SINGH v Minister for Immigration

[2015] FCCA 1853

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1853

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – student visa application – judicial review – no matters of principle – application dismissed.

Legislation: 

Federal Circuit Court Rules 2001, r.44.12(1)(a)
Migration Act 1958, ss.65, 97, 359A, 359A(4)(b)
Migration Regulations 1994, sch.2, cl.572.224

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241

Applicant: HARMINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2177 of 2014

Judgment of: Judge Riethmuller

Hearing date: 4 May 2015

Date of Last Submission: 4 May 2015

Delivered at: Melbourne

Delivered on: 3 August 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The Application filed 29 October 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2177 of 2014

HARMINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 6 October 2014. The Applicant had sought a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (“the Act”).  The Applicant made application for the visa on 5 June 2012, following which the delegate refused the visa on 18 January 2013.  Thereafter, the Applicant sought review by the Migration Review Tribunal, lodging his application on 25 January 2013.  The Tribunal made its decision on 6 October 2014.  The Applicant then sought judicial review of the Tribunal’s decision in an application lodged with the Court on 29 October 2014.

2. The Minister argues that the application fails to raise an arguable case and should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001. 

3. The decision concerned the evidence that was provided to satisfy the means test for financial support in cl.572.224 of sch.2 of the Migration Regulations 1994. The Tribunal identified that the Applicant had submitted a financial document, purporting to be bank documents of his grandfather, which were, in fact, bank documents of another person with the same name. Thereafter, the Applicant’s migration agent wrote to the delegate alleging that the allegations that the statements were not that of the grandfather were wrong. The delegate concluded that the documents were bogus documents within the meaning of s.97 of the Act and refused the application.

4. At para.9 of the Tribunal’s decision (Court Book (“CB”) 231), the Tribunal identifies that the Applicant’s case was that he had provided correct documents as far as he was aware, but that his agent had made some errors.  When asked whether he had any explanation for the difficulties, he stated that he had a letter from his migration agent confirming that his grandfather was the account holder in respect of the documents.  The Tribunal advised that there was evidence that his grandfather was not the account holder and that the explanatory letter was also false.  The Tribunal found that the Applicant’s responses and explanations were evasive or non-responsive to the questions and did not accept him to be a witness of truth (see para.12, CB 231).  As a result, the Tribunal came to the conclusion that the Applicant was aware that false documents had been supplied.

5. The information that the documents were false came from the Australian High Commission in India after integrity checking the documents.  The concerns as to the genuineness of the documents were expressed in an email from the Department to the Applicant’s agent on 15 October 2012, and received a response on 1 November 2012 from the agent enclosing a letter purporting to be from the bank confirming the documents were genuine and related to the Applicant’s grandfather.  This was duly referred to the Australian High Commission on 21 November 2012 and investigated, however the Australian High Commission did not change its conclusions.  Thereafter the application was refused.

6. When the Applicant applied to the Tribunal for review of the decision, he enclosed a copy of the delegate’s decision record.  It is not argued in this case that the Tribunal incorrectly dealt with the relevant provisions concerning bogus documents.  The grounds that the Applicant sets out in his application filed 29 October 2014 are as follows:

   1.   I have applied for a Student Visa on 05.06.2012, with relevant documents.  The delegate refused to grant the visa on 07 March 2013 on the basis that I did not satisfy the requirements of cl.572.224 of Schedule 2 of the Migration Regulations 1994 (The Regulations) because in Coe reported satisfaction of the requirements of schedule 5A to the regulations I submitted a financial document relation to keep an account in name of the person as my grandfather but who on investigation was not found as my grandfather.

   2.   I have applied to MRT to reconsider the decision made by the delegate.  I appeared before the Tribunal on 18.09.2014 to give evidence and present arguments.  The Tribunal also received oral evidence from my wife ‘Ms. Kamaljeet Kaur’.

   3.   At the hearing, I told Tribunal that I had provided all correct documents but my agent had ‘mucked up somewhere’.  I also offered the Tribunal to provide more financial documents if required.  The Tribunal told me that the issue is whether the documents I had provided in the past were false and misleading in material particular or bogus.

   4.   The Tribunal asked me regarding any explanations on which I told that I had a letter from migration agent that ‘the person mentioned’ is my grandfather, but I told them that I don’t have the letter on that day.  I repeatedly told the Tribunal that the person is my grandfather.

   5.   I also told Tribunal that I could show the funds again if required.

   6.   My wife also said that she is on 457 visa and she works full time.  We have a baby and I am the one who looks after the baby.  Thus my wife requested Tribunal that I could come on her visa and supports her.

   7.   I request honourable authority to please consider my application and check all of my financial documents.

Ground One

1. The first ground identifies a grammatical error in the Tribunal decision where a sentence appears not to make sense (having the appearance of the type of sentence constructed by a voice to text dictation software package).  It seems to me that, read in context, the sentence is sufficient to explain the background of the matter known to the parties.  In the context of this case, and the part of the decision in which this sentence appears, it does not appear to me that this shows an arguable basis for judicial review. 

Ground Two

1. The second ground sets out that the Applicant applied and gave evidence, as did his wife.  There appears to be no dispute that these events occurred and this does not of itself appear to be a ground for review.

Ground Three

1. The third ground simply sets out what occurred at the hearing, as summarised in the Tribunal decision.  

Ground Four

1. The fourth ground again recounts what the Applicant told the Tribunal, namely that he believed the documents were those of his grandfather.  It is clear the Tribunal had regard to that evidence before making its findings. 

Ground Five

1. The fifth ground proceeds on the basis that alternative evidence of funding could have been provided, however, as the Tribunal articulates, once an issue of whether or not a bogus document has been provided arises, this can (and in this case was) be an independent basis for refusing a visa application.  In the event that the Tribunal were entitled to refuse the application as a result of the bogus documents, it does not change the outcome even if the Applicant could have provided evidence of an alternative source of funding. 

Ground Six

1. The sixth ground appears to be requesting that the Applicant be granted a visa as a dependent spouse of his wife given that she is on a 457 visa.  Whether or not such visa would be available to the Applicant is not for determination in these proceedings, but should be the subject of separate application to the Department for the relevant visa. 

Ground Seven

1. This ground simply seeks to revisit the question of the Tribunal’s findings on a merits basis, which is not permissible in these proceedings. 

2. I have turned my mind to whether or not the information that was central to this case was information that ought to have been the subject of the notice requirement under s.359A of the Act. No such formal notice to the Applicant appears in the court book, yet clearly the information provided by the Australian High Commission was information of the type that would prima facie fall within the ambit of the statutory provision.

3. In this case however, a summary of that information appears in the decision of the delegate with considerable particularity. Considering the matter from the perspective of the common law, there is no question that the Applicant had notice of this material and this issue before appearing before the Tribunal. However, the operation of the provisions of the Act in this regard must be strictly complied with, and in particular s.359A. In this case, the Minister argues that the information was, within the meaning of s.359A, provided by the Applicant in that the Applicant provided the delegate’s decision as part of the material for the review application. Notably under the section, the information itself does not need to be given to the Applicant, simply that particulars of the information be provided to the Applicant.

4. In this case, the Applicant, by providing the delegate’s decision, has provided particulars of the information that is contrary to his case to the Tribunal.  The operation of the section in this regard was analysed in some detail in the Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241, where it was concluded that particulars of information in a decision of a delegate is material given by the Applicant to the Tribunal, even if he or she is required to annexe that decision to the application. In these circumstances, the particulars of the information concerned come within the exemption in s.359A(4)(b) and therefore the Tribunal did not have to provide a notice under that section.

5. In the circumstances of this case, the Applicant therefore has no arguable ground to apply for judicial review and I therefore dismiss the application. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  3 August 2015