SINGH v Minister for Immigration

[2017] FCCA 1513

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1513

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visa – whether the Tribunal gave the applicant a fair hearing – whether the Tribunal did not consider the evidence of the applicant’s witness – whether the Tribunal did not allow the applicant to give testimony – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), schedule 5A, cls.5A403, schedule 2, cl.572.223

Applicant: PARMJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1153 of 2016

Judgment of: Judge Street

Hearing date: 30 June 2017

Date of Last Submission: 30 June 2017

Delivered at: Sydney

Delivered on: 30 June 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1153 of 2016

PARMJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 April 2016 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant was found to be a citizen of India and applied for a Student (Temporary) (Class TU) visa on 9 March 2015.

The delegate’s decision

1. The delegate found that the applicant did not satisfy the requirements of reg.572.223(2), cl.5A408 for reasons that were set out which addressed the applicant’s financial capacity. The delegate raised with the applicant the need to provide evidence of access to funds and no response was received.

2. The delegate noted that claims regarding the source and access to funds are material to whether the applicant has access to funds indicated and declared in schedule 5A. The delegate noted that that is to ensure the money is actually available from a legitimate source and remains available. The delegate noted that the claimed funds have not been used for an extensive period of time and appear to have been provided solely for the purpose of the visa application and the delegate was not satisfied the applicant has access to funds sufficient to meet course fees, living costs and travel costs. The delegate was not satisfied the applicant met the requirements for reg.572.223(2), cl.5A408.

3. The delegate found that he did not satisfy the criteria for any other subclass and found that he did not meet the criteria for the grant of a visa.

The Tribunal’s decision

1. The applicant applied for review on 25 August 2015. By letter dated 25 February 2016, the applicant was invited to attend a hearing to give evidence and present arguments. The applicant was also invited to complete a response to hearing invitation and to provide all documents the applicant intended to rely upon to establish that the applicant met the criteria. The document expressly referred to the need to provide information and documents that demonstrate that the applicant had sufficient funds or access to sufficient funds to pay course fees, living costs, school costs and travel costs over the relevant period.

2. The applicant’s migration agent provided certain documents to the Tribunal and also returned a response to hearing invitation which indicated that the applicant did not wish any witnesses to attend. The applicant appeared on the hearing date to give evidence and present arguments and was represented in relation to the review by his registered migration agent.

3. The Tribunal identified the adverse finding by the delegate and the grounds for refusal of the visa. The Tribunal identified that the issue in the present case was whether the applicant is a genuine applicant for entry and stay as a student having regard to the prescribed matters. The Tribunal identified that for a subclass 572 visa this requirement is contained in cl.572.223, which was annexed to the decision. The regulations require that the Minister is satisfied the applicant is a genuine student having regard to the stated intention to apply with applicable visa conditions and that while the applicant holds the visa the applicant will have access to funds relied upon to satisfy the Schedule 5A financial capacity requirements. The Tribunal referred to the applicant being enrolled in a vocational education and training sector course.

4. The Tribunal turned to the question of whether the applicant had access to sufficient funds. The Tribunal noted that immediately prior to the hearing the migration agent provided material in relation to funds held by the applicant’s mother and father upon which he wished to rely to establish satisfaction of the financial capacity requirements. The Tribunal noted that it explained to the applicant and his agent that it could not take those materials into account in assessing whether the applicant met the financial capacity requirements because the money deposits held by his mother and his father were, on the materials provided, not held at least three months prior to the visa applicant lodgement date.

5. The applicant’s agent undertook to provide further evidence that the applicant’s parents had held those funds since the relevant time and despite the reservations at the ongoing delay the Tribunal informed the migration agent that it would not make a decision until after 18 April 2016. Nothing was received from the migration agent within that timeframe and, accordingly, the Tribunal proceeded to make its decision. The Tribunal found that the funds held by the applicant’s parents did not come within paragraph (aa) of the definition in cl.5A408(2) of “funds from an acceptable source” and cannot be taken into account.

6. The Tribunal identified raising with the applicant during the hearing whether he genuinely intends to remain in Australia temporarily as a student. The Tribunal found that it was clear that the applicant does not have access to the funds and accordingly found there was no evidence that the applicant will have access to those funds for the 12 months of the visa if it were granted to him.

7. The Tribunal was not satisfied the applicant would have access to relevant funds as required, and found cl.572.223(2)(c) was not met. The Tribunal was not satisfied that the regular income of the individual who provided funds to the applicant was sufficient to accumulate the level of funding being provided, and that cl.572.223(2)(a) in cl.5A408(1)(c) was not met. The Tribunal found the applicant did not meet the criteria for the grant of a subclass 572 visa and affirmed the decision under review.

Proceedings before this Court

1. A Registrar of the Court made orders on 30 June 2016, providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.

2. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair the decision would be set aside and sent back for a further hearing. The Court explained that if not satisfied the decision was unlawful or unfair the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Grounds of the application

1. The grounds in the application are as follows:

   1. Tribunal member did not allowed to submit more testimony and made jurisdictional omission and also did not properly consider the witness presented to AAT-MRT;

   2. Tribunal member errored by not properly considering the procedural fundamentals and allowed an opinion from Independent Protection Assessment Reviewer thus an error made by the AAT-MRT;

   3. Tribunal member did giver a chance to present witness and a fair hearing manner;

   4. Tribunal member did not attended the case and material produced before and after;

   5. The AAT-MRT made jurisdictional error in denying the application for Student Class TU in failing to consider all the facts and the law related to the student visa claims

   6. AAT-MRT failed to accept witness statements and telephonic interview, Tribunal did not consider the current state of current state of uncertain visa outcome for self, partner & parent's & other family members; MT- MAT failed to acknowledge the fact that obligations under GTE Criteria and did not accepted my claims in fair manner

   7. AAT-MRT failed to acknowledge the fact that Australia has protection obligations and accepted my claims in fair manner to re-instead my visa status

   (Errors in original)

Submissions from the bar table

1. From the bar table, the applicant maintained that his mother had sufficient funds and that there were documents that he had sent to his agent so as to meet the financial requirements. It is apparent from the Tribunal’s reasons that the Tribunal addressed the funds held by the parents and made adverse findings as to whether they were held for the requisite period prior to the making of the application, and that adverse finding was open. The adverse findings in relation to the applicant’s financial capacity were logical and reasonable, and nothing said by the applicant from the bar table identified any relevant error in the decision of the Tribunal. Further, it is apparent that the applicant was given an opportunity to provide further information to the Tribunal after the hearing and failed to do so.

Consideration of grounds

Ground 1

1. In relation to Ground 1, it is apparent that the Tribunal complied with its statutory obligations in the conduct of the review. The applicant was invited to attend a hearing. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The invitation for the applicant to attend identified for the applicant the need to provide information relating to his financial capacity. The proposition that the Tribunal did not allow the applicant to submit more testimony is not supported by any evidence. On the face of the material before the Court, the applicant was given an opportunity to provide further material after the hearing and did not do so.

2. Further, the response to hearing invitation identified that the applicant did not identify any witness in addition to the applicant that the applicant wanted called. No such request was made to the Tribunal on the face of the material before the Court. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to Ground 2, the Tribunal’s reasons reflect an orthodox approach to the conduct of the review and, on the face of the material before the Court, the Tribunal complied with the obligations of procedural fairness in the conduct of the review. There is no reference in the Tribunal’s decision to the “Independent Protection Assessment Reviewer”, whatever that is intended to mean, in Ground 2. On the face of the material before the Court, the Tribunal properly considered the applicant’s claims and made findings that were open. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to Ground 3, it is clear from the invitation that the applicant was given an opportunity to adduce evidence and completed a response form sent by his migration agent that there was no witness that he wished to call. There is nothing to support the proposition that the applicant was not given a fair hearing. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to Ground 4, the Tribunal’s reasons reflect a proper consideration of the evidence and submissions before it. There was no material identified that the Tribunal failed to take into account. Ground 4 fails to make out any jurisdictional error.

Ground 5

1. In relation to Ground 5, again no relevant facts were identified that the Tribunal failed to consider. The Tribunal correctly identified the relevant law. Ground 5 is, in substance, a disagreement with the adverse findings made by the Tribunal that were open. This Court does not have power to revisit the merits. Ground 5 fails to make out any jurisdictional error.

Ground 6

1. In relation to Ground 6, for the reasons already given, there was not in the present case any response to hearing invitation, or any suggestion on the material before the Court that there were witness statements or telephone interviews that were requested by the applicant in the review. The reference to the current state of uncertain visa outcome for “self, partner and parents and other family members” appears to be utterly irrelevant to the criteria that the Tribunal was required to consider. The reference to the GTE criteria is something that appears entirely irrelevant to the consideration of the visa currently the subject of challenge. Ground 6 otherwise reflects a disagreement with the merits. Ground 6 does not identify any jurisdictional error.

Ground 7

1. In relation to Ground 7, this was an application for a student visa and issues of protection were not relevant. Ground 7 fails to make out any jurisdictional error.

Conclusion

1. As the application fails to disclose any jurisdictional error the application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  18 July 2017