Ahmad v Minister for Immigration
[2014] FCCA 2965
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMAD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2965 |
| Catchwords: MIGRATION – Whether application by Tribunal of incorrect version of Migration Regulations gave rise to jurisdictional error – whether Tribunal failed to give applicant particulars of information pursuant to s.359AA – whether Tribunal exercised its powers under s.363(1)(b) unreasonably – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 36(1)(b), 359A, 3639(1)(b) Migration Regulations 1994, cl.572.223 Schedule 2, Schedule 5A, cl.5A405, cl5A405(2)(aa) |
| MZYFH v Minister for Immigration and Citizenship [2010] FCA 599 Minister for Immigration and Citizenship v Li [2013] HCA 18 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | HAFIZ AHMAD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1859 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 21 August 2014 |
| Date of Last Submission: | 21 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bowen |
| Solicitors for the Applicant: | RSG Lawyers |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The further amended application filed on 18 July 2014 is dismissed
The applicant pay the first respondent’s costs in the amount of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1859 of 2013
| HAFIZ AHMAD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Pakistan, applied for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made 8 October 2013, affirming a decision of a delegate of the first respondent (“the Minister”) dated 24 April 2012 refusing to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”).
The applicant’s further amended application specifies the grounds upon which judicial review as:
The decision of the second respondent is affected by an error of law in that:
A.The Tribunal in its decision referred to, relied upon and attached to its reasons Migration Regulations that were not operative at the relevant time of the decision; and
B.the Tribunal in its decision made an error in identifying the applicant as the holder of an Indian passport, rather than a Pakistan passport, which question was relevant to its consideration of the Migration Regulations;
C.the Tribunal’s decision was affected by jurisdictional error in that having chosen to give the applicant information orally at the hearing, the tribunal failed to comply with its obligations under section 359AA of the Migration Act 1958 (Cth); and
D.the Tribunal exercised its discretion under section363(1)(b) of the Migration Act 1958 (Cth) unreasonably such as to constitute jurisdictional error.
Background
The applicant applied for the visa on 15 March 2012 (CB1-13). In his application, the applicant stated that his place of birth was Pakistan, that he held an Indian passport, although he attached a copy of a Pakistan passport in his name (CB 8).
On 23 March 2012, the delegate of the Minister sent, by email, a request for more information (CB15-20). The email relevantly requested that the applicant provide the following documents:
“FINANCIAL REQUIREMENTS
Please provide evidence that you have sufficient funds to support yourself, and any family members (even if they are not currently in Australia and/or do not intend (sic) join you at a later date), for the 1st 24 months of your stay in Australia, or for the duration of your course of study, if that is less than 24 months. This includes:
$7650 Course Fess – Outstanding
$30,000 Living expenses (Principal Applicant) – 20 months
$1000 Available funds for return travel
$AUD38650 TOTAL
…………………………….
All applicants must demonstrate at least a 3 month saving history of their funds. The saving histories calculated for the 3 month period immediately before the lodgement of your application on 15 March 2012”.
The applicant was also asked to provide evidence that he met the English language requirements and that he held satisfactory health insurance. He was requested to provide this information within 28 days.
By email dated 20 April 2012, the applicant requested an extension of 7 days to provide his “finance documents.” (CB 21). Attached to that email were the results of an International English Language Testing System (IELTS), confirmation of enrolment certificates for two courses conducted by the Australian Institute of Technical Training, a Certificate IV in ESL and a Diploma of Management, and confirmation of private health cover (CB 28-31).
On 24 April 2012, the applicant was notified that his application for the visa had been refused on the grounds that the applicant did not meet the criteria prescribed in cl.572.223(2) to schedule 2 of the Migration Regulations 1994 (“the Regulations”) which provide that the applicant give the Minister evidence in accordance with the requirements mentioned in schedule 5A for the highest assessment level for the applicant. Specifically, the delegate found the applicant did not meet cl.5A404(b)(i) as the duration of the ELICOS course, the applicant had enrolled in was more than 20 weeks (the duration of the course the applicant had enrolled in was 26 weeks) and, because, the applicant had not provided documentation to satisfy the delegate that he met cl.5A405 - Financial Capacity (CB 43). A copy of the applicable provisions of the Regulations was included in the decision record.
On 3 May 2012, the applicant’s Migration Agent, applied on behalf of the applicant to the Tribunal for review of the delegate’s decision.
On 6 September 2013, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments (CB 81-87). The applicant was requested to provide information including a copy of his current Certificate of Enrolment (COE), evidence that he was currently enrolled in a course and had an offer of enrolment in a registered course, documents of past studies in Australia, an explanation of any gaps in his enrolments, evidence that he met the English language proficiency requirements, evidence that he had successfully completed secondary schooling to Year 12 level, and, financial documents. The request for financial documents was expressed as:
“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
o if you seek to rely on money deposit, you may need to show how long the deposit was held immediately before the date of your visa application
o if you have a loan secured against the money deposit, evidence of where the money deposit came from, and the loan must still the current
· evidence of the regular income of any person who is providing funds to you (including yourself), 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 being given.”
As noted by the applicant in his submissions, the Tribunal did not particularise the specific evidence required under the regulations nor, did it attach copies of the relevant regulations, namely cl.5A405 – Financial Capacity.
The applicant responded to the request for information, through his Migration Agent, providing:
a)Information recorded on PRISM of courses the applicant had been enrolled in and a COE certificate from Barkly International College for an Advanced Diploma of Management (CB 90 -93);
On 2 October 2013 the applicant’s Migration Agent sent a recent submission to the Tribunal which contained:
a)a written statement by the applicant (CB 111 - 113);
b)copies of bank statements in the name of Niamat Khan (the applicant’s father) over the period 2 May 2013 to 30 September 2013 (CB 114-116);
c)copies of financial documents with respect to Niamat Khan (CB 117-121), and affidavit of financial assistance from Niamat Khan to the applicant to enable him to “continue his studies in an uninterrupted manner” (CB 122);
d)copies of certificates of enrolment and completion in General English (to Upper Intermediate), certificate IV in Business and Certificate IV in Hospitality provided by Carrick Central Australian College. Confirmation of enrolments for the Advanced Diploma of Management at Barkly International College, Certificate IV in ESL by Barkly International College, evidence of secondary school completion in Pakistan (CB 124 -135);
e)copies of medical certificates issued in relation to Niamat Khan (CB 136 – 139);
f)copy of his passport issued in Pakistan (CB 140 -149).
In his written statement the applicant said that:
a)he was unable to submit the required financial documents as requested by the case officer within the given twenty-eight day time frame because of his father’s medical illness;
b)the gap in his studies was explained by reason of depression which followed the passing of his grandfather with whom he was very close and his diagnosis of right side sciatica.
The applicant and his Migration Agent attended the hearing of the Tribunal on 3 October 2013.
Tribunal decision
In its decision record, the Tribunal noted that the applicant was currently enrolled in an Advanced Diploma of Management as his principal course and, consequently, the relevant subclass visa that may be granted is Subclass 572. It stated that the issue to be determined was whether the applicant is a “genuine applicant for entry and stay as a student” having regard to the prescribed matters which were relevantly contained in cl.572.223, which it noted was extracted in an attachment to the decision (CB 152 [7]).
The Tribunal stated that to meet “this criterion”, the applicant must give evidence in accordance with the requirements set out in schedule 5A to the regulations for the highest assessment level to which the applicant is subject. It then set out those requirements in broad terms (CB 152[8]).
The Tribunal found that the applicant:
“holds a passport of India. The assessment level for a holder of such a passport for Subclass 572 (the subclass for (the applicant’s) principal course) is assessment level 4:IMMI 11/01.” (CB153 [10]).
The Tribunal then recorded the evidentiary requirements the applicant was required to meet for the purpose of a subclass 572 visa. Part 4 of Schedule 5A (including the financial capacity requirements in 5A405) were extracted in an attachment to the decision (CB 153 [11]).
The Tribunal noted that there were two reasons for the primary decision maker’s refusal to grant him a visa. These were the duration of the ELICOS course and his failure to provide evidence of funds.
The Tribunal noted that the applicant stated he had changed to an ELICOS course of acceptable duration. The Tribunal referred to the submissions received by it from the Migration Agent on behalf the applicant. The Tribunal stated at [16] – [19]:
“16. The submission included a statement from (the applicant) in which he stated that complications with his father’s diabetes had caused a delay in submitting financial evidence at the time of his visa application which was clearly out of his control.
17. He stated there was a gap in his studies caused by the onset of depression as a result of the death of his grandfather and his diagnosis with sciatica.
18. When asked to detail the relevance of the documents presented, he said it was evidence of previous studies including one showing he had completed about 50% of the Certificate IV in Hospitality and about 90% of a Certificate IV in Business.
19. Also included was financial evidence including a bank statement in the name of his father. (The applicant) said he believed he needed to show access to approximately $18,000. The Tribunal told (the applicant) it had two specific concerns regarding the financial evidence provided. The first was that if evidence was to be in the form of money deposit the regulations required that the evidence must show a deposit held for a period of six months immediately before the date of the application. The application had been made on 15 March 2012, yet the evidence provided was for the period 2 May 2013 to 30 September 2013 which meant it was not the relevant period and therefore did not satisfy the requirements. Additionally, during the period shown, the balance of the account had fallen to 49,301 Pakistani Rupees, equivalent to only approximately $500 and therefore not an adequate sum to satisfy the regulations. (The applicant) responded that what he had provided was a current account from which funds were withdrawn to meet various expenses and the closing balance was 1,858,743, the equivalent of $18,000.” (my emphasis).
The Tribunal noted that it discussed with the applicant his study history in Australia. The Tribunal stated that in response to a question from it, the applicant said he had nothing further to add and the hearing was concluded. It noted that at the date of the decision the Tribunal had received no further evidence of submissions from the applicant.
The Tribunal concluded that (CB 154 [23]):
“23. On the basis of the above, (the applicant) has not given evidence in accordance with schedule 5A requirements for subclass 572 and assessment level IV, and therefore does not satisfy cl.572.223(2)(a)(i).”
The Tribunal consequently found that the criteria for the grant of a subclass 572 visa was not met and that there was no evidence the applicant was eligible to be granted a student visa of another subclass. It, therefore, affirmed the decision under review (CB 154 [24]).
Submissions
Applicant’s submissions
With respect to Ground A, the applicant submits that the criteria in
cl.572.223 are “time of decision” criteria and that during the relevant period – from the time the applicant made his application on 15 March 2012 and the Tribunal decision on 8 October 2013, the version of regulation 5A405 attached to the Tribunal’s decision record and relied upon by the Tribunal was not in force. The applicant argues that, as a result of the Tribunal applying the wrong regulation, it took into account irrelevant considerations and failed to fulfil the task required.
The applicant submits:
“[14] The Second Respondent thus did not assess the applicant’s claims and supporting evidence against the correct criteria in the Migration Regulations. This is the basis for Ground A, that the decision of the Second Respondent is affected by an error of law in that the Second Respondent in its decision referred to, relied upon and attached to its reasons Migration Regulations that were not operative at the relevant time of decision.
[15] In the applicant’s submission, this error alone is sufficient to establish jurisdictional error and should lead to the remittal of the matter. However, there is more to say about the manner in which the Second Respondent’s reliance on the wrong Regulations has a material effect on the applicant’s application.
[16] The most notable differences between the correct Regulations and those attached to the decision of the Second Respondent relate to timeframes . The following differences exist:
Section of Schedule 5A Correct regulation Regulation attached to
decision
Clause 5A405(1)(a) 24 months 36 months
Clause 5A405(1)(aa) 24 months 36 months
Clause 5A405(2) funds 3 months 6 months
from an acceptable source (aa)
[17] The timeframes outlined in the Regulations attached to the Second Respondent’s decision have not been in force since well before the applicant made his application for the Subclass 572 visa. They were not in force at the time of decision.
[18] In its Statement of Reasons, the Second Respondent states:
[19] Mr Ahmad said he believed he needed to show access to approximately $18,000. The Tribunal told Mr Ahmad it had two specific concerns regarding the financial evidence provided. The first that was if evidence was to be in the form of a money deposit the regulations required that the evidence must show a deposit held for a period of 6 months immediately before the application.
[19] This timeframe is out of date, and the Tribunal has clearly erred in law both in its communication of its concerns to the applicant, as well as its consideration of the substance of the applicant’s application. The timeframe relevant to the applicant according to the regulations that were in force both at the time of the initial decision and the Second Respondent’s decision is 3 months. The Tribunal cannot accurately have assessed and considered the evidence given by the applicant in support of his application.
[20] The Second Respondent states:
[23] On the basis of the above, Mr Ahmad has not given evidence in accordance with the Schedule 5A requirements for Subclass 572 and assessment level 4, and therefore does not satisfy cl 572.223(2)(a)(i).
[21] It is on the basis, among others, that the Second Respondent affirmed the decision under review. Doing so in reliance on Regulations that were out of date constitutes jurisdictional error. The Second Respondent’s decision should be quashed.”
The applicant submits that the difference in the version of the Regulations relied on and the applicable version of the Regulations was substantive and significant, not merely technical.
In oral submissions, the applicant put his argument in this way.
Clause 572.22 to the Regulations sets out the criteria to be met at the time of decision and includes at Reg 572.223(1) that the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because…. There is then listed a number of requirements, including in subsection 2A(1), Reg 5A. Thus, he argues, the requirements in Reg. 5A are to be construed as those which must be satisfied at the time of the Tribunal’s decision. The evidence produced by the applicant related to the period 2 May 2013 to 30 September 2013 (CB 114 -116), which was evidence the Tribunal ought to have considered, as it related to a period three months before the Tribunal decision. He notes that the Tribunal (at CB154) did consider the evidence and observed that the balance in the bank account of the applicant’s father fell to an amount equivalent to $500.00. The applicant submits that the balance at 30 September 2013 was considerably higher and that consequently, had the Tribunal applied the correct regulation and relevant time period it may have found that the applicant satisifed the financial criteria. However, because it failed to apply the correct version of the regulations and failed to apply the time of decision criteria it fell into jurisdictional error.
With respect to Ground B, the applicant submits that:
“[22]Further, at paragraph [10] of its Statement of Reasons, the Second Respondent misidentified the applicant as the holder of an Indian passport, rather than a Pakistani passport. The applicant’s country of origin is the primary factor in the determination of the applicant’s ‘assessment level’. The assessment level then dictates the criteria that must be met, and the evidence that must be provided, in order for there to be any prospect of a successful application for the visa.
……
[25] The Second Respondent’s error in identifying the applicant as the holder of an Indian passport rather than a Pakistani passport is not a simple error or fact; it is an error that goes to the standard of evidence required to be established by the applicant before his application can be considered. For this reason, this error is an error of law and should lead to the decision of the Second Respondent being overturned.”
With respect to Ground C, the applicant in his written submission refers to the transcript of the Tribunal hearing annexed (“JCH – 1”) to the affidavit of Charles Hutton affirmed on 6 May 2012. He submits that:
[14] The bank statements dated 01 January 2013 – 30 September 2013 faxed to the Tribunal on 02 October 2013 were considered by the Tribunal whereby the following observation was made;
“I’ve got two problems with this. The first problem that I have is what is required - if what we’re going to do is to show a cash deposit as it said in the letter that was sent to you - if you seek to rely on the money deposit you may need to show how long the deposit was held immediately before the date of your visa application. Now this visa application was made back in whatever - March 2012 so (a) this is for the period that’s not relevant, but is also shows that at one stage this account value dropped down to 69,000 rupees.’ [JCH-1 page 7]
[15] Under section 359AA(a) of the Act the Tribunal is not under an obligation to give the applicant clear particulars of any information that it considers would be the reason, or part of the reason for affirming the decision under the review. However once the Tribunal exercises it power under section 359AA(a) it is a mandatory requirement that the Tribunal comply with section 359AA(b).
[16] The applicant submits that the Tribunal exercised its discretion under section 359AA(a) and provided the applicant with particulars of information, namely that the Tribunal had formed the view that the bank statements covered an irrelevant period of time and that if the funds were in the form of a money deposit he ‘may’ need to show how long the deposit was held.
[17] Having chosen to give the applicant this adverse information orally at the hearing pursuant to section 359AA(a) of the Act, the Tribunal failed to advise the applicant with specific clarity why the information was relevant to the review and the consequences of the information being relied upon in affirming the decision under review. The Tribunal does not go on to inform the applicant what ‘(b)’ is in relation to the ‘two problems’ it identifies. The Tribunal also vaguely informs the applicant that he ‘may’ need to show how long the bank deposit was held. This is in breach of section 359AA(a) and section 359AA(b)(i) of the Act.
[18] Further, in breach of section 359AA(b)(iii) of the Act, at no point does the Tribunal inform the applicant that he may seek additional time to comment on or respond to the information. The applicant was therefore deprived of a meaningful opportunity to seek additional time to comment on or respond to it.”
The applicant relies on the decision of his Honour, Bromberg J in MZYFH v Minister for Immigration and Citizenship [2010] FCA 599 at [30]- [34] and [37] – [41].
With respect to Ground D, the applicant submits that the Tribunal has a variety of powers, in conducting a review, all of which must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63]-[65] and [86].
The applicant submits that the Tribunal’s failure to exercise its powers under s.359(1) to obtain information regarding financial matters or his enrolment in ELICOS course consistent with the regulations was unreasonable. Similarly the applicant submits that the failure of the Tribunal to adjourn proceedings to enable the applicant to provide further information with respect to financial matters or his enrolment in ELICOS course. The applicant puts his arguments in this way:
“[26] At the hearing, the applicant is specifically asked whether he has provided evidence that he has changed ELICOS courses in order to comply with the requirements. As highlighted in paragraph 11-13 herein, despite confirming that his ELICOS courses complies with the requirements, the applicant confirms that he has not provided evidence due to the Delegates refusal to extend the timeframe in which to supply the information. The Tribunal does not enquire whether he is able to provide the information and if so, afford the applicant a reasonable opportunity to do so. Hence the Tribunal gave no weight to the applicant’s need to present further evidence.
[27] Despite the Tribunal raising concern over the relevance of the bank statements provided by the applicant at no point does the Tribunal turn its mind to asking the applicant whether he does in fact have evidence to cover the relevant time period, which according to the Tribunal, was the date of the Delegates decision, Hence , the Tribunal does not seem to have even considered whether it should exercise its discretion to adjourn the matter for this evidence to be produced. The applicant was deprived of a reasonable opportunity to provide this information, information which the Tribunal had clearly determined was relevant to its decision.
[28] There is nothing in the transcript of the hearing or any other material to indicate that the Tribunal considered the applicant’s right to a meaningful opportunity to respond and whether an adjournment was reasonable in all the circumstances. This is particularly relevant as the applicant had provided a lengthy letter to the Tribunal explaining the reason for his inability to comply with the Delegates request for further information and the request for further time [CB 111-113]. Attached to this letter was medical evidence supporting the applicant’s assertion that his father, who was providing him with financial support, was very unwell at the time of the application [CB 136-138].
The applicant submits that it is clear from the transcript of the Tribunal hearing that the Tribunal raised with the applicant that the ELICOS course he had been enrolled in was 26 weeks, in excess of the 20 weeks provided by the regulations. The applicant notes that, at 3.25 of transcript, the applicant responded stating he had changed his course duration to 20 weeks, whereupon the Tribunal member asked him if he provided that to anyone. The applicant said “Yes”, whereupon the member said, “Who? Where is the evidence? Who did you provide that to.?” The applicant responded, “No. Sorry. Just before the refusal, so I just ask for a couple of days, so got an extension.”
The applicant submits that, despite the fact the applicant informed the Tribunal that he had enrolled in another course that fell within the 20 week maximum period, the Tribunal unreasonably failed to ask the applicant to provide such information and to adjourn the proceeding to enable the applicant to do so.
The applicant further complains that, although the applicant had provided evidence of previous study and some evidence of confirmation that the applicant had changed his enrolment (CB153 [13] to [15]), the Tribunal failed to consider whether the applicant met the English language requirements.
The Tribunal, the applicant argues, failed to exercise its powers reasonably, when it failed to adjourn the proceedings in the knowledge of the evidence produced and the applicant’s confirmation during the proceedings that he did in fact meet the criteria.
Minster’s Submissions
With respect to Ground A the Minister submits:
[22] There are two substantive differences between the correct version of cl5A405 of the Regulations at the time the Applicant applied for the visa and the incorrect version of cl.5A405 annexed to the Tribunal’s decision.
22.1 The first is the length of time in which a deposit must be held prior to an application for a visa for that deposit to be “funds from an acceptable source”. The correct version of the Regulations required the deposit to be held for 3 months prior to the application; the version annexed to the Tribunal decision stated that funds were required to be held for 6 months prior to the application.
22.2 The second difference is that under the correct Regulations, funds were required to be sufficient to meet expenses for “course fees”, “living costs”, “school costs” for 24 months. The Regulations annexed to the Tribunal decision require evidence that those expenses can be met for 36 months.
[23] In respect of the 3 month/6 month difference, he Minister submits that this is not relevant to the decision. The application for a visa was made on 15 March 2012. The bank statement was for the period 2 May 2013 to 30 September 2013 and covered a period after the Applicant applied for the visa. As the bank statement was from a period after the application, the Tribunal did not have to turn its mind to whether it showed evidence of a deposit for 3 months or 6 months prior to the application. This is reflected in the Tribunal’s statement at [19] that the bank statement was not for the relevant period.
[24] The Minister also submits that there is no evidence that the difference in the 24month/36 month period affected the decision or reasoning of the Tribunal. The Tribunal did not have to calculate the amount required to meet expenses for “course fees”, “living costs”, “school costs” for either 24 months or 36 months. The Tribunal noted a submission of the Applicant that he needed to show $18.000 (CB 153 at [19]). The Tribunal concluded that the financial evidence showed that the lowest amount in the bank account was 49,301 Pakistani Rupees or approximately $500 Australian Dollars and found that this was not an adequate sum to satisfy the Regulations (CB 154 at [19). The Tribunal did not determine, and nor did it have to determine, the amount required to be demonstrated. In any event the Minister submits that $500 would be insufficient to meet expenses for “course fees”, “living costs”, “school costs” for 24 months (on the figure expressed by the Applicant at hearing ($18,000), the figure expressed by the Applicant in his correspondence with the Tribunal ($16,859, see CB 118) or the figure calculated by the Department ($38,650, see CB 17)).
[25] The Applicant’s contention that the Tribunal cannot have accurately assessed and considered the evidence given by the Applicant in support of his application must fail.
[26] Finally, the Minister contends that the Tribunal member did not mislead the Applicant by stating that evidence of “funds from an acceptable source” had to show that a deposit was held for 6 months prior to the application for a visa. Although the Tribunal’s decision record says that the Tribunal made such a statement (CB 153 at [19]), a written transcription of the audio record of the hearing shows that the Tribunal made no such statement at hearing (Annexure “JCH-1” to the affidavit of Jonathon Charles Hutton made on 6 May 2014 at p 7 line 5 to p 8 line 42). There is no other evidence that there was an error in communication of the requirements of the Regulations to the Applicant. The Applicant would have been put on notice that any evidence of a deposit would have to show that funds were held prior to his application for a visa by virtue of correspondence from the Department (see CB 17) and the Tribunal (CB 83). The Delegate’s decision also annexed a copy of the correct definition of “funds from an acceptable source” (CB 57).”
The Minister submitted that the applicant’s oral submissions that all the requirements in Reg 5A405 are to be read as time of decision requirements is misconceived. This is because the relevant definition of “funds from an acceptable source” referred to in Reg 5A405(1)(a) located in 5A405(2)(aa) states “a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application.” This, the Minister submits, is an express reference to a period before the date of application not date of decision. The Minister argues that cl.572.22 is a time of decision criteria, however, it is a decision of time criteria that requires, expressly at 5A405(2)(aa), the funds (to cover a 24 month period of costs associated with study) is held by an acceptable individual three months prior to the application for the visa.
As the applicant clearly did not provide any evidence within the requisite time frame under 5A405(2)(aa), the Tribunal correctly held the applicant failed to meet the requirements under 5A405(2)(aa) as it applied, notwithstanding the Tribunal referred to and relied on an incorrect version of the regulations.
With respect to Ground B the Minister submits that:
“[27] The Minister contends that the Tribunal’s finding that the Applicant was the holder of an Indian passport when he in fact held a Pakistani passport in an errant finding of fact (Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1), which had no effect on the Tribunal’s ultimate decision or reasoning.
[28] At the time of the application for the visa, the instrument Student visa assessment levels (reg 1.41) – IMM 11/011 set out “assessment levels” for each subclass of student visa. Assessment levels were determined by the “eligible passport” held by an applicant. The Tribunal found that the Applicant held an Indian passport, and so was subject to assessment level 4. The Applicant held a Pakistani passport (CB 8). The assessment level for a Pakistani passport holder who applied for a Subclass 572 visa was also assessment level 4. The Minister submits that the reference to the Indian passport made no substantive difference to the Tribunal’s decision as the Applicant was subject to exactly the same assessment level.
[29] The Minister contends that a mistake in identifying the type of passport held by an Applicant will only result in jurisdictional error if it is clear that, as a result of the error, the Tribunal did not properly consider a claim of the Applicant (as occurred in SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63). As the correct assessment level was determined, there was no failure to consider a claim.”
With respect to Ground C, the Minister submits that:
“[6] The Minister contends that s.359AA was not engaged by the Tribunal giving “the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The Tribunal did not give any information. It merely gave its opinion on information already provided by the Applicant. This, as is explained further below, is not information covered by s. 359A (and so cannot be “information” for the purposes of s.359AA).
[7] Alternatively, the Minister submits that if the decision-maker or the Court is taken back to s.359A (as is suggested by the Applicant), the essential question is whether the Tribunal breached s.359A; the Minister submits that the Tribunal did not breach s.359A.
[8] The Applicant identifies the relevant “information” as the Tribunal’s opinion about certain documents provided by the Applicant (Applicant’s Further Submissions at [16]). The term “information” in
s.359A “does not encompass the Tribunal’s subjective appraisals, thought processes or determination” (see Tran v Minister for Immigration and Citizenship [2008] FCA 1826, citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [22].[9] If the Applicant submits that the relevant information was the bank statement itself, this argument cannot be made out. Section 359A does not apply to information “that the Applicant gave for the purposes of the application for review” (s. 359A(4)(b)).”
With respect to Ground D, the Minister submits that:
“[11]The Minister submits that the alleged failure of the Tribunal to adjourn the proceedings was not unreasonable. The gravamen of Minister of Immigration v Li [2013] HCA 18 (Li) (as cited by the Applicant) is that it was unreasonable for a Tribunal to refuse to adjourn the review where:
11.1 the applicant had made a request for an adjournment and had provided a coherent reason for the adjournment (see also Karki v Minister for Immigration [2013] FCCA 806);
11.2 although the applicant had been afforded opportunities provided the requisite evidence, the delay was not the fault of the applicant (per Hayne, Kiefel and Bell JJ at [83]); and
11.3 there were prospects that the applicant would obtain evidence which would favour the applicant (per Hayne, Kiefel and Bell JJ at [83]; per French CJ at [21]).
[12] This matter can be entirely distinguished from Li. The Applicant was informed of the requirement to provide financial evidence by email from the Department dated 22 March 2012 (CB 17) and by a letter from the Tribunal dated 6 September 2013 (CB 83). This matter is analogous to Singh v Minister for Immigration [2013] FCA 669, where Forest J distinguished Li on that basis that the Applicant had not taken steps required to obtain information which satisfied the relevant criteria.
[13] No request for an adjournment was put to the Tribunal, and there was no evidence that if an adjournment had been granted, the Applicant would have been able to provide further evidence that he met the financial criteria.
[14] The Minister submits therefore, that the Tribunal did not fail to adjourn the review in any unreasonable sense.
[15] The Applicant submits that the Tribunal should have adjourned the review to allow the applicant to provide evidence relating to his ELICOS (Applicant’s Further Submissions at [26]). The Minister contends that if the Tribunal considered that the Applicant had not provided relevant financial evidence and decided the matter on this basis, then there was no need to adjourn the review to allow the applicant time to provide some evidence which was not the focus of the review.
[16] If the Applicant is seeking to identify an error in the ‘primary decision’ (i.e. that the department did not afford the applicant sufficient time to provide information relating to the applicant’s ELICOS) then this Court cannot review such a decision (see s.476(2)(a) of the Migration Act 1958 (Cth)). Accordingly there can be no failure to adjourn the review on this basis.”
Consideration
Ground A
Under this ground the applicant claims:
“The Tribunal in its decision referred to, relied upon and attached to its reasons Migration Regulations that were not operative at the relevant times the decision.”
At the time of the Tribunal’s decision clause 572 of Schedule 2 to the Regulations specified the criteria to be met at time of decision for a subclass 752 visa commencing as follows:
572.22—Criteria to be satisfied at time of decision
572.221
(1) Unless, at the time of application, the applicant met the requirements of subclause 572.211(4), the applicant satisfies the criteria in clauses 572.222 to 572.234.
Cl 572.223 of Schedule 2 to the Regulations provided:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) 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.
Regulation 5A405 relevantly provided:
5A405 Financial capacity
(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.
(1A) If the applicant is:
(a) fully funded; or
(b) an applicant:
(i) who is not funded, wholly or partly, by:
(A) the Commonwealth Government, or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency; and
(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and
(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or
(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:
(i) a provincial or state government in a foreign country, with the written support of the government of that country; or
(ii) an organisation specified by the Minister in a Gazette Notice for this paragraph;
the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.
(2) In this clause:
acceptable individual means one or more of the following:
(a) the applicant;
(b) the applicant’s spouse or de facto partner;
(c) the applicant’s parents;
(d) the applicant’s grandparents;
(e) the applicant’s brothers and sisters;
(f) an uncle or aunt of the applicant who is:
(i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) usually resident in Australia.
financial support, from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full‑time;
(iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.
funds from an acceptable source means one or more of the following:
(a) if the applicant:
(i) has successfully completed at least 75% of the requirements for his or her principal course; and
(ii) has applied for the visa in order to complete the course; and
(iii) does not propose to undertake any further course;
a money deposit held by an acceptable individual;
(aa) if paragraph (a) does not apply—a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;
(b) financial support from:
(i) the applicant’s proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or
(v) a multilateral agency; or
(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or
(vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or
(viii) an acceptable non‑profit organisation;
(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;
(d) a loan from the government of the applicant’s home country.
There is no dispute that the Tribunal applied the incorrect version of Regualtion 5A405.
The applicant’s submission that the requirement under Reg 5A405(2)(aa) is to be construed such that the money deposit an acceptable individual has held is to be held for at least 3 months immediately prior the date of decision is to be rejected.
Clause 572.22 of Schedule 2 to the Regulations provides for criteria which must be met at the time of decision. The applicant must satisfy the criteria in clauses 572.222 to 572.234. Relevantly, for the purposes of this decision, cl. 572.223 provides that the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student , having regard to particular criteria including that the applicant provides the Minister with evidence in accordance with schedule 5A for the highest assessment level for the applicant. In this matter, as the applicant held a passport issued in Pakistan that level was assessment Level 4.
The financial capacity requirements specified in Reg 5A405 provided, amongst other things, that the applicant must give evidence that he has funds from an acceptable source that are sufficient to meet specified expenses (relating to study) for the first 24 months: 5A405(1)(a). Reg 5A405(2) sets out various definitions, including “funds from an acceptable source”. Given the applicant’s circumstances,
Reg 5A405(2)(aa) applied. This definition provides that the money deposit must have been held for at least 3 months immediately before the date of the application. It is to be presumed that the legislature, in the context of setting out prescribed requirements an applicant must meet at the time of decision, intended to introduce a requirement that the applicant must meet prior to his/her application for the visa. The requirement in Reg 5A405(2)(aa) is to be contrasted with the requirement in Reg 5A405(2)(aa) (the alternate meaning of funds from an acceptable source) which does not expressly require the applicant to have met the criteria immediately before the application. This alternative criteria clearly applies at the time of decision. The applicant’s proposed construction of 5A405(2)(aa) would render the words immediately before the date of the application otiose.
The applicant was required to satisfy the Tribunal that there was a money deposit held by an acceptable individual (in this case the applicant’s father) 3 months prior to the date of the application for the visa (15 March 2012) sufficient to cover, for a period of 24 months, course fees, living costs and school fees.
The version of the Regulations relied on by the Tribunal relevantly differed in that it required the applicant to satisfy the Tribunal that there was a money deposit held by an acceptable individual (in this case the applicant’s father) 6 months prior to the date of the application for the visa (15 March 2012) sufficient to cover, for a period of 36 months, cover course fees, living costs and school fees.
The Tribunal erred when it applied the wrong version of the Regulations.
However, I am not satisfied that this error gave rise to jurisdictional error. This is because, on the evidence before the Tribunal, monies held by his father on deposit over the period 2 May 2013 to 30 September 2013, could never have satisfied the Reg 5A405(2)(aa) under which he was required to provide financial information for the period being three months prior to the application (which was made on 15 March 2012).
The applicant has not made out jurisdictional error on this ground.
Ground B
Under this ground, the applicant claims:
“The Tribunal in its decision made an error in identifying the applicant as the holder of an Indian passport, rather than a Pakistan passport, which question was relevant to its consideration of the Migration Regulations”.
The Tribunal without doubt made a wrong finding of fact when it found that the applicant held an Indian passport. However this error assumes no significance to the course of the Tribunal’s’ decision making. This is because the relevance of the type of passport held was the determination of the assessment level for a holder of a passport for Subclass 572. The Tribunal held that, by reasons of instrument IMMI 11/01, the assessment level was Level 4.
Holders of both Indian and Pakistani passports fall under Level 4. The Tribunal’s error was of no consequence to the determination of the correct test.
The applicant has not made out jurisdictional error on this ground.
Ground C
Under this Ground, the applicant claims:
“the Tribunal’s decision was affected by jurisdictional error in that having chosen to give the applicant information orally at the hearing, the Tribunal failed to comply with its obligations under section 359AA of the Migration Act 1958 (Cth)”.
The answer to the applicant’s claims that the Tribunal failed to comply with s.359A by both failing to give clear particulars of information and by failing to advise of his entitlement to seek and adjournment to respond to such information is simple. It is that the “information” referred to in s.359A which the applicant claims that the Tribunal failed to give clear particulars of was, in reality, a discussion recorded in the transcript wherein the Tribunal raises with the applicant its concerns regarding the financial evidence he had provided to the Tribunal. This is not information within the meaning of s.359A.
In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 the High Court stated at [18] in respect of equivalent provisions applicable to reviews conducted by the Refugee Review Tribunal:
“Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”[1].
does not encompass the tribunal’s subjective appraisals, thought processes or determinations... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
[1] [2004] FCAFC 123; (2004) 206 ALR 471 at 476-477, citing Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196; (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs[2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCAFC 266; (2002) 124 FCR 276 at 282-284.
Consequently, this ground of judicial review is not made out.
As the obligation to inform the applicant of his entitlement to apply for an adjournment to consider the information is confined to information within the meaning of s.359A, for the reasons set out above, this ground of judicial review is not made out.
The applicant has not made out jurisdictional error on this ground.
Ground D
Under this Ground, the applicant claims:
“The Tribunal exercised its discretion under section 363(1)(b) of the Migration Act 1958 (Cth) unreasonably such as to constitute jurisdictional error”.
I am not satisfied that the Tribunal unreasonably exercised its jurisdiction under s.3639(1)(b) of the Act so as to constitute jurisdictional error.
I agree with the Minister that with respect to the provision of financial evidence the Tribunal did not act unreasonably. The applicant had been aware for some time about the requirement to provide financial information. He was informed (correctly) of the requirements by the Minister’s delegate in correspondence as early as 22 March 2012 (CB17). The transcript of the Tribunal hearing (T7.40) discloses the Tribunal’s concerns regarding the applicant’s financial evidence as follows:
“MEMBER: I’ve got two problems with this. The first problem that I have is that what is required – if what we’re going to do is to show a cash deposit as it said in the letter that was sent to you – if you seek to rely on the money deposit you may need to show how long the deposit was held immediately before the date of the visa application. Now, this visa application was made back in whatever – March 2012 – so (a) this is for a period that’s not relevant….”
Their member then went on to point out to the applicant that at one stage the account value had dropped to 69,000 rupees.
At the end of the hearing, the Tribunal member noted that the applicant had provided his evidence, and said this (T12.20):
“MEMBER: Right. All right. I will consider all the evidence before me before I make a decision in this matter. Is there anything further?”
“APPLICANT: No, sir. Everything there.”
I am satisfied that the applicant was on notice that the evidence he had provided by way of bank statements in the name of his father from 2 May 2013 to 30 September 2013 did not meet the criteria he was required to satisfy. He was given the opportunity by the Tribunal member to give further evidence and he declined to do so saying that everything was there.
In these circumstances I am not satisfied that the Tribunal, in failing to adjourn the review, exercised its powers under 363(1)(b) of the Act unreasonably.
In one sense it was unnecessary for the Tribunal to obtain further information regarding the applicants satisfaction or otherwise of
Reg 5A404 – English language proficiency-given that the applicant had failed to meet Reg 5A405(2)(aa). In any event, the tribunal drew the applicant’s attention to the requirements under Reg 5A404(b)(i) in the course of the hearing, the applicant stated he had enrolled in another cause which satisfied this requirement, he was given an opportunity by the Tribunal to provide this evidence and did not take advantage of this opportunity. In these circumstances I am not satisfied that the Tribunal, in failing to adjourn the review, exercised his powers under 363(1)(b) of the Act unreasonably.
The applicant has not made out jurisdictional error on this ground.
For the reasons set out in this judgement, I would dismiss the application for judicial review and order that the applicant pay the first respondents costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 19 December 2014
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