Sidhu v Minister for Immigration
[2011] FMCA 890
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIDHU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 890 |
| MIGRATION – Review of decision of Migration Review Tribunal – alleged misconstruction of relevant regulations as to applicant’s financial capacity – attempt to introduce new evidence – allegation of misconduct by Tribunal Member – allegation not raised until oral submissions – jurisdictional error not established. |
| Migration Act 1958 |
| Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 |
| Applicant: | PARAMDEEP KAUR SIDHU |
First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 374 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 12 October 2011 |
| Date of Last Submission: | 12 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr D Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 374 of 2011
| PARAMDEEP KAUR SIDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 9 February 2011 in which the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) Visa. The affidavit in support of the application seeks an extension of time for the application to be brought. No submissions have been made by either party about this aspect of the matter and I will simply assume that the timing of the application is not a matter the Court is required to address.
The only ground of jurisdictional error asserted in the application is, in substance, that the Tribunal erred in deciding that the applicant did not have sufficient available funds within the meaning of the applicable regulations. It is asserted “Therefore I have given evidence in accordance with the requirements of Schedule 5A for subclass 572 and Assessment Level 4 to which I am subject to in relation to the necessary financial capacity and I do satisfy the requirements of clause 572.223(2)(a)(i).”
For the reasons that follow I do not think that the Tribunal fell into jurisdictional error and the application will be dismissed with costs.
The Relevant Facts
The relevant facts are not controversial and what follows is taken substantially from the first respondent’s contentions of fact and law and from the materials in the court book.
The applicant is a citizen of India who was granted a Higher Education Sector Visa in June 2008, which was valid until 2 September 2010.
On 31 August 2010 the applicant lodged an application for a student visa nominating her intended course of study as a Diploma in Hospitality followed by a degree in Hospitality Management. The relevant visa subclass was subclass 573.
On 1 December 2010 a delegate of the first respondent refused to grant a visa because the applicant had failed to satisfy the financial requirements specified in the applicable regulations.
On 8 December the applicant applied to the Tribunal for review of the delegate’s decision and at the Tribunal hearing requested that her application only be considered in relation to her enrolment in a Certificate IV in Business and a Diploma in Management. The relevant subclass of visa was subclass 572. As earlier indicated, the Tribunal affirmed the delegate’s decision and this has led to the application before the Court.
The applicant has, pursuant to orders made by Registrar Caporale on 4 May 2011, filed contentions of fact and law. It should be noted that in her affidavit filed in support of the application on 21 March 2011 it is clear that the second page, being a large part of what must have been paragraph 4, has been omitted. At the hearing before the Court the applicant was invited to either provide a copy of the same or to indicate what matters it addressed. The applicant indicated that she did not have a copy of the missing page and she was unable to provide any details as to what matters were elucidated in the missing material. From what is available at paragraph 4 on the second page of the affidavit, it would seem that paragraph 4 must have related to the issues as to whether or not she did, as a matter a fact, satisfy the financial criteria set out in the regulations.
The contentions of fact and law relevantly state:
“The Tribunal has erred in its decision, in that, the tribunal erred in assessing the requirements of 5A-405, in that on the evidence provided about available funds, I did satisfy the requirements of $17,650. Therefore I have given evidence in accordance with the requirements in Schedule 5A for subclass 572 and Assessment Level 4 to which I am subject to in relation to the necessary financial capacity and I do satisfy the requirements of clause 572.223(2)(a)(i).
I say that I provided a loan letter and fixed deposit notification from the State Bank of Patiala. I ask you to take into account that I was reliant upon my mother depositing those funds to satisfy the financial requirements. I was unaware that the funds deposited had been fully disbursed and withdrawn from the bank account.
I also ask you to take into account that as of the date of the hearing in the Tribunal, I had an overdraft of Rs.700,000 (seven lakhs) which was sufficient to cover my proposed courses of study.”
The first respondent’s contentions of fact and law set out the facts and chronology, the relevant statutory scheme, point to what the Tribunal decided and submit that the Tribunal made no error.
At the hearing before the Court, the applicant sought to tender further evidence which it was conceded was not before the Tribunal. I marked the document as MFI 1. It purports to show that as at the date of the hearing the applicant had available to her in a bank account the sum of $2,019.26. The applicant also referred to documents which turned out to be already in the court book, including a reference from her employer at CB133.
The applicant expressly accepted, both in her written documentation and in her oral submissions to the Court, that the relevant figure that she had to show available to her as at the date of hearing before the Tribunal was $17,650. Having been taken through the regulations in some detail by counsel for the first respondent, it is clear that that is correct.
The applicant said that she had provided evidence of $15,230 and then pointed to the additional funds available to her.
Furthermore, the applicant for the first time raised the conduct of the Tribunal Member. She said that the Tribunal Member became rude and that she became scared and was unable in effect to tell him anything. She said that if she had added the $2,000 more it might have been enough. Together with the earnings from her employer, deposed to be some $1,100 or $1,200, she might have had enough, although the earnings from the employer do not appear to have been extant at the time of the hearing.
Counsel for the first respondent correctly pointed out that the document MFI 1 was not before the Tribunal. What was before the Tribunal was a document at CB132, being a document dated 9 February 2011 from the State Bank of Patiala. That document asserts:
“This is to certify that Malkit Kaur has been sanctioned Bank Limit (overdraft limit) for Rs 7,00,000 (seven lacs only) against the FDR no CTD/1340843 of Rs 7,80,000 (Rs seven Lac Eighty Thousand Only) owned by Malkit Kaur. She can avail the said limit for any purpose including study of her daughter Paramdeep Kaur in Australia.
It is further certified that FULL amount of limit is available.”
That document followed the provision of earlier similar documentation provided at CB65 which investigations from Post in India suggested had in fact not been truly available to the applicant. The applicant at the Tribunal hearing said she was not aware of this and produced the second bank letter.
Plainly the earlier funds had not been held for the requisite period of six months as they had been in fact wholly disbursed at the time that Post made its inquiries, which was well within that period.
Notwithstanding reservations that the Tribunal had about the later documentation provided, the Tribunal did not expressly find that the material was to be given no weight. Counsel for the first respondent adopted the same position.
In my view there was cogent material before the Tribunal which might have led it to have completely disregarded the documentation at CB162, but I will adopt the path indicated by counsel for the first respondent.
It should also be noted that the arithmetic, as it were, undertaken by the Tribunal assumed the shortest time favourable to the applicant for determination. In fact the applicant had indicated she might not leave Australia immediately after the completion of her course. The nine month period which the Tribunal adopted was plainly the most favourable available to the applicant.
Pursuant to the regulations the money available to an applicant to constitute funds from an acceptable source as required by regulation 5A405 must be either held for at least the six months immediately before the date of application (subclause aa of the definition “funds from an acceptable source” or c, “a loan from a financial institution that is made to, and held in the name of, an acceptable individual.”)
Here the funds were clearly not held for six months. Equally clearly, the funds made available to the applicant’s mother (she being an acceptable individual for the purposes of the regulations) at CB132 do not in my view prima facie constitute a loan.
The document appears to be an indication that an overdraft limit has been provided up to an amount of 700,000 rupees against some unidentifiable security of 780,000 rupees.
A loan in my view is a distinguishable thing from an overdraft facility. A loan is of its nature usually a sum of money actually advanced, mostly commonly against interest and with a repayment date.
As a matter of ordinary English I do not think that the overdraft facility made available to the applicant’s mother would be understood to be a loan.
In the ultimate, however, it is not necessary to decide this aspect of the matter for the reason to which I now come.
The applicant has made in effect no criticism of the arithmetic that the Tribunal adopted. The Tribunal effectively treated the overdraft facility as a loan (see paragraph 56, CB 144) and concluded that the overdraft limit was the equivalent of A$15,230.
The Tribunal found that the applicant needed to have $17,650 available to her (CB145, paragraph 58) and those calculations are not the subject of any criticism by the applicant. Indeed they appear to be correct.
As counsel for the first respondent submitted, the return travel figure might be thought as a matter of impression to be somewhat low.
The Tribunal determined the task before it in accordance with the regulations and its decision was on the face of the materials, plainly correct. It follows that there is no question of jurisdictional error in this regard.
Even if the additional funds that the applicant has now pointed to were made available to her, they would still in fact not exceed the $17,650 required.
Further, an error of this sort does not constitute jurisdictional error.
As North and Lander JJ pointed out in the recent case of (Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]) an error of fact based on a misunderstanding of evidence does not constitute jurisdictional error so long as the applicant’s claim is considered. It was plainly considered here.
The Natural Justice Point Raised in Oral Submissions
As earlier indicated, the applicant has complained for the first time before the Court that the hearing conducted by the Tribunal was unfair to her because the Member was rude. Although she does not articulate the matter in this way, the applicant asserts that the Tribunal’s conduct was such as to overbear her capacity to present her case and it might therefore be said, were that so, that she was denied a hearing. Such circumstances are capable of giving rise to jurisdictional error in a number of different ways.
The difficulty with this submission is that it has never been raised before. The applicant did not include it or refer to it in her application, or her initial affidavit, or her contentions of fact and law.
The applicant is a well-educated woman, fluent in English, and with at least some understanding of the migration law of Australia as is made plain by the frequent references to the relevant sub-regulations in her written documentation.
The applicant has not made any application to further adjourn the proceeding to enable the transcript of the hearing to be put on affidavit.
Notwithstanding orders made by Registrar Caporale for the filing of any supplementary court book on 4 May 2011, the applicant has not done so or sought to do so. She has, it should be noted, complied with orders for the filing of her written submissions. There is no question of her having misunderstood Registrar Caporale’s orders.
An assertion that the Tribunal Member behaved in so domineering and rude a way as to overbear effectively the will of the applicant and her capacity to put her case is plainly a serious matter. It is simply not satisfactory for the applicant to raise it in this offhand way only at the very last moment.
The fact is that there is no material before the Court other than the applicant’s bare assertion that the Tribunal hearing was in any way unfair or misconducted.
Furthermore and in any event, the only prejudice of any material sort that the applicant has asserted is the failure by her to put the material now constituted by exhibit MFI 1 before the Tribunal. As I understood the applicant’s submissions, it was no part of her case that she was earning money at the time of the Tribunal hearing. The document at CB133 from her employer was before the Tribunal in circumstances when, according to her, she was a volunteer chef. She was not then being paid, although she asserted she now is.
In the circumstances, any conduct by the Tribunal that might have caused the applicant not to fully present her case had no material influence on the outcome.
It should be said that these observations are made out of an abundance of caution. I repeat, there is no admissible evidence of any misconduct on the part of the Tribunal in any event.
For these reasons, the application is wholly without merit and I will order that it be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Date: 25 November 2011
5
1
1