Singh v Minister for Immigration

[2012] FMCA 1244

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1244

MIGRATION – Application for student visa – refused by delegate and affirmed by Migration Review Tribunal – whether jurisdictional error involved in Tribunal’s discharge of its duty to review.

Migration Act 1958 (Cth), ss.349, 357A, 359A, 360, 474 & 476
Commonwealth Constitution, s.75(v)
Migration Regulations 1994 (Cth),Sch.2 cl.572.223

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Craig v The State of South Australia [1995] HCA 58
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

Applicant: RUPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 134 of 2012

Judgment of: Lindsay FM

Hearing date: 10 December 2012

Date of Last Submission: 10 December 2012

Delivered at: Adelaide

Delivered on: 10 December 2012

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Alderton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the Application for judicial review filed on 4 July 2012 is dismissed.

2. That the Applicant pay the Respondents’ costs of and incidental to the proceedings fixed in the sum of $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 134 of 2012

RUPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before me this afternoon is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) by Mr Rupinder Singh in which he seeks orders by way of judicial review in relation to a decision of the Migration Review Tribunal (“the Tribunal”) which decision was handed down on 28 June 2012. 

2. This Court has the same jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Commonwealth Constitution, but the jurisdiction of this Court is only in relation to migration decisions as that expression is defined with some precision under the Act and, with certain exceptions that are not relevant to the circumstances of this case, that means that the decision complained of must be a privative clause decision or a purported privative clause decision.

3. The decision of the Tribunal is a privative clause decision. That means having regard to the terms of s.474 of the Act that a review will only be able to succeed if the applicant is able to persuade the Court that the particular migration decision has been vitiated by jurisdictional error. Jurisdictional error is a concept that has been explicated by the High Court in respect of matters under the Act in cases such as Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, and has been in a more general way explicated by the High Court in a general administrative law sense in cases such as Craig v The State of South Australia [1995] HCA 58.

4. Therefore Mr Singh will not be able to succeed on this review unless he is able to persuade me that the decision of the Tribunal was made in excess of or for want of jurisdiction. It will not be enough that he demonstrates legal error. The legal error will have to be an error going to the exercise of the jurisdiction. A denial of procedural fairness can constitute such a jurisdictional error but that ground is somewhat complicated, as far as the Migration Review Tribunal is concerned, by the provisions of s.357A of the Act.

5. The application came before Registrar Christie in August and she made an order that any affidavit material Mr Singh wanted to rely upon was to be filed and served by a certain date.  He has not done that.  He has not filed and served any amended application.  They were optional matters, as it were, but there was a direction that he file and serve an Outline of Submission.  He did not do that and the Minister’s legal representatives have had to file their responsive submissions, as it were, speculating about what it is that might be argued, and I gave consideration earlier today to proceeding under the default provisions of the Rules but I came to the conclusion that it was not appropriate to do so and the hearing proceeded to its conclusion.

6. It was a hearing in full.  In other words, Mr Singh was given the opportunity to make his submissions orally, and when he did so I took into account what he told me then and what he had told me earlier when I was asking him to address me on the default option when I was trying to satisfy myself that there was some prima facie merit in his application.  So both the submissions he made in respect of both phases of the proceedings, if I can put it that way this afternoon, have been taken into account by me. 

7. There is only one ground that is mentioned in the application and it is as follows:

   The Tribunal has refused to grant a Student (Temporary) Class TU visa because of lack of funds source. They have not given time to prove the income source evidence. In 2011 when I lodged my student visa they have refused because of English proficiency but now at this stage I have provided them my English proficiency certificate of IELTS with 5.5 Band and at that stage I have shown some funds of my sister but they did not point out any reason about funds and source of income or evidence.

8. In essence, and Mr Singh confirmed this with me this afternoon, his complaint is that the Tribunal dealt with the matter other than on the basis that the delegate had dealt with it. The delegate of the Minister whose decision the Tribunal affirmed dealt with it on the basis of that part of the Regulations that dealt with English proficiency (and course achievement to some extent), but the Tribunal dealt with it on the basis of a much narrower focus, to do with evidence as to the source of income of the person (in this case the applicant’s sister) upon whom reliance was placed for assurance about the meeting of the financial aspects of his education in Australia and Mr Singh said that some unfairness inured to him on that account.

9. Certainly, it is understandable that there be a general expectation on the part of an applicant in a matter such as this, that if he failed before the delegate on certain matters that those matters would be the focus of the hearing before the Tribunal, but the power of the Tribunal in s.349 of the Act is broad. It has the power to exercise all the powers and discretions that are conferred by this Act on the person who made the decision, and then it may affirm the decision, vary it, remit it for consideration, or set it aside and substitute a new decision.

10. What is important, of course, is that if the subject matter of the controversy alters or even if it just alters in emphasis that the applicant is given appropriate notice of the new issue or new issues or additional issues that are concerning the Tribunal. 

11. The relevant visa Mr Singh sought is a subclass 572 visa. Under the Act he had to meet the requirements of clause 572.223 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). There were requirements in relation to his reaching a certain level of assessment. There were requirements in relation to English language proficiency and he had to also satisfy the Tribunal under Clause 5A405 to provide evidence that he had funds from an acceptable source that were sufficient to meet the expenses for the first three years of the proposed course of study.

12. The funds had to come from someone who was an acceptable individual and he also needed to provide evidence that the regular income of anyone providing funds to him was sufficient to accumulate the level of funding being provided by that individual, and that is the requirement of Clause 5A405(1)(c) of 572.223 of Schedule 2 of the Regulations.

13. Mr Singh was represented by a migration agent. That agent sent a quantity of material to the Tribunal and they sent it in response to a letter that was sent to the applicant by the Tribunal on 17 May 2012. It appears at [CB 105]. It is an invitation to appear before the hearing. That is an obligation the Tribunal has under s.360 of the Act.

14. The other obligation the Tribunal has under s.359A is that it must give to the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. It must do that in a way that the Tribunal considers it appropriate in the circumstances and ensure that the applicant understands why it is relevant to the review, and invite the applicant to comment on it.

15. So that is the section that is designed to avoid a set of circumstances that might be described as ambush; the applicant discovering for the first time when he reads the Tribunal’s reasons that it was concerned about an issue or a series of issues and he has not had the opportunity to put his version in relation to or to call evidence or to make arguments in relation to those matters.  The letter of 17 May 2012 which is set out at [CB 105 to 107], first of all constitutes the invitation to the hearing, and secondly, [CB 106] it sets out in three dot points the evidence that is required in respect of English language, financial capacity and other requirements.  In particular the second dot point says this:

    I draw your attention to the requirement to provide evidence that the regular income of any person (including yourself) providing funds to satisfy financial capacity requirements were sufficient to accumulate the level of funding being provided by that person; as well as the requirement to provide evidence of your relationship to this person which demonstrates they are an “acceptable individual.”

16. It invites the applicant to send material in response to that and to do it seven days prior to the hearing date. The hearing date was about five weeks from the date of the letter. As I say, the letter looks as if it elicited some material from the applicant. It elicited a letter from his representative of 14 June 2012 which enclosed a quantity of information and also 18 June. In particular, a quantity of information relating to the financial position of his sister upon whom he was relying for the financial assistance aspect of the requirement of the Regulations was provided: income tax records, deposit slips with two different banks – most of this is material provided to the delegate – certificates of enrolment and the like, and the applicant attended at the hearing and he gave evidence.

17. The financial material about the sister indicated that she had about 6 million rupees in the bank. She had drawn down on two different accounts of 3 million rupees. She had drawn down on them to the extent of about 2.7 million rupees in each of them. Her net income from what I understood to be a farming business was about 170,000 rupees and the Tribunal, having seen this information as it was provided to the delegate, had problems with that. It had the problems that are identified in that s.357A letter. It wanted to know that in accordance with the Regulations the regular income of his sister was sufficient to accumulate the level of funding being provided by his sister.

18. Ultimately upon a consideration of all the material the Tribunal was not so satisfied. The Tribunal’s reasons set out in some detail the formal requirements of the Act and Regulations relating to this class of visa. It also sets out in some detail the material required and in particular the Schedule 5A requirements. The key paragraphs [54] to [56] of the Tribunal’s reasons says as follows:

    54.  The tribunal questioned the applicant about his sister had been able to accumulate Rs.6 million on her annual income.

    55.  The applicant initially stated that the funds had been the proceeds of the sale of property however when the tribunal pointed out that this evidence was in conflict with the information provided on the balance sheet, the applicant provided no response.

    56.  On the basis of the above, the Tribunal finds that the applicant has not provided evidence that the regular income of his sister is sufficient to have accumulated the level of funding being provided as required by 5A405(1)(c) and therefore finds that the applicant has not given evidence in accordance with the requirements in schedule 5A for Subclass 572 and the assessment level to which he is subject in relation to the necessary financial capacity.  Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).

19. As I say, it will be noted that that is a different basis than that on which the delegate’s decision was based. Now, as I say looking at the ground of review it seems to talk about not being given time to provide the income source evidence. I used the expression “does that mean he had been taken by surprise or ambushed?”: and he adopted that kind of description in relation to the submission. He is essentially saying “look, I expected it to be conducted on one basis and it was conducted upon another”. So in that sense it is a procedural fairness argument and that of course runs into the problems that are presented by s.357A of the Act which says that the Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

20. There was some controversy in the years following the introduction of that subsection as to what that expression in relation to the matters it deals with actually meant, and there was some conflicting decisions of single Judges of the Federal Court but it has been settled since the case referred to in the Outline of Submission, that is, Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 that the section means what it says that it is a code for determining whether rules relating to the according of procedural fairness have been complied with.

21. The matters it deals with are matters relating to the conduct of the review. The Tribunal having, in my view, discharged its obligations under s.359A and specifically having drawn the attention of the applicant what was the matter that was going to ground the affirmation of the decision of the delegate, has met the requirements of the natural justice hearing rule in relation to this case because it has complied with s.359A.

22. To be fair to the applicant, the alternative way of approaching the matter might be to suggest that the Tribunal in proceeding this way had not discharged its obligation under ss.359A and 360 of the Act to invite the applicant to appear. That, in some way, the invitation to appear was not meaningful, it having been undermined or deprived of its utility by the way the Tribunal proposed to conduct itself.

23. To that extent, there might be this ability to sidestep s.357A but the problem with that argument is the same as the procedural fairness argument itself – it has not got any substance because I think the matter has been squarely put. The requirement of the delegate, in the first instance, was to be satisfied that the funds that were being proposed and the person who owned the funds, who was being proposed by the applicant, to satisfy the financial requirements of schedule 5A, had to be in possession of real funds. There could not be any risk that they were funds that had just been created for the purpose of this exercise. There had to be some connection between the accumulation of the funds and the income of the person who held them. Apart from the assertion of the applicant at the hearing that they were the proceeds of a sale of some property, there was nothing to substantiate that.

24. This hearing this afternoon does not involve me scrutinising the reasons of the Tribunal to see whether or not I agree with it or anything of that nature, but I just make the observation that the position the Tribunal adopted in relation to that particular matter, given the evidence that was available to it and given the notice that it had given to the applicant in respect of that issue, appears to me to have been a reasonable attitude for it to adopt.

25. I am not satisfied that the ground proposed by the applicant demonstrates the Tribunal having fallen into jurisdictional error.  That is the only ground that is proposed. 

26. In those circumstances, the application for review will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date:  15 January 2013