SINGH v Minister for Immigration
[2012] FMCA 1125
•29 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1125 |
| MIGRATION – Application for Student (Temporary) (subclass 572) visa – failure to satisfy relevant criterion – applicant unable to satisfy tribunal of the existence of a money deposit from an acceptable source held for at least six months immediately before the date of the visa application – no error in tribunal’s decision – application dismissed. |
| Migration Act 1958 (Cth), ss.353, 357A Migration Regulations 1994, cl. 1.03, 1.41, 572.223, 572.223(2)(a)(i)(B), 5A405, 5A405(1)(a), 5A405(2)(aa) |
| Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122 SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | MANCHAIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1017 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 24 February 2012 |
| Date of Last Submission: | 24 February 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 29 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burrow |
| Solicitors for the Applicant: | Rajesh Gopal Solicitor and Migration Agent |
| Solicitor for the Respondents: | Mr Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 17 November 2011 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1017 of 2011
| MANCHAIR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed on 17 November, 2011 the applicant seeks the issue of constitutional writs in respect of a decision of a migration review tribunal dated 17 October, 2011. The tribunal’s decision affirmed a decision of a delegate of the first respondent dated 31 May, 2010 to refuse to grant the applicant a Student (Temporary) (Subclass 572) visa.
Background
The applicant is an Indian born student who came to Australia on 14 April, 2008 on a subclass 572 visa. He was granted a further subclass 572 visa on 3 May, 2008 which expired on 15 March, 2010. On 12 March, 2010 he applied to the first respondent for a further subclass 572 visa.
In support of his most recent application for a subclass 572 visa, the applicant provided to the first respondent’s department a number of documents. The documents included academic and health records as well as an affidavit from the applicant’s father outlining the financial support that he gave his son and a letter purportedly from the Punjabi National Bank sanctioning an overdraft loan to the applicant’s father. That latter document was important because as part of his application the applicant needed to provide evidence in accordance with the requirements of Schedule 5A to the Migration Regulations 1994 of his financial capacity to undertake the relevant courses of study to which he aspired.
One of the primary criteria to be satisfied by the applicant at the time of the decision of the grant of the subclass 572 visa was cl.572.223 of Schedule 2 of the Migration Regulations 1994. Pursuant to cl.572.223(2)(a)(i)(B) the applicant was required to provide evidence of “financial capacity” in accordance with the requirements mentioned in Schedule 5A of the Regulations for the highest relevant “assessment level” applicable to him. The phrase “assessment level” is defined by regulation 1.03 as being the level of assessment specified under regulation 1.41 of the Regulations which, in turn, provides that the Minister must specify by gazette notice the relevant assessment level.
There is no dispute between the parties that in the present case for the purposes of meeting the requirements in cl.5A405(1)(a) of Schedule 5A of the Regulations the applicant had to provide evidence that he had “funds from an acceptable source” that were sufficient to meet the expenses incurred for the first 36 months relating to his course fees, living costs and school costs. At the relevant time, cl.5A405(2)(aa) of the Regulations provided that the phrase “funds from an acceptable source” included “a money deposit that an acceptable individual has held for at least the six months immediately before the date of the application.” An “acceptable individual” for that purpose included the applicant or a member of his family unit: cl.5A405(2).
The applicant’s claim before the delegate to the subclass 572 visa failed because he did not satisfy cl.572.223(2)(a)(i)(B) of the Regulations. The delegate found that a departmental officer had contacted the branch manager of the Punjabi National Bank who verified that “there is no overdraft limit facility sanctioned to” the applicant’s father. There was, it seems, false documents provided by the Indian agent engaged by the applicant and his parents for the purposes of the visa application. As there was no evidence that the applicant met the requisite financial requirements in Schedule 5A, the delegate was not satisfied that the applicant was entitled to the grant of the visa.
On 11 June, 2010 the applicant lodged an application to review the delegate’s decision by a migration review tribunal. He appointed a migration agent to assist him with that application. The tribunal invited the applicant to attend a hearing on 7 September, 2011. The tribunal conducted a hearing on that day and the applicant and his agent appeared to give evidence and make submissions in support of the application.
Prior to the hearing on 5 September, 2011 the applicant’s agent wrote to the tribunal pointing out that the financial documents provided by the applicant to the Minister’s delegate when he initially applied for his subclass 572 visa “did not stand up to the scrutiny.” The letter acknowledged that at the time of the hearing before the tribunal the applicant “is aware of the reasons for refusal and therefore has an opportunity to respond to the adverse finding.”
The letter makes it clear that having accepted that the original financial documents provided by the applicant in support of his visa application were false, he “has taken steps to obtain new financial documents. The applicant’s mother has provided proof of access to funds. Appropriate supporting documents are attached.” Attached to the affidavit and included with the migration agent’s letter were a number of documents, two of which purported to be from the Punjab National Bank and each dated 2 September 2011.
The documents were a copy of a bank statement from the applicant’s mother for the period 1 September, 2010 to 2 September, 2011, an accompanying letter from the Punjab National Bank and a confirmation of deposit and accompanying letter from the Punjab National Bank for a fixed deposit for Rs. 8,12,941 for 12 months from 22 February, 2011 to 22 February, 2012.
Following the hearing on 7 September, 2011 the applicant’s agents provided a post hearing submission to the tribunal attaching the applicant’s certificates of enrolment, certified income tax returns in the name of the applicant’s mother for the years 2008 – 2009 and 2010 – 2011 and a photograph of the applicant’s mother outside a shop.
The tribunal’s decision
The tribunal affirmed the delegate’s decision to refuse to grant the applicant a subclass 572 visa on 17 October, 2011. The tribunal was not satisfied that the applicant had satisfied the requirements of cl.572.223(2)(a)(i)(B) of the Regulations. The tribunal found that the applicant was required to provide evidence of funds from an “acceptable source” that was sufficient to meet his course fees and living costs for the first 36 months from the date that any visa would be granted (approximately 1 December, 2011) to the end date of the applicant’s proposed course of study (3 January, 2012). The tribunal concluded that the applicant’s total costs for this period were likely to be $27,900. That finding is not challenged on this application.
The tribunal considered whether the applicant had submitted evidence of a money deposit from an “acceptable source” held for “at least six months immediately before the date of the visa application” (namely between 12 September, 2009 and 12 March, 2010) as required by cl.5A405(2)(aa) of Schedule 5A of the Regulations. The tribunal found that whilst the applicant had provided evidence from an acceptable source (his mother) the evidence covered a later period from 1 September, 2010 to 22 February, 2011 and not the six month period immediately prior to the date of his visa application (i.e., the six months prior to 12 March, 2010). The tribunal found that the evidence did not satisfy the requirements of cl.5A405(2)(aa) and the applicant did not, therefore, meet the requirements of cl.572.223.
The grounds of review
Ground 1
The applicant has two grounds of review. The first is that the tribunal erred in that it failed to provide a hearing that was fair and just within the meaning of s.353 of the Migration Act 1958. The applicant particularises his claim in that regard by saying that:
a)The decision of the Minister that was to be reviewed was that the applicant did not satisfy reg.782.223(2)(a)(I)(B) on the basis of false documents;
b)The tribunal did not provide sufficient indication to the applicant of any need to provide evidence with respect to bank deposits held before March 2010;
c)The tribunal ought to have advised the applicant that the provision of material covering 12 months prior to the hearing in the tribunal was not sufficient for it to hear that the applicant had sufficient available;
d)The evidence demonstrated that sufficient funds were available if the tribunal set aside the decision and substituted its own;
e)In those circumstances the tribunal failed to provide natural justice to the applicant within the meaning of s.357A of the Migration Act 1958.
(faithfully reproduced)
In my view, however, this ground cannot succeed. It was not suggested that the tribunal misunderstood its task. It was obliged to consider whether the applicant met the relevant statutory criteria at the time of decision. However, within a consideration of whether the applicant met the requirements of cl.572.223 was the requirement to consider whether the applicant demonstrated that he had funds from an “acceptable source” which required him to provide evidence of a money deposit that an acceptable individual had held for at least “six months immediately before the date of the application” (cl.5A405(2)(aa)).
The question could not be answered by considering the circumstantial evidence provided by the applicant or drawing inferences from evidence that the applicant supplied about his mother’s banking deposits and income. What was required was evidence of a money deposit that had been held for at least six months immediately before the date of the application. There can be no doubt that the applicant was aware of the requirement to satisfy that criteria. The decision record of the delegate made it clear that reg.572.223(2)(a)(i)(B) needed to be satisfied. Indeed that it needed to be satisfied is clear from the applicant’s attempts to satisfy that criteria by providing evidence of financial capacity from his father. Having accepted that the information provided in respect of his father before the delegate was false, the applicant sought to demonstrate satisfaction of the relevant criteria by a deposit held by his mother. The applicant’s letter to the tribunal dated 5 September, 2011 demonstrates that he was aware of this issue and sought to place reliance upon his mother’s financial capacity rather than that of his father. That the applicant did not provide evidence which satisfied the criteria in the relevant way – namely by demonstrating a money deposit that had been held by his mother for at least six months immediately before the date of the application – suggests that he was not able to satisfy the criteria.
In paragraph 26 of the tribunal’s decision the tribunal confirms that it put to the applicant the relevant requirements. The tribunal’s reasons for decision records:
The tribunal said that the financial requirements in cl.573.223 and Schedule 5A required that the tribunal consider whether there were sufficient funds from an acceptable source to meet the expenses of his new proposed course and living costs and travel costs from the date of grant of any visa until the end of the course.
…
The tribunal explained that if the applicant is relying on funds in a deposit account, the definition of “funds from an acceptable source” in Schedule 5A 405 requires that a money deposit from an acceptable individual must show that the funds were held for at least six months before the date of his visa application. The date of his application was 12 March 2010 so the six month period started in September 2009 and runs to March 2010. The financial documents provided to the tribunal by the applicant’s agent on 6 September 2011 did not cover this period. The tribunal explained that there are also other financial requirements the applicant would need to meet and asked the applicant if he was going to be able to meet those requirements the applicant said he believed he could meet all the requirements.
The recitation of facts by the tribunal contained in the above paragraphs was not challenged on this application. It was not suggested that the tribunal did not explain to the applicant that he needed to provide evidence of a money deposit from an acceptable individual which demonstrated that the funds were held for at least six months before the date of his visa application.
Indeed the applicant’s own submissions acknowledge that the tribunal gave “some indication about the various requirements to give evidence as to funds for the six month period before the actual application was made” (see paragraph 15 of the applicant’s written submissions).
I accept that the tribunal plainly put to the applicant that the evidence that he had provided was not sufficient to satisfy the requirements of cl.572.223(2)(a)(i)(B).
Following the hearing, the tribunal gave the applicant a further 14 days from the date of the hearing within which to provide to the tribunal further information that he wished to have considered by the tribunal. A post hearing submission was made by the applicant’s agent and the documents referred to above (specifically, the taxation returns from his mother) were provided. No documents were provided which identified that there was a money deposit from an acceptable individual which demonstrated that the funds were held for at least six months before the date of the applicant’s visa application.
Whilst it is correct to assert that the tribunal did not consider the circumstantial or inferential evidence that the applicant did supply to the tribunal for the purposes of his application, that the tribunal did not do so is not to the point. The relevant criterion was clear. There was no evidence before the tribunal indicating that the applicant had funds from an acceptable source in the form in which it was required to take by the relevant regulations. There was no evidence that the money deposit apparently held by his mother had been held for at least six months before the date of his visa application. Not only was it open to the tribunal to find that it was not satisfied that the applicant had given evidence in accordance with cl.5A405(2)(aa), the tribunal was bound to arrive at that conclusion.
Moreover, I accept the respondent’s submission that the applicant’s complaint that the tribunal should have attached more weight to the evidence provided by him does not reveal jurisdictional error in the tribunal’s decision: Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122 at [35]; WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46].
Ground 2
By the second ground of review the applicant asserts that the tribunal made an error of law by not considering his capacity for financial support “at the time of the review.” The applicant particularises that ground by asserting that the tribunal did not consider the evidence that the applicant had funds from an acceptable source at the time of the hearing in September, 2011 or the decision in October, 2011 and it ought to have done so given that it was not fair to the applicant that the fraudulent conduct of an agent in India precluded his obtaining a visa.
In my view, this ground cannot succeed. The applicant’s application before the delegate in the first instance failed because false documents were provided to the delegate and he was unable to satisfy the relevant criterion. The applicant and his parents claim that they did not know of the falsity. Whether they did or not is irrelevant. The criteria to be satisfied at the time of application were not satisfied.
Before the tribunal, the applicant was able to provide fresh evidence that he satisfied the relevant criterion. For the reasons discussed above, the fresh evidence that he chose to provide to the tribunal did not satisfy that criterion. The “fraud” that lead to the failure of his application before the delegate had nothing whatsoever to do with the failure of his application before the tribunal. The two are not connected. There is no suggestion that the apparently fraudulent conduct of the applicant’s former agent in India prevented the tribunal from properly exercising or discharging his functions: cf. SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64. The relevant conduct was known to the tribunal and the applicant. The applicant sought to overcome the effects of that conduct by changing the basis upon which he advanced his claim to the visa. There was nothing to prevent the applicant from providing evidence to the tribunal that he had the requisite funds from an acceptable source demonstrated to the tribunal in the appropriate way as required by cl.5A405.
The only relevant question for the tribunal was whether the applicant had provided evidence of a money deposit from an acceptable source that were funds held for at least six months immediately before the date of his visa application. I accept the respondent’s argument that the words of the relevant statutory provision are clear and unambiguous and the tribunal was required to refuse to grant the applicant a visa if he did not meet that requirement. The tribunal did not have any discretion to waive the relevant statutory requirement even if it considered that the applicant had suffered from some perceived unfairness due to the conduct of his former agent. It was simply not to the point for the tribunal to consider that the applicant had provided evidence that he had funds from an acceptable source at the time of the hearing in September, 2011 or the decision in October, 2011.
Conclusion
The applicant has not demonstrated that the tribunal’s decision is affected by jurisdictional error. The application must be refused with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 29 November 2012
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