Singh v Minister for Immigration

[2013] FCCA 357

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 357

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – applicant challenges findings of Tribunal – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Applicant: AMANPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 257 of 2012

Judgment of: Judge Simpson

Hearing date: 20 May 2013

Date of Last Submission: 20 May 2013

Delivered at: Adelaide

Delivered on: 20 May 2013 (ex temp)

REPRESENTATION

The Applicant: Mr Singh in person

Counsel for the Respondents: Mr D'Assumpcao

Solicitor for the Respondents Australian Government Solicitors

ORDERS

1. The Application filed on 23 October 2012 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6,471.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 257 of 2012

AMANPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application brought by the applicant filed on 23 October 2012.  This matter was firstly dealt with by a Registrar of this court on 13 November 2013.  On that occasion, orders were made in the presence of the applicant and a representative of the respondents.  The following orders were made:

   a)That the first respondent file and serve the court book by 18 January 2013.

   b)That the applicant has leave to file and serve any amended application by 18 January 2013.

   c)That the applicant have leave to file and serve such further material, including the transcript of the proceedings before the second respondent that he may rely upon at the hearing.  And they had to be filed by 18 January 2013.

   d)That the application be listed for hearing at 10 am on 20 May 2013 – that is today’s date.

   e)That the applicant file and serve an outline of submissions 10 business days prior to the hearing.

   f)That the first respondent file and serve an outline of submissions three business days prior to the hearing.  

   Other incidental orders were made.

2. The applicant did not file any amended application.  He did not file and serve any further material, including the transcript.  He did not file an outline of submissions. 

3. The first respondent filed an outline of submissions. I have been greatly assisted by that document in giving these reasons.

4. The applicant appeared today and had the assistance of an interpreter.  I gave the applicant an opportunity to put whatever submissions that he wished to. I have taken the matters that he raised into account in deciding what the appropriate course is in this matter.  It is fair to say that the applicant was not able to assist the court very much with the arguments that needed to be dealt with.  This is perhaps not surprising, without legal representation.  In any event, I have taken what he has said into account.

5. The applicant seeks judicial review of a decision of the Migration Review Tribunal.  The Tribunal affirmed a decision of the Delegate of the minister not to grant the applicant a Student (Temporary) (Class TU) visa. 

6. The Minister submits that the application should be dismissed with costs. 

7. The applicant is a citizen of India who arrived in Australia on 28 December 2008.  He was the holder of a Student (Temporary)(Class TU) Subclass 572 vocational education and training sector visa, which was valid until 11 April 2011. 

8. On or about 24 March 2011, the applicant lodged an application for the visa with the Department.  On 30 March 2011, the Delegate sought further information from the applicant, including financial documents.  By 29 April 2011, no documents had been received. As a result of which the Delegate refused the application. The Delegate noted that:

   “Evidence has not been provided to show that you satisfy the financial capacity requirements as requested. As no evidence of your financial capacity has been received, I cannot be satisfied that you meet the legal requirements of set out in 572.223(2)(a)(iii) and clause 5A405 in schedule 2 of the Migration Regulations(sic).”.

9. Clause 572.223(2)(a)(iii) and clause 5A405 in schedule 2 to the Migrations Regulations 1994 (Cth) concern financial capacity.  At the relevant time, clause 572.223(2)(a) stated in part:

   (2) An applicant meets the requirements of this subclause if:

   (a) for an applicant who is not a person designated under regulation 2.07AO:

   (i) the applicant gives the Minister evidence in accordance with the requirement mentioned in Schedule 5A for the highest assessment level for the applicant.

   I do not propose to read out subparagraph (ii) as it is not relevant.  But I move onto the next subparagraph (iii), which is in these terms:

   (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.

10. Clause 5A405 provides as follows:

    (1) The applicant must give, in accordance with this clause:

    (a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months.

    (i) course fees;

    (ii) livings costs;

    (iii) school costs;

    (aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs, and school costs for the remainder of the applicant’s proposed stay in Australia after the first 24 months;

    (b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; 

    (c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

11. On or about 18 May 2012. The Tribunal received the applicant’s Application for Review of the Delegate’s decision.  On 3 July 2012, the tribunal invited the applicant to appear before it to give evidence and present argument relating to the issues arising in the case.  The Tribunal’s letter advising that at the hearing it may consider the application as against all the required criteria for the grant of the visa.  The applicant was relevantly invited to provide evidence that while he held the visa, he would have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5 A as required by clause 572.223(2)(a)(iii).

12. On 6 August 2012, the applicant’s migration agent sent the Tribunal a submission and a bundle of material in response to the Tribunal’s letter of 3 July 2012.  Among the material was an affidavit of support from the applicant’s father, in which he deposed to having, “Adequate financial ability and resources to meet sponsorship, commitment and obligations”.

13. Also among the material was a document from the Alla Habad. Bank, which apparently confirmed a loan in favour of the applicant’s father in the sum of two million rupees.

14. The Tribunal referred the Alla Habad Bank document to the High Commission in New Delhi for verification.  On 14 August 2012, the Tribunal conducted a hearing at which the applicant was present and represented by his migration agent.  On 23 August 2012, the Tribunal issued a second invitation to appear to the applicant.

15. A second hearing was conducted on 27 September 2012, and again the applicant was present and represented. However at this hearing, the Tribunal put to the applicant, in accordance with section 357AA of the Act, the outcome of the inquiry with the Australian High Commission in New Delhi, which was received on 17 August 2012. At the conclusion of the hearing, the Tribunal affirmed the decision under review.

16. On 1 October 2012, the Tribunal published its statement of reasons, and furnished the applicant’s representative with a copy under cover of letter dated 2 October 2012.  On 23 of October 2012, the applicant applied to this court for judicial review of the Tribunal’s decision.

17. The Tribunal canvassed the relevant law in relation to the visa, in particular, it referred to clause 572.223 and clause 5A405.  So far as clause 572.223 was concerned, it set out its terms as quoted earlier in these reasons.  However, at the time of the Tribunal’s decision, clause 572.223 had been amended by the Migration Legislation Amendment Regulation 2012 (No. 1) (Commonwealth) number 35 of 2012 (the amending regulations). 

18. The amendments relevantly came into force on 24 March 2012.  Section 2(e) of the amending regulations.  Section 6(2), however, provided that the amendments relevantly affecting clause 572.223 only applied in relation to an application for a visa made on or after 24 March 2012.  Because the visa in this case was applied for on 24 March 2011, the tribunal appears to  have referred to the correct version of clause 572.223 in its decision.

19. The tribunal recounted the background facts, including the referral of the financial evidence to the Australian High Commission in New Delhi.  It summarised the content of the issues put to the applicant at the two hearings.  In particular, it recorded the outcome of the inquiry with the Australian High Commission and how it put the information to the applicant for comment at the hearing.  It had this to say: 

    “The Tribunal then advised the applicant that the financial evidence of a loan made to Mr Darshan Singh” –

    that is the applicant’s father/sponsor –

    with the Allahabad Bank against two fixed deposits totalling rupees 2,224,000 had been sent to the Australian High Commission in New Delhi for verification, and the report following the verification process stated that on 17 August 2012 an officer of the Department had spoken to Mr K.L. Lahoria, the branch manager of the relevant branch, who verified that the loan had been granted to Mr Darshan Singh. 

    He told the officer that at Mr Darshan Singh’s request, the loan funds had been disbursed to his savings account.  When asked for current balance in Mr Singh’s saving account, Mr Lahoria advised that the entire loan amount had been withdrawn and the remaining balance of his account was less than rupees 10,000.  The exact balance could not be disclosed for privacy reasons. 

    The verification report concluded that based on the investigation conducted, the applicant no longer has access to the funds to support his studies and stay in Australia and that the demand loan was procured to demonstrate an inflated financial capacity in order to meet the student visa criteria.  The applicant confirmed that he understood the contents of the verification report.  The hearing was then adjourned briefly for the applicant to consider his response.

    On resumption of the hearing, the tribunal summarised the adverse information from the verification report and asked for the applicant’s response.  He stated he was shocked and surprised, as he had spoken to his father a number of times as recently as yesterday and was of the opinion that funds were available.  The applicant told the tribunal he had nothing further to add. 

    The tribunal asked the agent whether there was anything she wished to say before the tribunal made a decision in the matter.  She responded by requesting time for the applicant to gather and submit further evidence.  The tribunal responded that it believed there had been ample time already provided and it was not prepared to provide an extension of time for further evidence. 

    The tribunal noted that the applicants (sic) had made a request at the first hearing for time to present fresh evidence regarding the account from Salford College, which he claim were wrong, but despite the hearing having been held more than six weeks previously, no further evidence had been forthcoming”. 

20. In its findings and reasons, the Tribunal found that the applicant was involved in a Diploma of Hospitality, which was specified for a subclass 572 visa.  It also found that the applicant held an eligible passport for India.  As such, it found that the applicant was subject to Assessment Level 4. 

21. In terms of the schedule 5A requirements, the Tribunal observed that the applicant provided evidence that his father had taken a loan for rupees 2,000,000 ($36,585), and that the inquiries with the bank showed a balance of less than rupees 10,000 ($182).  The Tribunal found that the applicant had not given evidence in accordance with the requirements of schedule 5A for subclass 572 and the assessment level to which he is subject in relation to the necessary financial capacity.  Accordingly, the Tribunal concluded that the applicant did not satisfy the requirements of clause 572.223(2)(a)(i). 

22. The Tribunal also expressed its lack of satisfaction that clause 572.223(2)(a)(iii) was made out.  The Tribunal concluded that the applicant had not met an essential requirement of clause 572.223 and there was no evidence that he met the criteria for any other Student (Temporary) (Class TU) visa subclass.  Thus, the Tribunal affirmed the Delegate’s decision.

23. The application for judicial review that I referred to earlier in these reasons asserts the following ground, (I read the ground verbatim).

    (1) Tribunal made a decision stating that I do not satisfy CL572.223(2)(a)(iii) of the Migration Act. Tribunal advised me that they have got the information from Australian High commission that Money has been withdrawn from father’s account and less than Rs10,000 is left in his account. I have checked with my father and bank that money was still available for me. The report of Australian High commission on which tribunal made decision was wrong so the decision made by tribunal has “jurisdictional error” (sic).

24. The grounds in the application attack the merits of the Tribunal’s findings.  It is to be noted that the Tribunal is not compelled to accept the applicant’s claims at face value.  It is for the Tribunal to attribute the appropriate weight to each of the applicant’s claims as part of its fact finding function.  (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259 at 281 to 2, per Brennan CJ, Toohey, McHugh and Gummow JJ).

25. It is not open to this court to engage in any re-examination of the findings of fact made by the Tribunal. Nor is it open for the court to embark on a reassessment of the evidence relating to those facts.  (See Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41-2, per Mason J).

26. The Tribunal’s reasons clearly showed that it considered all the applicant’s claims and evidence in rejecting his claims, preferring the branch manager’s evidence, and held that the evidence did not substantiate the necessary financial requirements pursuant to schedule 5A of the regulations.

27. The weight to be given to the evidence provided to the Tribunal by the applicant was a matter for the Tribunal; Consequently, the grounds articulated by the applicant fails. 

28. There being no legal error, let alone a jurisdictional error, the application should be dismissed with costs.

29. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  27 May 2013