Singh v Minister for Immigration

[2013] FMCA 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 85

MIGRATION – Application for review of Migration Review Tribunal decision – no jurisdictional error.

Migration Act 1958 (Cth), s.476
Migration Regulations (1994) (Cth), Sch.2 cl.572.223, Sch.5A cl.5A404, cl.405 & cl.406

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Craig v The State of South Australia [1995] HCA 58

Applicant: GURPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 175 of 2012

Judgment of: Lindsay FM

Hearing date: 11 February 2013

Date of Last Submission: 11 February 2013

Delivered at: Adelaide

Delivered on: 11 February 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr d’Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application for Review filed on 22 August 2012 is dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to these proceedings fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 175 of 2012

GURPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is Mr Singh’s application pursuant to s.476 of the Migration Act 1958 (“the Act”), for a review of a decision of the Migration Review Tribunal (“the Tribunal”), which decision was to affirm the decision of the delegate of the Minister, not to grant the applicant a student visa.

2. The decision of the delegate was made on 8 April 2011 and Mr Singh, within time, applied to the Tribunal to review that decision.  His application was filed on 27 April 2011.  It was not until 1 March 2012 that Mr Singh was invited to a hearing and that invitation arose because, of course, the Tribunal had considered what had been filed on his behalf, but had found it was unable to make a favourable decision on this information alone and he was asked to attend a hearing on 18 April 2012.

3. In the same letter the Tribunal made a request for information and took the opportunity to draw his attention to some specific matters, which it considered should be addressed, and documents and information that should be provided by him.  I suspect, but I cannot know, that one of the reasons it took the trouble to do that was because of the amount of time that had elapsed since that review application was filed.

4. The relevant Regulations which are referred to with specificity in the decision of the Tribunal and also in the very helpful submissions of Mr d’Assumpcao are complicated, and there is no doubting that.  The applicability of the various criteria in the Regulations has its focus on the date of the filing of the application for the visa which, of course, was back in March 2011.

5. Some of the Regulations are to do with looking forward prospectively from the date of the hearing before the Tribunal so it is a matter that is not without its complexity. 

6. The application to this Court was made within time. 

7. The decision of the Tribunal is a privative clause decision and the consequence of that is that the decision will not be amenable to review unless the decision can be shown to have been vitiated by jurisdictional error and that is a matter that was explained by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 in terms of applications under the Act.

8. As far as the concept of jurisdictional error is concerned there is a range of High Court decisions which explicate the meaning of that kind of error, in particular the decision of Craig v The State of South Australia [1995] HCA 58.

9. I have looked at the material that Mr Singh filed in his application in this Court and I have looked at the material which he filed in response to the request by the Registrar for material in the way of an outline of submission.  I was concerned that he had not fully grasped the concept of jurisdictional error and I took the opportunity of trying to explain that to him in a shorthand form at the outset of the hearing.  He should be commended, of course, on the industry associated with the preparation of both of those documents that I referred to.

10. In terms of the criteria for the grant of the visa that Mr Singh is seeking, it is a combination of cl.572.223 and cl.5A404 of Schedule 5A of the Regulations.  The gravamen of the Tribunal’s decision and the matter that accounts for the decision to affirm the decision of the delegate is that part of cl.5A.404 to 5A.405 and, indeed, 5A406, but it is 5A405 in particular, the question of financial support, that was the area of concern.

11. The Tribunal’s decision to affirm the decision of the delegate was really based upon those same matters to which Mr Singh’s attention had been drawn in the letter of 8 April 2011.  In terms of the requirement that he show the requisite financial support for the duration of the course he was undertaking, he had provided material which he thought satisfied that requirement and I bear in mind, as I say, the circumstance that by the date of the Tribunal hearing much of the information he had provided, as at the date of the filing of his application for the visa in the previous year, would have been outdated.

12. But I hope I have examined the matter carefully and I hope I have given Mr Singh the opportunity to give his explanation to me, but I do not see his difficulties before the Tribunal as being a function of that confusion which is capable of arising from the need to address different dates (which confusion was augmented to some extent by the period of time that elapsed between the filing of his application and his invitation to attend the hearing before the Tribunal).

13. For the first category of funds that he pointed to as satisfying the requirement of financial support, the funds provided by his grandfather, I have spent some time examining the Court Book and hearing from Mr Singh in relation to that matter; the Tribunal’s concern about those funds was that the only evidence before the Tribunal in April of 2012 was of money held on deposit by his grandfather with a financial institution, that had matured in November 2011.

14. There was no evidence available to show that it was available prospectively for the course.  I should note that the Tribunal had adumbrated in the letter of 1 March 2012 that it may need to recalculate the funds required as at the date of the decision and it went through that process and Mr Singh was advised of the calculations and they are set out at [30] of the Tribunal’s reasons.

15. But, in any event, in terms of Mr Singh pointing to the moneys that were held by his grandfather or about which there was evidence that they had been held by his grandfather up to November 2011, did not assist him with the six month savings requirement, that is, did not assist him with his task, which was to demonstrate that such money had been available for the six months preceding the date of filing of his application for the visa.

16. So the reasons at [29] record that Mr Singh immediately, it is said, responded that he is able to provide funds in his wife’s and his name that are current.  Initially I was a little puzzled by that reference and then to the reference that he was granted additional time to do that – in fact, this all happened in the context of the review hearing itself or within a day or two of the hearing.  As I understand what was put to me today, time was given to him during the hearing to produce this information and I was taken, firstly, to page138 of the Court Book and to a document dated 20 April, and it indicated that the previous day, 19 April, the State Bank of India had confirmed that an overdraft was available to Mr Singh’s wife, secured against a deposit, which had been created, lodged, had come into existence the day before (19 April) and he was able to get that evidence before the Tribunal.

17. For the reasons the Tribunal gave, it did not assist at all in evidencing the availability of such money for the period of six months immediately before the date of the visa application.  He also pointed to some other funds and that is to be found at page 137 of the Court Book.  He pointed to some funds that were deposited or were held on deposit with that same bank by his wife in the period August 2011 to August 2012.

18. Again, self-evidently, that does not assist.  The creation of that money is a date that post-dates by some four months the filing of the visa application itself.  As I say, I remind myself that this jumping, as it were, between matters relevant to the date of the hearing, looking forward prospectively, which is what the Tribunal has done in calculating the amount of money that needs to be available and then going back to the criteria in the Schedule to the Regulations which require the focus of the exercise to be the six months prior to the filing of the application.

19. I follow the relative complexity of that, but minimising the impact of the complexity in this case is, as I say, the fact that these matters were articulated in the invitation letter of 1 March 2012 and that is some six weeks out from the hearing itself. 

20. Then there is this matter that appears at page 149 of the Court Book and there it is evidence of an account held by Mr Singh’s wife with that same bank, but the evidence only relates to a period that goes back to 31 January 2011, so a period of approximately two or three months prior to the filing of the application, not the six months that is the specific requirement of the Schedule to the Regulations.

21. So none of those matters – and it matters not that if they are also taken in combination – assist in addressing that problem and those matters are set out, I think reasonably clearly, by the Tribunal at [32] to [34] and then under the heading of Conclusion in [35] of the Tribunal’s decision.

22. Mr Singh today, as an annexure to the document he has filed in this Court, has provided evidence of the existence of a fund in his name which post‑dates by some time the date of the filing of his application and, once again, that does not assist him.  I am satisfied that as a result of my colloquy with him about these matters today, that he understands the significance of that.

23. I have examined these matters not because this issue about the way the Tribunal dealt with the availability of funds from his wife and his grandfather have been articulated as grounds for a jurisdictional error in anything Mr Singh has filed; we are a long way from identifying the kind of error which would satisfy me that the Tribunal has carried out its task in excess of or for want of jurisdiction.  On the contrary, my examination of these matters indicates that the Tribunal has understood the relevant criteria in the Regulations and has understood the nature of its task on the review from the delegate.

24. But notwithstanding that jurisdictional error has not been articulated and that there has been no linkage demonstrated by Mr Singh or no attempt to link these matters with grounds for the advancement of an argument about jurisdictional error, given his unrepresented status I have taken the trouble to, I hope, consider the matter in sufficient detail, so as to be able to satisfy myself that there has not been a matter that is there unarticulated in the material that Mr Singh has put before me that does ground a jurisdictional error.  I have done this to ensure that the process that he has been involved in has not operated in a way that has been unfair to him.

25. Had that been the case, then we would have had to look carefully at whether such a circumstance amounted to a jurisdictional error.  But having undertaken that exercise I do not think we get even to that first base.  I do not think there are any grounds for suggesting that the Tribunal fell into error or did not extend to Mr Singh the requisite procedural fairness in the way it dealt with this review.

26. That issue, the way in which it dealt with that issue, is the focus of his documents and it is the only matter that was capable, in any way, of constituting the kind of error he needs to demonstrate.  There are no other matters, no other factual issues that are agitated in these documents or orally before me today which suggest any other grounds. 

27. So in those circumstances the order of the Court will be that the application for review is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lindsay FM.

Date:  14 February 2013