Singh v Minister for Immigration

[2016] FCCA 1105

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1105

Catchwords:
MIGRATION – Visa – student visa – financial capacity – access to funds declared pursuant to Schedule 5A.

Legislation:

Migration Act 1958 (Cth), ss.65 & 476

Migration Regulations 1994 (Cth), Schedule 5, 5A, 5A405 & cl.573.223(2)(c)

Cases cited:
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 184
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Tran vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham [2000] 168 ALR 407

Applicant: RAJWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 201 of 2015

Judgment of: Judge Heffernan

Hearing date: 29 February 2016

Date of Last Submission: 29 February 2016

Delivered at: Adelaide

Delivered on: 24 May 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application dated 4 June 2015 is dismissed.

2. The name of the second respondent is amended to the ‘Administrative Appeals Tribunal’.

3. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 201 of 2015

RAJWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) against a decision of the Migration Review Tribunal, as it then was, (‘the Tribunal’) to affirm a decision of a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) Visa under s.65 of the Act. The date of the Tribunal decision was 11 May 2015. The applicant attended before the Tribunal with the assistance of a registered migration agent.

2. The applicant appeared before this Court unrepresented and with the assistance of an interpreter in the Punjabi and English languages.  Mr Singh is 30 years old and a citizen of India.[1]

   [1]     Court Book ‘CB’ p 1.

3. The applicant makes this application for judicial review on a single ground as follows:

   “Tribunal made a decision that I do not meet the financial requirements for the grant of a student visa.  Tribunal decided that an ‘agreement to sell’ document does not verify that land is sold.  I believe this is an error made by the Tribunal while deciding my review application.  My father received money from the sale of land.  An agreement was done and my father received an initial deposit.  Even if buyer does not stand with ‘agreement to sell’ the money paid to my father remains with my father.  My father is the rightful owner of the money and hence can provide financial support to me from that money.  This is the main reason I believe Tribunal made an error.”

4. On the face of this ground, the applicant seeks to re-agitate matters of fact and seeks a merits review.  It is not within the power of this Court to re-determine the facts.  This Court has no general power of review on factual findings made by the Tribunal.[2]  This was explained to the applicant at the commencement of these proceedings.  Bearing in mind that the applicant is unrepresented, I am of the view that the ground pleaded is broad enough to encompass a complaint that in considering his financial capacity, the Tribunal failed to consider an essential integer of his claim and that it reached a conclusion that was unreasonable or irrational.

   [2]     AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [38].

Legislative Framework

1. Schedule 5A of the Migration Regulations 1994 (Cth) (‘the Regulations’) deals with the evidentiary requirements of student visas. Pursuant to cl.5A405 of Schedule 5A the applicant had to show that he had “financial capacity” by demonstrating that he had funds from an acceptable source that were sufficient to meet course fees, living costs, and school costs, and make a declaration that he had access to such funds.

2. The applicant was assessed by the Tribunal against the criteria for a subclass 572 (Vocational, Education and Training Sector) visa. He had been enrolled in three courses:

   a)Certificate III in Retail Baking;

   b)Certificate IV in Hospitality (Commercial Cookery); and

   c)Diploma of Business.

3. At the time of the Tribunal hearing he was enrolled in an Advanced Diploma of Business course which was to conclude in May 2016.  This was also within the ambit of subclass 572.

Background and Tribunal hearing

1. In this matter the Tribunal implicitly accepted that he did have the required capacity and that the funds were from an acceptable source.  As noted above, the issue on which the matter turned was whether the applicant had established that he had access as required by cl.573.223(2)(c). 

2. The Tribunal had regard to a number of financial documents provided by the applicant in support of his claim.  The effect of these is summarised below.

3. In short, the applicant claimed that he had access to funds made available to him by his father.  His father had maintained deposits in fixed term bank accounts with an overdraft facility since at least 19 February 2013.[3]  The applicant provided the Tribunal with a letter from the State Bank of Patiala, dated 8 September 2014, that confirmed his father had two fixed deposits with the bank in the total amount of 2,000,000 Indian Rupees, against which his father had an overdraft facility for 1,900,000 Indian Rupees.[4]

   [3]     CB pp 29-30, Letter from Punjab National Bank, Confirmation of Deposit.

   [4]     CB p 159.

4. He made a further claim, supported by translated documents, to the effect that his father earned a large income from agriculture and the applicant himself claimed in a statement that his father had 500,000 Indian Rupees kept at home.  The Tribunal appears to have regarded it as implicit in the applicant’s claim that he says this would be accessible to him if he required it.

5. There was an inconsistency on the applicant’s case as to the source of the funds in the fixed deposit accounts.  The applicant claimed that it came from the deposit for an agreement for the sale of land owned by his father.  That sale had not been completed and the transaction had not been officially registered.  However an enquiry made by the Department established through the applicant’s father that the source of the funds was in fact a loan from a local landlord and funds provided by friends.[5]  The Tribunal accepted the father’s version and did not believe the version of the applicant as to the sale of land being the source of the fixed term deposits, or that the claimed transaction with respect to the land, had ever occurred.[6]

   [5] CB p 160 at [16].

   [6]     CB p 161 at [22]-[23].

6. Having accepted that the funds existed, and were from an appropriate source, and that an overdraft facility had also been available to the father of the applicant, the Tribunal concluded that it was not satisfied that the underlying funds would be accessible to the applicant on an ongoing basis.[7]

   [7] CB p 162 at [27].

7. Accordingly, the Tribunal concluded that the decision of the delegate should be affirmed because the applicant had failed to satisfy the mandatory requirement of cl.573.223(2)(c), in that he did not meet the requirement for financial capacity that was set out in the Regulations. The financial capacity requirement meant that the applicant had to establish that “while (he) holds the visa (he) will have access to funds demonstrated or declared in accordance with the requirements of Schedule 5A relating to the applicant’s financial capacity”.  This requirement should clearly be read to require the applicant to have access to funds at all times whilst holding the visa.

Submissions

1. The applicant made brief oral submissions in support of his application.  In effect he submitted that the Tribunal did not take into account the fact that he had submitted to it a “signed registry” for the sale of the land in India.  He then repeated the claim made to the Tribunal that under Indian law an upfront amount was paid even if a sale of land had not been completed and registered.  He repeated the claim, rejected by the Tribunal, that the source of the funds to which he had access was from the deposit paid for the un-finalised sale of land.  He submitted that the fact that the Tribunal did not accept his evidence about the source of the funds was unfair to him. 

2. The applicant handed a bundle of further documents to the Court.  The first respondent did not object to those documents being received.  They comprised a series of documents that showed the applicant had continued to study and that he had attained diplomas in his chosen course.  This, he said, confirmed that he was a genuine student and it was implicit in his submission that if he had been able to complete these courses then he must self-evidently have had the required financial capacity to do so.  The applicant asked the Court to look at the documents again and to confirm that the source of the money was from the sale of the land. 

3. The first respondent submits that there is no apparent error in the reasoning of the Tribunal and that the findings of both fact and credit were open on the evidence before it. 

4. The first respondent acknowledged that in parts the reasoning of the Tribunal is difficult to discern. 

5. The first respondent submits the Tribunal identified that the issue was the question of access to the funds at paragraph [22] of its reasons in the first sentence.[8]  From that point it submits that the reasoning process up to paragraph [29] is difficult to explain but that the conclusion it reached was clearly one that was open to it.

   [8]     CB p 161.

6. It is submitted that a major concern the Tribunal had was whether the funds came from the land sale or a loan provider.  What is apparent is the conclusion at [26] which is an adverse finding rejecting that the source of the deposit came from a land sale.  The Tribunal did not make a finding that the funds came from either an acceptable or an unacceptable source.  The first respondent says that the Tribunal implicitly finds that the funds came from an acceptable source, but was not satisfied that it was accessible.

Consideration

1. The Tribunal considered all of the claims made by the applicant to having access to sufficient funds to support himself during the duration of the visa.  It was not satisfied of the evidence that the applicant gave and made adverse significant credit findings against him.  In particular, it was not satisfied by his explanation as to the source of some of the funds to which he claimed to have access (which were apparently held by his father as a fixed deposit in India) having come from an advance payment to his father from an agreement to sell a parcel of land.

2. The Tribunal did not accept that there had been a sale of land, or an agreement for the sale of land, as claimed by the applicant.  It placed weight on, and accepted the explanation provided to the Department of Immigration and Border Protection from the father himself, to the effect that the majority of the money in question had been borrowed from a landlord and the balance borrowed from friends.  This explanation was critical to its finding that the applicant did not satisfy cl.573.223(2)(c).

3. It was not convinced by the applicant’s explanation for this inconsistency, being that his father had been confused and distracted at the time he spoke to the Department because he had been attending a funeral.  The Tribunal simply did not find the applicant’s explanations about the claimed agreement for the sale of the parcel of land and the delay in concluding that transaction to be credible.[9]

   [9]     CB pp 161-162.

4. This finding caused it to doubt that either the overdraft or the funds in a fixed deposit account would be accessible to the applicant.  It expressed that concern in these terms:

   “The evidence regarding the funds underlying the deposit and the overdraft presents such serious concerns that the Tribunal does not accept that they are accessible by the applicant.”[10]

   [10] CB p 162 at [26].

5. The Tribunal does not elucidate on why it was not satisfied that the funds and overdraft, which it appears to have accepted did exist, would be accessible to the applicant.  However, it seems implicit in its’ reasoning that it believed the financial arrangements in India had been structured in such a way as to give the mere appearance of accessibility for the purpose of meeting the requirements of cl.573.223(2)(c).  In this regard, it should be noted that it placed weight on the fact that one of the term deposits had expired and one was due to expire soon, placing the availability of the overdrafts themselves in doubt.[11]

   [11] CB p 161 at [21].

6. The Applicant provided the Tribunal with three pages of transactions showing deposits into a Commonwealth Bank account in his name.  The Tribunal clearly placed weight on the fact that in between 10 October 2013 and 3 September 2014 there was only evidence produced to the Tribunal of access in the amount of $13,802.[12]  No evidence was provided by the Applicant as to the source of those funds.[13]  This was another anomaly in the financial profile presented by the applicant that caused the Tribunal to have concerns as to his arrangements.  The Tribunal was not prepared to draw an inference that the source of that money was from the overdraft facilities.  Further, it was not convinced by evidence of a more recent overdraft limit in the amount of 1.9m Indian rupees[14] or a claim that his parents had 500,000 Indian rupees stored in their home.[15]

   [12] CB p 159 at [13].

   [13] CB p 162 at [26].

   [14] CB p 162 at [27].

   [15] CB p 163 at [28].

7. The duty of a Tribunal to give reasons is different to that of a Court:

   “The Tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’.  Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.”[16]

   [16]    Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46].

8. It would have been preferable if the Tribunal had explained its’ reasoning process more clearly.  I am not satisfied that it failed to give sufficient reasons.  What is clear is that it did not accept the evidence of the applicant as to the sale of land, and the evidence provided as to his financial arrangements in India did not satisfy it that he had access to funds as required by cl.572.223(2)(c).  That finding was intelligible and decisive. 

9. Turning to the ground as pleaded by the applicant, on its face this is simply a complaint about the outcome of the hearing.  The Tribunal made a decision that he disagreed with.  This Court has no role in reviewing the merits of a Tribunal decision.  It is not appropriate for this Court to engage in a fact finding process and I am not able to substitute my view of the facts for that of the Tribunal.[17]  Similarly, questions of the weight to be given to aspects of the evidence and findings of credit were entirely matters for the Tribunal.[18]

   [17]    NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510.

   [18]    Tran vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297; Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham [2000] 168 ALR 407.

10. Having considered the reasons of the Tribunal, I am satisfied that the findings it made, both as to the facts and the credit of the applicant, were open to it on the evidence.  I am satisfied that the Tribunal considered all aspects of the applicant’s claim.There was nothing unreasonable, illogical or irrational in the decision it made.  There was nothing about the manner of the proceedings that rendered them procedurally unfair.  No jurisdictional error has been demonstrated.  The applicant has simply invited me to conduct a merits review which I am unable to do. 

11. Accordingly, I dismiss the application.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 24 May 2016