Singh v Minister for Immigration and Border Protection
[2016] FCA 903
•8 August 2016
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2016] FCA 903
Appeal from: Singh v Minister for Immigration & Anor [2016] FCCA 519 File number: SAD 96 of 2016 Judge: BESANKO J Date of judgment: 8 August 2016 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court dismissing appellant’s application for judicial review – where Tribunal affirmed a decision of the Minister’s delegate to refuse a Student (Temporary) (Class TU) subclass 572 Vocational Education and Training Sector visa – where Tribunal found appellant had not demonstrated necessary financial capacity – consideration of Migration Regulations 1994 (Cth) 572.223, Sch 5A cl 5A405 – appeal dismissed. Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) Sch 2 cl 572.223, Sch 5A cl 5A405
Date of hearing: 3 August 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr P d’Assumpcao Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs ORDERS
SAD 96 of 2016 BETWEEN: AMANPAL SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
8 AUGUST 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs fixed in the sum of $6,439.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
This is an appeal from orders made by the Federal Circuit Court of Australia on 18 March 2016. The principal order of which the appellant complains is an order that his application for judicial review of a decision made by the Migration Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) on 23 July 2014 be dismissed. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Student (Temporary) (Class TU) visa (“the visa”). The appellant claimed that the Tribunal’s decision was affected by jurisdictional error and should be quashed, and that the Tribunal should be ordered to determine his application according to law.
The background to the appellant’s application to the Federal Circuit Court is as follows. On 12 September 2012, the appellant applied for the visa. At the time he lodged his application, Class TU contained a number of subclasses. The delegate of the Minister assessed the appellant’s application against the criteria for a subclass 572 visa on the basis of his enrolment in a Diploma and an Advanced Diploma of Management. On 31 October 2012, the delegate decided pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”) that the appellant’s application should be refused. The delegate did so because the appellant did not provide the evidence required to demonstrate that he was a genuine student as required by cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). In particular, the appellant failed to provide evidence that he satisfied the financial capacity requirements as detailed in cl 5A405, and therefore, he did not meet cl 572.223.
On the appellant’s application for review, the Tribunal found that the highest assessment level for the appellant in the present case was Assessment Level 4. Schedule 5A to the Regulations specified the requirements for Assessment Level 4 for subclass 572 and the Tribunal set out those requirements in its decision. It is not necessary for me to set out the provisions. In essence, the Tribunal found that the appellant had not given evidence which met the requirements of Schedule 5A for subclass 572 and the assessment level to which he was subject in relation to necessary financial capacity. It followed, said the Tribunal, that the appellant did not satisfy the requirements of cl 572.223(2)(a)(i).
The Tribunal noted that the appellant had provided it with evidence of enrolment in courses scheduled to run until October 2016 and that that evidence also showed that the appellant had $17,250 of unpaid tuition fees for his intended study. The Tribunal calculated the amount that the appellant was required to show that he had access to in order to satisfy the requirements in Schedule 5A and detailed in cl 5A405. The Tribunal’s calculations were as follows:
(1)Unpaid course fees – $17,250;
(2)Living expenses (24 months at $1,550) – $37,200; and
(3)Return airfare – $1,000.
Those figures result in a total amount of $55,450.
The Tribunal said that the financial evidence which the appellant had presented showed that the appellant’s father had been granted an overdraft of Rs.2,500,000 ($44,090) against the security of three-month fixed deposits created in May 2014 and maturing in August 2014. At the hearing before the Tribunal on 28 May 2014, the Tribunal advised the appellant and his migration agent that, even if the overdraft had been for a sufficient amount, the Tribunal did not accept that it provided evidence that he would have access to the funds given that the overdraft facility was secured by fixed deposits with a maturity date of August 2014. The Tribunal considered that on maturity of the fixed deposits, the overdraft would no longer exist. The Tribunal advised the appellant and his agent that it was not satisfied that the evidence which had been provided established that the appellant met the financial capacity requirements, but that it would consider any further evidence provided before the decision was written. The appellant said that he had $16,000 currently in the bank and that he would provide evidence that he met the financial capacity requirements. The hearing was concluded. The Tribunal recorded the fact that the following occurred after the hearing:
On 2 June 2014 the Tribunal received a submission from the applicant’s agent in which they advised that the additional source of funds had been the sale of property in the applicant’s mother’s name. It advised that the purchaser, Mr Ranjit Singh had transferred the equivalent of AU$16,840 to the applicant in Australia. An affidavit from the applicant’s father stated that the additional funds for the fixed deposits had come from savings and money he and his wife had received from the sale of property. Also included were copies of two pages of the applicant’s bank account which showed that on 6 May 2014 a deposit of $16,853 was made by Mr Ranjit Singh. ($16,840 was withdrawn the following day leaving a balance of $1.22) and on 9 May 2014 the applicant’s mother transferred $2600 to his account.
Following the Tribunal’s decision, the appellant brought an application for judicial review in the Federal Circuit Court. He appeared in person before that Court. The appellant’s application was first listed for hearing on 7 April 2015. The procedural history is set out in the reasons of the Federal Circuit Court judge and I will not repeat that history (Singh v Minister for Immigration & Anor [2016] FCCA 519 at [3]-[5] and [16]-[19]). It is sufficient to say that he has asked for adjournments over the period from 18 May 2015 to 18 February 2016 (when the judge heard his application) so that he could attempt to obtain legal representation. He has not been able to obtain legal representation. I mention at this point that the appellant appeared in person before me. Although I did not understand him to apply for an adjournment, he did refer to the fact that 10 lawyers had declined to act for him. Even had I been asked, there would have been no reasonable ground to grant an adjournment of the hearing before me.
At the Federal Circuit Court hearing, the appellant submitted that his migration agent “got it wrong” and that, at the time of the Tribunal hearing, his agent could have told him to provide further material, but he did not do so. The appellant submitted that his lack of success before the Tribunal was not his fault. He also pointed to the fact that he had provided evidence showing a deposit of $16,000 into his Commonwealth Bank account from his father.
The Minister submitted that any fault by the appellant’s migration agent was not such as to affect the Tribunal’s decision. He submitted that the Tribunal did address the deposit of $16,000 and that, in any event, it was not relevant because the Regulations required that the money be held by an applicant for at least three months prior to the application. He submitted that the appellant was correctly assessed at Level 4.
The Federal Circuit Court judge held that the appellant had been assessed correctly as against the requirements for a subclass 572 Vocational Educational and Training Sector visa. He held that the Tribunal did not err in concluding that the appellant had to show that he had access to a total amount of $55,450. He held that it was open to the Tribunal to conclude that the appellant would not have access to the relevant funds even if the overdraft was $55,450 rather than $44,090. That was because it was open to the Tribunal to find that on the maturity of the fixed deposits, it was likely that the overdraft facility would no longer exist (at [29]). The judge said that he was satisfied that there was nothing to suggest that the Tribunal had made a jurisdictional error. There was nothing unreasonable in the relevant legal sense, illogical or irrational in the findings of the Tribunal. The Tribunal was correct to assess the appellant as against Level 4.
The Federal Circuit Court judge also accepted the Minister’s submission that the Tribunal was not permitted to take into account the amount of approximately $16,000 deposited in the appellant’s Commonwealth Bank account on 6 May 2014 because those funds were not held by the appellant prior to his application for the visa. Accordingly, those funds were not held within the relevant period stipulated in cl 5A405(2).
The appellant’s ground of appeal to this Court are as follows:
1.The Federal Circuit Court fell into jurisdictional error by misinterpreting the effect of the Regulations on the applicant’s visa application. In particular, in relation to the calculation of funds required by the applicant under Schedule 5A of the Regulations.
2.The Federal Circuit Court fell into jurisdictional error by affirming that the Tribunal was not permitted to take into account the amount of approximately $16,000 deposited into his Commonwealth Bank Account on 6 May 2014.
3.The applicant was represented by and relied upon a Migration Agent who provided incorrect advice to the applicant and failed to properly represent his interests.
The appellant made brief oral submissions before me. In essence, the appellant made one submission. He submitted that the Court below should have held that the Tribunal erred in attaching significance to the fact that the fixed deposits matured after three months. The appellant asserted that the deposits would be rolled over as a matter of course. There is no evidence in support of that assertion and there was no evidence in support of that assertion before the Tribunal or the Federal Circuit Court. In the circumstances, it must be rejected.
With respect to ground one of the appellant’s notice of appeal, I can detect no error in the Federal Circuit Court judge’s interpretation of the Regulations or in concluding that there was no error in the calculation by the Tribunal of the funds required.
With respect to ground two of the appellant’s notice of appeal, the Federal Circuit Court judge was correct in saying that the amount could not be relevant because the Regulation provided that, to be taken into account, the money had to be held by an applicant for at least three months before the application (see the definition of “funds from an acceptable source” in cl 5A405(2)).
With respect to ground three of the appellant’s notice of appeal, there is no evidence in support of this ground. There is evidence that the appellant was afforded an adequate opportunity to put relevant material before the Tribunal and that he took that opportunity. The Tribunal wrote to the appellant in April 2014 (prior to the hearing in May 2014) inviting him to provide information and identifying the information he may wish to provide. The appellant’s migration agent provided information by letter dated 22 May 2014 and in documents attached to the letter. At the hearing, the Tribunal invited the appellant to provide further information and he did through his migration agent by letter dated 1 June 2015 (sent via email on 2 June 2015).
There is no error, let alone jurisdictional error in the Tribunal’s decision.
The appeal will be dismissed with costs fixed in the sum of $6,439.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 8 August 2016
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