Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 2149
•19 December 2019
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2149
Appeal from: Singh v Minister for Immigration & Anor [2019] FCCA 1452 File number: VID 663 of 2019 Judge: BEACH J Date of judgment: 19 December 2019 Catchwords: MIGRATION – refusal to grant student visa – jurisdictional error – appeal from Federal Circuit Court – appeal dismissed Legislation: Migration Legislation Amendment (2016 Measures No. 1) Regulations 2016 (Cth) Sch 4, cl 32
Migration Regulations 1994 (Cth) Sch 2, subcl 572.223(2)(a), Sch 5A, cl 5A408
Date of hearing: 6 December 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr C van der Westhuizen of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 663 of 2019 BETWEEN: JAIGURWANT SINGH
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BEACH J
DATE OF ORDER:
19 DECEMBER 2019
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and that the title to this proceeding be amended accordingly.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
Before me is an appeal from a judgment of the Federal Circuit Court delivered on 30 May 2019 in which the primary judge dismissed an application to review a decision of the Tribunal made orally on 17 November 2016, with written reasons provided on 12 January 2017, under which the Tribunal affirmed a decision by a delegate of the Minister not to grant to the appellant a Student (Class TU) (Subclass 572) visa (the visa).
For the reasons that follow I would dismiss the appeal.
The appellant is a citizen of India born on 2 December 1982 who arrived in Australia in 2006. On 25 December 2015 he applied for the visa. This was his fifth student visa application; he had been granted student visas on four previous occasions.
On 15 January 2016 a delegate of the Minister requested further information from the appellant. In an accompanying document entitled “Request Checklist and Details”, the delegate requested evidence of the appellant’s financial capacity to meet expenses for course fees, living costs, and travel costs in the amount of AUD 21,610. The delegate advised that evidence in the form of a money deposit held by “the applicant, or an acceptable individual who is providing support to the applicant” for a minimum of three months prior to the date the application for the visa was lodged could be provided.
On 13 February 2016, the appellant’s representative provided documents addressing the appellant’s financial capacity to cover his expenses and such costs in Australia. These included the following material:
(a)Four certificates of balance dated 28 January 2016 issued by GPO ASR and Chogawan Post Office, which I will for convenience describe as “India Post”, were provided which showed amounts of INR 600,000, INR 400,000, INR 300,000 and INR 270,000. The certificates concerning INR 600,000 and 300,000 were in the name of Darshan Kaur. The certificates concerning INR 400,000 and 270,000 were in the name of Rajwant Singh. There also appears to be one further certificate for INR 88,974 in Darshan Kaur’s name. I note that these two individuals are the parents of the appellant.
(b)A statement from the State Bank of India in the name of Darshan Kaur dated 29 January 2016 was provided with a statement of account with a first transaction start date of 1 November 2015 and a balance of INR 2,17,692.28 as at 29 January 2016.
(c)A statement from the State Bank of India in the name of Rajwant Singh dated 27 January 2016 was provided together with a statement of account with a first transaction start date of 6 November 2015 and a balance of INR 80,652.73 as at 27 January 2016.
(d)A certificate of balance issued by the ICICI Bank was provided in respect of an account in the name of Darshan Kaur confirming the balance of the account as at 28 January 2016, alternatively 9 February 2016, to be INR 79,414.
On 31 March 2016 the delegate refused to grant the visa. The delegate found that India Post was not an acceptable financial institution. Further, the delegate found that the appellant did not satisfy subcl 572.223(2)(a) of Sch 2 and cl 5A408 of Sch 5A of the Migration Regulations 1994 (Cth) (the Regulations) as the appellant had not shown that funds were held in the form of a money deposit with an acceptable individual for at least 3 months immediately before the date of application.
On 5 April 2016 the appellant applied to the Tribunal for review of the delegate’s decision.
On 7 April 2016 the Tribunal wrote to the appellant advising that he could provide material or written arguments to it for consideration.
On 7 October 2016 the Tribunal invited the appellant to a hearing. In the hearing invitation the Tribunal requested evidence that the appellant had sufficient funds. The Tribunal noted that if the appellant relied on a money deposit, he would need to show how long the deposit was held immediately before the date of application.
On 25 October 2016 the appellant’s representative submitted documents to the Tribunal for consideration which included the following documents:
(a)A certificate of balance issued by ICICI Bank dated 24 October 2016 for Darshan Kaur was provided showing INR 81,814. The date of the balance certificate is 24 October 2016 but the document says that the balance is at close of business on 20 July 2012, the date the account was opened.
(b)A State Bank of India document dated 24 October 2016 showing a balance of INR 4,58,055.28 in the name of “Mrs Darshan Kaur w/o Rajwant Singh” was provided. A State Bank of India statement of account in the name of “Mrs Darshan Kaur w/o Rajwant Singh” dated 24 October 2016 with a balance of INR 4,58,540.28 was provided.
(c)A State Bank of India document in the name of “Mrs Darshan Kaur w/o Rajwant Singh” dated 24 October 2016 with a balance of INR 3,99,370.83 was provided. A State Bank of India statement of account in the name of “Mrs Darshan Kaur w/o Rajwant Singh” dated 24 October 2016 with a balance of INR 3,99,255.83 was also provided.
(d)A State Bank of India document in the name of “Mr Rajwant Singh s/o Gurpargat Singh” dated 24 October 2016 with a balance of INR 5,17,433.73 was provided.
On 17 November 2016 the appellant appeared before the Tribunal. On that date the Tribunal affirmed the decision under review. It subsequently provided written reasons on 12 January 2017.
The Tribunal noted that the appellant was aware that the issue in his case was whether he met the financial requirements for the grant of the visa. It noted that he had been advised by the Tribunal on two occasions that he could provide documents in support of his application for review. The Tribunal considered the documents provided by the appellant, including a submission, an affidavit of support from his parents and, inter-alia, copies of statements of accounts from the appellant’s mother and father for the year of 2016. Further, the Tribunal noted that the certificate of balance dated 20 July 2012 was for the equivalent of an amount of only AUD 1600. The Tribunal found that the evidence provided showed that the appellant had funds sufficient to cover the amount required, but significantly the evidence did not show that the funds were held for the period of three months immediately before the date of application, that is, three months before 25 December 2015.
The Tribunal considered that the appellant, who was represented, had had ample time and opportunity to provide the requested evidence.
Accordingly and having regard to the evidence before it, the Tribunal concluded that the appellant did not meet the requirements of subcl 572.223(2)(a) of Sch 2 and Sch 5A of the Regulations.
On 12 December 2016 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The primary judge heard the matter on 24 April 2019 and delivered his decision on 30 May 2019.
In relation to the ground of review which took issue with the delegate’s consideration of the definition of “financial institution”, his Honour noted first that he did not have jurisdiction to review the delegate’s decision and, further, that the appellant had misunderstood the Tribunal’s findings.
Further, in relation to the other grounds, his Honour said that the appellant was unable to provide particulars as to how the Tribunal had misinterpreted or misunderstood the relevant legislative provisions. His Honour considered that the appellant sought to “now demonstrate that the accounts held a sufficient amount of funds” (at [27] and [28]). But his Honour found that it was open to the Tribunal to conclude that there was no evidence that the relevant funds were held for the period of three months immediately before the date of the application for the visa. Accordingly, his Honour dismissed the application.
On appeal before me, the appellant has raised various grounds of appeal in the following form:
1.The Federal Circuit Court was wrong in agreeing with the Administrative Appeals Tribunal that I did not hold funds for a period of 3 months immediately before the date of my visa application being 25 December 2015. The evidence is in the Court Book itself which the Tribunal misinterpreted and the Court also overlooked.
2.I refer to the following pages in the Court Book showing funds deposited with India Post;
(i) Pages 32-34 show funds of Rs. 88,974 held since 26.09.2015
(ii) Pages 35-38 show funds of Rs. 600,000 held since 28.06.2014
(iii) Pages 39-43 show funds of Rs. 400,000 held since 10.05.2011
(iv) Pages 44-46 show funds of Rs. 300,000 held since 26.09.0215
(v) Pages 47-54 show funds of Rs. 270,000 held since 25.03.2011
The copies of pass-books and balance certificates provided show that funds were still there on 28 January 2016. This is the date Tribunal and Court looked at and concluded that these funds were held on 28 January 2016, being on a date after my visa application and not 3 months before my visa application. The Tribunal and Court only looked at the closing balance on 28.01.2016 but failed to look at the opening balances on respective dates of these accounts and the transactions in pass-books since the opening. The only transactions after opening of these accounts are periodic withdrawals of interests earned on respective deposits. The opening balance and closing balances are the same. The opening balances were since more than 3 months before my visa application.
Total of these funds add up to Rs. 16,58,974 which equate to Aus $33,180 which is much more than the required minimum of $21,610.
3.In relation to these funds, the Court at para 25 of its reasons for judgement states that, “the Tribunal’s decision was based on a lack of evidence that the funds were held in the relevant account in the 3 months prior to the application being made.” I have clearly shown above referring to the copies of pass-books in the Court Book itself that the funds were held for more than 3 months prior to the application being made. The Court refers to same matter again at paras 30 and 31 of its reasons for judgement, which is again wrong as the Court and Tribunal did not look at the opening balances and transactions in pass-books but just looked at the closing balance certificates issued on 28.01.2016.
4.It is not relevant where the funds are held. The funds were held in interest bearing accounts with India Post, and monthly or quarterly interest was being paid on all these accounts. In my past student visa applications, funds held with India Post had been acceptable. Of these 6 accounts, 2 accounts had been held since 2011 and 1 since 2014, and had remained there, which amount for bulk of these funds totalling to equivalent of Aus $25,400.
5.At a later date, being after my visa application, funds were transferred from accounts with India Post to banks. These were the same funds and were still available and hence should be still regarded as funds held more than 3 months prior to the application being made. The funds did not change, only the location did. The funds were always held by my parents in India in interest bearing accounts and were available for my education and living expenses in Australia.
6.In addition to above, the bank statements included in Court Book show the following:
(i)Pages 84-88 show funds of Rs. 217,692 as at 29 January 2016, but also show the opening balance on 1.11.2015 of [Rs] 95,346 which is equal to Aus $1,900.
(ii)Pages 89-93 show funds of Rs. 80,652 as at 29 January 2016, but also show the opening balance on 1.11.2015 of [Rs] 332,539 which is equal to Aus $6,650.
1 November 2015 is about 2 months before I made my visa application on 25 December 2015. If I was asked, I would have provided an earlier statement of these accounts showing the balances on or before 25 September 2015, being 3 months before my visa application. In any event, these funds would have been in addition to funds of $33,180 shown above.
7.In summary, I had more than the required minimum funds held 3 months before my visa application.
Let me distil and evaluate the essence of the appellant’s complaints.
First, an underlying theme appears to be that the Tribunal misinterpreted and misapplied the applicable requirements of the Migration Act 1958 (Cth) and the Regulations.
But in my view the Tribunal correctly considered and applied the requirements of cl 5A408 of Sch 5A in its assessment of whether subcl 572.223(2)(a) of Sch 2 of the Regulations was met; I note that the primary judge referred to cl 5A508 (at [20] and [29]), but this should be a reference to cl 5A408.
On 1 July 2016 the Subclass 572 visa was abolished by the Migration Legislation Amendment (2016 Measures No. 1) Regulations 2016 (Cth) (the Amending Regulations); see cl 32 of Sch 4. The transitional provisions in Sch 5 of the Amending Regulations made it clear that the amendments applied only to student visa applications made on or after 1 July 2016. As such, the appellant was required to satisfy subcl 572.223(2)(a) of the Regulations including providing evidence to show that he met the financial requirements as outlined in Sch 5A of the Regulations as in force prior to the Amending Regulations. I note that subcl 572.223(2)(a) referred to the applicant providing evidence “in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant”. In this respect, reg 1.41(1) of the Regulations specified that an applicant for a student visa was subject to an assessment level of the kind relative to their passport. Legislative Instrument IMMI 14/003 (F2014L00315) specified that applicants from India were subject to assessment level 3.
Clause 5A408 of Sch 5A of the Regulations required that the appellant provide evidence of “funds from an acceptable source”. This included showing that funds were held in the form of a “money deposit” that an “acceptable individual” had held for at least the three months immediately before the date of the application for the visa. But the Tribunal found that the “evidence provided [was] of funds that would appear to be sufficient to cover the requirements however there [was] no evidence those funds were held for the period of 3 months immediately before the date of application” (at [14]).
Let me set out some relevant legislative provisions.
The expression “funds from an acceptable source” was defined relevantly in cl 5A408(2) to include:
a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application.
Clause 5A101 defined an “acceptable individual” to include a “parent of the applicant”. Further, “money deposit” was defined to mean “a money deposit with a financial institution”. Now Sch 5A did not include a definition of “financial institution”, but that expression was defined in reg 1.03 of the Regulations to mean:
financial institution means a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money:
(a) under a regulatory regime:
(i)governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
(ii)that the Minister is satisfied provides effective prudential assurance; and
(b)in a way that the Minister is satisfied complies with effective prudential assurance requirements.
It was not in doubt before me that India Post in the three months prior to the application for the visa was not such a “financial institution” for the reasons given by the delegate, namely, that the Minister was not relevantly satisfied in accordance with that definition.
Moreover, the fact that India Post did not satisfy the definitional requirement of “financial institution” at the relevant time does not appear to have been in issue before the Tribunal. Before the Tribunal the appellant seems to have relied on deposits made after the filing of the application for the visa, save for one deposit that pre-dated which was the equivalent of only AUD 1,600.
In my view the Tribunal made no legal or factual error in finding that the documents provided did not show that the appellant or his parents held, in the terms stipulated in cl 5A408 concerning money deposits, the requisite amount in the three months before 25 December 2015, being the date of the application for the visa. This is because most of the financial documents submitted to the Tribunal were for the year of 2016. As noted by the appellant in his notice of appeal, relevant funds had been transferred from India Post to the relevant bank account(s) after the application for the visa had been lodged.
Second, the appellant was put on notice of the evidence to be provided, which was detailed in the delegate’s decision record and again in the hearing invitation issued by the Tribunal. It was well open to the Tribunal to conclude, based on the evidence before it, that there was not sufficient evidence that the funds were held in the manner contemplated by cl 5A408 for the period of three months immediately before the date of the application for the visa.
Third, the appellant says in his notice of appeal that if he had been asked he “would have provided an earlier statement of these accounts showing the balances on or before 25 September 2015”. If this is to suggest that there was a lack of procedural fairness before the Tribunal, the proposition must be rejected. The appellant appears to have been well aware of what was necessary to provide at the time. But in any event, it would seem from my questioning of the appellant that such material would not have cured the “financial institution” problem in that any other material would only have shown in the period prior to filing the application for the visa sufficient funds held with India Post, which was not a “financial institution”.
Fourth, as to the suggestion made by the appellant in his notice of appeal (at [5]) that the problem with the India Post question was cured when “funds were transferred from accounts with India Post to banks”, although I understand the intuitive appeal of such a submission to the appellant, unfortunately that does not get around the legal requirements of the Regulations which required the deposit(s) of a sufficient amount to be held with a “financial institution” in the three months prior to the filing of the application for the visa.
Finally, I have considered the material in the appeal book (some 298 pages) and also what the appellant has asserted in his notice of appeal, but there is nothing to suggest that there is any substance to the appellant’s complaint that before the Tribunal or the primary judge he “clearly” showed that “the funds were held more than 3 months prior to the application being made” with a relevant repository in terms of any money deposit. The one exception appears to be a balance certificate dated 24 October 2016 but anomalously referring to a balance at the close of business on 20 July 2012. It does not speak to the relevant three month timeframe. But even if it did, as the Tribunal said, it only amounted to AUD 1,600 which was clearly an insufficient sum.
None of the grounds of appeal have been made good.
The appeal must be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate:
Dated: 19 December 2019
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