Parmar v Minister for Immigration

[2017] FCCA 2586

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARMAR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2586

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Sch.2, cl.572.224

First Applicant: BHUPINDER SINGH PARMAR

Second Applicant: RAJVIR KAUR PARMAR

Third Applicant: JORAWAR SINGH PARMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1354 of 2016

Judgment of: Judge Riethmuller

Hearing date: 6 September 2017

Date of Last Submission: 6 September 2017

Delivered at: Melbourne

Delivered on: 6 September 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1354 of 2016

BHUPINDER SINGH PARMAR

First Applicant

RAJVIR KAUR PARMAR

Second Applicant

JORAWAR SINGH PARMAR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal on 1 June 2016, affirming a decision made by a delegate of the first respondent refusing to grant the applicant’s Student (Temporary) (Class TU) visa application. 

2. The primary applicant is a male citizen of India.  The secondary applicants are his wife and child.  The applicants applied for the visas on 12 June 2015.  An integral part of the visa conditions is the provision of information showing that the applicant has sufficient funds to be able to properly pursue the course of studies, the subject of a student visa application.  On 16 June 2015, the Department requested additional information from the applicant, including, in particular: 

   Evidence of genuine access to A$35,849 as per level 3 assessment requirements.

   That is, in accordance with the regulations, the applicant, for his particular course of study, was required to show that he had access to this amount of money. 

3. The applicant produced a document purporting to be from the Standard Chartered Bank, dated 15 July 2015, which stated that his father had access to an overdraft of 2.5 million rupee secured against a fixed deposit in account number XX162.  Following investigation by the Department, it was determined that this was a bogus document.  There was no such account in the Standard Chartered Bank.  The applicant was invited to comment on this adverse information and he provided a further letter purporting to be from Standard Chartered Bank advising that, due to a technical error, the deposit XX162 had been mistakenly cancelled.  Investigations revealed that the second letter that was provided from Standard Chartered Bank was also a bogus document and no such accounts existed. 

4. The delegate, on 5 November 2015, refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of cl.572.224 of Sch.2 of the Migration Regulations 1994 (Cth), on the basis that he did not satisfy the requirements of PIC 4020. In simple terms, PIC 4020 requires that there not be evidence that a person has given or caused to be given to the Minister or an officer of the Department or Tribunal a bogus document or information that is false or misleading in a material particular (see PIC 4020(1)). In short, one cannot obtain a visa if one provides a bogus document to the Department in support of the visa application.

5. The applicant applied to the Tribunal on 21 November 2015 for a review of the delegate’s decision.  The issue before the Tribunal was whether or not PIC 4020 applied, but on a more practical level, whether or not the applicant could persuade the Tribunal to exercise the discretion to waive the requirements of PIC 4020 in his particular case.  The waiver provisions are set out in subparagraph (4) in the following terms:

   (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.

6. In the hearing before the Tribunal, there was no dispute that the documents were bogus documents and had been provided to the Tribunal by the applicant.  The applicant said that the responsibility for the fraud lay with Mr Amit Mittal, who had been assisting his father in dealing with the bank, or at least purporting to do so.  This is set out at para.17 of the Tribunal’s reasons.  The Tribunal did not go on to consider whether the applicant had personal knowledge of the fraud, given that the requirements of PIC 4020(4), only allowed for a waiver if there are compelling circumstances or compassionate or compelling circumstances that affect the interests of Australia or an Australian citizen. 

7. It does seem odd that the applicant would have had no knowledge of this, and that the agent would have engaged in such a fraud if there was no reason to do so, that is, if his father had actually provided the agent with the money, it seems remarkable that the agent would then engage in the fraud before returning the money to the father.  The Tribunal turned to consider whether or not the waiver provisions should apply and set out the reasons at paras.28 to 31 as follows:

   28. The Tribunal has considered the written and oral submissions of both the applicant and his representative both individually and cumulatively but it not satisfied that requirements should be waived for the following reasons.

   29. Firstly, the Tribunal records that the applicant provided a lot of documentation to the Tribunal before the hearing however provided no documentary evidence of his business ownership, lease commitment or of his claim to employ 2 Australian citizens full-time in the business. The Tribunal told the applicant during the hearing that he provided no evidence of his claimed Australian citizen employees. He gave no response to this. Given that the applicant was represented and the representative was acutely aware (given the admission in the written submission that the bank documents were fraudulent) that this case would inevitably rest on the waiver provisions, the Tribunal does not accept that the applicant employs two Australian citizens on a full-time basis in his restaurant as no documentary evidence by way of their passports and salary and/or taxation and/or superannuation records were provided.

   30. On balance it is however prepared to accept that he purchased a restaurant last September/October and that he and his wife work there. However the applicant would have purchased this business and entered into a lease while he was still an applicant for only a temporary student visa. The Tribunal raised this with the applicant at the hearing and clarified that it was definitely his intention to return to India at the conclusion of his proposed study in July 2016 and he said it was. Therefore as the applicant’s intention in applying for a further student visa was only to stay temporarily in Australia, the Tribunal is not satisfied that because he purchased this business and entered into a lease, given may have had to depart Australia within 12 months of so doing, the provisions of PIC 4020(1) should be waived as this is clearly something that the applicant would have (or should have) contemplated. This is so even if the applicant would subsequently have become eligible for another temporary or permanent visa in Australia. In any case the applicant’s evidence is that he has placed his restaurant up for sale on Gumtree and has a number of interested parties. He also said that if he breaks his lease he will pay out the balance of it so the Tribunal is not satisfied that if the lessor is an Australian citizen, permanent resident or eligible New Zealand citizen he/she/it will suffer any financial detriment. Nor is the Tribunal satisfied that the fact that the applicant pays taxes and has always done so on time or that a successfully run business contributes to the Australian economy are sufficient grounds for exercising the waiver provisions as these circumstances are neither compelling nor compassionate. Nor is the Tribunal satisfied that the applicant’s desire to finish his current course of study is a sufficient ground to exercise the waiver provisions as the applicant did not demonstrate that him not being up to finish this course constituted any compassionate and/or compelling circumstance.

   31. In summary the Tribunal has considered all of the compelling circumstances and compassion and compelling circumstances raised by the applicant and his representative but is not satisfied that any of them either individually or cumulatively justify the granting of the visa.

8. In this case, the substance of the applicant’s arguments are that he only had a short time to complete his course; that he had been running a restaurant business in Australia and employed Australian citizens who would lose their jobs; that he had been paying taxes in Australia; that it was his intention to return to India upon completing his studies; and that he required more time in Australia to sell the business and make arrangements to return to India.  It is difficult to see that most of these are matters that would affect the interests of Australia or an Australian citizen in any significant way, save perhaps in the employment that he provided to two Australians. 

9. The evidence on this was particularly thin and, in any event, he said that he was intending to sell the business on Gumtree.  The Tribunal clearly considered his submissions and did not accept that he actually employed two Australian citizens on the material he put before the Tribunal.  It is not surprising that the Tribunal would be less likely to accept his evidence about such matters, in light of the history of the case.  The Tribunal was also not satisfied that he was purchasing a business whilst on a student visa, given that he would have been aware that his residence here was on a temporary visa for studies. 

10. The Tribunal was not satisfied that his paying taxes or his desire to finish the course was a compassionate or compelling circumstance that affected Australia or an Australian citizen.  The case may well have been significantly different if the relevant provisions provided for compassionate or compelling circumstances generally, such as to allow for consideration of the applicant’s personal circumstances, rather than the requirement that it relate to Australia or an Australian citizen. 

11. The applicant, in his grounds for judicial review, simply claims that there was a lack of procedural fairness; the law was incorrectly applied; and there was a lack of natural justice. 

12. The applicant did not provide any written submissions, as directed to do so by the Registrar, and did not articulate any claim beyond that the Tribunal had failed to properly weigh his explanation where he claimed not to have known of the fraud undertaken by the agent in India.  As counsel for the Minister points out, this basis for his claim cannot succeed, given the wording of PIC 4020. 

13. There is nothing in the material to indicate that he was denied procedural fairness.  He made written and oral submissions to the Tribunal.  He was represented by a representative in his appearance before the Tribunal. 

14. There is nothing to indicate that he Tribunal incorrectly applied the law. 

15. The third ground, referring to natural justice is, in substance, a repetition of the first ground. 

16. In the circumstances, I am therefore not persuaded that the applicant has established a ground for judicial review in this respect.  In the circumstances, I therefore dismiss the current application. 

17. In this application, the Minister has been entirely successful.  The costs ordinarily follow the event.  The amount claimed is less than the scale fee.  In the circumstances, I am satisfied this is a reasonable amount and that costs ought to be ordered to follow the event. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  25 October 2017