Sandhu v Minister for Immigration

[2016] FCCA 57

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 57

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – grounds of application consisting wholly of impermissible merits review – application dismissed – application in a case to join further child as party to the substantive application – child not included in original application challenged before the Tribunal – application in a case wholly misconceived.

Legislation:

Migration Regulations 1994, cl.572.224

Migration Act 1958, s.359AA

First Applicant: AMANDEEP KAUR SANDHU

Second Applicant: KANWALDEEP SINGH THANDI

Third Applicant: SAMARVIR SINGH THANDI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 42 of 2015

Judgment of: Judge Burchardt

Hearing date: 26 November 2015

Date of Last Submission: 26 November 2015

Delivered at: Melbourne

Delivered on: 22 January 2016

REPRESENTATION

The Applicants: The first applicant in person (assisted by a Punjabi interpreter)

Counsel for the First Respondent: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent’s name be changed to ‘Administrative Appeals Tribunal’. 

2. The Application filed 12 January 2015 is dismissed. 

3. The Application in a Case filed 21 September 2015 is dismissed. 

4. The Applicant pay the First Respondent’s costs. 

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 & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an Application filed on 12 January 2015 the first applicant (the other two applicants are family members and it is convenient to refer to the first applicant as the applicant) seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 15 December 2014.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicants Student (Temporary) (Class TU) visas.

2. Additionally, the applicant filed on 17 September 2015 an Application in a Case by which she seeks to add her younger child’s name, Prabhdeep Singh Thandi to the Application before the Court.

3. For the reasons that follow, I do not think that the Tribunal’s decision was the subject of jurisdictional error and the substantive Application will be dismissed.  The Application in a Case is completely misconceived and will also be dismissed.

4. The initiating Application asserts as the grounds of application:

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

5. The separate copy refers to grounds of application signed by the applicant and dated 8 January 2015.  The grounds refer to the history of the applicant’s failed application and assert relevantly:

   “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 is something beyond my control.  I gave a statement to case officer at that time explaining this but DIBP still refused my application.”

6. The grounds of application assert a number of other matters but while I have had regard to them they are not presently relevant.

7. The applicant’s Affidavit in support filed 12 January 2015 does not take the matter further but merely appends a decision of the Tribunal.

8. On 29 April 2015 Registrar Burns made orders by consent providing for a trial including inter alia further written submissions and the provision of materials.  The applicant has to an extent responded to that.  On 17 September 2015 the applicant filed an Application in a Case, as I have indicated, seeking to add her younger son as party to the proceeding.  This was supported by an Affidavit filed at the same time.  This relevantly says:

   “I want to add my younger son’s name (PRABHDEEP SINGH THANDI).  He is born overseas and is 4 ½ yrs old.  He never came to Australia.  We just want to see him here.”

9. The applicant filed a further Affidavit on 15 October 2015 which relevantly asserts:

   “In my MRT hearing the officer want some proof of dispute between my family members.  At that time I didn’t have anything to support this.  As I was not aware of this that officer may need it.  So I spoke with my father later on regarding this, so I am attaching few of supporting documents which inturn relates to my case.  And I think it can play a vital role in my case.  These are some (F.I.R.) reports filed in the police stations overseas showing dispute going on between my father and uncles (Jasvir Singh) who in turn helping my mother’s brother to not support or help us in any kind in Australia.  I hope you understand everything.”

10. It should be noted that the applicant’s initial visa application included the second and third applicants, who are respectively her husband and elder child.  The child now sought to be added to the proceedings, self-evidently, was not included.

11. The applicant’s application was considered by a delegate of the first respondent, whose decision is at Court Book (“CB”) 131-134.  Having set out the terms of PRC4020, the delegate noted at CB133:

    “On 25 February 2013 an email was sent to Ms Sandhu’s registered migration agent, Ms Renu Vashist, requesting Ms Sandhu to provide documentation to satisfy the financial requirement of Schedule 5A criteria.  Ms Sandhu was required to provide these documents within 28 days.

    On 19 March 2013 Ms Sandhu provided a bank statement from ICICI Bank in the name of Shankar Singh, purported to be her maternal grandfather.  This document was referred to the DIAC post in New Delhi for routine integrity checking.

    Upon contacting the account holder, the investigating officer in New Delhi was advised that Shankar Singh had not sponsored anyone for a visa from any country and did know anyone by the name of Amandeep Kaur Sandhu.”

12. This matter was brought to Ms Sandhu’s attention, and the delegate’s decision records, also at CB133:

    “On 3 June 2013 Ms Sandhu provided a statement regarding the non-genuine documentation that she had supplied in support of her application.  She stated that the account holder had previously wished to sponsor her, but that person has subsequently changed her mind.”

13. The delegate did not believe the explanation provided by the applicant, because what the alleged sponsor had said was that he had never heard of Ms Sandhu, not that he had withdrawn his financial sponsorship. As such, the delegate did not find the applicant’s circumstances compelling and/or compassionate, and therefore found that she did not meet Public Interest Criteria 4020 and thus did not meet the requirements of cl.572.224 of the Migration Regulations 1994 (“the Regulations”).

14. The applicant sought review of the delegate’s decision, and the documents she forwarded to the Tribunal (she was by this stage self-represented) are as CB165-197.  The matters asserted by the applicant, CB166 under the heading “Submission”, relevantly assert:

    “… the reason of refusal was that my maternal grandfather

    
    

    Mr Shankar Singh withdrew his financial support due to our family disputes and acted as he even doesn’t know my name.”

15. This is the only reference to family disputation in the documentation that I have been able to find.

16. The Tribunal’s decision is at CB225-231.  It is sufficient for present purposes to note that the Tribunal, like the delegate, concentrated on the question of the applicant having provided “a bogus document, or information that was false and/or misleading in a material particular”.  The Tribunal noted, as had the delegate, the response of the person contacted in India.  At paragraph 12, CB227, the Tribunal noted the applicant’s explanation as to the family dispute regarding property.

17. The Tribunal noted at paragraphs 13-18, CB227-228, the further explanations given by the applicant about the nature of the disputation in India, and the Tribunal put to the applicant in terms that Shankar Singh said he did not know her, or ever sponsor anyone for a visa. The applicant provided an explanation, but the Tribunal, pursuant to s.359AA of the Migration Act 1958 (“the Act”), put it to the applicant at paragraph 21 (CB228), that:

    “… The Tribunal advised the applicant that the department has received information alleging that she had offered money in exchange for sponsorship for an application for permanent residence from people who are not her relatives.  The Tribunal explained that this information is relevant because it may lead the Tribunal to doubt the credibility of her evidence and her credibility in general.”

18. At paragraphs 22-24, CB229, the Tribunal recorded:

    “22.  The applicant was asked if she understood the information and whether she wanted further time to comment or respond.  She stated that she wished to respond now and that this is the issue she is talking about.  That is why they are saying they do not know who she is.  Her paternal uncle will also say that he does not know who she is even though he has a blood relationship with her.  That is why she is here; to tell the truth.

    23.  She stated that this is the second time she is facing this problem.  In 2009 she tried to apply for permanent residence but did not go through with it.  At the time there was no family dispute and they wanted her to come to Australia.  After that, they had dispute with her parents and told her they will kick her out of Australia.  Her parents are scared from both the maternal and paternal sides.

    24.  The tribunal asked if she has any evidence of a dispute in her maternal family.  She stated that all of the documents are with the jury in the village.”

19. I note that at paragraphs 26-28, (CB229), the Tribunal said:

    “26.  The tribunal noted that it had concerns about whether she had provided information that was false or misleading on the evidence before it.  She stated that she cannot have any written documents because they have oral communication by phone.  Her maternal grandparents are under the influence of their children.  Her uncles are very clever.

    27.  As discussed with the applicant, her evidence that her mother’s family is involved in a property dispute which has led her maternal grandfather to withdraw his financial support for her is inconsistent with the information in the decision record, which is that the holder of the bank account contacted by the department claimed that he had never sponsored anyone in Australia and that he did not know anyone by the applicant’s name.  The Tribunal does not accept that the applicant’s explanation satisfactorily explains why, if it was indeed her maternal grandfather who was the bank account holder, he would say that he had no knowledge of the applicant.

    28.  Furthermore, while the applicant has been aware that the relationship of the bank account holder to her was an issue leading to her refusal by the department, she has not provided any evidence to indicate that her maternal family is involved in any property disputes with each other, nor has she been able to provide any further evidence to confirm that the holder of the bank account is her grandfather.”

20. The Tribunal went on to make other observations critical of the applicant’s account of the matter.  The Tribunal ultimately gave weight to the evidence obtained by the Department as set out in its decision record and concluded that the applicant did not meet PIC 4020.

21. I note that the Tribunal explained the waiver provision in PIC 4020(4) to the applicant, and asked if there were compelling circumstances that might justify the granting of the visa.  The applicant responded that she just wished to complete her studies and I note that at paragraph 37 (CB230), the Tribunal noted:

    “… After a brief adjournment to allow the applicant to consider whether there was any further information she wished to provide, she stated that she just wants to finish her study and does not want to start from zero in India.”

22. The Tribunal went on to conclude, in the circumstances, that the requirements in PIC 4020 should not be waived.

23. It is immediately apparent that, in the circumstances described, the first respondent is correct to describe the applicant’s application as simply being merits review.  The decision of the Tribunal was clearly open to it on the materials as they stood.  The Tribunal clearly understood the task it was required by the legislation to perform and addressed it, in my view, in a way that was wholly unexceptional.  The decision of the Tribunal was, at the very least, open to it and does not disclose jurisdictional error or any other kind of procedural or other unfairness such as to vitiate its decision.

24. The applicant either was or should have been aware that the question of the false information provided in relation to her maternal grandfather was a critical one from the time of the delegate’s decision onwards.  The applicant expressly eschewed an opportunity given to her at the Tribunal hearing to seek time to put on further material. 

25. The material the applicant now seeks to rely on plainly was not before the Tribunal and cannot be taken into consideration. 

26. It necessarily follows, therefore, that the Application must be dismissed.

27. At the hearing before the Court, the applicant referred to the Application in a Case and indicated that she could provide the birth certificate and passport of her child if required.  Counsel for the first respondent correctly noted that the proposed additional applicant was not part of the originating Application.  It is plainly incompetent to add that child as a party now.  Should the mother seek to have the child attend in Australia, as counsel submitted, there are appropriate processes by which this may be sought, but to add the child to an Application for a judicial review of the Tribunal’s decision when the child was never party to the original Application, is plainly wholly inappropriate.

28. It therefore follows that the Application and the Application in the Case will be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  22 January 2016