SINGH v Minister for Immigration

[2014] FCCA 703

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 703

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – student visa – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 (1947) 45 LGR 635; (1948) LJR 190; (1947) 112 JP 55; (1947) 177 LT 641; (1947) 63 TLR 623; (1948) 63 TLR 623

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225; (2013) 87 ALJR 618

Applicant: JUGRAJ SINGH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 776 of 2013

Judgment of: Judge Riethmuller

Hearing date: 4 March 2014

Date of Last Submission: 4 March 2014

Delivered at: Melbourne

Delivered on: 4 March 2014

REPRESENTATION

The Applicant: The Applicant appearing by telephone.

Counsel for the Respondents: Ms Randall-Smith

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The Application filed on 30 May 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 776 of 2013

JUGRAJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for judicial review of a decision of the Migration Review Tribunal made orally on the first of May and in writing on 2 May 2013.  The tribunal affirmed a decision of a delegate of the Minister to refuse to grant a student visa to the applicant. 

2. The applicant is an Indian national, who originally arrived in Australia in May of 2009 on a student visa. He had applied online on 15 June 2011 for a further visa to continue studying in Australia. The applicant’s original visa application failed before the delegate for two reasons:

   a)Firstly, that he had not provided evidence of sufficient funds to enable his application to be assessed against the regulations relating to financial capacity; and 

   b)Secondly, he had not provided evidence of appropriate overseas student health cover. 

3. The applicant then sought a review of the decision of the delegate.  Prior to the hearing before the tribunal, the tribunal wrote to the applicant on 19 February 2013 specifically asking him to provide further information in support of his application for a student visa.  That included, not surprisingly, evidence of his enrolments, academic achievements and his financial capacity to sustain himself while studying in Australia.  In particular, the tribunal officer set out in bold on the second page of the letter, the following request: 

   5. Evidence that, while you hold the visa, you will have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5A for the proposed period of your stay in Australia, as required by cl.572.223(2)(a)(iii).  Without limiting the ways in which this requirement may be satisfied, where you have shown evidence of a loan which is secured against a money deposit, the Tribunal specifically invites you to provide the following:

   ·   evidence of the source of funds used to create that money deposit;

   ·   evidence of the regular income of any person providing those funds (for example, official tax records); and

   ·   where the funds were obtained from selling land or a dwelling, evidence of a registered deed of sale, and that money has been received from the purchaser.

4. The letter also attached relevant extracts from the regulations relating to the need for evidence of financial capacity and evidence of the fact that the funds were from an acceptable source within the meaning of the regulations.  Despite this letter the information that was provided showed only evidence of a fixed deposit.  It did not show any evidence of the source of the funds in the fixed deposit, which was the basis upon which an overdraft was granted.  The fixed deposits totalled 3.2 million rupiahs, around $57,446.  The tribunal discussed the issue in some detail in paras.31 to 34 in the following terms:

   [31] The Tribunal then referred to the evidence of overdrafts granted to his parents on 18 April 2013.  These overdrafts had been granted against fixed term deposits that had been created on 17 April 2013, the day before the overdrafts were granted.  The fixed deposits were for a combined total of Rs.3,200,000 ($57,446).

   [32] The Tribunal asked the applicant where the funds had come from to create the fixed deposits.  He responded he did not know.

   [33]The Tribunal told the applicant it found it difficult to reconcile the evidence that he had been forced to withdraw from studies less than two years ago because his parents could not send him funds, yet now they had somehow deposited the equivalent of more than 12 years of gross annual income into fixed deposits against which they had been granted overdrafts.

   [34] When the Tribunal again asked the applicant where he believed the money had come from, he stated that perhaps his father had sold some land.

Grounds of Review

1. The applicant’s grounds for judicial review, in this case are:

   a)I am not satisfied with the decision of MRT; and

   b)I want to appeal against the decision. 

2. The applicant has not filed any amended application, nor has the applicant filed any written submission or outline.  The applicant did provide to the lawyer for the Minister a copy of a psychological report indicating that he may be suffering from post-traumatic stress disorder, although that report is now many months old. 

3. The applicant failed to appear today; however, as a result of the terms of an email exchange between the lawyers for the Minister, and the applicant it seemed to me there was a real possibility that the applicant may have been mislead into believing that he would be able to appear by telephone today, even though no leave had been granted by the Court to that effect. 

4. As a result, I allowed the applicant to appear by telephone at the hearing today.  On the telephone he was able to make submissions.  The applicant’s submissions were largely in English, although he had some difficulty.  The Punjabi interpreter, who was booked and had attended today, ensured that a proper hearing took place. 

The Tribunal’s decision

1. The substance of the applicant’s complaints about the tribunal was that he was not given an adequate opportunity to provide evidence of the source of the funds that were in the fixed deposit.  As set out in the reasons of the tribunal, he said that he believed that the source of the funds was from a sale of some land by his father.

2. The tribunal did not allow him further time to provide additional information when he requested it.  The tribunal records at paras.37-41:

   [37] The Tribunal told the applicant it was not satisfied the evidence presented showed he had access to the funds required and asked whether he wished to make any further submissions or had any questions or statements before the Tribunal made a decision in his case.

   [38] He responded that if the Tribunal wanted more evidence he could request his father to provide evidence of the source of funds.

   [39] The Tribunal told the applicant that it was reviewing a decision made in August 2011 to refuse his visa application because he had not provided evidence of financial capacity.  The invitation sent ten weeks before the hearing had detailed the evidence required for the grant of a visa.  The requested evidence was not provided.  The Tribunal told the applicant it believed he had been granted ample time to provide the required evidence yet had failed to do so.  It was not prepared to grant more time for the submission of required evidence.

   [40] The Tribunal told the applicant from the evidence presented it was not satisfied he had access to funds to support his expenses as required and therefore found he did not meet the requirements for the grant of a student visa and therefore, the decision of the Tribunal was to affirm the decision of the Department meaning that the decision to refuse his visa application remained.

   [41] The applicant said he understood the decision.  The hearing was concluded.

3. Further information has not been provided since then to the tribunal nor to the Court. I note, strictly speaking, that such information is not a precondition to a judicial review application, rather I must assess whether or not the application for an adjournment of the tribunal’s hearing has been properly dealt with. 

4. Turning, then, to the notice that the applicant had on 19 February by way of letter from the tribunal. I note that the letter specifically identifies the question of evidence, as set out above.

5. The letter is quite explicit.  It also invites the applicant to provide the information as soon as possible, but no later than seven calendar days prior to the hearing date set for 30 April.  It advises that the tribunal will seek to make a decision at the conclusion of the hearing. 

6. Even in these proceedings, the applicant has effectively done nothing to progress his case through the court.  I have no evidence of the actual terms of the hearing in the form of a transcript, nor any affidavit evidence on this issue, nor an outline from the applicant.

7. The tribunal member had before him, it seems, from the face of the decision, a bare request for more time after specific and clear notice had been given to the applicant of the types of documents required, or evidence required, some 10 weeks before.  It is not clear on the face of the material before me that the applicant put the case for an adjournment for a short specific period, nor was it put that the adjournment was to obtain particular documents, nor was any explanation of the delay given.  One would have thought these documents would have been readily available if the money did come from the sale of land, or, indeed, wherever the money came from. 

8. One would have thought there would be readily available documents to show a trail of the movement of 3.2 million rupiahs in India.  Even in Australian dollars at $57,446 it is a sum of money that is very large for most people, and certainly sufficiently large that it would be most unusual for there not to be a documentary trail. 

9. In the circumstances, I am not persuaded that the applicant was not given an opportunity to be heard on the question of an adjournment, nor that he was without a proper opportunity to present his case before the tribunal. 

10. The tribunal member was not dealing with a case where the applicant put forward submissions that he commenced a process to obtain the documents, nor a request for a short specific period of time for an adjournment to obtain the documents, nor was this a case where this was the first time that he may have realised the need for documents of this type in that not only were they logically required but the subject of a specific written request by the tribunal some 10 weeks before. 

11. This is not a case where the tribunal has failed to turn their mind to the question of whether or not an adjournment ought to be granted.

12. On the facts of this case, it does not seem to me that this is a decision by the tribunal that could be characterised as so unreasonable that no reasonable decision-maker could make it in the sense described in Wednesbury’s case, nor so unreasonable as to amount to a failure to afford procedural fairness as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225; (2013) 87 ALJR 618.

13. In the circumstances I am therefore not satisfied that the applicant has established any error of law on the part of the tribunal that can be the subject of judicial review.

14. In these circumstances, I therefore refuse the application and formally dismiss the applicant’s application before the court.

[further argument ensued]

Costs

1. In this matter the applicant has been entirely unsuccessful and has not participated in the hearing in the sense of complying with any of the hearing directions.  Costs ought to follow the event.  The costs sought by the Minister are less than the scale fee.  It appears to me that those costs are reasonable. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  15 April 2014