Pillai v Minister for Immigration and Multicultural Affairs
[2001] FCA 1756
•2 NOVEMBER 2001
FEDERAL COURT OF AUSTRALIA
Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1756
VINU KUPPAMMA KARPUSWAMY PILLAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 963 OF 2001
EMMETT J
2 NOVEMBER 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 963 OF 2001
BETWEEN:
VINU KUPPAMMA KARPUSWAMY PILLAI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
2 NOVEMBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2.The applicant pay the respondent’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 963 OF 2001
BETWEEN:
VINU KUPPAMMA KARPUSWAMY PILLAI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
2 NOVEMBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
I have before me an application for an order of review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, (“the Minister”), to refuse an application by the applicant to enter and remain temporarily in Australia under a Student (Temporary) (Class TU) (subclass 560) visa. The decision was notified to the applicant by letter of 15 May 2001.
The amended application discloses two grounds. The first ground is that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision as contemplated by s 476(1)(e) of the Migration Act 1958 (“the Act”). The second ground is that the delegate did not have jurisdiction to make the decision, thereby giving rise to the ground contained in s 476(1)(b).
Before dealing with those grounds I shall say something about the factual circumstance that give rise to the application. On 27 December 2000 the applicant completed an application for a Student (Temporary) visa. I will assume that the application was lodged with the Australian High Commission Visa Office in New Delhi, India, shortly after that date. The application was accompanied by a supplementary questionnaire form 157W and other material, including a ‘Statement of Purpose’ completed in handwriting by the applicant. Certain other material was provided in connection with the application. That other material included material relating to the financial affairs of Mr Raman Pillay.
The supplementary questionnaire completed by the applicant discloses that he proposed to study for a Diploma of Civil Engineering for two years at New South Wales TAFE. In answer to the question “What influenced your decision to enrol in the course you propose to study in Australia?”, he provided the following answer:
“I want to gain a professional and internationally recognized diploma at NSW TAFE & will learn about the latest software being used for design and also latest development in the field of Civil Engineering.”
In the body of the application under the heading “Financial Support Details”, under the heading “Loan From a Relative”, the following appeared:
“Mr Ramon Pillay
4 Tornhill Place, Cherrybrook,
NSW, 2126, Sydney, Australia.
Motel owner.”In response the question “How do you propose to repay this loan?” his response was “As he is immediate family, I do not have to repay this loan.” The amount borrowed was shown as “Rs 3-5 Lakh”.
In the statement of purpose that accompanied the application, the following appeared under the heading “Educational Background”.
“I wish to go for a further studies in civil engineering in Australia as I realise that without professional qualification I cannot do full justice when I start looking after my family business eventually.”
Under the heading “Career Goals” the following appeared:
“As I gained experience in civil construction line through my father's business, I gained invaluable practical experience by I wanted to develop this line and so I decided to go for further studies in Civil Engineering. I chose Australia for further studies as Australia provides better facilities with advanced tools and technology.
………………………
This course among other things will also make me aware of the basics of Civil Engineering starting from surveying, organisation, planning and building. I will also learn about project management, foundations, reinforced concrete, steel works and strength of materials. I will also be tackling issues like environmental impact of man's approaching on nature, road and town planning.
Other subjects include estimating of materials, hydrology, sand investigation, mechanics, capacity of a beam load, drainage systems etc.
I will also be doing project in my third semester. I chose NSW TAFE because they are very well reputed by their peer institutions in the field of Civil Engineering.”
Amongst the material that was furnished in connection with the application was an affidavit purporting to be by the applicant's parents saying as follows:
“(1) …we the above named deponents do hereby declare that we are not sponsoring our son, PILLAI VINU KK for his trip to Australia for the course of Diploma of Civil Engineering at the college of Mt Druitt College of TAFE, starting from 12.02.2001 to 31.12.2002.
(2)We support his decision to study in Australia and the “WHOLE FAMILY” has sufficient financial resources to sponsor his education, to living expenses during his stay in Australia for two years.
(3)We further declare that Mr Ramon Pillai residing at 4 TORN HILL PLACE, CHERRYBROOK, NSW, 2126, SYDNEY, AUSTRALIA is his primary sponsor and will take responsibility for his accommodation plus tuition fees which amounts to Rs. 3,00,000/- (approx) for two years.”
The application was also accompanied by a letter on the writing paper of “Colonial Motels” addressed to the Australian Visa Section of New Delhi, purporting to be signed by Ramon Pillay as managing director. It said as follows:
“I am Ramon Pillay Director of Colonial Motels Richmond, 161 March Street, Richmond, will personally be providing full tuition fee, accommodation, medical and any other financial assistance for my nephew Vinu Pillai KK during his study at TAFE Mt Druitt NSW.
He will be staying with us in Parramatta in one of my units and I shall take care of his boarding and TAFE fee until he complete his diploma.”
There is also a statutory declaration purporting to be declared at Richmond on 22 December 2000 by Ramon Pillay stating:
“My nephew Mr Vinu Pillai KK coming to Sydney to have further study at TAFE Mount Druitt and I shall be helping for all his tuition fee in full, boarding, lodging, medical and financial assistant if necessary.”
The other material accompanying the application included considerable material relating to the financial position of Mr and Mrs Pillay of Colonial Motel Richmond, New South Wales.
The Australian High Commission Office wrote an undated letter to the applicant saying inter alia as follows:
“I refer to your application for subclass 560 student visa for Australia.
Your visa application to undertake a course of study in Australia has been given preliminary approval. If you wish to proceed with your application you should now:
·apply formally to enrol at the institution of your choice, and
·send the original of this letter and all necessary tuition fees with your application to enrol.
If the institution accepts your application, they will send you a Confirmation of Enrolment form.
If you have not already done so, you should also arrange to have the medical and chest x-ray examinations (forms and information for which are enclosed herewith) which are a necessary part of your visa application. You must present a valid passport to the doctor and the radiologist and the time you attend for your medicals as this is the only acceptable form of personal identification.
… … … … … … …”
Then there is a reference to the sending to the visa office of some further documents. The letter then goes on as follows:
“Please remember that this letters is a preliminary approval only. A final decision has not yet been taken on your application for a student visa. Do not resign from employment or make travel arrangements or other similar decisions on the basis of this letter. You must wait for a final decisions regarding your visa application which will be notified to you after we receive all of the above.
………………………
You are requested to provide the above information within 28 days. After that time a decision will be made on your application based on information to hand. You should also note that the earlier you provide the information requested, the sooner a decision can be made on your application. This office takes no responsibility for processing applications in time for your course commencement date if you do not respond quickly to our requests.
………………………”
Another undated letter referring to the application for subclass 560 student visa was also sent by the Australian High Commission Visa Office to the applicant. The letter refers to the requirement that the applicant must meet Australian health standards as a prerequisite for entry to Australia.
By letter 22 February 2001 the New South Wales Department of Education advised the applicant that he met the entry requirements for the course of Diploma of Civil Engineering at Mt Druitt College of TAFE starting on 16 July 2001 and to complete 30 June 2003.
On 23 March 2001, the applicant wrote to the Australia High Commission in New Delhi saying:
“As my PVA was granted to me very late for my February batch I would like deferment for July 2001 intake and I have already received a new letter of offer for the July 2001 intake. I have already completed my medical test and have paid my fees. I hereby request you to grant me a visa for July 2001.”
On 23 April 2001, an interview of the applicant was conducted by Deepa Krishnan in India. The interview record included the following:
“Course details: A/n going for Diploma in Civil Engineering (two years) leading to Bachelors with Diploma. In all would take him only three years. Why Australia? He said they provide practical work and might get experience in bigger construction projects like flyover. When asked does the prospectus state regarding experiences in bigger construction projects. He said the prospectus states practical experiences.
Financial Sponsor: Uncle, (father’s younger brother) in Australia. Recommended the course, he is also the financial sponsor. Uncle operates a motel which has about 40 to 50 rooms. Said he is not aware of any other details of the motel. He said the funds are provided as a gift and do not need to be repaid. When asked why? He said his father had helped the uncle financial for education earlier hence, the uncle wants to pay him back. Father partially sponsoring (1 lakh in cash and 1 lakh deposits ie. a total of 2 lakh rupees).
Future Plans: He says he wants to complete the course come back and make his company number one in Mumbai.
Assessment: Has been refused twice earlier (on v/v and student visa). Has shown his inclination to undertake the course only after his business ran under loss and had to face huge competition. Note that father took over the business almost a year back as per the applicant. No incentive to return. Father has very limited funds. Uncle sponsoring who is running a motel in Australia. Cannot confirm the claimed relationship or ongoing support of funds. Bona fide concerns. Recommended refusal.”
By letter of 15 May 2001 the senior visa officer wrote to the applicant from the Australian High Commission Visa office. The letter said as follows:
“I have considered your application carefully and have taken into account the information you provided. However, I regret to tell you that you have been refused a visa.
The Migration Regulations set out the requirements which applicants must satisfy for a Student (Temporary) visa (Class TU) application to be successful. These are summarised at attachment A of this letter. If you are unable to satisfy all the requirements for the grant of the visa, then the law requires that the visa be refused.
I first considered your application with respect to the criteria for a Subclass 560 visa.
Based on the information you submitted in your application and supporting documents I am not satisfied that you are a genuine applicant for entry and stay as a student. As a result of this, you fail to satisfy regulation 560.224.
In reaching this conclusion I have had regard to your interview with one of our assessors where you stated reasons for undertaking this course. You were not able to forward genuinely convincing reasons for wanting to undertake this course. You have also not been able to state how this course will assist you in your future plans.
You have made claims in your application that your application that your uncle will be sponsoring you for your proposed studies. I am unable to confirm the claimed relationship and have doubts whether you will have access to ongoing support of funds for your proposed studies. As a result, I am not satisfied that you are a genuine applicant for a student visa.
Your application has not been assessed against all class 560 criteria.
As you do not meet all the criteria for the grant of a subclass 560 visa and as there is no evidence that you satisfy the criteria for any other subclass of visa within Class TU your application is refused.
This decision is not one which is reviewable by the Migration Review Tribunal in Australia.”
At the relevant time, regulation 560.22 set out the criteria to be satisfied at the time of a decision relating to the grant of the visa in question. Regulation 560.224 relevantly provided as follows:
“… the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:
(a)to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and,
(b)… to the applicant’s comprehension of English for the purposes of the course; and,
(c)to whether the applicant intends to comply with any conditions subject to which the visa is granted; and,
(d) to any other relevant matter.”
The department’s Procedure Advice Manual contains a section headed “Gazettal of Countries”, paragraph 6.2.1 of that documents says:
“Briefly, the gazettal (or non-gazettal) of countries is relevant for purposes relating to
·which students outside Australia should be assessed as to their genuineness before confirming their enrolment and obtaining an official confirmation of enrolment from the education provider…
·the total period of stay that certain students are allowed, for the purpose of undertaking courses of less than twelve months duration…
·the visa period for students undertaking a prerequisite course followed by a principal course…
·whether student dependants may accompany the student to (or join that student in) Australia….”
Section 6.3 headed “The Role of Gazettal in Assessing the Genuineness of a Student” contains the following:
“6.3.1 Provision 560.224… requires all students… to be ‘a genuine applicant for entry and stay as a student’….
6.3.2It is policy that all non-gazetted country students applying outside Australia have their genuineness as a student assessed before confirming their enrolment and obtaining official confirmation of enrolment….
6.3.3The requirement (under policy) of non-gazetted country students applying outside Australia have their genuineness as a student assessed before confirming their enrolment is intended to
· discourage non genuine students from applying;
·limit the number of (refused) applications for which education providers are obliged to refund tuition fees that have been paid in advance;
·avoid students gaining undue expectations of being granted a visa.”
In light of the ultimate decision, the object last referred to may have miscarried. The two grounds upon which the applicant now bases his application to the Court are, first, that an estoppel arises to preclude the Minister from denying the visa on the ground that Regulation 560.224 was not satisfied; and secondly, that the decision maker failed to take into account relevant considerations when making the decision. I shall deal with each ground separately.
ESTOPPEL
The estoppel contention is that, because of the undated letter to which I have first referred, an estoppel arises whereby the Minister is estopped from revisiting the decision that had been made (referred to in paragraph [12] above). Questions may arise as to whether or not an estoppel will ever arise to preclude the performance of a public duty. The applicant relied on views expressed by Einfeld J in Kurtovic v MIMA (1989) 86 ALR 99 at 107, 110. That decision was overturned by the Full Court on 7 February 1990.
In any event, the only relevant estoppel that was referred to by his Honour were the principles of equitable or promissory estoppel. His Honour referred at some length to the decision of the High Court in Walton Stores v Maher (1988) 164 CLR 387. The applicant relied on those principles as giving rise to some estoppel. However, a fatal deficiency in the evidence before me was the absence of any evidence from the applicant that he in some way acted to his detriment in reliance upon the contents of the undated letter.
It may well be that, in some circumstances, where a representation is made by a public official and a citizen acts to his detriment in reliance upon the truth of that representation, an estoppel could arise, whereby that public official, or the authority on whose behalf he or she acts, is estopped from denying the truth of the representation. However, there was no evidence from the applicant as to what his understanding of the undated letter was.
In particular, there was no indication as to what meaning he gave to the paragraph that stated unequivocally that a final decision had not been taken and that the letter was only a preliminary approval. The regulation, of course, required that the criteria be satisfied as at the date of decision. It was not suggested that the decision was made at the time of the undated letter. It was accepted that the relevant decision under review was made by the letter of 15 May 2001. It seems that the interview of 23 April 2001 intervened between the undated letter and the letter of 15 May 2001.
Even if there were a basis for an estoppel, a question would arise as to the appropriate relief. Once again, the absence of evidence from the applicant as to what detriment was suffered would cause difficulty in relation to the relief that is sought. There is evidence, in the form of the letter of 20 March 2001, to which I have referred, that the applicant paid fees and undertook the medical test. In the absence of evidence on the point, I would infer that NSW TAFE refunded the applicant’s tuition fees. There was no suggestion that the undertaking of the medical test was in some way detrimental to the applicant.
One could imagine circumstances where it may well be unconscionable, having regard to an expectation that was created on the part of an applicant, for a government department to depart from an assumption that had been induced in that applicant – see, for example, Commonwealth v Verwayen (1990) 170 CLR 394 (“Verwayen’s Case”). However, there is no evidence that the present case is of that category. In Verwayen’s Case the High Court was by no means unanimous as to the nature of the relief that should be granted where an estoppel arises. It is sufficient for me to observe that the relief does not necessarily extend to making good the assumption but might be limited to affording compensation for the detriment that was incurred as a result of the assumption induced by the government department. In Walton Stores v Maher, the relief granted was in the form of compensation, not the enforcement of an agreement for lease that was said to arise by estoppel. Whether or not any estoppel would arise that would preclude the discharge of a duty under statute, I am not satisfied that the prerequisites for an estoppel have been made out in this case.
RELEVANT CONSIDERATION
The second ground now relied on is that the decision maker failed to have regard to the material relating to the genuineness of the applicant and the prospect of his being sponsored by his uncle. The applicant invites me to draw such an inference from the terms of the letter of 15 May 2001. However, it is not for the Court to form a view as to whether the material before the decision maker was appropriate to lead to the decision that was made.
The second ground was not the subject of any particulars in the application. It was first formulated in an outline of submissions that was delivered the day before the hearing. I had given directions for an outline of submissions to filed and served five days before the hearing. I am told that the delay was as a result of a failure by the Minister to comply with another direction that I gave for the filing of relevant documents. Having heard the argument, the solicitor for the Minister indicated that he was prepared to meet the argument that had been advanced concerning failure to take into account relevant considerations. Accordingly I indicated that I would, to the extent necessary, allow further amendment of the amended application by deletion of the particulars relating to ground two, on the basis that the applicant’s outline of submissions of 1 November 2001 would be taken as particulars of that ground.
The applicant’s contention is that, because the letter of 15 May 2001 fails to refer to:
· the terms of the supplementary questionnaire,
· the statement of purpose, and
· the material from the applicant's parents and Ramon Pillay,
an inference should be drawn that the decision maker did not take those matters into account. If that were established, it may be possible to show that the ground in s 476(1)(b), or the ground in s 476(1)(c), might be made out - see MIMA v Yusuf [2001] HCA 30, (2001) 180 ALR 1, at paragraphs [82] to [84] inclusive.
However, the applicant is faced with an unequivocal statement in the letter saying:
“I have considered your applicant carefully and have taken into account the information you provided.”
I do not see any reason why I should doubt the truth of that statement.
The only reasons advanced for drawing an inference is that first, there is no mention of the material to which I have referred and, secondly, that no reasonable decision maker could have reached the conclusion contained in the letter, if that material had been taken into account. I am not persuaded as to the second matter. It may well be that the material is compelling. I express no view about that. Nevertheless, the decision maker took into account the notes of the interview that took place on 23 April 2001. Those notes, as I have indicated, suggest a basis for reaching the conclusion that was contained in the letter 15 May 2001. But the most compelling circumstance, in my view, is the unequivocal statement to which I have referred.
I do not consider that any possible doubt that one might have as to the correctness of the decision on the basis of the material that was contained in the application leads to an inference that the unequivocal statement was false or incorrect. In my view this second ground is not made out. It follows, in my opinion that the application should be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 13 December 2001
Solicitor for the Applicant:
Simon Diab and Associates
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
2 November 2001
Date of Judgment:
2 November 2001
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