FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2016] FCA 70

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Costs are reserved.

3.    The first respondent file and serve any submissions on which he relies in relation to the issue of costs on or before 4.00pm on 25 February 2016.

4.    The appellant file and serve any submissions on which she relies in relation to the issue of costs on or before 4.00pm on 10 March 2016.

5.    The first respondent file and serve any submissions in reply in relation to the issue of costs on or before 4.00pm on 17 March 2016.

6.    Subject to the parties communicating any objection filed as correspondence and served on or before 4.00pm on 18 March 2016, the issue of costs will be determined on the papers.

7.    The submissions referred to in orders 3 and 4 are not to exceed 5 pages in length, including any annexures, while the submissions in reply under order 5 are not to exceed 3 pages in length. All submissions are to be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). By its decision, the Tribunal refused to grant the appellant a Student (Temporary) (Class TU) (Subclass 572) visa (student visa) pursuant to the Migration Act 1958 (Cth) (the Act). The issues raised on appeal are whether the appellant was required to provide evidence of funds from an acceptable source as at the date of her visa application in accordance with the Migration Regulations 1994 (Cth) (the Regulations) and, if so, whether evidence was provided that complied with those requirements but was overlooked by the Tribunal.

2.    BACKGROUND

2.1    The visa application and decision of the Minister’s delegate

2    The appellant is a citizen of India. She arrived in Australia on 21 April 2009 on a student visa, and applied for a further student visa on 15 June 2011. The application was originally to study for a Certificate IV in Business and a Diploma of Management and confirmation of the applicant’s enrolment in the two courses was provided with the application.

3     On 22 June 2011, a delegate of the Minister (the delegate) requested by email evidence of sufficient funds to support the appellant’s proposed course of study in accordance with cl 572.223(2)(a) of Schedule 2 to the Regulations. Specifically, the appellant was required to demonstrate evidence of funds to cover expenses for the duration of the course of study totalling $26,048 which could be provided only by “eligible family members”. The letter also explained that “Applicants must demonstrate their funds have been held for at least 6 months immediately before the date of the application from an acceptable financial institution… If the funds are in the form of a fixed deposit, you are also required to demonstrate where the funds came from (i.e. the source of funds).” The appellant was given 28 days within which to respond to the request.

4    On 11 October 2011, the delegate refused the application for a further student visa on the ground that the evidence as to funds identified by the delegate in his letter had not been provided and the conditions in cl 572.223(2)(a) of the Regulations were therefore not satisfied.

2.2    The decision of the Tribunal on review

5    The appellant sought review of the delegate’s decision in the Tribunal by application dated 21 October 2011.

6    On or about 25 July 2014, the appellant received a letter inviting her to appear before the Tribunal. The delay of almost three years after the application for review was made is unexplained by the evidence. The letter specified that the hearing was to be heard on 28 August 2014 and asked the appellant to provide certain information “so that a decision can be made as quickly as possible”. The appellant was asked to provide evidence at least 7 days before the hearing of, among other things:

5. Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

•    evidence of fees of current or proposed course/s you have already paid, or still owe for past courses

•    evidence of funds from an acceptable source

•    if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application

•    if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

•    evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you

•    evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given

7    In response to the above, the appellant provided a bundle of documents, including the following documents relevant to the financial requirements of Schedule 5A of the Regulations:

•    A “personal assessment” on Canada Trust letterhead, for Ranbir Boparai, showing net worth of $36,877.93 [Canadian dollars]. The footer of the document bears a date of “6/11/2011”.

•    Evidence of income for Ranbir Boparai and for Amandeep Singh Boparai for the 2010 tax year.

•    An affidavit of financial support, dated 9 June 2011, signed by Ranbir Boparai and for Amandeep Singh Boparai. They state that they are permanent residents of Canada, that the applicant is their “sister/sister-in-law” and they state their combined annual income.

8    The appellant also wrote to the Tribunal on 27 August 2014, the day before the hearing, stating that she had sent the Tribunal her “old funds” and was waiting for “new funds” from India. The appellant explained that her mother was sending the documents but they were late due to “some holidays over there”.

9    The courses to which the application for a student visa originally related had been completed by the appellant when the Tribunal undertook its review. The Tribunal found that she was currently enrolled in an Advanced Diploma of Marketing as her principal course which was to commence on 27 October 2014 and cease on 25 October 2015, and her application was considered by the Tribunal by reference to the requirements of that course.

10    On 28 August 2014 the appellant appeared before the Tribunal with the assistance of an interpreter fluent in English and Punjabi. At the hearing before the Tribunal, the central issue appears to have been whether the appellant had demonstrated that she had funds from an acceptable source to support her studies in Australia or would be able to provide proof of such funds within a reasonable period of time, as the Court below held at [23]. In this respect, the Tribunal’s reasons record that:

13    On the basis of the COE for the Advanced Diploma of Marketing, the Tribunal calculated that the applicant is required to give evidence that she has funds from an acceptable source in the amount of AUD 35,400.

14.    The Tribunal explained that the applicant is required to give evidence for that amount and, if relying on a money deposit, must also show that an acceptable individual has held those funds for at least the six months immediately before the date of the application. The Tribunal said, in her case, the applicant must show that the relevant funds were held since at least 15 December 2010.

15.    The Tribunal said the applicant had not yet provided evidence to satisfy the financial requirements of Schedule 5A and asked her why she had not done so, given that she lodged the review application on 21 October 2011.

(Emphasis added.)

11    In response to a request by the appellant, the Tribunal allowed her additional time until 9 September 2014 to show evidence of the relevant amount of funds and that the funds have been held since at least 15 December 2010.

12    On 9 September 2014, the appellant provided by email a number of documents as to her funds (see below at [27]).

13    On 10 September 2014, the Tribunal affirmed the decision of the delegate.

14    The Tribunal found first, that as the appellant was currently enrolled in an Advanced Diploma of Marketing as her principal course, the subclass that may be granted was Subclass 572 and that she must, therefore, meet the requirements in clause 572.223. Clause 572.223 of Schedule 2 of the Regulations relevantly provided that:

(1)    The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

(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 requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

….

(iii)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity;…

15    Secondly, “assessment level” is defined in r 1.03 of the Regulations, to mean the level of assessment, specified by the Minister for a kind of passport. Where the applicant is undertaking two or more registered courses of study, the “highest level assessment” as defined also in r 1.03 is relevantly the highest assessment level for those courses. The Tribunal found that, as the holder of a passport of India, the assessment level and highest assessment level for the appellant was assessment level 4. There is no challenge to that finding.

16    Thirdly the evidentiary requirements for assessment level 4 for subclass 572 included relevantly under clause 5A405(1) of Division 2 of Part 6 of Schedule 5A to the Regulations the following:

(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 36 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 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;…

(Emphasis added.)

17     In turn, “funds from an acceptable source” is defined in cl 5A405(2) which relevantly states that the phrase “means one or more of the following”, relevantly:

… a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application;

18    As put to the appellant at the hearing, the Tribunal found that the appellant was required to provide evidence of more than $35,400 of funds (being comprised of living expenses to 15 March 2016 of $27,900, course fees of $6000 and travel costs) as at 15 December 2010, being 6 months before she made her student visa application. The Tribunal found that that sum was equivalent to about INR1,981,549.

19    However, the Tribunal found that the appellant had not given any financial evidence to the Department or Tribunal of any funds held by an acceptable individual since 15 December 2010, with the only financial evidence relating to 2010 being the income of the appellant’s sister and brother-in-law during that year. Accordingly, the Tribunal found that the evidence of funds provided by the appellant did not satisfy cl 572.223 of Schedule 2 of the Regulations.

2.3    The application for judicial review in the Court below

20    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The application identified as the ground for review that:

1.    Review of Tribunal decision. I am not satisfied with it.

2.    She did not considered all the points to make decision.

3.    I am full time student from 2011 to present. My new course going to start on 27th of October. I need student visa which is refused by Tribunal for not valid Reasons. I need to know why it’s not acceptable to give me for student valid visa. I am living in Australia from 5 and half years to present. I fill my Tax, I am part-time worker and full-time student. I will be very thankfull if you review the decision made by the Tribunal.

(Errors in the original)

21    The Court below explained at [17]-[19] that the Court does not have jurisdiction to rehear the matter and can only interfere with the decision of the Tribunal where it has fallen into jurisdictional error being a category of legal error. In general terms, as his Honour held,:

… an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.

22    On 5 November 2015, the primary judge held that the Tribunal correctly applied the relevant legal considerations, that the findings of fact made by the Tribunal were clearly open to it and were not unreasonable or irrational, and that it was not the function of the Court on review to look behind such findings of fact. Accordingly, his Honour dismissed the application with costs.

2.4    Grounds of the appeal to this Court

23    On 19 November 2015 the appellant applied to this Court appealing the whole of the judgment and orders of the Federal Circuit Court. The appellant seeks to quash the decisions of the Tribunal and the Court below on the following grounds:

….

2.    There is jurdictional error in the tribunals judgment.

3.    Tribunal made many errors in its decision. Tribunal clearly failed to put weight on the financial documents supplied by myself moreover it failed to understand the clause in migration act. I had a hearing in year 2014 and I had applied for student vis ain 2010. When I applied for student visa I had different COE and I supplied funds for that. Now immigration wants students not just to show funds but use them for their Australian studies as well. I used the funds which were provided to immigration at the time of visa application. Now during MRT hearing in year 2014 I had different COE as I had completed the study which was provided at time of visa application. Now that I showed funds for my previous COE was used by myself so I showed different funds for the new COE. Tribunal interpreted the law in wrong way or law in itself is not serving it purpose. How can one show 5 years old funds. Department wants us to use the funds and if we use it then how can we show it. Law is not serving its purpose or tribunal has interpreted it wrongly. Moreover My mother had fixed deposit which was renewed every 2 years at the maturity date. tribunal failed to realise the fact that the FIXED DEPOSIT is going on since 2008 though its renewed after every 2 years but still funds are available sine 2008 which was two year before visa application. Immigration and TRIBUNAL JUST CONSIERED THE NEW date of FD renewal but failed see the sequence that is valid since 2008.

(Errors in original.)

24    In effect, the appellant raised two issues: first, whether the Tribunal was correct to determine her review on the basis that she must demonstrate the existence of funds “from an acceptable source” as at 15 December 2010; and secondly, whether the Tribunal failed to consider evidence in any event that that requirement was met. Neither of these issues were addressed by the Court below and they do not appear to have been raised at least in the application for judicial review. Very properly, however, no objection was raised to the grounds of appeal by the Minister to the extent that they raised new issues.

3.    CONSIDERATION

25    I would emphasise at the outset that neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal’s decision to refuse to grant of a visa to the appellant. The jurisdiction of the Federal Circuit Court is limited to considering only the legality of the Tribunal’s decision to refuse to grant the appellant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, I am equally constrained from embarking upon a consideration of whether on the evidence the appellant meets the requirements for the grant of a student visa.

26    With respect to the first issue raised on the appeal, it will be recalled that the appellant had completed the original courses of study to which her application related at the time of the Tribunal hearing but did not make a fresh visa application (assuming it was open to her to do so) for the Advanced Diploma in Marketing which she then wished to undertake. Nonetheless she had to satisfy the requirement of demonstrating the existence of sufficient “funds from an acceptable source” which, by reason of the definition of that phrase in cl 5A405(2)(aa), must constitute a money deposit held for “at least the 6 months immediately before the date of the application” (emphasis added). In this case, that meant proof of a money deposit in the required amount as at 15 December 2010, the application having been made on 15 June 2011. Understandably the appellant took issue with the relevance of demonstrating the existence of sufficient funds from this date, notwithstanding that she was now enrolled in a different course due to commence in October 2014. Not surprisingly, her circumstances had changed during the period of the Tribunal’s lengthy and unexplained delay in determining her application for review. Nor with respect can it be said that the Tribunal’s reasons explained this point with clarity in which case it may have been the case that this application would not have been made. That notwithstanding, it remains the case that the Tribunal was correct to consider whether this criterion was met by reference to the date of her original application for a visa.

27    As to the second issue, the Tribunal described the documents provided by the appellant on 9 September 2014 in the following terms:

(a)     A term deposit advice from Karur Vysya Bank, for Rs1,000,000 held in the name of the applicant’s mother. The date of deposit is 8 September 2014, the period is 46 days and the maturity date is 24 October 2014.

(b)     A confirmation of deposit from Punjab National Bank, for the amount of Rs1,300,000 held by the applicant’s mother. The funds were lodged on 21 October 2012 for a period of 12 months, maturing on 21 October 2013.

(c)     A letter, dated 6 September 2014, from Punjab National Bank, stating that, on maturity of the above mentioned fixed deposit, the principal plus interest (INR1,427,970) were lodged in a fixed deposit for a further period of 12 months, maturing on 21 October 2014.

(d)     Her mother’s identification card and an affidavit of financial support.

(e)     A bank statement for an account held by the applicant’s mother at Bank of Baroda. The statement is for the period 1 August 2013 to 16 August 2014.

28    The appellant submitted that in so finding, the Tribunal overlooked the second paragraph of the letter dated 6 September 2014 from the Punjab National Bank which further stated on the question of funds that:

The previous detail of above FDR was from 21/10/212 [sic] to 21/10/2013 with amount of Rs. 13,00,000.00 [sic] and maturity amount was Rs. 14,27,970.00 [sic]. This FDR is renewd [sic] as on 21/10/2012 and starting date is 21/10/2008

(Emphasis added.)

29    In the appellant’s submission there was, therefore, evidence as to the existence of funds as at 15 December 2010 and the Tribunal erred in failing to take that into account.

30    While no express reference is made to that evidence by the Tribunal and its reasons, the Minister correctly submits that that does not reveal jurisdictional error. As the Minister submitted, the requirements of cl 5A405(1) of Division 2 of Part 6 of Schedule 5A to the Regulations are mandatory in the sense that unless those criteria are met, the Minister (or Tribunal standing in the Minister’s shoes) cannot grant the visa. This is apparent from the use of the word “must” in the umbrella paragraph to the clause. I also agree that the meaning of “from an acceptable source” in cl 5A405(1) is exhaustively defined by subclause (2), as is apparent form the use of the word “means” in the definition. As such, unless the appellant could satisfy this requirement as defined, her application for a student visa could not succeed. No error of law is therefore apparent in the Tribunal’s finding at [32] that:

As the applicant has provided evidence of money deposits, and she has not successfully completed at least 75% of her principal course, she is required to give evidence that an acceptable individual has held the required amount since at least six months immediately before the date of application. As the visa application was lodged on 15 June 2011, she must give evidence that the funds were held since at least 15 December 2010.

31    However, the Tribunal found that the appellant had not put any evidence before the Tribunal of the requisite level of funds as at 6 months before the visa application was made. That finding was plainly correct, as the Minister submitted. In this regard, even adopting the most favourable inference to the appellant, the letter from the Bank could only be read as indicating that funds in the sum of INR 1,300,000.00 were held, as opposed to funds in the sum of $AUD35,400 (i.e, INR 1,981,549) which the Tribunal found must be shown.

4.    CONCLUSION

32    For these reasons the appeal must be dismissed. I will reserve the question of costs in order to give the parties the opportunity to be heard having regard to these reasons.

Associate:

Dated:    11 February 2016