Sidhu v Minister for Immigration - [2012] FMCA 852

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 852

MIGRATION – Application to set aside order made dismissing application for review of a decision of a migration review tribunal for non-appearance by the applicant on first court date – no reasonable explanation for failure to appear – no merit in underlying application.

Federal Magistrates Court Rules2001, rr.13.03C(1), 16.05(2)(a)
Migration Regulations 1994, cl.5A101, 5A405(1)(a), 572.223(2)(a)(iii)

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant:

SANDEEP SINGH SIDHU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 316 of 2012

Judgment of:

Jarrett FM

Hearing date:

12 July 2012

Date of Last Submission:

12 July 2012

Delivered at:

Brisbane

Delivered on:

14 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Burrow

Solicitors for the Applicant:

Rajesh Gopal Solicitor and Migration Agent

Counsel for the Respondents:

Ms O'Connor

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application in a case filed on 14 June, 2012 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 316 of 2012

SANDEEP SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to r.16.05(2)(a) of the Federal Magistrates Courts Rules 2001 by Mr Sidhu to set aside an order that I made on 3 May, 2012 dismissing his application for judicial review pursuant to FMCR13.03C at the first directions hearing of that application. It was dismissed because he did not attend the hearing.
Rule 13.03C provides:
13.03C Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c) if the absent party is an applicant - dismiss the application;
(d) if the absent party is a party who has made an interlocutory application or a cross-claim - dismiss the interlocutory application or cross-claim;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2) If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.038 (lJ- (2) or (4), or any other order, or may give any directions, and specify any consequences for non -compliance with the order, that the Court thinks just.
Rule 16.05 provides:
16.05 Setting aside
(1) The Court may vary or set aside its judgment or order before it has been entered.
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d) the order is an injunction or for the appointment of a receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.
(3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
The obligation is on Mr Sidhu to satisfy the Court that the order dismissing his application should be set aside. The matters to be considered are:
a)Whether an explanation reasonable in the circumstances, is provided for the party’s absence; and
b)That the party in default has a material argument which if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.
Relevantly:
a)On 10 April, 2012 Mr Sidhu filed an application for review of a decision of a migration review tribunal handed down on 13 March, 2012;
b)The application was listed for its first court date on 3 May, 2012;
c)The applicant did not appear, nor did anyone seek to appear on his behalf at the first court date;
d)On 3 May, 2012 the application was dismissed pursuant to FMCR13.03C(1)(c);
e)On 14 June, 2012, Mr Sidhu filed this application to set aside the order of 3 May, 2012.
Mr Sidhu has filed two affidavits in support of his application. In the first filed on 14 June, 2012 he has deposed:
1. I am the Applicant.
2. I did not appear at the directions hearing that was on 3 May 2012.
3. I only received notice of the hearing on 5 May 2012;
4. I stay in an area where there are more than 50 to 60 units.
5. Mails often are interfered with and seen scattered on floor.
6. It appears that some picked up the mail and did not put in my box till 5 May 2012.
7. I clear my mails every day.
8. I did not appear at the Directions hearing because I did not get the mail before 3 May 2012.
The solicitor for the first respondent, Gemma O’Connor, has deposed two affidavits in the application. In the first, filed on 5 July, 2012, she deposes that on 2 May, 2012 she sent an email to Mr Sidhu at the email address notified by him in his application enclosing a draft directions order that her client would seek the next day at the first court date. The email reads, in part:
Please find attached draft orders which we will ask the Court to make at tomorrow’s directions hearing….
In her second affidavit filed on 9 July, 2012, Ms O’Connor deposes that on 23 April, 2012 she sent a letter by post to Mr Sidhu at his address for service. It enclosed the first respondent’s response and some other documents. That letter did not refer to the first court date, but did direct Mr Sidhu’s attention to some community legal centres that might provide him with legal assistance.
In Mr Sidhu’s second affidavit filed by leave before me on 12 July, 2012 he deposed:
1. I did not read the email from Gemma Elizabeth O'Connor till the afternoon of 3 May 2012.
2. I did not receive the bundle of documents at my address at 42/36 Rushton Street, Runcorn.
3. I misplaced the Application where the date for the directions hearing was mentioned.
4. I did not receive the letter mentioned at paragraph 2 of Gemma Elizabeth O’Connor’s affidavit
Whilst Mr Sidhu is unable to identify the source of his failure to receive notice of the first court date beyond that there was a difficulty with mail receipt, he submits that there are a number of possible inferences that could be drawn, for example:
a)That the method of postal delivery did not include putting mail in individual letter boxes;
b)That other persons in the large complex caused mail to be put on the floor, and not in individual letter boxes.
Alternatively, Mr Sidhu submits that the Court may infer that there was simply an error on the part of Mr Sidhu in checking his mail. It was submitted that the Court should accept the evidence of Mr Sidhu, for the purposes of this application, that there was interference or irregularity in how mail was received at his accommodation.
I do not accept those submissions. I decline to draw the inferences suggested or to speculate in the way suggested. Moreover, there is an indication that despite Mr Sidhu’s claims that he did not receive notice of the first court date until after that date had passed, he did in fact receive his application from the Registry after filing. In his second affidavit he swears: “I misplaced the Application where the date for the directions hearing was mentioned.” That deposition seems inconsistent with his assertion that he did not receive anything until after the first court date had passed.
Although Mr Sidhu was not cross-examined, I have significant doubts about his claimed failure to receive the relevant documents and to have been informed of the first court date. I am not satisfied that an explanation reasonable in the circumstances, is provided for Mr Sidhu’s absence on the first court date.
That is not the end of the matter, however. I must also consider the merits of Mr Sidhu’s primary application.
With respect to the substance of the application for review Mr Sidhu sets out one ground upon which his application is based. It is in the following terms:
1. The decision maker made an error of law amounting to a jurisdictional error in considering the application of clause 572.223:
Particulars
1. The Tribunal erred in finding that the Applicant had not given evidence in accordance with the requirements in schedule 5A for subclass 572 and Assessment Level 4 ... in relation to financial capacity;
2. The Tribunal erred in its consideration of whether the Applicant had access to funds by making findings in the absence of evidence the support a contention that transfer of property was not a sale of property;
3. The Tribunal erred in its consideration of whether the Applicant had access to funds by incorrectly relying upon findings of whether the Applicant did, or did not, have cause to draw upon the available funds.
The reasons for decision published by the tribunal reveal that Mr Sidhu had applied for a Student (Temporary) (Class TO) visa. The tribunal found that the relevant subclass against which Mr Sidhu’s application needed to be assessed was subclass 572. Mr Sidhu takes no issue with that.
The tribunal found that Mr Sidhu’s application had to be assessed under “Assessment Level 4” for the purposes of IMMI 10/003, 16 March 2010, which apparently was the Gazette notice in force at the time of Mr Sidhu’s application.
The practical effect of those unchallenged findings was that Mr Sidhu had to, in accordance with cl.5A405(1)(a) in Division 2 of Part 4 of the Migration Regulations 1994, provide evidence of funds from an acceptable source sufficient to meet the financial capacity requirements for the first 36 months for living costs and course fees associated with his time in Australia.
The tribunal found that Mr Sidhu’s proposed study was for a period of less than 36 months and as he had applied for the visa in Australia, the ‘first 36 months’ was relevantly defined in c1.5A101 to mean the period that begins on the day that the student visa is expected to be granted to the applicant and ends the last day of the applicant's proposed stay in Australia. Again, that finding is not challenged.
The tribunal went on to make a finding as to the amount of funds Mr Sidhu would need to satisfy the financial capacity requirements for the purposes of Schedule 5. That finding is not challenged.
To satisfy the financial capacity requirements, Mr Sidhu provided to the Minister’s delegate (when he first applied for the visa) a number of documents. The tribunal’s reasons for decision describe the documents and the delegate’s use of them as follows:
20. The applicant applied for the visa under review on 10 May 2010. With the application, the applicant provided a number of documents including:
·    …
·    Documents related to the applicant's financial capacity to undertake studies including:
- An affidavit of support from the applicant's fathers Hardial Singh referring to his deposit in a Savings Account No 2272 in the Central Bank of India; folio 50
- An undated letter from the Central Bank of India stating that Hardial Singh holds a savings account number SB/2272 with the GT Road branch Amritsar with a balance of INR 10,13,681 as at 30 April 2010; folio 49
- A copy of a bank statement covering the period from 12 February 2009 to 30 Apri1 2010 from the Central Bank of India indicating that Hardial Singh holds a savings account number SB/2272 with the GT Road branch Amritsar. folio 49 (obverse)
21. The delegate referred the document to the Australian High Commission in New Delhi for verification. The response from the High Commission was that no such account existed and that the last savings account number issued was SB/2263. f53
22. The Department wrote to the applicant on 11 June 2010 seeking comment on this information. The applicant responded in writing saying that his father had closed the account, which was why his account could not be verified. He said that his grandmother provided support for his education in Australia by selling property worth Rs1,3500,000 which was used as security for an overdraft obtained by his father. He stated that his father is an agriculturalist with an annual income of Rs2,900,000 ($A5,529) f 60. This letter was accompanied by copies of a number of documents including:
·    a letter of arrangement dated 28 June 2010 from the State bank of India indicating that the bank had sanctioned an overdraft of Rs1,3500,000 to Hardial Singh and Gurdeep Kaur on the basis of a fixed deposit of 1,500,000 with a maturity date of 26 December 2010; folio 70/71
·    receipt dated 26 June 2010 from the State Bank of India for a term deposit in the name Hardjal Singh for 15 lac (Rs 1,500,000; $A 25,738) showing the date of maturity as 26 December 2010; folio 68
·    Deed of transfer dated 22 June 2010 for the transfer of land between Gurdip Kaur to Davinder Singh with a 'pedigree table' attached showing that Gurdip Singh is the mother of Hardial Singh and Davinder Singh; folio 64-67
·    Affidavit of support dated 28 June 2010 from Hardial Singh and Simarjeet Singh indicating their financial support for the applicant referring to the overdraft and the sale of the land by the applicant's grandmother; folio 63
·    Affidavit of support dated 28 June 2010 from Gurdeep Singh. stating that she sold her property worth Rs1,350,000 on 22 June 2010 and has made a fixed deposit of Rs 1,500,000 in her son's name and is willing to support the applicant's study in Australia.
Mr Sidhu provided the tribunal with no additional documents for the purposes of the review hearing before the tribunal. The tribunal put to Mr Sidhu concerns that arose from the information that was before the Minister’s delegate about the veracity of the documents and the claims of financial capacity made by Mr Sidhu. He disavowed any knowledge of false information being provided to the Minister’s delegate.
Mr Sidhu argues that the tribunal was required to consider and act upon evidence that was placed before it. Certainly, the tribunal is required to consider the evidence put before it. It is not required to act upon it, however, if it does not think it should do so. The weight to be given to any particular piece of evidence is a matter entirely for the tribunal.
The tribunal made no finding of credit about Mr Sidhu or any evidence given by him. What the tribunal did find was that, on the basis of the evidence put forward by Mr Sidhu, the tribunal could not be satisfied that he met the relevant financial capacity requirements. It came to that conclusion because it found that the initial documents relied upon by Mr Sidhu were not genuine – a finding clearly open on the material before the tribunal.
The tribunal went on to find:
55. The Tribunal notes that the letter of arrangement regarding the overdraft to the applicant's father which was issued in June 2010 indicates that the period of the loan should not exceed the unexpired period of the items used as security in this case the fixed term deposit which expired in December 2010. The Tribunal notes that the applicant claims the money still exists and the bank could be contacted to confirm this.
56. The Tribunal notes that the regulations require the applicant to give the Minister evidence that he meets the relevant requirements of Schedule 5A. The Tribunal considers that the applicant has been on notice of the need to satisfy the financial requirements of Schedule 5A since the delegate made the decision in October 2010 and has engaged an agent to assist with his application for review. In these circumstances the Tribunal considers that the applicant has had ample opportunity to present documents to support his case.
57. On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 to which he is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of c1.572,223 (2)(a)(i),
The expression used by the tribunal that “the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 to which he is subject, in relation to the necessary financial capacity” is not, I think, to be taken literally. Mr Sidhu seems to contend in submissions that it means that the tribunal did not appreciate that he had given evidence about those matters or deliberately chose to disregard his evidence without consideration. I do not think, however, that is a fair reading of that passage. The preface to the statement – “On the basis of the above” – makes it clear that the tribunal was referring to its discussion of the documents and other evidence that Mr Sidhu placed before the delegate and the tribunal in the preceding paragraphs. Although the interpretation for which Mr Sidhu contends might be open, “The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”: per Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Further, Mr Sidhu suggests that because his agent speculated that the false documents were created fraudulently in India by an agent for Mr Sidhu’s father, that fraud may have infected the tribunal’s view that “the Applicant has not given evidence…” see paragraph 57 of the reasons extracted above. In my view, however, that argument has no reasonable prospect of success because the suggestion of a fraud in India was mere speculation on the part of Mr Sidhu’s agent, without any evidence whatsoever to support that speculation. No evidence was sought to be led in this application in a case to demonstrate that the speculation about a fraud had some evidential foundation and that Mr Sidhu was able to place evidence before the Court to substantiate that claim (cf. SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189). Absence that evidence, or a suggestion that such evidence could be placed before the Court so as to make out the fraud, Mr Sidhu has no reasonable prospect of arguing that the process before the tribunal was compromised.
The tribunal found that:
58. The Tribunal must also be satisfied that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.
59, The Tribunal notes that the applicant has given evidence that he satisfies the financial capacity requirements in c1.5A405. The Tribunal notes that the evidence of the overdraft obtained by the applicant’s father is claimed to have been secured against a deposit of money which is claimed to have come from the sale of property by the applicant's grandmother. The Tribunal does not accept that the documents provided are evidence of a sale, but rather the transfer of property within the family from the applicant's grandmother to the applicant's uncle. The Tribunal is not satisfied that the applicant would have access to the funds from a loan, even if it were a current loan, obtained by the applicant’s father with funds obtained in these circumstances. This view is reinforced by the evasive responses of the applicant to questions about how he has accessed funds from his parents in the past, and his acknowledgment that he has not relied on his father in the past.
60. For these reasons, the Tribunal is not satisfied that the applicant, while holding the visa, will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity, Accordingly, the applicant does not satisfy 572.223 (2)(a)(iii).

Mr Sidhu argues that the Tribunal took a view contrary to the evidence about the sale of his grandmother’s property in that the Tribunal formed a view that the transfer was not in fact a “sale” property. What the tribunal said, however, was: “The Tribunal does not accept that the documents provided are evidence of a sale, but rather the transfer of property within the family from the applicant’s grandmother to the applicant’s uncle”. The documents before the tribunal on this issue were a Deed of transfer dated 22 June 2010 for the transfer of land between Mr Sidhu’s grandmother to his uncle with a ‘pedigree table’. There was also an affidavit dated 28 June 2010 from Mr Sidhu’s grandmother stating that she sold her property worth Rs 1,350,000 on 22 June 2010 and has made a fixed deposit of Rs 1,500,000 in her son’s name and is willing to support Mr Sidhu’s study in Australia.
The tribunal’s finding that the documents only evidenced a transfer rather than a sale is not a finding about a jurisdictional fact. Even if the finding is wrong, properly characterised as an error of law, the error would found no relief.
The critical issue for Mr Sidhu was his access to funds. The significance of the evidence about the sale of the property was that it established a source of funds against which an overdraft facility in favour of Mr Sidhu’s father was secured. Earlier, at paragraph 42 of its reasons, the tribunal expressed concern that there was no evidence that the amount said to have been placed on term deposit or the loan secured against it were still available. The tribunal found that Mr Sidhu would not have access to the funds in the overdraft because it did not seem to be satisfied that there was a fund against which the overdraft was secured or that it existed. Moreover, the tribunal took an adverse view of Mr Sidhu’s claims of financial support from his parents in the past.
However, even if the tribunal’s decision about Mr Sidhu’s access to funds demonstrated or declared in accordance with the Schedule 5A for the purposes of cl.572.223(2)(a)(iii) of the Regulations is erroneous, given the tribunal’s earlier findings in relation to Mr Sidhu’s financial capacity for the purposes of Schedule 5A (assessment level 4), his application could not succeed.

Conclusions

Mr Sidhu’s application to set aside the order of 3 May, 2012 was filed approximately 1 month after the matter was dismissed. In that respect there was little delay in approaching the Court for relief.
I accept that there is no substantial detriment to the First Respondent if the relevant order is set aside.
In my view, however, Mr Sidhu has not provided an adequate explanation of his failure to appear on the first court date.
Further, I am not satisfied that Mr Sidhu has demonstrated that he has a material argument which, if heard and decided on its merits, might reasonably result in Mr Sidhu being granted the relief he seeks in his principal application. In my view, the grounds of review raised in Mr Sidhu’s application amount to no more than an impermissible merits review of the tribunal’s decision.
The application filed on 14 June, 2012 should be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 14 September 2012