Rathor v Minister for Immigration

[2014] FCCA 2173

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATHOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2173

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – student visa application – whether Tribunal’s refusal to allow applicant additional time to provide information as to financial capacity was unreasonable – whether Tribunal erred in conducting hearing in presence of other persons – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.353, 365
Migration Regulations 1994 (Cth)

Kumar v the Minister for Immigration & Anor [2013] FCCA 1860
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minster for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35

Applicant: HARDEEP SINGH RATHOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2861 of 2013

Judgment of: Judge Barnes

Hearing date: 4 September 2014

Delivered at: Sydney

Delivered on: 4 September 2014

REPRESENTATION

Applicant: In person

Solicitor for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2861 of 2013

HARDEEP SINGH RATHOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a Tribunal decision.  The Tribunal made an oral decision on 24 October 2013.  The decision record containing the reasons for the decision is dated 25 October 2013.  The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.

2. The Applicant, a citizen of India, applied for the student visa in question on 8 August 2012.  He provided some evidence of course enrolment.  However on 10 August 2012 the Department wrote to the Applicant advising him that additional information was required as explained in a detailed attachment.  In particular, included in that attachment was a detailed specification of information required in relation to the Applicant’s ability to support himself and as to the source of funds from specified eligible family members. 

3. There is no evidence that any such financial information was provided to the Department.  On 6 September 2012 the Applicant provided other information, including a psychological assessment.

4. On 4 January 2013 the application for a visa was refused by the delegate.  In the reasons for decision the delegate recorded that the Applicant had not provided evidence that his financial capacity met requirements of the legislation.  Details of such requirements were set out.  In the absence of such evidence the delegate found that the Applicant had not satisfied the applicable criteria for the visa for which he had applied.

5. The Applicant sought review by the Tribunal by application lodged on 23 January 2013.  He did not appoint a representative.  Nor did he request that correspondence be sent to some person other than himself.

6. On 18 September 2013 the Tribunal wrote to the Applicant at the address he had provided in his review application inviting him to attend a Tribunal hearing on 24 October 2013.  That letter advised him that the hearing was scheduled to start at 9:30 am and was one of several cases to be heard in the following two hours.  It also advised him that within seven days of receipt of the letter he should provide all documents he intended to rely on to establish he met the criteria for a visa.  In addition, the Tribunal requested information described in the letter, including, relevantly, documents demonstrating that the Applicant had sufficient funds or access to funds to meet expenses over the relevant period of the student visa. 

7. The Applicant completed and returned a response to hearing invitation form.  He did not provide the requested financial information.  He attended the Tribunal hearing.  The hearing record indicates that his hearing was in what was described as “a slot” of 9:30 am to 11:30 am, but that the hearing for this Applicant commenced at 10:51 am and finished at 11:09 am.

8. Although the Applicant made oral submissions today in relation to what occurred at the hearing, he did not take the opportunity to put before the Court any transcript of the Tribunal hearing as provided for in the directions made on 5 March 2014.  The only evidence of what occurred in the hearing is the Tribunal reasons for decision. 

9. In its reasons for decision the Tribunal referred to the fact that the visa had been refused by the delegate because the Applicant had not provided the requisite evidence, in particular as to whether he was a genuine applicant for entry and stay as a student having regard to prescribed matters. The Tribunal referred to the requirement of evidence in relation to financial capacity in accordance with Schedule 5A to the Migration Regulations 1994 (Cth) (the Regulations).

10. Relevantly, the Tribunal pointed out that the Applicant had to provide evidence that he had funds from an acceptable source sufficient to meet certain specified expenses for the first 24 months of his visa and evidence that any person providing the funds had regular income sufficient to accumulate the level of funding proposed to be provided by that person. 

11. The Tribunal acknowledged that the Applicant had provided a certificate of enrolment but pointed out that, despite being invited to do so in the hearing invitation, he had not provided evidence of his ability to meet the financial capacity requirements.  The Tribunal recorded that at the Tribunal hearing it had explained to the Applicant the need to provide evidence that he had funds from an acceptable source and of the regular income of any person providing funds to him and of their relationship and that it had drawn to his attention that he had not provided any evidence of financial capacity.

12. The Tribunal also recorded that at the hearing the Applicant requested additional time to provide evidence of his financial capacity.  The period sought was not specified in the Tribunal reasons for decision.  The Applicant stated in his application (and again today) that he sought a one week extension of time to provide evidence of his financial capacity.  However in its reasons the Tribunal stated that the Applicant had claimed that his grandfather had been injured a week earlier and that he needed to look after him, that he told the Tribunal that he did not know what evidence he needed or whether or not his uncle in Australia could sponsor him (as the support from his parents would not be enough) and that he had also claimed that the Department had previously refused his visa after not allowing him more time to provide documents.

13. The Tribunal recorded that in the hearing it advised the Applicant that it had considered his request for further time to provide evidence of his financial capacity, but declined to grant him such extra time.  It stated that it had explained to him that the delegate had first asked him for additional evidence of his financial capacity on 10 August 2012, that the visa refusal on 4 January 2013 had been based on the absence of any evidence of financial capacity and that such refusal set out the relevant law and requirements.  It also referred to the fact that despite the Applicant’s claim about an injury suffered by his grandfather a week prior to the hearing on 24 October 2013, he had been notified by the Tribunal in its hearing letter of 18 September 2013 of the need for evidence of his financial capacity.  The Tribunal also recorded that it had noted that the Applicant had taken no steps to obtain evidence of financial capacity, despite having more than 14 months to gather the information and that he had only completed one advanced diploma course and some English courses since 2008.

14. In its findings and reasons the Tribunal addressed the Applicant’s request for further time to obtain evidence as follows:

    The Tribunal has carefully considered the applicant’s request for further time to obtain evidence of his financial capacity.  As discussed with the applicant at the hearing, the applicant applied for a student visa on 8 August 2012.  The delegate had first asked the applicant to provided (sic) evidence of his financial capacity on 10 August 2012.  The delegate had refused the visa on 4 January 2013 on the basis that he had not provided evidence of his financial capacity and had set out the relevant law and requirements in the decision record.  Despite his claim that his grandfather had been injured a week ago, the applicant has had clear notice that financial capacity was an issue in the review through the Tribunal’s hearing invitation dated 18 September 2013.  The applicant has taken no steps to obtain evidence of his financial capacity, despite having more than 14 months to gather the relevant information.

    After considering the applicant’s request, and for the reasons set out in the above paragraph, the Tribunal has decided not to grant the applicant further time to provide evidence of his financial capacity and has decided to proceed to make a decision on the review based on the evidence before it.

15. In those circumstances, the Tribunal proceeded to deliver an oral decision at the conclusion of the hearing. 

16. In its written reasons the Tribunal explained that the Applicant was required to provide evidence of funds sufficient to meet expenses calculated at $25,660. It found that he had been given the opportunity to provide evidence that he had funds from an acceptable source by the delegate and by the Tribunal, but that he had failed to provide any evidence. The Tribunal concluded that there was no evidence before it that the Applicant had funds from an acceptable source or as to the regular income of any individual who would provide such funds within the requirements of Schedule 5A to the Regulations.

17. The Tribunal found that as the Applicant had failed to meet this requirement, he had failed to meet a criterion for the class of visa for which he applied (in particular cl.572.223 in Schedule 2 to the Regulations).  The Tribunal found no evidence that the Applicant was eligible to be granted a student visa of any other subclass.  Hence it affirmed the decision not to grant him a student visa.

This Application

1. The Applicant sought review by application filed in this Court on 19 November 2013.  It is apparent from what appears under the heading “Final Orders” that the first issue the Applicant seeks to raise is a concern that he faced a Tribunal hearing while there were other applicants present.  This is a reference to the fact that (as the Applicant was informed in the hearing invitation letter) his hearing was one of several cases to be heard in the two hour “slot” from 9:30 am on 24 October 2013.  It is not suggested that there was a joint hearing with other applicants.  Rather, the Applicant’s concern is that the manner in which the Tribunal proceeded in allowing other applicants to be present at the time of his hearing amounted to jurisdictional error.

2. Such an issue was considered by Judge Whelan in Kumar v the Minister for Immigration & Anor (2013) FCCA 1860. In that case it was also alleged that there were a number of applicants in the hearing room while Mr Kumar’s case was heard by the Tribunal. I take that to be the substance of the present complaint. Mr Kumar contended that there was a denial of procedural fairness. However, as was pointed out by Judge Whelan at [33] the Migration Review Tribunal is required by s.353 of the Migration Act 1958 (Cth) (the Act) in carrying out its functions to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The Tribunal is not bound by technicalities, legal forms or rules of evidence. Moreover, s.365 of the Act provides that, subject to that section, any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public. However if the Tribunal is satisfied it is in the public interest to do so, it may direct that particular oral evidence, or oral evidence for the purposes of particular review, is to be taken in private, or it may give such a direction where it is impracticable to take particular oral evidence in public.

3. The Applicant did not file written submissions.  I asked him today whether he had any difficulty in the hearing arising from the fact there were other applicants present at the same time.  He indicated that he had not experienced any difficulty.

4. There is no evidence that the circumstances of this case give rise to any concern about the fact that the Tribunal proceeded in accordance with section 365(1) of the Act to take oral evidence from the Applicant in public. I note in that respect that there is no transcript or recording of the Tribunal hearing in evidence before the Court. In any event, it is apparent from s.365 of the Act that the proceedings of the Migration Review Tribunal are normally to be open to the public, in the sense that members of the public who wish to be present may attend and observe. Hence, as Judge Whelan found in Kumar at [23], the mere fact that there were said to be other people (and that would include other visa applicants) in the hearing room during the Applicant’s hearing would not of itself amount to a jurisdictional error.

5. Moreover in this case there is nothing to suggest any other circumstances giving rise to a lack of procedural fairness in relation to the conduct of the hearing.  Insofar as the Tribunal appears to have listed the hearing in a “slot” for numerous applicants, there was a single central issue in this case.  The case was not such as to give rise to a need for extensive questioning or a decision in relation to credibility.  Rather the determinative issue was a factual one as to whether or not the Applicant had provided the requisite evidence of his ability to meet the financial capacity requirements applicable to the visa in question.

6. The Applicant has conceded that the conduct of the hearing by the Tribunal in the presence of other people was not such as to have given rise to any difficulty.  There is nothing in the Tribunal reasons to the contrary.  It is apparent from the Tribunal reasons that the Applicant had the opportunity to raise any issues he wished to raise and that there was a discussion with the Tribunal in which the Tribunal raised with him dispositive issues.  The Tribunal’s account of what occurred in the hearing reflects the absence of evidence of financial capacity and is consistent with what the Applicant now says occurred at the hearing.

7. There is no evidence before the Court, and nor is it apparent from the Tribunal’s reasons, that the Tribunal in any way failed to comply with its obligations under Part 5 of the Act.  In particular, there is nothing to support any contention that the Applicant was denied a real and meaningful opportunity to participate in the hearing or any claim that he was not afforded the opportunity required by s.360 of the Act to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  There is no evidence to support any contention that the process contemplated by that section was subverted (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at 33 and Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 at 830). Insofar as a ground is raised in relation to the conduct of the Tribunal hearing it is not made out.

8. The other matter raised by the Applicant in his Application appears under the heading “Grounds of the Application”.  He contended that the Tribunal decision was unreasonable because he wanted “just one week extension time”.  In oral submissions he claimed that at the Tribunal hearing he asked the Tribunal for an additional week to provide information of financial capacity.  He gave an explanation to the Court about what he claimed he said to the Tribunal and about his circumstances in relation to providing such evidence.

9. It is the case that a failure to accede to a reasonable request for an adjournment may constitute procedural unfairness as considered by the High Court in Minster for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (see also Minister for Immigration and Border Protection v Singh [2014] FCAFC 1). However, in this case no such unreasonableness has been established.

10. As indicated, the Tribunal reasons do not refer to a request for an extension for a particular period of time.  Rather, the Tribunal recorded that the Applicant claimed his grandfather had been injured a week earlier and that he needed to look after him and also said that he did not know what evidence he needed to provide or whether his uncle could sponsor him.

11. In any event, the Tribunal considered the Applicant’s application for further time to provide evidence of his financial capacity. The Tribunal’s account of what occurred in the hearing (at which it raised its concerns with the Applicant) and the reasons it gave in its reasons for declining the application for further time indicate that it exercised its discretion in a reasonable manner. 

12. The Tribunal gave independent, active consideration to the Applicant’s request for an extension of time.  It identified the factors to which it had regard. There is nothing to indicate the absence of an intelligible justification for the Tribunal's decision, having regard to the reasons in the context of the factual circumstances.  Those factual circumstances included the fact that the Applicant had first been asked to provide evidence of his financial capacity in August 2012.  His visa had been refused by the delegate on the basis he had not done so.  The applicable law and requirements were set out by the delegate, both in August 2012 and January 2013.  The Tribunal again informed him of that obligation and told him to act within seven days in its letter of 18 September 2013.  It set out the areas in which he needed to provide additional evidence.

13. In these circumstances it cannot be said that the Tribunal’s decision to refuse the application for further time to provide financial information or evidence of financial capacity lacked an evident and intelligible justification such as to demonstrate a jurisdictional error in the sense considered in Li.

14. In oral submissions in reply the Applicant raised for the first time a complaint about advice or information in relation to providing evidence about his financial capacity said to have been given to him by a person he referred to as a migration agent.  There is nothing on the Court record to indicate that the Applicant had a migration agent appointed and acting for him while the matter was before the Tribunal.  He acknowledged in his oral submissions that the person from whom he obtained advice was not appointed as his migration agent.  Rather, he appears to be complaining about poor advice, or an absence of advice, obtained by him “off the record” as it were.  There is  nothing in what he has said to raise any concern about even an arguable case of fraud on the Tribunal in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35. I note in that context that it is well-established that a mere failure to inform or bare negligence or inadvertence will not be sufficient to give rise to fraud. There is a heavy burden on an Applicant in proving fraud.

1. In this case what the Applicant said is not such as to suggest that there is any issue such that the Applicant ought to have further time (for example by way of an adjournment) to elaborate on his concern.  His complaint in essence asserts an absence of advice or poor advice from a person who was not acting as his migration agent.  It is not such as to raise any suggestion of an impact on the exercise of the Tribunal’s jurisdiction that could amount to a fraud on the Tribunal.

2. No jurisdictional error is established on either of the bases contended for in the application or on the basis elaborated on in the hearing today.  In these circumstances the application must be dismissed.

3. The Applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful Applicant should meet the costs of the Minister.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.

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

Associate: 

Date:  18 September 2014