MASSIH v Minister for Immigration

[2014] FCCA 831

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASSIH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 831

Catchwords:
MIGRATION – Visa – Refugee Review Tribunal – application for Judicial Review.

Legislation:

Migration Act 1958 (Cth), ss.360, 474

Federal Circuit Court Rules 2001, r.44.12
Migration Regulations 1994 (Cth), clause 572

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259

Applicant: SANDEEP MASSIH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 653 of 2013

Judgment of: Judge Howard

Hearing date: 25 March 2014

Date of Last Submission: 25 March 2014

Delivered at: Brisbane

Delivered on: 29 April 2014

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the First Respondent: Sparke Helmore

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. That the application be dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001.

2. That the applicant pay the first respondent’s costs in an amount to be fixed by the Court on the date of the Judgment is delivered.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 653 of 2013

SANDEEP MASSIH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was born in India on 22 December 1988.

2. The applicant first arrived in Australia on 25 June 2009.  He arrived in Australia having been granted a student Visa subclass 572.  That Visa ceased on 15 June 2011.

3. On 14 June 2011 (the day before his Visa was due to expire) the applicant made a further application for a student Visa.

4. One of the Minister’s delegates refused to grant the Visa. That decision was made on 10 August 2011. The reason for that decision was that the delegate was not satisfied that the applicant had met the financial capacity criteria for the grant of the Visa. That criteria is set out in Part 572 of Schedule 2 to the regulations enacted pursuant to the Migration Act1958 (Cth).

5. In relation to the question of financial capacity – I note that this is dealt with in clause 572.223 of Schedule 2 of the Regulations. That is where the criterion are stated. That clause relevantly provides:-

   “(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 as a student, 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 matter; and

   (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 requirements in Schedule 5A relating to the applicant’s financial capacity; or

   (b) for an applicant who is a person designated under regulation 2.07AO – the Minister is satisfied that:

   …”

6. The “highest assessment level” for the applicant in this case was – “Assessment level 4”.

7. Schedule 5A to the regulations sets out the requirements for assessment level 4 in respect of a subclass 572 student Visa.

8. The first requirement is English language proficiency.  The applicant was able to satisfy the English language proficiency requirement.

9. Clause 5A 405 (of Schedule 5A) deals with the question of financial capacity. 

10. The money in question (level 4 assessment) in this case was $28,780.

11. The funds have to be shown to be from an “acceptable individual”.  In this case the applicant relied upon his father and grandfather.  Both of those persons were acceptable individuals.

12. But the difficulty for the applicant arose because he was not able to satisfy the decision maker that the funds were also from an “acceptable source”.  Pursuant to Clause 5A 405(2)(aa) the applicant had to show “a money deposit that an acceptable individual has held at least the six months immediately before the date of the application”.

13. That is, to put it another way, the applicant had to show that an acceptable individual (in this case he had nominated his father and his grandfather) could be said to have held the requisite amount of money for at least the six month period immediately before the date of the application.

14. The date of the application was 14 June 2011.  Therefore the applicant had to produce evidence – whether in the form of bank statements or otherwise – that satisfied that particular criteria.

15. The delegate was not satisfied that the applicant had met that criteria.  The delegate made a decision refusing to grant the applicant a Visa.

16. On 26 August 2011 the applicant lodged an application for a review of the decision to the Migration Review Tribunal.  Exhibit 1 (the Court book) contains from page 86 a copy of a letter sent by the Migration Review Tribunal to the applicant – care of the applicant’s lawyer at Gopal & Chand Lawyers in Brisbane.  That letter is dated 7 May 2013 and is an invitation to the applicant to appear before the Tribunal.  The Tribunal hearing took place on 6 June 2013 in Brisbane.  The applicant attended along with his lawyer/advocate.

17. In the letter from the Tribunal to the applicant (dated 7 May 2013) the Tribunal specifically drew the applicant’s attention to the requirements in terms of evidence that he would need to produce in order to satisfy the financial capacity requirements to assist him in obtaining the Visa he was seeking.  In particular I note paragraph 3 that appears on page 88 of exhibit 1.  The first dot point under that paragraph states that the applicant would need to (essentially) provide evidence to show that he had funds from an acceptable source and it stated further:-

    “If you are relying on a money deposit, in most cases, this must have been held for at least six months immediately before the date of the Visa application.”

18. At the Tribunal hearing the Tribunal explained this situation further.  This is noted in paragraph 31 of the Tribunal’s decision which appears on page 153 of exhibit 1:-

    “31. The Tribunal explained the definition of “funds from an acceptable source” and the alternative way of demonstrating this by reading the definition of money deposit and explaining that he would need to demonstrate that the funds held 6 months before the date of the visa application and are currently held.  Another alternative is a loan granted by a financial institution.  The Tribunal reviewed the documents provided by the applicant at the hearing noting the two account statements held by his father at the State Bank of India and said that the statements do not show funds held for 6 months before the date of his application.  In addition if he is relying on statements such as these, as the balance shown on these statements fluctuates, it could only consider the minimum balance held over the required period of time, as meeting the requirement.  In this case the Tribunal said the applicant would need to provide statements which cover the period from January 2011 to the current date.”

19. The Tribunal went further and – having pointed out the requirements to the applicant at the Tribunal hearing – the Tribunal then gave to the applicant a further week until 13 June 2013 – to come up with documents or in some other way satisfy the Tribunal to a sufficient standard that the financial capacity requirements could be satisfied.

20. On 12 June 2013 some further documents were forwarded to the Tribunal by the applicant (through his lawyer) – but there was still no evidence that the funds had been held for the period of at least six months prior to the applicant’s Visa application that was made on 14 June 2011.

21. The applicant had failed to satisfy the financial capacity requirements.

22. Further, there was no evidence to demonstrate that the applicant met the criteria for any of the other relevant student Visas – the Tribunal was left with no alternative but to affirm the delegate’s decision.

23. On 2 August 2013 the applicant filed an application for Judicial Review of the decision of the Migration Review Tribunal in the Federal Circuit Court of Australia.

24. An order was made on 4 September 2013 by His Honour Judge Burnett allowing the applicant to file and serve an amended application or an affidavit of evidence by 16 October 2013. No such amended application or affidavit has ever been filed. Indeed, on 4 September 2013 His Honour also ordered that the application be listed for a show-cause hearing pursuant to rule 44.12 of Federal Circuit Court Rules 2001 at 10:00am on 25 March 2014.  The applicant therefore needed to raise “an arguable case for the relief claimed” before the Court at the show-cause hearing on 25 March 2014.

25. The wording contained in the application for Judicial Review filed 2 August 2013 stated under the heading, “grounds of application” the following:-

    “I have finish my study certificate iv in Business and Diploma of Management.  And still doing Business in administration.  I applied for my student visa in July 2011 but It was refused because my advocate show wrong documents to the immigration.  I already told everything to the MRT case officer but she still refused my visa because I did not show my 2011 funds but I was not aware of that I need to show that documents as well.  I show my coe and new funds as well.  But if I can get time I will definitely show to you my 2011 funds as well.”

26. The essential ground of review relied upon by the applicant was therefore – that he did not know that he had to “show my 2011 funds”.  The applicant stated further in the application – that if he could “get time” then “I will definitely show my 2011 funds”. 

27. The applicant was, on the evidence before the Court, clearly on notice as to the requirements that he needed to meet in order to satisfy the relevant financial capacity criteria.  There is the letter that was sent to his lawyer dated 7 May 2013.  In Court on 25 March 2014 the applicant submitted that the letter had been sent to his lawyer and not to him.  But there does not appear to be any merit in that argument because the lawyer attended with the applicant at the Tribunal hearing.  Clearly the applicant’s lawyer was the authorised agent of the applicant and there is no evidence or suggestion to the contrary.

28. I would also reiterate at this point in time that the applicant was proficient in English and did not require an interpreter at the hearing.  Indeed the applicant stated in the application for Judicial Review filed 2 August 2013 that he did not require an interpreter. 

29. Further, the Tribunal clearly discussed this issue with the applicant at the hearing and even allowed him a further week to provide some documents or other evidence.  No relevant further documents were provided.

30. I am satisfied that the applicant has been accorded procedural fairness.

31. I agree with the written submission provided on behalf of the Minister – that there is no evidence that the applicant was not properly invited to appear before the Tribunal in accordance with section 360 of the Migration Act 1958 (Cth). Further, in the absence of any evidence to the contrary – the conclusion to be reached is that there has been no breach of s.360 of the Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.

32. In this particular case the applicant is seeking to have this Court embark upon an impermissible review of the merits of the Tribunal’s decision.  No jurisdictional error has been identified by the applicant: Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272.

33. I agree with the submission made on behalf of the Minister that the applicant has not demonstrated any jurisdictional error affecting the decision of the Migration Review Tribunal. 

34. Indeed this hearing was set down as a show-cause hearing pursuant to r.44.12 of the Rules of the Federal Circuit Court of Australia. The applicant has not identified an arguable case. The application should be dismissed pursuant to r.44.12 of the Rules of the Federal Circuit Court of Australia.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Howard

Associate: 

Date:  29 April 2014