Singh v Minister for Immigration and Citizenship
[2012] FCA 140
•27 February 2012
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Citizenship [2012] FCA 140
Citation: Singh v Minister for Immigration and Citizenship [2012] FCA 140 Appeal from: Singh v Minister for Immigration and Citizenship & Anor [2011] FMCA 923 Parties: CHARANJIT SINGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: VID 1265 of 2011 Judge: KENNY J Date of judgment: 27 February 2012 Catchwords: MIGRATION – judicial review – refusal to grant student visa – not acceptable source of funds – relevant and irrelevant considerations – appeal dismissed Legislation: Migration Regulations 1994 (Cth) Cases cited: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24Date of hearing: 27 February 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: Appellant appeared in person with the assistance of an Interpreter Solicitor for the Respondents: Miss K Whittemore of Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1265 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: CHARANJIT SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
27 FEBRUARY 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011..
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1265 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: CHARANJIT SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
KENNY J
DATE:
27 FEBRUARY 2012
PLACE:
MELBOURNE
EX TEMPORE REASONS FOR JUDGMENT
The appellant appeals from a judgment of the Federal Magistrates Court delivered on 7 November 2011, dismissing an application for judicial review of a decision of the second respondent, the Migration Review Tribunal (“the Tribunal”). The Tribunal had affirmed the decision of a delegate of the first respondent, the Minister, not to grant the appellant a student visa.
The appellant appeared today for himself. The first respondent was represented by his solicitor.
BACKGROUND
The appellant is a citizen of India who arrived in Australia on October 2008 under a subclass 572 Vocational Education and Training Sector visa valid until 18 August 2010. On 12 August 2010, the appellant lodged an application for a student (temporary) visa with the Department of Immigration and Citizenship. A Departmental officer sought further information by letter dated 30 September 2010. On 27 October 2010, the appellant was granted an extension of seven days within which to provide the required information. The appellant submitted some of the requested information, but he did not send any of the financial evidence required. The delegate refused the appellant’s application on 8 November 2010, because the appellant had not provided evidence that enabled the delegate to be satisfied that he met “the legal requirement in clause 572.223(2)(a)(i) in Schedule 2 and Clause 5A405 in Schedule 5 of the [Migration Regulations 1994 (Cth) (“the Regulations”)]”. These provisions concern financial capacity.
Clause 572.223(2)(a)(i) states:
(2) An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO:
(i)the applicant gives the Minister evidence in accordance with the requirement mentioned in Schedule 5A for the highest assessment level for the applicant.
Clause 5A405 states:
(1) The applicant must give evidence in accordance with this clause:
(a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa)a declaration by the applicant that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 36 months; and
(b)evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c)evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
MIGRATION REVIEW TRIBUNAL
On 25 November 2010, the Tribunal received the appellant’s application for a review. On 22 December 2010, the Tribunal asked the appellant to provide documentary evidence that he had “access to funds that were held in a bank account for at least six months prior to the application” and “evidence of the relationship between [him] and the person providing the funds”.
On 2 February 2011, the appellant’s registered migration agent emailed the Tribunal, relevantly stating:
The applicant’s Father Hardev Singh is a sponsor in this case and has drawn an Overdraft Limit of 8,30,000 Rupees against the Fixed Deposit.
There are three documents included as part of financial documents.
1. Fixed Deposit Receipt held with the bank
2. Overdraft Limit Sanction Letter
3. Bank Statement of Hardev Singh
The Tribunal referred these documents to the Australian High Commission’s Integrity Section in New Delhi. The High Commission subsequently advised that its investigation disclosed that the arrangement in the documents was “non genuine”. According to the High Commission’s written advice to the Tribunal, this conclusion resulted from enquiries with various people, including the appellant’s’ father who indicated he had obtained the money from selling some land and borrowing some money from a commission agent. When the appellant’s father was asked to provide some proof of the sale of the land, he provided a document that was not registered with any land department and could not be verified. The High Commission informed the appellant’s father that it did not accept such a document as valid proof of the sale of land. The appellant’s father advised he did not have a formal registered sale deed. The High Commission said that it had been informed that an ‘Agreement to sell’ would not be accepted as evidence of sale because “1) An agreement to sell does not show the ownership of land and is just an agreement made between two parties …; 2) An agreement to sell cannot be verified as it is not registered with any government bodies; [and] 3) An agreement to sell is not legally binding …” . The High Commission’s advice also noted that loans from commission agents were not an acceptable source of funds because such loans can be subject to repayment on demand and, further, commission agents are not legally authorised to lend money in India.
On 24 February 2011 the Tribunal advised the appellant in writing that it was unable to make a favourable decision on the evidence before it and invited the appellant to a hearing. The appellant did not attend the Tribunal hearing fixed for 29 March 2011.
On 30 March 2011, the Tribunal again wrote to the appellant, inviting him to comment on certain information that the Tribunal considered would, subject to his response, be the reason or part of the reason for affirming the delegate’s decision. The Tribunal received the appellant’s response on 6 May 2011. It stated in part:
The applicant Charanjit singh has been given the opportunity to comment on two issues. One is that the bulk of funds used to support this case comes from sale of land which is not registered. In response to that, Charanjit’s father Hardev singh ahs [sic] sent us a an [sic] Sale of Land Agreement which clearly indicates that Hardev Singh has sold his land for 6,80,000 Rupees which was executed on 04/01/2011.
The applicant’s father also claims that the rest of the money belongs to him and [sic] not been borrowed from anywhere. The money has been there in the account since the Overdraft has been created. All the bank’s direct phone numbers are given on the Letter head on which the OD has been drawn. These details are all independently verifiable.
The notarised Sale deed in Punjabi along with its English translation has been attached in this email.
On 27 June 2011, the Tribunal refused to grant the appellant a student visa on the basis the appellant did not have the financial capacity required by clause 572.223(2)(a)(i).
In its reasons, the Tribunal explained that:
40.The relevant Schedule 5A Assessment Level financial capacity requirements for the 572 visa subclass require the applicant to show he has access to AUD$28,728 from an acceptable source to meet his expenses.
41.The applicant provided the Tribunal with documentation which stated his father had taken an overdraft against a fixed deposit which was submitted as the available funds.
42.The Tribunal had the documentation provided sent for verification. The response to the verification enquiries was that the arrangement was non genuine as the source of the majority of funds provided for the overdraft could not be verified and the balance was claimed to be provided from a source that was not acceptable.
43.The applicant did not attend the scheduled hearing at which the Tribunal would have questioned him about the issues arising in his case and provided him with the opportunity to present arguments.
44.When the results of the verification investigation of the financial documents provided were put to the applicant as potential adverse information under Section 359A of the Act, the response was simply to provide a copy of the original sale document dated 4 January 2011 and state the applicant’s father had changed his evidence that he had borrowed funds from a commission agent and now claimed it was his own funds.
45.Regarding the source of funds, the Tribunal accepts the advice of the Australian High Commission that all land sales and purchases are required to be registered with the authorities. Despite multiple requests and opportunities to do so, the applicant has failed to provide evidence that such a registered sale has taken place. The Tribunal therefore finds the source of funds to be non-genuine.
46.Further, the Tribunal does not accept the applicant’s latest evidence that his father owned the balance of funds but finds the evidence his father gave to the department that he had borrowed from a commission agent to be more believable.
47.The Tribunal therefore finds that these funds were borrowed from a source that may demand repayment at any time. The source of funds is not acceptable and the Tribunal cannot be satisfied that the applicant will have access to the funds required.
48.On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 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).
The Tribunal also found, for the same reasons, that it was not satisfied that the applicant, while holding the visa, would have access to the funds demonstrated or declared in accordance with Schedule 5A requirements relating to financial capacity. The applicant did not, therefore, satisfy clause 572.223(2)(a)(iii).
The Tribunal concluded that the applicant had not met an essential requirement of clause 572.223 and there was no evidence that he met the criteria for any other student (temporary) visa subclass. Thus, the Tribunal affirmed the Ministerial delegate’s decision.
FEDERAL MAGISTRATES COURT
On 25 July 2011 the appellant filed an application for judicial review in the Federal Magistrates Court, asserting the following grounds:
The Tribunal made a mistake in assessing my evidence of funds. The decision of the Migration Review Tribunal was affected by jurisdictional error in that Tribunal;
A. failed to take relevant considerations into account;
PARTICULARS
(a) The Tribunal rejected the applicant’s claim that;(i)he had (or at least had access to) sufficient funds to cover his course fees, living costs and school fees for the period of his proposed stay in Australia.
(ii) the source of funds was genuine.
(b) The Tribunal did not give weight or enough weight to the fact that;
(i)the applicant’s father had sold a block of land in India in January 2011 and the sale proceeds was part of the available funds for the applicant.
(ii) the applicant’s father had other funds for the applicant.
B. took irrelevant considerations into account.
PARTICULARS(a)The tribunal found that the source of the funds was not genuine as the land sale agreement was not registered even though the funds were available.
(b)The applicant’s father stating that the money was his and not borrowed despite the bank statement being provided.
The Federal Magistrate rejected the appellant’s contention that the Tribunal had not taken relevant considerations into account. His Honour noted that the Tribunal’s rejection of a claim does not mean it failed to take that claim into account. The Federal Magistrate also rejected the contention that the Tribunal had taken irrelevant considerations into account. The Federal Magistrate accepted that “[t]he mere fact that money is in a bank account will not always satisfy a Tribunal that money belongs to a person or has come from an appropriate source”. His Honour further accepted that it was open to the Tribunal to take into account that the land sale documents were not registered and to conclude that the proffered documents did not support a genuine arrangement. Accordingly, his Honour concluded that the appellant had not made out his case, and that his judicial review application should be dismissed.
APPEAL TO THIS COURT
On 16 November 2011, the appellant filed a notice of appeal in this Court identifying one ground of appeal in the following terms:
I state that my fact and evidence were not taken in to consideration irrelevant facts were taken in to consideration and decision was made. [sic]
The appellant indicated today that he contended that the Federal Magistrate had erred by not accepting the submissions that he had advanced in the Federal Magistrates Court.
CONSIDERATION OF APPEAL
Appellant’s evidence taken into consideration
The grounds advanced before the Federal Magistrate on the appellant’s judicial review application were relevant only in so far as they raised the possibility of jurisdictional error on the Tribunal’s part: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ. On the appellant’s judicial review application, it was not open to the Federal Magistrate to engage in any re-examination of the findings of fact made by the Tribunal, or in a reassessment of the evidence relating to those facts: see, for example, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-2 per Mason J.
As already noted, in the Federal Magistrate’s Court, the appellant argued relevant and irrelevant consideration grounds for jurisdictional error. The Federal Magistrate concluded that there was no jurisdictional error in the Tribunal’s decision. There is no error shown in this conclusion.
The Tribunal’s reasons (discussed above) clearly showed that the Tribunal considered all the appellant’s claims and evidence. It rejected his claims and held that the evidence did not substantiate the necessary financial requirements pursuant to Schedule 5A of the Regulations. There was no failure to take the appellant’s claims or evidence into account. The weight to be given the evidence provided to the Tribunal by the appellant was a matter for the Tribunal.
It has not been shown that the Tribunal failed to take into account any pertinent consideration, including a relevant consideration (in the sense referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40); and it has not been shown that the Federal Magistrate erred.
No irrelevant facts taken into consideration
The information supplied by the Australian High Commission in India to the Tribunal was that the financial arrangements (said to be effected by documents provided by the appellant) were not genuine. This information – as to whether or not the financial arrangements said to be recorded in the documents provided by the appellant were genuine – was clearly relevant to the issues that the Tribunal was required to determine in deciding whether or not the appellant satisfied the criteria for a relevant student visa. This was because Schedule 5A405 of the Regulations required evidence of funds from an acceptable source. The appellant did not attend the Tribunal hearing as he was invited to do and the Tribunal did not accept the statements made on his behalf in the letter of 6 May 2011. Having regard to the information from the High Commission, it was plainly open to the Tribunal to find as a fact that the appellant had not provided evidence of funds from an acceptable source. In so doing, the Tribunal did not take any irrelevant information into account. No error is shown in the Federal Magistrate’s judgment in this regard.
It has, therefore, not been shown that the Tribunal took into account any irrelevant consideration; and it has not been shown that the Federal Magistrate erred.
In substance, this is an appeal in which the appellant has invited the Court to re-assess the evidence before the Tribunal and make its own findings of fact. As I sought to explain to the appellant, it is not open to the Court to do this on an appeal against the dismissal of the appellant’s judicial review application by the Federal Magistrates Court. The appellant has not shown jurisdictional error on the Tribunal’s part or relevant error on the part of the Federal Magistrate.
For the reasons stated, I would dismiss the appeal, with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 27 February 2012