Poonam v Minister for Immigration

[2014] FCCA 3160

FEDERAL CIRCUIT COURT OF AUSTRALIA

POONAM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3160

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal – jurisdictional error not present – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.360 & 363

Migration Regulations 1994 (Cth), Schedule 2, cl.572.223 & Schedule 5A, cl.5A405

Applicant: POONAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 144 of 2014

Judgment of: Judge Simpson

Hearing date: 5 September 2014

Date of Last Submission: 5 September 2014

Delivered at: Adelaide

Delivered on: 5 September 2014

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr P d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The application for judicial review filed on 28 April 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant do pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 144 of 2014

POONAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 15 April 2014. 

2. The Applicant has appeared in person today and has indicated to the Court that she has had an opportunity to consider the green book that was filed, and also the First Respondent’s outline of submissions.  I have heard submissions from the Applicant, and she has indicated that what is contained in her application is the complaint that she makes about the Tribunal.  (I indicate that I rely heavily on the submissions that have been provided by the First Respondent.  I have carefully examined those submissions and am satisfied that the submissions are accurate and that they correctly provide the background to the information.)

3. The principal issue in this application for judicial review is whether the Tribunal made, as I mentioned to the Applicant prior to her submissions to me, a jurisdictional error in affirming a decision of the Delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.  The First Respondent has submitted that the Tribunal did not commit a jurisdictional error and therefore the decision under challenge is not subject to constitutional writs.  The First Respondent submits that the application should be dismissed. 

4. The factual background to this matter is as follows.  The Applicant applied for a visa on 3 October 2011.  On 4 October 2011, the Delegate wrote to the Applicant requesting further information in support of the visa.  The inquiry was relevantly directed to whether the Applicant met cl.572.223(2)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), which in turn point to Schedule 5A. Schedule 5A is concerned with the financial capacity requirements. The relevant requirement was that the Applicant provide evidence that she had funds from an acceptable source that were sufficient to meet course fees, living costs and school costs for the first 36 months. That requirement comes from cl.5A405 of Schedule 5A to the Regulations.

5. On 23 October 2011, the Applicant’s representative provided various supporting documents to the Delegate.  On 23 November 2011, the Delegate wrote to the Applicant inviting her to comment on adverse information, namely, that the Department had spoken to the holder of the fixed deposit, Mr Kartar Singh, who apparently denied knowing the Applicant.  On 25 November 2011, the Applicant’s representative responded by email to the adverse information.  On 22 December 2011, the Delegate refused to grant the visa. 

6. On 6 January 2012, the Applicant applied to the Tribunal for review of the Delegate’s decision.  On 25 February 2014, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in her case.  That invitation also requested that the Applicant provide, amongst other things, documents that demonstrated she had sufficient funds or access to funds to support her stay in Australia.  On 2 April 2014, the hearing was conducted and the Applicant appeared by telephone.  She was represented by a Migration Agent.  On 15 April 2014, the Tribunal affirmed the Delegate’s decision, and on 28 April 2014, the Applicant applied for judicial review. 

7. I look now at the Tribunal’s decision. The Tribunal’s decision record discloses that it considered whether or not the Applicant should be given more time to provide additional evidence of her access to funds. It ultimately concluded that it would not, given the weight of evidence before it. Under the heading “Consideration of Claims and Evidence”, the Tribunal found the subclass 572 was the relevant visa. It went on to identify the issue as being whether the application met cl.572.223.

8. The Tribunal calculated the Schedule 5A requirements as amounting to $90,650, which the Applicant agreed was correct. The Applicant provided evidence in support of her financial capacity at the hearing. That is summarised in the Tribunal’s decision at paragraphs 12 and 40. In particular, the Applicant relied on a monetary deposit held by her grandmother, which was issued on 2 January 2012, in the amount of INR five thousand two hundred and thirty nine and three hundred and eighty four. The Tribunal found that this deposit did not meet the definition “funds from an acceptable source”, as it was not held for a period of six months immediately before the date of the application. That is required by cl.5A405(2) and is to be found in the green book at page 60.

9. The Tribunal was also not satisfied that the Applicant had access to the funds declared and therefore did not satisfy the requirements of cl.572.223(2)(a)(iii). In particular, the Tribunal was concerned about the fact that the Applicant previously relied on a deposit which she claimed was held by her grandfather, but when an integrity check was undertaken, a Departmental officer concluded that the Applicant provided documents which did not belong to her. The Tribunal independently reached the same conclusion as the Departmental Officer.

10. Further, the Tribunal was concerned that although the Applicant had been on notice since December 2011, her visa application had been refused on account of Schedule 5A. The Applicant still could not produce any evidence that her grandfather or grandmother had transferred any money into her account over the last two and a half years. The Tribunal found the explanation that her grandfather had sent cash with a friend to be implausible and that it lacked credibility. The Tribunal concluded that the Applicant had not given evidence in accordance with the requirements of Schedule 5A and did not satisfy the requirements of cl.572.223(2)(a)(iii). It therefore affirmed the decision under review.

11. I turn now to the grounds to be found in the application filed on 28 April 2014.  The application does not contain any grounds of judicial review but instead refers to a letter dated 27 April 2014.  I pointed this out to the Applicant during the submissions that she was making this morning.  In that letter, she had this to say:

    “I, Poonam –“

    and then I think she puts her birth date, which is 20.9.1985:

    “I lodged my student visa application on 3 October 2011 which was refused on 22.12.2011 as the Delegate was not satisfied that I had access to sufficient funds to support her stay in Australia and therefore found that I did not meet clause 572.223(2)(a)(iii).  Reasons for refusal were adverse findings in regards to the holder of a fixed deposit number 409600PR00038671 made for INR 4,257,161 on 12.3.2011 and maturing on 12.3.2012 as per the Australian High Commission of New Delhi.  Mr Kartar Singh, my grandfather, stated he had not sponsored me (Poonam) for an Australian visa as he did not know me (Poonam).

    According to my grandfather was never seen contacted by anyone for Australian High Commission.  It was a big mistake somewhere because my grandfather did not provide any phone number to the bank.  He himself did not know how to operate mobile phone being very old.  And the respective authority might have contacted some other Kartar Singh as it is a very common name in Punjab region.

    However the Delegate did not consider the stated factors and her visa application was refused.

    She, I, applied for MRT for review on 6.1.2012.  Unfortunately during the process of my application my grandfather expired on 5.7.2012.  Therefore now my grandmother, Inderjit Kaur wife of late Kartar Singh has become my sponsor.

    Another major change in the circumstances in my previous application Gurbrinder Singh (ex-husband) was included as spouse dependant Applicant.  But now we get divorce ordered on 26.11.2012 and I got remarried to Kulwant Singh Biring on 10 February 2013 in India and we have a child (name of child) from the relationship who is born in Australia on 29.11.2013.  My husband, he is in India, but my son, (name of child), is with me in Australia right now. 

    When I applied for MRT in 6.1.2012 I was doing Diploma of Hospitality from Adelaide International College.  But the college shut down in between without giving prior notice.  My studies were left in between and thousands of dollars in fees were lost as well.  Then I started Diploma of Management in October 2012, and finished it in October 2013.  Now I am pursuing Diploma of Business and wishes to complete Certificate IV in Marketing, leading to Diploma in Marketing, starting in November 2014 and finishes in November 2016.

    I had my MRT hearing on 2.2.2014 through a phone call.  My MRT case officer, she didn’t hear me and just gave her decision for MRT refusal.  I was keep saying that my grandfather was not gave you any wrong information and he was not got any PH call from Delhi High Commission.  She was not satisfied with my sponsor (my grandmother).  I was told that how can she sponsor you, how can you access her funds.  In my answer, I said I will transfer the money in my account.  My grandmother, she sent me money through my friend by cash and I was willing to gave my case officer an affidavit from my friend regards to the money which I got from my grandmother through her.  Even I was willing to make a conference call to grandmother.  My husband, Kulwant Singh, he gave me money too and I had the proof of that money.  But my case officer said my husband cannot sponsor you.  I was end up with MRT refusal. 

    I am honest and I didn’t do anything wrong.  So I want to review my visa application through Federal Circuit Court. 

    I am hoping positive response from you.”

12. There are no particular grounds properly identified in the Applicant’s letter.  The letter is largely, in my view, directed to the merits of the Tribunal’s decision.  That course taken by the Applicant is impermissible.  However, to the extent that the grounds are raised, I will make the following comments. 

13. The Applicant alleges that there was a failure by the Tribunal to take into account a change of circumstances.  This complaint, in my view, is without merit.  The Tribunal clearly did have regard to the fact that the Applicant’s grandfather had passed away, and her grandmother was now her financial sponsor for the purposes of the visa application.  They are dealt with at paragraphs 41 and 46 of the Tribunal’s reasons.

14. It also had regard to the fact that the Applicant had divorced the Second Applicant, re-married, and now had a baby from that marriage.  I refer to paragraphs 4 and 7 of the Tribunal’s reasons.  Further, the Tribunal noted the Applicant’s current course and future plans of study.  (See paragraph 8 of the Tribunal’s reasons).

15. In any event, the Tribunal refused the application for review on the basis that the funds relied upon had not been held for six months prior to the date of the application to satisfy the requirement that the funds originate from an accepted source, as required under cl.5A405(1). This was a finding of fact open to the Tribunal based on the evidence before it. The Tribunal also found that the Applicant did not have access to the funds declared. This was also a finding that was open to the Tribunal to make based on the evidence before it. The changes to the Applicant’s circumstances are not directly relevant to those findings and, therefore, the complaint does not give rise to a jurisdictional error.

16. In relation to the allegation that the Tribunal failed to hear the Applicant, I make the following comments. Firstly, I presume that the reference to a failure to hear the Applicant amounts to a failure to afford the Applicant a meaningful opportunity to be heard. However, it is clear that the Applicant was afforded such an opportunity. As an example, an invitation to appear was issued by the Tribunal under s.360. The Applicant elected to participate in the hearing by telephone. She was represented by a Migration Agent, she gave evidence, and presented arguments in relation to the issues arising in her case.

17. Further, the Tribunal’s detailed reasons demonstrate that it comprehensively considered each of the matters raised by the Applicant.  In those circumstances, in my view, there is no merit to the assertion that the Applicant was denied an opportunity to be heard. 

18. The Applicant also suggests that the Tribunal should have allowed her more time to give further evidence.  In my opinion, the Tribunal’s refusal to adjourn the review to enable the Applicant to present further evidence was a reasonable exercise of the power conferred on it in s.363(1)(b) of the Act.

19. In considering whether the exercise of a discretionary power was done reasonably, the Court needs to look at the reasons provided by the Tribunal. This will enable the Court to understand why the power was exercised as it was, and in order to determine the intelligible justification for the exercise of the power. The exercise of the power is to be carefully evaluated in the statutory context of Part V, Division 5 of the Act, including the scope and purpose of s.360 of the Act, which requires the Tribunal to give an Applicant a “… meaningful opportunity” – “a real chance” to appear and present evidence and arguments.

20. Accordingly, the submissions made that I referred to earlier apply equally to this ground.  In my opinion, the reasons given for refusing to adjourn the review were reasonable.  The Tribunal noted at paragraph 29 of their reasons that the Applicant was sent a hearing invitation in February 2014, which expressly invited her to provide evidence that she had genuine access to the funds declared.  However, the Applicant did not provide that evidence.  The Tribunal further noted at paragraph 30 of their reasons that the Applicant had been on notice since December 2011 that her visa application had been refused on the basis that she did not have evidence that she had access to sufficient funds to support her stay, but still could not demonstrate this. 

21. Accordingly, there was no error in the Tribunal’s exercise of its discretion to make a decision without allowing further time to the Applicant to provide evidence of the money received from her grandmother, and the money provided by her husband.  In my view, there is no substance in this complaint. 

22. In the circumstances, I consider that the only appropriate course is to dismiss the application.

23. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 6 May 2015