated and that a family friend had organised the funds and the paperwork.  The applicant says he does not know why there was a miscommunication between the Department and the bank.  He further asks for a waiver of the Public Interest Criterion (“PIC”) 4020 conditions.

9. The PIC 4020 requirements are triggered by the fact that the Department found that the applicant had provided bogus documents.  Although the Tribunal did not refer to the decision of Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, that decision deals with the bogus documents.

10. The Tribunal decision specifically addresses this issue.  The Tribunal member found at paragraphs 9 and 10 that the explanation provided by his parents for the missing funds were misleading as the funds were not found to have been used but to have been non-existent and that the documents provided by the applicant were not issued by either the Bank of India or the State Bank of Patialia, and were bogus documents.

11. The Department discovered this as part of its usual integrity checks.  Having found that the applicant had provided bogus documents, and I’m satisfied that that finding was open to the Tribunal given the evidence before it, the Tribunal turned to the consideration of whether or not there were compelling circumstances effecting the interests of Australia or compassionate and compelling circumstances that would justify a waiver of the PIC 4020 requirements.

12. The only thing the applicant said with respect to compelling circumstances was that he wanted to study and then go back to his country.  The Tribunal found that there were no compelling or compassionate circumstances.  Again, that was open to it on the evidence that it is not an uncommon thing for a person applying for a student visa to seek to study in Australia and then return to their home country.  Compelling, compassionate circumstances require something more unusual or exceptional.

13. The applicant in the application for judicial review essentially complains about that misunderstanding, referring to the fact that his parents had withdrawn funds from the bank account before the Department had checked that the applicant had the required funds as part of his visa condition.  This was an issue that was also addressed by the delegate and addressed by the applicant’s migration agent in written submissions made to the Tribunal on the day before the hearing.

14. At the hearing before me the applicant made the same complaint that the Tribunal did not listen to him and said that there was a misunderstanding between himself and the Department.  The Minister’s counsel addressed the issue of the misunderstanding in his written submissions.

15. It is apparent that what the applicant is seeking is a merits review, which is not a permissible function of this Court.  Whilst the Tribunal decision is brief, the issue before it was a limited one.  I find that the Tribunal has not made any jurisdictional error and the application, therefore, must be dismissed.

16. The counsel for the Minister sought costs in the sum of $5800 in the event of being successful.  The applicant submitted that that was too much for him to pay.  I am satisfied that it is appropriate to make an order for costs in the Minister’s favour and note that the amount sought is less than the amount provided in the Federal Circuit Court scale of costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 June 2016