Singh v Minister for Immigration

[2016] FCCA 519

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 519

Catchwords:
MIGRATION – Visa – student visa – access to funds – cl.572.223.

PRACTICE & PROCEDURE – Adjournment – refusal of application for further adjournment.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), sch.5A, cl.572.223, pt.572 of sch.2, cl.5A 405(2)

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: AMANPAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 305 of 2014

Judgment of: Judge Heffernan

Hearing date: 18 February 2016

Date of Last Submission: 18 February 2016

Delivered at: Adelaide

Delivered on: 18 March 2016

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application for judicial review filed 12 August 2014, as amended, is dismissed.

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

3. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 305 of 2014

AMANPAL 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 seeking constitutional writs pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) which affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a Student (Temporary) (Class TU) subclass 572 Vocational Education and Training Sector visa (‘the visa’). That decision was made on 23 July 2014.

2. The applicant is a citizen of India who originally arrived in Australia in October 2009.  He was unrepresented in the proceedings before this Court.  The grounds of his application are as follows:

   “My visa is refused on 12 September 2012 and then I apply for MRT.  They refuse my visa because they said they didn’t find any mails and then Tribunal member said that funds are not genuine.  Sir I am struggling both of time when there is not my fault.

   I studied in Adelaide from last 3 years.  I complete my studies in Cert III in Automotive and Dimploma [sic] in Business.  I am wondering why member told me that I am not genuine.

   As far as funds, Sir my father support me through out my studies, you can see my previous records.  But Sir member took a decision that FD’s were only three months duration and member believe that these will be withdrawn, if the visa granted.

   Sir my father gives a affidavit that FD’s are remain unmatured during my studies and my parents recently sold one property to Mr Ranjit Singh who gives the another money and send me a $16000 in my account for my living expenses.

   So, Sir please kindly check all my details properly.  Because Sir I came here to build up my career not ruin my career because I already spend my precious time here in Adelaide to get a quality education.  Sir I hope you can give me one chance so I can prove my self.  Sir because when I came to Australia my college is shut down and lost my one through Immigration that was not my fault then Sir immigration didn’t received my mails.  Sir I am in stress from last year.  Please Sir give me at least one chance.  I shall be very thankful to you.”

3. This matter came before me on 1 February 2016.  On that occasion, the applicant sought an adjournment so that he could attempt to obtain legal representation.  He also sought leave to add some additional grounds to his application.  I made orders giving him leave to add the following additional grounds:

   “1.The applicant has leave to add additional grounds to his application in the following terms:

   (a)The Tribunal fell into jurisdictional error by misinterpreting the effect of the Regulations on the applicant’s visa application.

   Particulars

   Tribunal held that the applicant was subjected to assessment level IV for the purposes of Schedule 5A of the Migration Regulations 1994 (Cth) (‘the Regulations’), whereas Regulation 1.41(1) clearly stipulates that an applicant for grant of Sub Class 572 Visa who held an Indian passport was subjected to Assessment level III and not IV as wrongly held by the Tribunal. If an applicant is subjected to an assessment level III then the evidentiary requirements are much less for grant of Sub Class 572 visa as in that case the applicant only has to show that he has sufficient funds to cover his studies and living expenses for only the first year of his study and stay in Australia.

   The Assessment level had to be determined qua the applicant who was having an Indian passport and had applied for a SC 572 visa, by way of Legislative Instrument (IMMI 14/014) issued by the minister on 19.06.2014.  Since the Tribunal had decided the application of the applicant on 23 July 2014, it was incumbent on the Tribunal to apply the “time of decision criteria” which was clearly to the effect that the applicant was to be subjected to assessment level III and not IV as wrongly held by the Tribunal.

   If the tribunal had applied the correct law and the time of decision criteria, then the application of the applicant would have succeeded as clearly he had the funds to meet one year of his study and living expenses in Australia, if he was granted a student visa. 

   (b)The Tribunal fell into jurisdictional error in finding that the applicant did not have funds for his first one year of study and stay in Australia.”

Procedural background

1. By way of background, the matter first came before his Honour Judge Brown on 7 April 2015.  On that occasion, the applicant was not able to attend in person and sent another person to Court with a medical certificate.  Judge Brown adjourned the matter for further consideration to 2 June 2015.  Subsequent to the hearing before Judge Brown, the matter was administratively brought forward to 18 May 2015 because a judge had become available to hear it on that date.  On that occasion, the applicant applied to the Court for an adjournment to enable him to attempt to obtain legal representation.  That application was refused.  The matter proceeded and ultimately the application was dismissed with an order of costs against the applicant.  The applicant appealed that decision to the Federal Court and the appeal was successful.  Accordingly, the matter was remitted for re-hearing. 

2. The applicant appeared before me on 1 February 2016.  He advised the Court that he had not been successful in obtaining legal representation and requested an adjournment in order that he might make a further attempt to do so.  I granted this adjournment.  The matter was adjourned to 18 February 2016 for that purpose.  On 18 February, the applicant attended in person and was unrepresented.  The matter proceeded to hearing on that day.

Background to claims and evidence

1. As noted above, the applicant arrived in Australia in October 2009.  At that time, he was the holder of a subclass 572 visa which was valid until 15 December 2010.[1]  He subsequently obtained two further student visas.  The third visa was valid until 19 September 2012.  On 12 September 2012, he applied for a further subclass 572 visa indicating that he desired to study an Advanced Diploma of Management once he completed the Diploma of Management that he was in the process of studying at the time of his application.[2] 

   [1]     Court Book (‘CB’) p 124.

   [2] CB p 124 at [15].

2. A delegate of the Minister requested further information from the applicant indicating that his application had provided insufficient information to satisfy the relevant criteria. That request asked the applicant to provide supporting evidence to show that he met the requirements of Schedule 5A of the Migration Regulations 1994 (Cth) (‘the Regulations’), which were English language proficiency and financial capacity. No response was received from the applicant and the delegate proceeded to refuse the application.[3]

   [3]     CB p 124.

3. The applicant applied to the Migration Review Tribunal on 19 November 2012 for a review of the delegate’s decision.  On 24 April 2014, the Tribunal wrote to the applicant inviting him to attend at a hearing.  That hearing was scheduled for 28 May 2014.[4]

   [4]     CB p 124.

4. At page two of the invitation to attend the hearing, the Tribunal specifically requested that the applicant provide a range of documents that would demonstrate to it that he had sufficient funds, or access to funds, to pay his course fees and living costs for the relevant period.[5]

   [5]     CB p 63.

5. The applicant was represented before the Tribunal, and prior to the hearing, that representative provided the Tribunal with a number of supporting documents.[6]

   [6]     CB pp 68-104.

6. At the conclusion of the Tribunal hearing, it invited the applicant to submit further material to it in support of his application.  It allowed one week in which to provide those materials.[7]

   [7]     CB p 125.

7. During the course of the Tribunal hearing, the Tribunal put the applicant on notice of the various financial requirements, and advised him that in circumstances where the applicant was seeking to establish his financial capacity by demonstrating a loan that was secured against a fixed deposit, that it was necessary for him to provide evidence of the source of the funds.[8]  The Tribunal pointed out to the applicant that there was a financial requirement that he demonstrate access to funds for the duration of his study.  The Tribunal expressed its concern that his financial evidence amounted to an overdraft having been granted against three fixed deposits, all of which were of a three month duration.  Those deposits had only been created on 16 May 2014 and were apparently set to mature on 15 August 2014.[9]  The Tribunal explained to the applicant that its concern was that once the deposit matured, then access to the overdraft facility ceased, and for that reason it would not be available for the applicant to use.[10]  The Tribunal specifically put the applicant on notice that it was not satisfied, on the information that it had received to that point, that he had genuine access to funds as required.  It was against this background that the Tribunal gave the applicant and his representative a further period to provide post-hearing evidence.

   [8] CB p 125 at [27].

   [9]     CB p 125.

   [10]    CB p 125.

8. Post-hearing evidence was provided in the form of a submission from the applicant’s agent.  That submission indicated that a person had transferred an amount equivalent to AUD $16,840 to the applicant.  A further affidavit was provided from the applicant’s father, which indicated that the amounts for the fixed deposits had come from savings and the sale of a property.  Included with these submissions were copies of two pages of a statement from the applicant’s bank account, which purported to show that a deposit of $16,853 was made to that account on 6 May 2014 by a Mr Ranjit Singh.  However, that document also showed that an amount of $16,840 was withdrawn from the account the day after the deposits.[11]  That document also indicated that a deposit in the amount of $2,600 had been made to the applicant’s bank account on 9 May by his mother.

   [11]    CB pp 118 & 126.

9. The Tribunal assessed the application for the visa against a subclass 572 visa. It found that his applicable highest assessment was level four. The Tribunal found that the applicant did not supply adequate evidence of his financial capacity and for that reason, he was not capable of meeting cl.572.223(2)(a)(i).[12]  Based on the evidence before it, the Tribunal calculated that it was necessary for the applicant to demonstrate that he had access to $55,450 in order to cover his unpaid course fees, his living expenses, and a return airfare to India.[13]

   [12]    CB p 127.

   [13]    CB p 127.

Applicant’s submissions

1. The applicant made brief oral submissions before me.  He stressed that he had hired a migration agent to assist him with his visa requirements.  He claimed that the migration agent had “got it wrong”.  He believed that he could demonstrate that he had at least $44,000, and even an amount up to $55,000.  He submitted that he needed a lawyer.  When asked why he had not obtained legal advice up to this point, he submitted that he had family problems going on that included a relative having a kidney transplant and that this had taken a lot of money.  He said that in the last 15 days, he had asked about legal representation, but apparently the people that he had enquired with either did not have time or wanted too much money.  He stated that before the last fortnight, he did not have any particular reasons for not obtaining or attempting to obtain representation.

2. The applicant made a further application for an adjournment.  He wanted to find out if there was any government lawyer who could possibly help him.  He submitted that he had already been to JusticeNet.

3. The application for a further adjournment was opposed by the first respondent.  The first respondent submitted that he had been provided an opportunity on the last occasion, namely 1 February, to obtain the services of a lawyer.  It also submitted that the matter had been before this Court since early 2015, that the applicant had been through an appeal process to the Federal Court, and that I had granted him a further adjournment.  It submitted in effect, that the applicant had had sufficient time to obtain legal representation, if he sought to do so.  It was implicit in the submission of the first respondent, that there comes a point in any matter, where principles of caseflow management must ultimately assume greater weight than the circumstances of an individual applicant, particularly where the applicant has been on notice for a lengthy period of an impending final hearing.

4. I was not prepared to grant the adjournment, and I am of the view that when the history of this matter is properly considered, the applicant has had a sufficient opportunity to obtain legal advice.

5. The applicant confirmed during the course of his submissions that he did have legal advice prior to his appeal to the Federal Court.  This involved the assistance of a lawyer to draft the grounds of appeal.  He submitted that that person would not act for him at the appeal, or in this Court, this was because of his inability to pay the person.

6. The applicant completed his submission by telling the Court that the migration agent got it wrong, and that at the time of the Tribunal hearing, his agent could have told him to provide further material but that he did not do so.  In effect, the applicant was submitting that he relied on the advice of a migration agent, and that his lack of success before the Tribunal was through no fault of his own.  He submitted that the Tribunal had made an error to say that he had a lack of funds and he pointed to the fact that he had provided evidence showing a deposit of $16,000 into his Commonwealth Bank Account from his father.

Submissions of the first respondent

1. As noted above, the first respondent opposed a further adjournment of this matter.  With respect to the applicant’s complaints about the failure of the migration agent to either give him proper advice, or to properly represent his interests, it submitted that the failings alleged by the applicant could not amount to a basis for establishing judicial error on the part of the Tribunal.  The first respondent referred to the decision of the High Court in SZFDE v Minister for Immigration and Citizenship[14] where it held in referring to the decision of the Full Court of the Federal Court in a matter:

   “… In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. ... (omitted).”

   [14] [2007] HCA 35 at [53].

2. The first respondent submitted that it would be necessary for the applicant to demonstrate that the finding of the Tribunal had in some way been vitiated by fraud and that his submissions as to the paucity of his representation did not rise to that level.

3. In response to the applicant’s oral submission, the first respondent submitted that the Tribunal did properly address the evidence provided by the applicant as to the deposit of the amount of approximately $16,000 in his Commonwealth Bank Account.[15] It submitted that, in any event, it could not be relevant because the Regulations required that the money must have been held by an applicant for at least three months prior to the application. For this reason, the first respondent submitted that even if the applicant could establish that there had been some fraud on the part of the migration agent, which the first respondent disputes, it could not have affected the ultimate outcome because the assessment made by the Tribunal was a simple application of the Regulations to the financial material provided by the applicant, and that the figures simply did not add up.

   [15] CB p 126 at [34].

4. The first respondent submitted that the applicant’s submission before me, that the Tribunal should have taken into account his history of having completed previous courses of study, was irrelevant.  It submitted that because the essential criteria as to financial capacity had not been made out, it was not necessary for the Tribunal to then go on and consider his genuineness as a student based on his past performance. 

5. As to the amended grounds of application filed by the applicant, the first respondent submits that the Tribunal correctly identified that he was to be assessed at level four and not at level three.  For that reason, as against that level, the evidence before it was clearly insufficient.  This argument was also addressed in the supplementary outline of submissions filed by the first respondent.  It submits that with respect to amended ground 1(a), the applicant relied upon an incorrect legislative instrument, namely IMMI 14/014, as the basis for his contention.  That instrument was expressed to apply to an application for a student visa made on or after 22 March 2014.  The first respondent submits that the correct instrument for present purposes, was that which the Tribunal applied, namely IMMI 12/005.  That instrument commenced on 24 March 2012 and it applied in relation to an application for a student visa made on or after that date.  Pursuant to that instrument, the first respondent says that the applicant was correctly assessed against level four which required access to funds covering the first 24 months.

6. With respect to the amended ground 1(b), the first respondent submits that the ground is based on the erroneous assumption as to the relevant legislative instrument and the applicant’s incorrect contention that he was subject to assessment at level three.  Had that been the case, it would only have been necessary for him to demonstrate access to funds for the first year of study.  It was however, necessary for the applicant to demonstrate that he had access to funds that would cover the first 24 months because the correct level of assessment was in fact level four.

Consideration

1. The applicant was assessed as against the requirements for a subclass 572 Vocational Education and Training Sector visa.  Given the application was made at the time he was enrolled in a Diploma of Business, this was the correct assessment. 

1. The relevant criteria for the grant of a subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. The issue before the Tribunal was whether or not the applicant met the criteria set out in cl.572.223. Pursuant to that clause, it was necessary for the Minister to be satisfied that the applicant was a genuine applicant for entry and stay as a student, “because the applicant meets the requirements of subclause 2”.  Relevantly to this matter, the applicant would meet the requirements to subclause 2 if inter alia:

   “(iii)the Minister is satisfied that while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity;”

2. The Tribunal found that the evidence indicated that the applicant had $17,250 of unpaid tuition fees for his intended studies.[16]  On that basis, it concluded that the applicant was required to show access to that amount, plus living expenses for 24 months in the amount of $37,200, plus a return airfare in the amount of $1,000.  This came to a total amount of $55,450.[17] No error has been demonstrated in this calculation. On the basis of the financial evidence presented to it, the Tribunal found that the applicant was only able to demonstrate access to an amount of $44,090, and this was against the uncertain security of the three month fixed term deposits that were due to mature in August 2014. For this reason, even if the overdraft had been for the higher amount of $55,450, the Tribunal was not prepared to accept that the applicant would have access to the relevant funds given the maturity date of August 2014. The Tribunal concluded that on the maturity of the deposits, it was likely that the overdraft facility would no longer exist. On the basis of the evidence before it, this finding was clearly open to the Tribunal. It was for this reason that the Tribunal ultimately found that the applicant had not provided evidence capable of satisfying Schedule 5A for subclass 572. For that reason, he was not able to satisfy the mandatory requirement of cl.572.223(2)(a)(i). Having made this finding, the Tribunal concluded that the applicant could not be granted a visa of that subclass, and accordingly it affirmed the decision of the delegate.

   [16]    CB p 126.

   [17]    CB p 127.

3. I have considered the decision record of the Tribunal and I am satisfied that there is nothing to suggest that it fell into jurisdictional error in making the findings that it did.  There was nothing unreasonable in the relevant legal sense, illogical or irrational in the findings of the Tribunal.  It appears to have applied the correct legislative instrument, namely IMMI 12/005.  Contrary to the contention in amended ground 1(a), the applicant was to be assessed as against level four.  It was for that reason, necessary for the applicant to show access to funds sufficient to cover more than the first 12 months of study.  For this reason, amended ground 1(b) must also fail.  With respect to the original ground of application for judicial review, I accept the submission of the first respondent that it does not identify any jurisdictional error and is in effect seeking a review of the decision of the Tribunal on the merits.  This Court is not permitted on an application for judicial review to make a re-determination on the facts, or to substitute its view of the facts for that of the Tribunal.[18]

   [18]    Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

4. I accept the submission of the first respondent, that the Tribunal was not permitted to take into account the amount of approximately $16,000 deposited into his Commonwealth Bank Account on 6 May 2014, because those funds were not held by the applicant prior to his application for the visa.  For that reason, it was not within the relevant period stipulated by cl.5A 405(2).

5. Accordingly, I dismiss the application and make the orders found at the beginning of these reasons.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 18 March 2016