FEDERAL COURT OF AUSTRALIA

Kamal v Minister for Immigration and Border Protection [2016] FCA 326

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the costs of the first respondent to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    The appellant, Mr M M Ashiqur Rahman Kamal, is a male citizen of Bangladesh who first arrived in Australia in July 2007 on a student visa.

2    On 8 March 2013, Mr Kamal applied for a student (temporary) (class TU) subclass 572 visa.

3    By email dated 19 April 2013, the former Department of Immigration and Citizenship, now the Department of Immigration and Border Protection, requested Mr Kamal provide, amongst other things:

Evidence that you have sufficient funds to support yourself and all family unit members to meet the total costs of your proposed study and stay, and that those funds have been held for 3 months prior to the date of application lodgment…

If your funds are provided by any other person, you are required to also include:

a signed letter from that person; and

evidence of your family tie…

4    An attachment to that email specified that evidence of funds could constitute copies of relevant bank account statements held by, or evidence of a loan from a financial institution to, “you, your spouse, parents, grandparents, brother, sister, aunt or uncle”.

5    In response to this request, Mr Kamal provided an officer of the Department, by emails dated 13 May 2013, with various documents evidencing his access to funds held by his sister-in-law.

6    On 21 January 2014, a delegate of the Minister for Immigration and Border Protection refused Mr Kamal’s application for a student visa. The delegate found Mr Kamal failed to provide evidence of the required amount of funds, being $50,700, from an “acceptable individual” as defined in cl 5A405(2) of the Migration Regulations 1994 (Cth) as they applied.

7    On 25 February 2014, Mr Kamal sought review of this decision before the former Migration Review Tribunal, now the Administrative Appeals Tribunal. For the reasons outlined below, the Tribunal affirmed the decision of the delegate on 8 December 2014 applying the relevant time of decision criteria.

8    The Federal Circuit Court of Australia dismissed Mr Kamal’s subsequent application for judicial review of the Tribunal’s decision on 28 October 2015. See Kamal v Minister for Immigration & Anor [2015] FCCA 3136, discussed below.

9    Mr Kamal now appeals to this Court from the Federal Circuit Court’s decision by way of a notice of appeal filed 17 November 2015. As explained further below, Mr Kamal failed, prior to the hearing of the appeal, to identify any relevant grounds of appeal.

the tribunal’s decision

10    By letter dated 3 September 2014, the Tribunal invited Mr Kamal to appear before it at a hearing on 6 October 2014 and requested that he provide, among other things, document(s) showing:

(1)    he was currently enrolled, or had an offer to enrol, in a course required for the grant of a student visa; and

(2)    he had sufficient funds, or access to funds, to pay course fees, living costs and travel costs, including evidence of funds from an acceptable source.

11    At the hearing on 6 October 2014, Mr Kamal indicated he was not enrolled in a course and asked for time to provide evidence of enrolment and evidence regarding the requirements in Sch 5A of the Regulations. The Tribunal gave him until 15 October 2014 to do so.

12    On 17 October 2014, Mr Kamal provided two affidavits as evidence that he was enrolled in a Diploma of Management at Stanley International College commencing 13 October 2014, and that he had access to his brother’s bank account, which had the highest balance of $10,064 during the period of 1 August 2014 to 29 August 2014.

13    The Tribunal found Mr Kamal was required to demonstrate financial capacity to meet $13,403 in expenses. This included outstanding course fees of $6,200, living costs for four months of $6,203 and $1,000 in travel costs. In doing so, the Tribunal applied the relevant time of decision criteria under cl 572.223 of the Regulations and corresponding financial capacity requirements of Sch 5A Part 4 cl 5A405.

14    The Tribunal further found that Mr Kamal’s evidence of financial capacity, being the second affidavit at [12] above, was deficient due to the following:

(1)    it was not sufficient in amount;

(2)    it did not show that Mr Kamal’s brother had held the relevant funds for at least three months prior to the date of Mr Kamal’s student visa application; and

(3)    it was not evidence of regular income of Mr Kamal’s brother.

15    Consequently, the Tribunal held that Mr Kamal did not satisfy the requirements of cl 5A405 of Sch 5A of the Regulations, despite his argument that his actual living expenses were less and was therefore not a “genuine applicant for entry and stay as a student” under cl 572.223.

judicial review in the federal circuit court of australia

16    On 5 January 2015, Mr Kamal sought judicial review of this decision on the solitary and unparticularised basis that the Tribunal did not consider the evidence.

17    In his oral submissions at the hearing on 28 October 2015, Mr Kamal asserted that the Tribunal miscalculated the amount required in respect to financial capacity. In particular, he said the living costs of $6,203 were wrong in circumstances where he was living with his brother and sister-in-law, and his brother would pay for all of Mr Kamal’s living expenses.

18    The primary judge held that this ground did not succeed as the living expenses of which Mr Kamal was required to give evidence in order to satisfy the criteria for the grant of a visa were not necessarily his actual living expenses. Instead, living expenses were defined in Sch 5A of the Regulations as the amount specified in instrument IMMI 12/054, on which the delegate’s decision was based.

19    In any event, the primary judge held there were alternative bases for the Tribunal’s decision. Namely, Mr Kamal’s evidence of the amount in his brother’s bank account during the period of 1 August 2014 to 29 August 2014 had no rational connection to the three months immediately prior to the date of his student visa application, being January to March 2013. Further, there was no evidence of the regular income of his brother.

20    Consequently, the primary judge found there was no jurisdictional error in the Tribunal’s decision and dismissed Mr Kamal’s application.

appeal to this court

21    Mr Kamal now appeals from the decision of the Federal Circuit Court. His notice of appeal filed 17 November 2015 does not contain any grounds of appeal but states, “Decision is not published yet when will get my copy I will bring my grounds”.

22    On 19 February 2016, the Court requested that Mr Kamal file his grounds of appeal as soon as possible.

23    By email dated 22 February 2016, Mr Kamal requested the hearing listed on 2 March 2016 be adjourned to 1 April 2016 due to family illness. The Court granted Mr Kamal’s request for an adjournment on 23 February 2016 and requested that he file his grounds of appeal and outline of submissions on 27 February 2016. He did not do so.

24    In response to a further request of the Court to file his grounds of appeal on 15 March 2016, Mr Kamal again requested an adjournment, which was refused.

25    At the time of the hearing, Mr Kamal had not filed grounds of appeal or an outline of submissions. When he appeared at the hearing, he, in effect, repeated his ground of grievance expressed to the Court below.

26    An appeal from the Federal Circuit Court, like an appeal from a single judge of the Federal Court, is an appeal by way of re-hearing. See George v Deputy Commissioner of Taxation and Another (2004) 212 ALR 495 at [11]; [2004] FCA 1433, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [75] (Gleeson CJ and Gummow J); [2001] HCA 17. On such an appeal, the appeal court can only exercise its appellate powers if satisfied there was an error on the part of the primary judge. See Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 at [20]; [2007] FCAFC 170, citing Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [14] (Gleeson CJ, Gaudron and Hayne JJ); [2000] HCA 47. Consequently, a notice of appeal to this Court against a Federal Circuit Court decision must identify an error allegedly committed by the Federal Circuit Court. See SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263 at [9]-[12]. As Mr Kamal has not filed any grounds of appeal identifying any error of the primary judge, the appeal should be dismissed by reason of Mr Kamal’s failure to state any alleged error in the reasoning of the Court below.

27    Notwithstanding the deficiency in the content of the notice of appeal, the Minister submits there is also nothing to indicate the Tribunal failed to properly assess the evidence put forward by Mr Kamal. I accept the Minister’s submission and consider the appeal should be dismissed on this substantive basis.

28    In this regard, despite clearly taking into account Mr Kamal’s further material, the Tribunal was not satisfied that the requirements of cl 5A405 of Sch 5A of the Regulations were met.

29    The weight to be given to Mr Kamal’s further material was plainly a matter for the Tribunal. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 280-282 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6. The Tribunal’s findings were open on the material before it and no error (let alone jurisdictional error) appears from the Tribunal’s treatment of Mr Kamal’s evidence.

30    Further, Mr Kamal was on notice, from the Department’s correspondence, the delegate’s decision and the Tribunal’s correspondence that he was required to provide sufficient evidence of his financial capacity, and the Tribunal advised him at the hearing on 6 October 2014, that he needed to meet the requirements of Sch 5A to the Regulations. He was given an opportunity to provide further material in this regard.

31    It follows that any allegation the Tribunal failed to properly conduct a review of the delegate’s decision is without foundation.

32    In circumstances where the Tribunal set out in, and attached to, its decision the relevant provisions of the Regulations and identified the relevant legislative instrument, there is no proper basis to consider that the Tribunal did other than correctly identify and apply those provisions and that legislative instruments.

33    Finally, nor is there anything to indicate that the Tribunal failed to accord Mr Kamal procedural fairness as required by Div 5 of Pt 5 of the Migration Act 1958 (Cth), or failed to carry out a review in accordance with the Act.

34    For these reasons the appeal should be dismissed with costs.

conclusion and orders

35    The appeal should be dismissed with costs.

Associate:

Dated:    1 April 2016