Sandhu v Minister for Immigration

[2016] FCCA 2371

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2371

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visas – evidence of false and misleading information.

Legislation:
Migration Act 1958, ss.359A, 359AA
Migration Regulations 1994, Sch.2, cl.572.224, Sch.4, public interest criterion 4020

Cases cited:
Talukder v Minister for Immigration and Citizenship (2009) 111 ALD 405; [2009] FCA 916

First Applicant: AMANDEEP KAUR SANDHU

Second Applicant: KANWALDEEP SINGH THANDI

Third Applicant: SAMARVIR SINGH THANDI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 42 of 2015

Judgment of: Judge Riley

Hearing date: 11 August 2016

Date of last submission: 11 August 2016

Delivered at: Melbourne

Delivered on: 11 August 2016

REPRESENTATION

Advocate for the first applicant: In person

Solicitors for the first applicant: None

Advocate for the second applicant: No appearance

Solicitors for the applicant: None

Advocate for the third applicant: No appearance

Solicitors for the third applicant: None

Counsel for the first respondent: Nick Wood

Solicitors for the first respondent: DLA Piper Australia

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

1. The application filed on 12 January 2015 be dismissed.

2. The applicants pay the first respondent’s costs of the proceeding (excluding the application in a case filed on 17 September 2015) fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 42 of 2015

AMANDEEP KAUR SANDHU

First Applicant

KANWALDEEP SINGH THANDI

Second Applicant

SAMARVIR SINGH THANDI

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal.  The first applicant is the wife of the second applicant and the mother of the third applicant.  The applicants applied for Student (Temporary) (Class TU) visas.  A delegate of the Minister refused those visas.  The applicants applied for review by the Tribunal.  The Tribunal affirmed the delegate’s decision.

2. The criteria for the visas required the applicants to provide evidence of financial support.  The criteria for the visas also required the applicants to satisfy public interest criterion 4020.  That required that there be:

   ... no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)     the application for the visa; or

   (b)a visa that the applicant held in the period of 12 months before the application was made.

3. In the present case, the applicants’ then migration agent provided certain evidence of financial support.  That evidence consisted of documents from the ICICI Bank showing that a certain amount of money was held on deposit with that bank by a person named Shankar Singh.  The first applicant claimed that Shankar Singh was her maternal grandfather.

4. An officer of the Department in India telephoned the ICICI Bank and was told that there was, in fact, an amount of money held in the name of Shankar Singh and was given his telephone number.  A further document on the departmental file shows that a departmental officer telephoned Shankar Singh using the telephone number provided by the bank.  Mr Singh is recorded as telling the officer that he had not sponsored anyone for a visa from any country and does not know anyone by the name of Amandeep Kaur Sandhu.  That is the first applicant’s name.

5. The delegate, on 7 May 2013, sent an email to the applicants’ migration agent saying that public interest criterion 4020 might not have been satisfied in this case as it appeared that a bogus document or false or misleading information had been submitted to the Department.  More specifically, the email said that:

   Financial documentation that you provided has been found to be non-genuine. Information available to the Department indicates that the account holder does not know you and is not financially sponsoring you.

6. In the email dated 7 May 2013, the delegate gave the applicants 28 days to comment on whether information they had given was false or misleading and also to provide a statement about whether there were compelling or compassionate circumstances that would justify the waiver of public interest criterion 4020.

7. The first applicant responded to that email.  She said that the account holder had previously wished to sponsor her but had since changed his mind.

8. The delegate noted that the applicant’s response was inconsistent with the information given by Shankar Singh. He did not say that he had changed his mind. He said that he had not sponsored anyone for a visa from any country and did not know anyone by the name of Amandeep Kaur Sandhu. The delegate considered that the applicants’ circumstances were not compelling or compassionate and found that the applicants did not meet cl.572.224 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), specifically public interest criterion 4020.

9. There was also an email dated 10 April 2013 from the delegate to another person in the Department regarding allegations against Amandeep Kaur Sandhu born on 12 April 1981, which is the first applicant’s date of birth.  The email dated 29 April 2013 that responded to that enquiry said that multiple allegations had been received about that client.  However, the response then named the person concerned as Amandeep Kaur Sanchez.  The first applicant’s family name is Sandhu.  It seems that the reference to Sanchez was a typographical error.

10. In any event, the email dated 29 April 2013 went on to say that Amandeep Kaur Sanchez was offering money to someone to sign documents for her visa and said that the person by the name of Amandeep Kaur Sanchez had offered over $10,000 to assist in establishing a fake family relationship.

11. The delegate does not appear to have relied on that information.  In any event, the applicants applied to the Tribunal.  The Tribunal conducted a hearing.  The first and third applicants attended the hearing and were assisted by an interpreter.  There is no indication that the applicants were assisted by an agent at that hearing.

12. The Tribunal’s decision record indicates that, during the course of the hearing, the Tribunal put certain information to the applicants pursuant to s.359AA of the Migration Act 1958 (“the Act”).  That information is said, in the Tribunal’s reasons for decision, to be information alleging that the first applicant had offered money in exchange for sponsorship of an application for permanent residence from people who were not her relatives.  The Tribunal explained, according to its decision record, that the information was relevant because it may lead the Tribunal to doubt the first applicant’s credibility and may lead the Tribunal to conclude that the first applicant had provided information that was false or misleading in a material particular.

13. The Tribunal’s decision record indicates that the first applicant was asked if she understood the information and whether she wanted further time to comment or respond.  The first applicant said that she wished to respond immediately.  The first applicant said that there was a family dispute and some of her uncles had persuaded her maternal grandfather to withdraw support for the applicants’ visa application.

14. The Tribunal said in its reasons for decision that the first applicant’s claims in relation to the property dispute were not consistent with the material provided by Shankar Singh in his telephone conversation with a departmental official.  The Tribunal also noted that the first applicant’s account of the dispute within her family was somewhat confusing.

15. The Tribunal did not accept that the first applicant’s claim of a family dispute explained why Shankar Singh said he did not know anyone named Amandeep Kaur Sandhu and had not sponsored anyone for a visa.  The Tribunal said that it had weighed all the evidence before it and concluded that the applicant had given false or misleading information in a material particular to the Department.  The Tribunal concluded that the applicants did not meet public interest criterion 4020.

16. The Tribunal then turned to consider whether public interest criterion 4020 should be waived.  That criterion may be waived where there are compelling circumstances that affect the interests of Australia or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.

17. The Tribunal’s reasons record that the Tribunal explained the waiver provision to the first applicant and asked whether there were any relevant circumstances that would justify the waiver of public interest criterion 4020.  The first applicant said that she just wanted to complete her studies.  The Tribunal decision record indicates that it then briefly adjourned to allow the first applicant to consider whether there was any further information she wished to provide.  The decision record shows that the applicant then said that she just wanted to finish her study and did not want to start from zero in India.

18. The Tribunal considered that the applicants’ circumstances did not amount to compelling circumstances or compassionate or compelling circumstances within the meaning of public interest criterion 4020. The Tribunal concluded that the criterion should not be waived and, therefore, found that the applicant did not satisfy public interest criterion 4020 or, consequently, cl.572.224 of Schedule 2 to the Regulations. The Tribunal then affirmed the delegate’s decision.

19. The applicant applied to this court for review on 12 January 2015.  Judge Burchardt dismissed the application on 22 January 2016.  There was then an appeal.  The order of Judge Burchardt dismissing the application was set aside by consent and the matter was remitted to this court for rehearing.  The basis of the consent order was that his Honour had considered an application in a case but not the substantive application.

20. The matter was listed for final hearing today.  The first applicant appeared without the benefit of legal assistance.  The application to this court also appears to have been prepared without the benefit of legal assistance.  The grounds of the application are as follows:

    I am not satisfied with the decision made by the Migration Review Tribunal & Department of Immigration and Border Protection.  I have attached my claim in a separate copy.

21. This court has no power to review the decision of the Department of Immigration and Border Protection.  To the extent that the grounds express dissatisfaction with the Tribunal’s decision, it appears to be an application for merits review.  This court is not permitted to provide such review.

22. The applicants’ application had attached to it a separate sheet headed Grounds of Application, which stated:

    I want to dispute over the conduct of Migration Review Tribunal in regards to my subclass 572 visa review application. My application was first refused by the immigration department and then by MRT department as I was unable to provide funds. I do not agree with the decisions from both departments. I want to challenge the MRT decision of refusing my application.

    I lodged my student visa application sc 572 onshore on 22 Feb 2013 with the Department of Immigration and Border Protection. On 11^th June 2013, a delegate from DIBP refused my application for my student visa application as DIBP.

    On 28^th June 2013, I lodged a review application in MRT. I was invited to the MRT department on 7^th Nov 2014 to present my evidence. On 16^th Dec 2014, MRT department finalized my student visa application subclass 572 and affirmed the DIBP's decision not to grant me this visa.

    The reason for the refusal was that the funds I provided to DIBP initially for my student visa application were not genuine. My maternal grandfather Mr Shankar Singh sponsored me initially for my student visa but later on withdrew his financial support due to our family disputes and acted as he even doesn't know my name. This was something beyond my control. I gave a statement to case officer at that time explaining this but DIBP still refused my application.

    I have been a genuine student throughout and have never ever breached any student visa conditions. I went to St Stephen’s college and started my course but unfortunately I got diagnosed with Tuberculosis and was admitted in the hospital for three weeks and they again admitted me for surgery. I was in the hospital for one month. After surgery I couldn’t attend college as I was not even able to stand or walk straight due to physical weakness. It took me 9 months to recover from my medical condition but things did not stop here. I went to India to bring my son back to Australia and I was again diagnosed with stones in my Gall Bladder and Uterus as I was suffering for stomach ache. I had to undergo a surgery there again which again took four weeks to recover.

    I came back to Australia in May 2014 and when I contacted my education provider he advised me that my COE has been cancelled long time back.

    I again enrolled myself in Angad Institute to pursue similar studies i.e. Certificate IV in Business and Diploma of Management.

    I provided my health cover along with new financial support from my father and all supporting documents but my visa was still refused.

    I still can’t believe that I got this refusal for my visa as I provided MRT tribunal member new financial support from my father and all supporting documents. Since the time I have come to Australia on student visa, I have completed my studies to my best potential and never ever breached any condition attached with my visa. I have been in Australia for almost 8 years & I have spent lots of money and time to get Australian Qualification and now if my appeal is refused, I will have to go back and this will affect me and my family drastically.

    I request the “FEDERAL CIRCUIT COURT” to exercise its powers and to reverse the decision of the Migration Review Tribunal.

    Sincerely

    Amandeep Kaur Sandhu

    (errors in original)

23. As can be seen, the separate sheet consists of challenges to the merits of the decision.  This court is not permitted to review the merits of decisions of the Tribunal.

24. In oral submissions before the court today, the first applicant again sought to challenge the merits of the Tribunal’s decision.  She said that she did not have an agent before the Tribunal because the agent who had assisted with her visa application told her that she did not do Tribunal matters.  The circumstance of being without assistance by a migration agent at the Tribunal does not indicate that there was any jurisdictional error.

25. The first applicant also asked how the departmental officer knew that they were speaking on the telephone to Shankar Singh.  That submission is not consistent with the first applicant’s own claims that her grandfather was in dispute with other parts of her family and had withdrawn support for her visa application.  In any event, the records of the Department show that an enquiry was made of the bank, which provided the telephone number for the relevant account holder, and a departmental official contacted that telephone number.

26. Today, the first applicant has also challenged the sufficiency of the evidence that she offered $10,000 to someone to assist with obtaining a visa. The Tribunal afforded the applicants procedural fairness, pursuant to s.359AA of the Act, in relation to that issue. The Tribunal’s decision record shows that the requirements of s.359AA of the Act were met.

27. The Tribunal said that it had regard to the evidence before it without expressly excluding the material related to the emails dated 10 April 2013 and 23 April 2013, which concerned the $10,000.  However, the Tribunal’s explanation for its decision only refers to the conversation with Shankar Singh and the bank.  In all the circumstances, it appears that the Tribunal did not ultimately rely on the emails dated 10 April 2013 and 23 April 2013.  Consequently, the questions of the “sufficiency of the evidence” in that regard do not arise.  In any event, the Tribunal complied with its procedural fairness obligations in relation to that matter, and the weight to be given to particular items of evidence is a matter for the Tribunal.

28. The Tribunal also complied with its procedural fairness obligations generally. The Tribunal invited the applicants to a hearing, which the first and third applicants attended, assisted by an interpreter. The applicants were well aware of the issues relating to Shankar Singh by reason of the delegate’s decision, which the applicants gave to the Tribunal. Consequently, that issue did not need to be brought to the applicants’ attention under s.359A or s.359AA of the Act. The applicants have not provided any evidence to the court that the Tribunal did not meet its procedural fairness obligations.

29. The Tribunal correctly identified the relevant subclass and correctly identified public interest criterion 4020.  The Tribunal expressly considered whether the applicant met the criteria for any of the other subclasses within the student visa category.  All in all, the Tribunal appears to have correctly applied the law.  The Tribunal appears to have taken into account all relevant considerations, including the various matters the applicants put to it.

30. The Tribunal came to a conclusion that was reasonably open to it.  The evidence from the Department regarding the telephone calls to Shankar Singh was probative evidence that the applicants had provided false or misleading information in a material particular.  I note the decision of the Federal Court in Talukder v Minister for Immigration and Citizenship (2009) 111 ALD 405; [2009] FCA 916, where Edmonds J held that the word “evidence” in a comparable provision required that the information was “sufficiently probative to lead to the conclusion”.

31. It seems to me that, in this case, the Tribunal was correct to consider that the information given in the telephone calls from the Department to the bank and Shankar Singh was sufficiently probative to lead to the conclusion that the applicants had provided information that was false or misleading in a material particular.  The information about applicants’ financial support was material because it went to one of the criteria for the grant of the visa.

32. All in all, I am unable to discern any jurisdictional error in the Tribunal’s decision-making process or reasons for decision.  Consequently, the application must be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     9 September 2016