Singh v Minister for Immigration
[2013] FMCA 222
•3 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 222 |
| MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to make enquiries. ADMINISTRATIVE LAW – Decision-maker’s failure to make enquiries – whether a sufficient link to the outcome of the review – applicant’s onus of proof. |
| Migration Act 1958, ss.359, 474 Migration Regulations 1994, reg.1.41, cl.572.223 of sch.2, cl.5A405 of sch.5A |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 SZQOS vMinister for Immigration & Citizenship [2012] FCA 982 SZMJM vMinister for Immigration & Citizenship [2010] FCA 309 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 Khant v Minister for Immigration & Citizenship (2009) 112 ALD 241 The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Minister for Immigration & Citizenship v Li (2012) 202 FCR 387 Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1402 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 March 2013 |
| Date of Last Submission: | 22 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1402 of 2012
| GAGANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of India, applied for a Student (Temporary) (Class TU) subclass 572 visa on 28 August 2009. On 14 April 2010 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirements of cl.572.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time the decision was made on his visa application was cl.572.223 which relevantly provided:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(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 to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A)…
(B)the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work …
Part 4 of sch.5A to the Regulations sets out the evidentiary requirements for subclass 572 visas. Which clause of pt.4 of sch.5A applies to a particular applicant is determined by the assessment level applicable to that applicant. Applicants for student visas are allocated assessment levels between one and five depending on which country’s passport they hold.
Regulation 1.41 provides the regulatory basis for the specification of assessment levels and requires that this be done by the Minister by instrument in writing. At the time the applicant lodged his visa application the assessment level applicable to applicants for subclass 572 visas who held Indian passports was level four. The relevant specification, instrument IMMI 08/051 (Legislative instrument F2008C00475) continued thereafter to apply to the applicant’s visa application.
The sch.5A requirements for assessment level four in relation to subclass 572 visas which were applicable to the applicant’s application relevantly provided:
5A405 Financial capacity
(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) living costs;
(iii) school costs; and
(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 36 months; and
(b)…
(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.
…
(2) In this clause:
acceptable individual means one or more of the following:
(a) the applicant;
(b) …
(c) the applicant’s parents …
…
funds from an acceptable source means one or more of the following:
(a) …
(aa)if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application;
(b) …
(c)a loan from a financial institution that is made to, and held in the name of, an acceptable individual …
Background facts
Department
In support of his student visa application the applicant provided, amongst other things, a letter from the State Bank of Patiala dated 3 August 2009 which stated that the applicant’s father had a balance of Rs.824,555 in his account. An attached bank statement for the applicant’s father’s account from 1 November 2008 until 3 August 2009 showed a closing balance of Rs.824,555.
On 15 January 2010 the delegate wrote to the applicant requesting up-to-date evidence that he had sufficient funds to support himself during his studies. Subsequently, the applicant provided a statement of account from the Punjab & Sind Bank dated 24 February 2010 stating that the balance in his father’s account was Rs.813,900. An attached statement indicated that the funds had been deposited between January 2009 and 19 February 2010.
On 11 March 2010 the delegate wrote to the applicant inviting him to comment on information she had received that the bank statement he had provided in support of his visa application was not genuine. In response, on 1 March 2010 the applicant provided a further statement from the Punjab & Sind Bank dated 17 March 2010 stating that his father’s bank account had a balance of Rs.813,900.
On 14 April 2010 the delegate refused to grant the applicant a visa on the basis that the financial documents he had provided were not genuine and that, as a result, he did not meet the sch.5A requirements as to financial capacity.
Tribunal
On 12 December 2011 the Tribunal wrote to the applicant inviting him to provide evidence of his enrolment, his financial capacity, a declaration that he had funds from an acceptable source to meet his school and living costs and information to show that the regular income of any individual (including the applicant) who was providing funds to the applicant was sufficient to accumulate the level of funding required.
In a written submission dated 10 January 2012, the applicant’s representatives submitted that the applicant would be obtaining an education loan from his father who had three fixed deposits with the Punjab National Bank totalling approximately Rs.2,350,000 (AU$43,680.83). The applicant’s representatives also submitted that they would provide evidence of the applicant’s father’s income from his farm and evidence that the applicant’s father had forwarded funds to the applicant to assist with his studies and living expenses. On 2 February 2012 the applicant’s representatives provided the following documents:
a)three letters from the Punjab National Bank dated 30 December 2011 which stated that the applicant’s father had three fixed deposit receipt accounts totalling Rs.2,410,000. The applicant’s representatives submitted that this equated to AU$45,744.56;
b)three confirmation of deposits from the Punjab National Bank in relation to the three fixed deposit receipt accounts indicating deposits made in 2010;
c)a copy of a document dated 14 December 2011 setting out details of the applicant’s father’s land ownership; and
d)Commonwealth Bank of Australia statements in the applicant’s name noting money he had received from his father.
On 13 February 2012 the Tribunal wrote to the applicant advising him that the documents he had provided did not establish that the funds had been held in his father’s account for six months prior to the date of his student visa application.
At a Tribunal hearing on 5 March 2012 the applicant’s adviser submitted that the applicant intended to apply for an education loan to finance his studies. Subsequently, the applicant submitted loan documents from the Punjab National Bank dated 26 March 2012 stating that an education loan of Rs2,000,000 had been granted to the applicant and that his father was the guarantor of the loan. The loan documents stated that the loan had been “fully sanctioned”. In their covering submissions the applicant’s representatives submitted that the loan amount equated to AU$37,684.
Following a request from the Tribunal to contact the Punjab National Bank and verify the documents provided by the applicant, the Minister’s department reported that a senior manager at the relevant branch of the Punjab National Bank had advised that his branch had not approved an education loan to anyone in March 2010, including the applicant, and that the letter provided by the applicant was fraudulent. On 26 April 2012, the Tribunal wrote to the applicant inviting him to comment on that information. In response, the applicant’s representatives provided a letter from the Punjab National Bank dated 10 May 2012 which stated that a loan of Rs.2,000,000 had been issued to the applicant’s father on 29 March 2012 but had not been opened until 7 April 2012 because of the end of the financial year.
The Tribunal’s decision and reasons
The Tribunal found that the State Bank of Patiala and the Punjab & Sind Bank documents which the applicant provided to the delegate were not genuine and therefore did not establish that the applicant had funds from an acceptable source, as defined in cl.5A405(2) of sch.5A to the Regulations.
The Tribunal found that none of the documents which the applicant had provided to it met the requirements of cl.5A405 either. In this regard the Tribunal noted that:
a)the Punjab National Bank documents provided by the applicant on 2 February 2012 showed funds in his father’s account which had not been in the account for at least six months prior to his application. The Tribunal noted that although it had written to the applicant and explained this issue, it received no correspondence from him and, from discussions at the hearing, it appeared that neither he nor his adviser had considered the issue;
b)enquiries made by the department revealed that the loan from the Punjab National Bank purportedly granted on 26 March 2012 had not been granted and was not genuine; and
c)in relation to the further letter purportedly from the Punjab National Bank dated 10 May 2012, the Tribunal accepted that the financial year in India began on 1 April each year. However, it did not accept that the senior manager of the branch would not have checked the March 2012 records for loan approvals when he was determining whether the 26 March 2012 loan document was genuine. Further, the senior manager advised that that document had been checked and was not genuine. The Tribunal therefore did not accept the explanation provided by the applicant or that it overcame the advice provided to the department by the senior bank manager. In those circumstances, the Tribunal did not consider it necessary to undertake any further enquiries in relation to the 10 May 2012 letter.
The Tribunal concluded that the applicant had not provided evidence in accordance with the requirements of sch.5A in relation to his financial capacity and that he therefore did not satisfy the requirements of cl.572.223.
Proceedings in this Court
In the amended application the applicant alleged:
1.The Tribunal constructively failed to exercise its jurisdiction by failing to make an obvious inquiry about a critical fact, the existence of which could have been easily ascertained.
Particulars
The Tribunal had before it a letter from the Applicant’s bank which on its face contradicted hearsay evidence received through the Australian High Commission. The Tribunal could have easily ascertained whether the letter was genuine by directly contacting the bank or referring it back to the High Commission.
Submissions
The applicant referred to what the High Court said in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. (reference omitted)
The applicant submitted that the question of the genuineness or accuracy of the bank letter of 10 May 2012 presented the Tribunal with an obvious enquiry, which it should have made, concerning conflicting evidence which was attributed to the same source. He submitted that the letter of 10 May 2012 was, on its face, better evidence than the hearsay report that a senior manager of the Punjab National Bank had impugned the purported loan documents of 26 March 2012. He submitted that that the need to weigh the two gave rise to an obvious enquiry.
He also submitted that it was close to indisputable that such an enquiry concerned a fact which was critical to the review and that it could easily have been ascertained.
He further submitted that a “sufficient link” existed between the failure to make that enquiry and the outcome of the review. It was said that the link in question was the possibility that an enquiry into the letter of 10 May 2012 could have produced evidence supportive of his case.
In his written submissions the applicant referred to the information concerning the senior bank manager’s advice, saying:
The report from the visa officer was hearsay, which although it is admissible as evidence in the Tribunal, does not for that reason cease to be of generally lesser reliability than direct evidence. In Barbaro, Davies J sitting as President of the Administrative Appeals Tribunal observed that “the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence”. The letter of 10 May was, on its face at least, better evidence that the report of the visa officer. The need to weigh the two gave rise, in the Applicant’s submission, to an obvious enquiry. (references omitted)
The applicant also submitted that the documents of 26 March 2012 and 10 May 2012 could be reconciled because they referred to different dates and to different names. The implication of this submission was that this indicated that the Tribunal should have made an enquiry of the bank in India.
The Minister referred, amongst other things, to the statement of Cowdroy J in SZQOS vMinister for Immigration & Citizenship [2012] FCA 982 at [42] where his Honour said:
These statements clearly support the conclusion that once a Tribunal received the appellant’s comments on the information including the supplementary letters that it received from the appellant it was not obliged to go on and inquire into the authenticity of the information in the appellant’s response. Given the Tribunal’s other findings concerning the appellant’s credibility, the information it received from the letter writers via DFAT and the indicia of forgery that it found in the various letters, any attempt to obtain further information would have been redundant. If it were required to check the validity of the new letters and request the appellant to comment upon them, the Tribunal would potentially be constrained to receive further letters from the appellant in support of the appellant’s claim of involvement in the JSD and the process would continue ad infinitum. There is nothing more that repeat information requests would have obtained that the Tribunal did not already have. It follows that ground 2 of the appeal must be dismissed.
The Minister went on to say by reference to SZMJM vMinister for Immigration & Citizenship [2010] FCA 309 at [53] that the Tribunal was not required to check for a second time whether the loan documents purportedly issued by the Punjab National Bank were fraudulent.
Consideration
Failure to enquire
The issue on which this case turns is whether the failure to make the enquiry identified by the applicant supplied a sufficient link to the outcome of the review as to constitute a failure to review. In SZIAI no such connection was found, the plurality saying:
The first reason [why it was not necessary to explore the issues of principle referred to in the quotation appearing above at [21]] is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error. (at 1129 [26])
What the High Court was saying in SZIAI was that no jurisdictional error based on a failure to enquire will be demonstrated unless the postulated enquiry would have produced evidence which might have led the review to an outcome different from the one it reached. The situation is similar to those cases where the Tribunal’s decision is affected by jurisdictional error because it has failed to consider information material to its decision. In those cases, if the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review because the evidence might have persuaded the Tribunal that it was satisfied that the applicant met the criteria for the grant of the visa sought, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30-31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 at 30-31 [49]; Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 360-361 [64]-[69] per Sackville J, Black CJ and Sundberg J agreeing; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at 198-199 [145].
The applicant referred to Cowdroy J’s statement in Khant v Minister for Immigration & Citizenship (2009) 112 ALD 241 at 257 [78] that:
The court considers that a further inquiry of the appellant would have clarified the key issue, that being whether or not there were exceptional circumstances explaining his non-compliance with condition 8202 of his visa.
However, that passage indicates that his Honour concluded that a sufficient link to the outcome of the review had been demonstrated such that jurisdictional error was proved, although his Honour did not express it quite in those terms.
Having alleged that the Tribunal should have made the enquiry he identified, it was necessary that the applicant make out all the elements of the SZIAI test, including the “sufficient link” element. In this case, the applicant submitted that a sufficient link would be demonstrated if the postulated enquiry might have produced evidence which might have led to a different outcome to the review.
The implication of that submission was that the Court could make a finding based on an assessment of what information the enquiry might have elicited rather than on what it would have elicited. In most cases it is unlikely that the evidence will permit the former course to be taken with the necessary degree of confidence. So it is on this occasion. To essay that course would, in this case, produce only speculative conclusions upon which no reliance could be placed.
The applicant adduced no evidence to demonstrate what information the Tribunal would have gleaned had it made the postulated enquiry. Consequently, there is no basis to conclude that such an enquiry would have produced evidence which might have led the Tribunal to make a decision different from the one it did make.
In such circumstances, the applicant has not demonstrated that the Tribunal’s failure to make the enquiry which he said it should have made supplied a sufficient link to the outcome of the review to constitute a failure to review and thus jurisdictional error.
Miscarriage of discretion
As noted earlier, the applicant also submitted that the Tribunal should have decided to make an enquiry because the facts of the case pointed to the need for one to be made. This was, in reality, a submission that the Tribunal’s failure to make the enquiry amounted to a miscarriage in the exercise of its discretion whether to initiate an enquiry. The Minister addressed the same sort of issue when he referred to SZQOS vMinister for Immigration & Citizenship and what he characterised as the futility of the course advocated by the applicant.
The matters which a decision-maker is bound to consider in making a discretionary decision, and here the relevant discretion is found in the Tribunal’s s.359 power to get information, are determined by a construction of the statute conferring the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd where Mason J said:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard… (at 40)
In making that statement, his Honour referred to The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 where it was said:
The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute. (at 50)
In Minister for Immigration & Citizenship v Li (2012) 202 FCR 387 at 395 [29], Greenwood and Logan JJ held that an unreasonable refusal to adjourn a Tribunal proceeding would not just deny the applicant in question a meaningful appearance but would also mean that the Tribunal had not discharged its core statutory function of reviewing the primary decision, a failure amounting to jurisdictional error. At 397 [36] their Honours went on to hold that the exercise by the Tribunal of a particular discretion could be so unreasonable in the circumstances that it would amount to jurisdictional error.
In this case, a failure to enquire would be unreasonable in the relevant sense or to the relevant degree if the enquiry, had it been performed, would have elicited information which might have affected the outcome of the review. This is because such a failure would cause the Tribunal to fail to consider relevant material such that its exercise of power would be affected: Craig v South Australia (1995) 184 CLR 163 at 179 and the cases cited above at [29].
In this case the Tribunal’s failure to make the enquiry advocated by the applicant was not unreasonable in the relevant sense or to the relevant degree for two reasons. First, the Tribunal’s decision to not make an enquiry into the 10 May 2012 letter was based on its reasoned preference for the evidence which the department obtained from the senior bank manager over the documentary evidence supplied by the applicant. The finding that the manager’s evidence was to be preferred was open to the Tribunal with the consequence that its decision to not enquire into the letter of 10 May 2012 did not represent a miscarriage of discretion.
Secondly, the applicant has not demonstrated that the enquiry he says the Tribunal should have made might have led to a different outcome to the review. Consequently, even if the failure to make further enquiries had amounted to a miscarriage of discretion, it would not have been so unreasonable as to amount to jurisdictional error.
It is not necessary to reach a concluded view on the Minister’s submissions referred to above at [27] and [35] because the Tribunal did not base its decision not to make enquiries in relation to the 10 May 2012 letter on such considerations.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 3 April 2013
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