FEDERAL COURT OF AUSTRALIA Kaur v Minister for Immigration and Citizenship [2013] FCA 448 Citation: Kaur v Minister for Immigration and Citizenship [2013] FCA 448 Appeal from: Rajwinder Kaur v Minister for Immigration & Anor [2012] FMCA 1243 Parties: RAJWINDER KAUR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number(s): VID 19 of 2013 Judge: MIDDLETON J Date of judgment: 13 May 2013 Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Date of hearing: 13 May 2013 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 30 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Mr D Brown of Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 19 of 2013 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: RAJWINDER KAUR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE OF ORDER: 13 may 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant pay the costs of the First Respondent fixed in the amount of $50.00. 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 19 of 2013 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: RAJWINDER KAUR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE: 13 may 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT INTRODUCTION 1 This is an appeal from a decision of the Federal Magistrates Court (as it was then known) dated 21 December 2012 dismissing an application for judicial review of a decision by the second respondent, the Migration Review Tribunal ('the Tribunal'). 2 The appellant is an Indian citizen who arrived in Australia in May 2008 on a 573 Higher Education Sector visa. On 31 October 2010 the appellant applied for a Student (Temporary) (Class TU) visa. A delegate of the first respondent made a decision to refuse the application for the visa on 13 April 2011. 3 The appellant then sought a review of that decision in the Tribunal and by a decision dated 28 June 2012, the Tribunal affirmed the decision not to grant the appellant a Student visa. The appellant then sought judicial review of that decision in the Federal Magistrates Court which, as stated earlier, was dismissed. background 4 In support of her application, the appellant provided evidence that her father had taken out an overdraft from the State Bank of India of Rs.1,200,000 against a fixed deposit made on 27 October 2010. After being advised that the Australian High Commission in New Delhi had determined that the collateral for the overdraft facility had been fully withdrawn on 28 and 29 October 2010 once the overdraft had been granted (and therefore were no longer available), the appellant submitted evidence of a second overdraft facility issued to her father by the Indian Bank for Rs.1,200,000 against a 60-day deposit maturing on 27 and 29 April 2011. These maturing dates were well before the expiry of the visa period. 5 The Tribunal invited the appellant to appear at a hearing before it. However, as the appellant did not attend the hearing, the Tribunal made a decision on the available information. The Tribunal found that on the maturation of the deposit securing the overdraft facility the overdraft would no longer have the necessary collateral and therefore cease to exist, meaning that the appellant would no longer have access to these funds. Consequently, the Tribunal was not satisfied that the appellant had access to the necessary funds to meet the requirements of cl 572.223(2)(a)(iii) of Sch 2 and Sch 5A of the Migration Regulations 1994 (Cth) ('the Regulations'). before the federal magistrates court 6 In her application, the appellant relied upon the following grounds: 1. The Migration Review Tribunal made an error in deciding my case. The decision of the Migration Review Tribunal was affected by jurisdictional error because I was not present at the hearing of 22 May 2012 as my migration agent or I had not received the notice of hearing. 2. The Tribunal incorrectly assumed that once the terms deposit matures, the bank would no longer have collateral security and the overdraft facility would cease to exist, meaning that I would no longer have access to funds. The Tribunal failed to take into account that the term deposit could be renewed and was in fact renewed and was current at all relevant times, until the funds were transferred to me in Australia in December 2011. If required, the term deposit could have also been made for a longer period. 3. The Tribunal incorrectly found that I did not have access to funds to satisfy the visa requirements. Funds of $22,232 were transferred to me from India in December 2011. 4. The Tribunal also failed to take into account that I had already paid my course fees and my living expenses up to date. 5. I had evidence of sufficient funds firstly in India and then in Australia (when the funds were transferred to me from India) but I was not given an opportunity to attend at the hearing and provide evidence of funds to the Tribunal. 7 His Honour noted that prior to the hearing letter being sent by the Tribunal, the appellant's migration agent had ceased to act for her and had transferred her matter to another migration agent. His Honour further noted that although the new agent had the appellant execute the relevant documents to effect this change (including a change of contact details form), neither the new agent nor the former agent notified the Tribunal prior to the making of the decision of the change in details. This was not the fault of the appellant herself. Although his Honour acknowledged that the failure of the appellant to attend the hearing was through no fault of her own, his Honour found that the Tribunal properly sent the notification as they were not informed of the change in contact details until after the decision had been made and, where the appellant is represented by an agent, the Tribunal is not to serve the notification directly on the appellant. 8 For these reasons, his Honour found that the Tribunal was entitled to consider the matter and come to a decision although the appellant was not present at the hearing. His Honour found that it was open to the Tribunal on the evidence before it to conclude that the second overdraft as secured by the term deposit was not an acceptable source of funds. His Honour found that the fact the appellant had paid her tuition fees and living expenses was not relevant to the question of whether she had access to funds from an acceptable source. 9 For these reasons, the application was dismissed with costs. the appeal proceeding 10 The appellant's notice of appeal set out the following grounds: 1. The Tribunal made a decision against me at a hearing on 22 May 2012 at which I was not present. I did not attend as I had not received a notice of hearing. 2. I had all the evidence in support of my case which I intended to present at the hearing. 3. The Court did not consider my ground of appeal that the Tribunal was in error in finding that it was not appropriate that the overdraft facility was secured against a fixed term deposit. 4. The Court did not take into account that I had sufficient funds for my fees and living expenses and that I had in fact paid my course fees and finished my course. 5. The court failed to give any weight to my submission that the Tribunal was in error in refusing to reopen the case despite knowing that I had not received the hearing invite, having been so told by my new agent and receiving back the hearing invite sent by it to my old agent, unclaimed. 11 In addition, the appellant has provided written submissions to me for the purposes of this hearing which, in essence, cover the same arguments that were put before his Honour in the Federal Magistrates Court. 12 I will now turn to each ground of appeal. The Tribunal decision was made without hearing from the appellant 13 The Tribunal was obliged, under s 360 of the Migration Act 1958 (Cth) ('the Act') to invite the appellant to appear before the Tribunal. 14 The Tribunal's invitation to the appellant to attend a hearing had to be made in conformance with s 360A of the Act. 15 Where an applicant has given the Tribunal written notice of the name and address of an authorised recipient to do things on the applicant's behalf, including receiving documents in connection with the review, then pursuant to s 379G(1) of the Act, the Tribunal must give any document that would otherwise have been given to the applicant, to the authorised recipient. The Tribunal is then taken to have given the document to the applicant as a matter of law. 16 In the factual circumstances before the Tribunal, the Tribunal invited the appellant to appear before the Tribunal and did so in conformance with the Act. The Tribunal had not received a change of contact details notice from the appellant or her new migration agent. The last address for service that had been provided to the Tribunal was that of the appellant's original migration agent. The Tribunal sent the invitation to the appellant to attend the hearing arranged for 22 May 2012 to the original migration agent, as required under the Act. 17 The Federal Magistrate correctly found that the Tribunal had complied with the legislative framework in issuing an invitation to the appellant to attend a Tribunal hearing and the Tribunal decision was not invalidated by the appellant not actually receiving the notice inviting her to attend the Tribunal hearing. 18 Section 362B of the Act provides that, in circumstances where an applicant has been invited to attend a Tribunal hearing but does not do so, the Tribunal can make a decision on review without taking further action to allow and enable the applicant to appear before it. 19 As the appellant did not appear at the hearing on 22 May 2012, the Tribunal proceeded to make a decision on that day, based on the information before it, a course of action that was open to the Tribunal, pursuant to s 362B of the Act. Evidence not before the Tribunal 20 The Tribunal considered the evidence that was before it in the course of reaching a decision on 22 May 2012. 21 The Tribunal's decision cannot be said to be infected by an error on account of the appellant's inability to put further evidence to the Tribunal when the Tribunal did everything required of it to invite the appellant to a hearing and subsequently, made a decision pursuant to s 362B of the Act based upon the information before it. Failure by the Federal Magistrate to consider a ground of review 22 The third ground of appeal – that the Tribunal was in error when finding that it was not appropriate that the overdraft facility was secured against a fixed term deposit – -- 0ws not a ground of review below. The Federal Magistrate cannot be said to have failed to consider a ground of review that was not put below. 23 What was put as a ground of review below was that the Tribunal was incorrect to assume that once a term deposit matured, collateral security would no longer exist, and the overdraft would cease. 24 His Honour noted that there was the potential for an overdraft to be withdrawn at the expiration of a fixed term deposit nominated as security, prior to the visa period elapsing, but that was not to say that another fixed term could not be created to cover the visa period. However, his Honour found that it was open to the Tribunal, based upon the information available to it, to find that an overdraft, secure as it was, was not an acceptable source of funds. 25 The Tribunal's finding in this connection was a finding of fact which was not open to challenge by the Court. Failure by the Federal Magistrate to take into account the appellant's financial position 26 The Federal Magistrate did consider the appellant's claim that the Tribunal failed to take into account that she had already paid her course fees and living expenses up to date, but found the Tribunal's task was to decide whether the appellant could satisfy the Tribunal that while she had a visa, she would have access to funds required under Sch 5A of the Regulations, which included having funds from an acceptable source. This was a requirement to evidence funds from an acceptable source, and whether the applicant was up to date with the payment of fees and living expenses at the date of the Tribunal decision was, in my view, not a relevant consideration. Tribunal's refusal to reopen the case 27 The Tribunal's task was complete once it handed down its decision and sent notification of that decision to the appellant, which occurred on 22 May 2012. 28 The Tribunal was unable to reopen its consideration of the appellant's application for review after it learned, on 4 June 2012, that she had not received an invitation to the Tribunal hearing. 29 This ground of appeal was not a ground of review below and the Federal Magistrate cannot be said to have failed to give weight to a submission in relation to a ground that was not put below. CONCLUSION 30 In light of the above, no ground of appeal is successful, and the appeal should be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 21 May 2013