FEDERAL COURT OF AUSTRALIA

Kaluthanthirige v Minister for Immigration and Citizenship [2007] FCA 1783

CHARITH MAHESH KALUTHANTHIRIGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 300 OF 2007

Middleton J

7 NOVEMBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate dated 26 March 2007, dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) dated 2 June 2006.  The Tribunal had affirmed the decision of a delegate of the first respondent to refuse to grant the appellant a Student (Temporary) (Class TU) visa.

2                     The appellant is a citizen of Sri Lanka who arrived in Australia holding a temporary student visa on 25 February 2003.  On 13 March 2005, the appellant applied for a further student visa and was subsequently refused by the delegate on 8 June 2005.  The decision to refuse the visa was made on the grounds that the appellant had not provided satisfactory evidence that he had access to funding to support the remainder of his stay in Australia and therefore failed to satisfy cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

THE TRIBUNAL’S DECISION

3                     In his application to the Tribunal, the appellant argued that he had access to the required funds through bank accounts in his father’s name with both the Commercial Bank and Sampath Bank of Sri Lanka.  The appellant claimed that between the available balances in these bank accounts, he satisfied the financial requirements to fund the remainder of his stay in Australia. 

4                     In assessing the appellant’s claim, the Tribunal noted that the appellant was subject to a level 3 assessment, and therefore had to satisfy the financial requirements contained at cl 5A508 under Sch 5A, Pt 5 of Div 3 of the Regulations.  This required the appellant to provide certain information, as follows:

(1) The applicant must give, 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 24 months:

(i)      course fees;

(ii)     living costs;

(iii)    school costs; and

(aa)     a declaration by the applicant stating 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 24 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.

5                     Following an examination of account balances as listed on documents tendered by the appellant, the Tribunal was not satisfied that the appellant was able to demonstrate that he had access to $25,000, being the amount considered necessary to cover course fees, living expenses and an airfare back to Sri Lanka at the time of the Tribunal hearing.

THE FEDERAL MAGISTRATE’S DECISION

6                     In an application for judicial review filed in the Federal Magistrates Court and dated 22 June 2006, the appellant asserted that the Tribunal had erred in failing to find that he had access to the required amount when both balances of the bank accounts were combined.  Furthermore, the appellant claimed that he had been denied an opportunity to comment on the alleged shortfall in accessible funds, and that the stated amount of $25,000 was an excessive estimate of what funding would be required for the remainder of his stay in Australia.

7                     On 26 March 2007, the Federal Magistrate affirmed the decision of the Tribunal.  In reaching this conclusion, his Honour noted that on the available evidence, including printed bank account statements, it appeared that the appellant would have satisfied the financial criteria for his student visa for “all but the last three days of the relevant three month period.”  Nevertheless, the Federal Magistrate held that the Tribunal does not have a discretion as to whether or not to allow the application where a condition has not been met.

GROUNDS OF APPEAL

8                     By notice of appeal filed in this Court on 16 April 2007, the appellant claimed four separate grounds of appeal:

1.         The Federal Magistrate erred in law in failing to find that the requirements of s 359 of the Migration Act 1958 (Cth) (‘Migration Act’) were mandatory and that any failure to comply strictly with the requirement amounts to jurisdictional error.

2.         The Federal Magistrate erred in law in failing to find that the Tribunal identified the wrong issue, asked the wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without or in excess of jurisdiction.

3.         The Federal Magistrate erred in concluding that the errors of law committed by the Tribunal were errors validated by s 474 of the Migration Act and did not constitute jurisdictional errors warranting review or the grant of the prerogative writs.

4.         The Federal Magistrate erred in dismissing the application.

CONSIDERATION

9                     In my view, this matter can be readily determined.  The issue is whether the Tribunal did have regard to the Commercial Bank account statement, information which was relevant, and which I will assume needed to be considered by the Tribunal.

10                  The first respondent contends that the Tribunal did not err in failing to consider the bank account statement as it was referred to in its reasons, and the Tribunal engaged in its own assessment of it.  If this is the true position, I would accept the contentions of the first respondent, and find no jurisdictional error. 

11                  The appellant contends that it is apparent from the Tribunal’s reasoning that the Tribunal only considered the first page of the bank statement in reaching its decision on the matter, and in reality did not engage in any other consideration of the bank statement.  If this was the true position, then the appellant, in my view, may be entitled to succeed subject to any discretionary considerations.

12                  When looking at the position from a practical point of view, it is clear that it is more than probable than not that the Tribunal did, in fact, consider more than the first page of the bank statement.  The reasons of the Tribunal suggest the same. 

13                  Paragraph 36 of the Tribunal’s reasons stated that:

The tribunal has considered the documents referred to at paragraph 21 of this decision. 

The documents in paragraph 21 included the bank statement. 

Further, the Tribunal stated in paragraph 36, that:

Finally a record of transactions on account number 8720004178 in the visa applicant’s father’s name indicates various amounts, all less than the required amount and given that the statement is for the period ending on 8 April 2002, well before the relevant period.

14                  The fact that the Tribunal refered to the “given” nature of the statement period does not in my mind suggest that it necessarily only looked at the first page although, obviously, the Tribunal was informed by the contents of the first page.  It is also apparent from this paragraph that the Tribunal considered the various amounts included within the bank statement because not only did it refer to the period in which the statement ends, it concluded that those various amounts were all less than the required amount.

15                  In any event, the Tribunal then proceeded, in paragraph 37, to state as follows:

Whilst the material from the Commercial Bank indicates that the visa applicant’s father held funds in that institution both before the relevant period (the computer print-out indicates a balance as at 8 April 2002) and on 16 February 2005 (one month before the time of application) there is no evidence that he held funds in that institution which either alone or in combination with the funds in the Sampath Bank equals the required amount of AUD25,000 throughout the relevant period of 3 months prior to the time of application.

16                  Here the Tribunal refers to the actual bank, namely the Commercial Bank, which must have been a fact derived from other material, and this suggests that a proper consideration was given of the bank statement in context, and not merely by a cursory reading of the first page. 

17                  The repeated reference in this paragraph to the balance as of 8 April 2002 does not indicate that the Tribunal only looked at the first page.   It could have made a mistake, even if it read the whole of the bank statement.  The complete bank statement itself was far from clear.  As the Federal Magistrate said (at [8]):

The applicant has provided copies of the commercial bank statements referred to in the decision (those documents having been lost from the tribunal file and not included in the court book).  The statement is a computer print out on the old style broad computer paper with a dot matrix font.  It says on the front of it “Statement period ending 08-04-2002”.  The tribunal appears to have accepted that this is what the document in fact contained.  However, a careful reading of the document shows an entry of a date on the fourth page in numerical format.  It is fair to set out the whole of that line entry so that the context of the date can be seen:

22-09 22-09  1 034 095-E/R of 22/09/05  1.487.05  936.413.56

18                  In fact, at the hearing before the Federal Magistrate, the bank statement needed further clarification before him.  The Federal Magistrate observed (at [9]):

At the hearing before me copies of the account holder’s passbook were also exhibited to an affidavit making it quite clear that the statement from the Commercial Bank didn’t end on the April 2002 date stated on the front, but rather, began on that date.  The statement therefore covered the whole of the relevant period for the purposes of the application.

19                  For the sake of completeness, I should say that I do not consider that the covering letter which was sent to the Tribunal with the bank statement and other documents on 3 May 2006 assists the appellant in demonstrating that the Tribunal failed to consider the bank statement.  It simply refers in general terms to the bank statement, and whilst requesting the Tribunal to contact the writer if it required clarification, this does not demonstrate one way or the other that the Tribunal did not properly consider the bank statement.  After all, it was apparent that even with the bank statement the accumulated funds did not meet the required criteria.  The appellant had been given ample opportunity to present all the material in support of his application before the Tribunal.

20                  I observe that the Federal Magistrate did conclude that:

It is clear that the tribunal only considered the first page of the bank statement in coming to its decision.

21                  But this seems to me to be inconsistent with paragraph 23 of his Honour’s reasoning, which is as follows:

There can be no question that the tribunal’s attention was drawn to the multi paged document in that the tribunal has referred to it, and set out a statement contained on the front of the document.  Whether the tribunal made an error in its reading of the document, or failed to carefully scrutinise the document as part of its processes is not apparent from the decision.  Indeed, the error of the tribunal is one with which [sic] most people would make given the very limited information buried in the document to indicate that it did not in fact ending [sic] on the date stated but began on that date.  Many a decision maker, even if drawn specifically to the line referred to above, in the absence of the passbook that was before me at the hearing of this matter, may be left in such a state of doubt as to find the evidence unreliable in any event.  Others may well have assumed that that line was not in fact a date but some other form of entry or code utilised by the bank.

22                  It appears to me that his Honour was providing his full reasons in relation to the bank statement at paragraph 23, in coming to the conclusion as to any error of the Tribunal.  In any event, having read the bank statement and the Tribunal decision, it appears to me that the Tribunal did properly consider the bank statement and undertake the required intellectual process in the Tribunal’s deliberations of it.

23                  In these circumstances, the Tribunal did engage in the appropriate assessment of the information contained in the bank statement and did look at or take notice of that material: see generally Muin v Refugee Review Tribunal (2002) 190 ALR 601 and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212]. 

24                  This is a case where the Tribunal simply made an error which may have been understandable in the circumstances in assessing a document.  Factual errors of this type would be within jurisdiction even if they were an error of law: see Minister for Immigration and Multicultural Affairs v Ex parte Cohen (2001) 177 ALR 473 at 481 at [35] per McHugh J; NAFL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 297 at [14] and SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43. 

25                  I am indebted to counsel for their submissions in this matter, particularly on some areas of law.  However, I do not need to deal with other issues raised in the proceeding, as in my view, the appellant fails at the threshold level. 

26                  I would, therefore, dismiss the appeal with costs, including reserved costs.

Associate:

Dated:         19 November 2007