Singh v Minister for Immigration

[2018] FCCA 2997

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2997

Catchwords:

MIGRATION – Application for review of decision of Administrative Appeals Tribunal – where Tribunal found no compelling or compassionate circumstances so as to waive the requirements of Public Interest Criterion 4020 – where no breach of procedural fairness identified – no jurisdictional error demonstrated – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 476(1)

Migration Regulations 1994 (Cth), cl.572.223(1)(a), 572.224

Applicant: GURMUKH SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISRATIVE APPEALS TRIBUNAL

File Number:  ADG 339 of 2016

Judgment of: Judge Egan

Hearing date: 14 September 2018

Date of Last Submission: 14 September 2018

Delivered at: Brisbane

Delivered on: 14 September 2018

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the First Respondent: Sparke Helmore Lawyers

Solicitors for the Second Respondent: Submitting an appearance

THE COURT ORDERS ON A FINAL BASIS THAT:

1. The Application for Review filed on 13 October 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of five thousand, eight hundred dollars ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

ADG 339 of 2016

GURMUKH SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  On 13 May 2014, he applied for a student (temporary) (class TU) visa.  On 19 May 2014, the Department of Immigration and Border Protection (“the Department”) sent a letter to the applicant requesting more information in relation to his application, including a statement addressing genuine temporary entrant (GTE) criteria.  On 20 May 2014, the applicant responded to the request for more information.  On 25 August 2014, the Department sent a letter to the applicant inviting him to comment on adverse information (CB77-80). 

2. That letter was in relation to what had been considered to be the provision by the applicant of a bogus document, or false or misleading information, in relation to the visa application.  On 5 September 2014, the applicant responded to the department’s invitation to comment on the adverse information, and he attached relevant supporting information (CB81-90).  On 16 January 2015, the Department sent a further letter to the applicant inviting him to comment on adverse information. 

3. On 9 February 2015, the applicant responded to the invitation and attached some supporting documents (CB95-158). On 20 February 2015, the delegate refused to grant the applicant the visa on the basis that he did not meet clause 572.224, schedule 2 to Migration Regulations 1994 (Cth) criteria (“the criteria”) (CB164-169). In that regard, the Public Interest Criterion 4020 (“PIC4020”), for the purposes of clause 572.224(a), required that the applicant had not provided a “bogus document” or otherwise had provided information that was false or misleading in a material particular.

4. The delegate found that the applicant had provided a bogus document, being the financial documents dated 16 May 2014 and 3 September 2014.  The first documents found to be bogus documents (supportive of the proposition that the applicant was able to support himself independently whilst in Australia) can be seen at pages 40 – 44 inclusive of the Court Book.  Page 40 seeks to constitute a bank statement of account, being account number 23558.  Page 41 seeks to confirm the balance in that account, again, referring to the account being account number 23558.  There were purportedly two fixed term accounts - account details provided by the Applicant. The first is on page 42 of the Court Book, being account number 4502. The second is on page 43 of the Court Book, being account number 4817.

5. At page 44 of the Court Book, there appears a purported certification that account numbers 4502 and 4817 respectively are valid accounts by reference to FDR issue dates and maturity dates having been provided in respect of such deposits.  It is also stated that the fixed deposits were free from any mortgage or loan. 

6. The letter from the Department dated 25 August 2014, appearing on page 73 of the Court Book, was sent to the applicant informing him that during an investigation process, the Department had received unfavourable information which did not support his application.  On page 74 of the Court Book, part of that letter provided as follows:

   On 15 July 2014 the Australian High Commission – New Delhi conducted checks with the Punjab and Sind Bank Limited, Purain branch to verify the financial documents provided by you to your student visa application.  The assistant branch manager (said) that the account number does not exist.  The back also verified that (the) fixed deposits and savings account statement has not been issued from their branch.  As the financial documents have been found to be non-genuine, I am not satisfied that you meet the financial requirements for this visa specified at regulation 572.223.  Please take this as an opportunity to comment on these findings.

7. At page 81 of the Court Book, the Applicant made a response by email to the Department dated 5 September 2014, in which he reasserted that the documentation provided by him was not bogus documentation.  He attached further supportive documentation for consideration by the Department.  One such document appears on page 84 of the Court Book, which again seeks to verify by way of a certification that the earlier accounts referred to by the Applicant in support of his application for the visa were genuine.

8. On page 91 of the Court Book, there appears a letter from the Department of Immigration and Border Protection dated 16 January 2015 sent to the Applicant.  On page 92 of the Court Book, part of that letter provided as follows:

   Departmental checks were conducted in regards to the documents you provided on 5 September 2014 from Punjab and Sind Bank, Purain branch.  The branch has verified the fixed deposits and accounts provided in your application does not belong to the branch and has not been issued by the branch.

9. On 20 February 2015, the Delegate refused to grant the Applicant the visa on the basis that he did not meet the criteria as referred to above. By application filed on 13 October 2016, the Applicant sought judicial review of the decision of the Administrative Appeals Tribunal dated 12 September 2016, which affirmed the decision of the delegate not to grant to the Applicant a Student (Temporary) Class TU Visa. The application for review was made pursuant to the provisions of section 476(1) of the Migration Act1958 (Cth) (“the Act”).

10. The AAT had found that the Applicant did not satisfy the GTE criterion and that, therefore, he did not meet the criteria as set out in clause 572.223(1)(a). The Tribunal found that there was a reasonable suspicion that the bank documents provided by the Applicant were counterfeit and, therefore, bogus documents. The Tribunal considered whether there were compelling or compassionate circumstances to waive the requirements of PIC4020(1), but no such circumstances were raised by the Applicant or proffered to the Tribunal by or on behalf of the Applicant.

11. The Applicant found at [36] of the reasons that the Applicant had, and continued to have, incentive to cease residence in Australia, namely:

    a)that the Applicant had close family members and friends, including his parents and sister, who all resided in India; 

    b)the Applicant’s family owned land in India which was income producing and upon which he could open a restaurant;

    c)the Applicant was the only son; 

    d)the Applicant did not have close family members in Australia;  and

    e)the Applicant had articulated a plan to utilise skills and knowledge gained in Australia in pursuits outside Australia.

12. The Tribunal took into account the Applicant’s past study history, finding that had the Applicant intended to stay in Australia only temporarily, he would have considered himself sufficiently skilled and qualified to open restaurants in India by the time of the completion by him of the Diploma of Business and Diploma of Management in 2013. That course of action, had it been taken, would not have required him to make the further application for a visa as he did in this case.

13. The Tribunal found at [43] – [44] of the reasons that the Applicant did not intend to stay only temporarily in Australia. It accordingly found that the applicant did not meet clause 572.223(1)(a) criteria, or equivalent criteria for each of the other subclasses in class TU visas. The Tribunal also found that with the exception of subclass 580, the other subclasses with visa class TU all contained an identical requirement. The Tribunal found that the applicant did not meet the requirements of those subclasses and, further, that in respect of subclass 580, there was no material put before the Tribunal which suggested that the applicant met any of the prescribed criteria in that respect. The application for review contains five grounds.

14. As to Ground 1, it is asserted that there was a breach of procedural fairness in respect of the conduct of the proceedings before the AAT. As set out in part above, the Tribunal convened in respect of specific matters as found by the delegate. The Tribunal duly invited the applicant to a hearing scheduled for 8 September 2016, pursuant to section 360 and 360A of the Act, by invitation dated 24 August 2016. The applicant was also put on notice that an issue on review was the question as to whether he had satisfied the GTE criterion from the Tribunal’s discussions with him at the hearing (see [29] – [34] of the reasons).

15. The applicant was also put on notice that a further issue on review was whether he satisfied PIC4020 criteria.  That was as contained in the delegate’s decision, which was provided with the review application.  The Tribunal, accordingly, did not fall into error in any respect, and Ground 1 is without merit and is to be dismissed. 

16. As to Ground 2, the applicant’s complaint is that the delegate did not raise any objections regarding the GTE criterion.  In that regard, the Tribunal was not confined to the issues only put before the delegate.  The relevant issues were to be identified by the Tribunal, and hence that ground is without merit and is to be dismissed. 

17. Further, Grounds 1, 2, 3 and 5 seek that this Court undertake an impermissible merits review of the findings of the AAT.  The Court is not empowered to do so, and those are additional grounds for the dismissal of the claims made in that regard. 

18. As to Ground 4, it was asserted by the applicant that he was not provided procedural fairness at the AAT hearing because the AAT member did not provide him with an opportunity to make additional submissions or give any additional time to provide evidence for GTE criterion. 

19. He asserted that he was not prepared and did not provide any evidence for genuine temporary entrant criterion, as he did not know that the AAT would ask for evidence in relation to that criterion.  However, it is clear that the AAT gave the applicant notice that one of the mandatory criteria for the grant of the visa was that the applicant met the GTE criterion.  That was contained in its letter dated 22 August 2016, which appears at page 226 of the Court Book. That letter set out the GTE criterion and Ministerial Direction 53 factors which had to be addressed.  The letter expressly invited the applicant to provide in writing information demonstrating that the applicant had a current enrolment, or any other information that the applicant wished the Tribunal to consider regarding the GTE criterion and the conditions in Ministerial Direction 53.  It also sought information regarding the applicant’s immigration history, student visa history and study history. 

20. The letter attached a copy of Ministerial Direction 53.  It was sent via email to the applicant’s email address provided within the review application.  Further, the applicant, by email dated 5 September 2016 (see pages 81 – 83 inclusive of the Court Book) replied at length to the matters raised. The applicant was clearly on notice that the GTE criterion and Ministerial Direction 53 factors were an issue on review from the Tribunal’s discussion with him at the hearing as well. 

21. There is nothing to the claim of the applicant that he was not put on notice that he was required to provide evidence in relation to GTE criterion and Ministerial Direction 53 matters.  The applicant did not seek additional time to provide any information.  Accordingly, in the absence of any evidence, the claim is without merit.  Ground 5 is ancillary to Ground 4 and, accordingly, is without merit.  Grounds 4 and 5 ought to be dismissed. Accordingly, the application is without merit and is dismissed in its entirety.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  26 October 2018