AMANDEEP v Minister for Immigration
[2020] FCCA 1425
•4 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMANDEEP v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1425 |
| Catchwords: MIGRATION – Student visa – where the applicant previously held a student visa – where applicant had undertaken several courses of study – applicable criteria – financial capacity – where evidence of financial capacity predated application by twelve months – where the applicant was asked to provide additional information to ascertain financial profile – where applicant invited to furnish more detailed financial information – where no information provided – criterion of financial capacity not satisfied – where classes of student visa amended with effect from 2016 – where amendments to regulation not retrospective – where applicable criteria not satisfied – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 474, 476 Migration Regulations 1994 (Cth), Sch.2, 5A, pt.573 Migration Legislation Amendment (2016 Measures No. 1) Regulations 2016. |
| Cases cited: Craig v South Australia (1995) 184 CLR 163Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | AMANDEEP |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2110 of 2016 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 13 May 2020 |
| Date of Last Submission: | 13 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 June 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor advocate for the First Respondent: | Mr. Coenraad van der Westhuizen |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 28 September 2016 be dismissed.
The applicant pay the costs of the first respondent fixed at $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2110 of 2016
| AMANDEEP |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 28 September 2016, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 31 August 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Student visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, I have concluded that, contrary to the applicant’s grounds of review, the Tribunal did consider the information and material contained in the file of the Department of Immigration in evaluating the merits of the application. Insofar as the applicant sought to engage certain new legislative provisions, I accept that they were not applicable to this visa application. Otherwise, this court has no jurisdiction to review the primary decision of a delegate of the Minister to refuse the visa application.
Background
The background to the application is common ground.
The applicant, a male citizen of India aged 29 years, first arrived in Australia in June 2013, holding an Indian passport expiring in 2024.
On 13 March 2015, the applicant made application for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (Student visa), being the application the subject of this proceeding. By his application, the applicant indicated that:
a)from 2008-2011, he had studied in the Punjab for a Bachelor of Arts, which undergraduate qualification he had completed;
b)in June-July 2013, he had studied at Victoria University;
c)from 2013-2014, he had undertaken a Masters of Accounting;
d)from January-May 2014 he had undertaken a certificate course in hospitality;
e)he sought to pursue a certificate course in commercial cookery;
f)he intended to depart Australia in March 2018.
Upon PRISMS records, for the period July 2013 – March 2016, the applicant had completed two courses and cancelled seven enrolments.
Although the applicant supplied a substantial number of documents with his application, on 13 March 2015 the Department issued a request for the provision of further information including evidence of his financial capacity and relationship to any relevant source of funds. The detail requested by the Department included evidence of access to funds such as current bank statements or certificates of deposit.
Relevantly, for the purposes of this application, on 20 April 2015 the applicant replied to that request by email advising that evidence of funds from his maternal uncle and father amounting to $30,000 was provided. Attached to the email was a document which bore no letterhead, addressed “To whom it may concern” dated 2 March 2015 certifying that a person (said to be the applicant’s father) had a balance maintained in his account of Rs530168 as at 31 March 2014; that is, some twelve months earlier than the date of the document.
Further, in response to the Department’s request for more information, the applicant stated that his academic capability was such that he opted for a lower level program of study in order to build a stronger base for future study.
Delegate’s Decision
On 1 May 2015, the delegate made a decision refusing to grant the visa. After identifying information which had been considered in setting out the criteria applicable to the visa application, the delegate concluded that the applicant did not satisfy:
a)the criteria for the visa, by reason that he had not supplied evidence satisfying the requirement of Sch 5A for his financial capacity of monetary deposits having been held for a period of three months immediately prior to the application; and
b)the primary or secondary criteria for a temporary visa, because he was not, amongst other things, enrolled in, and had not been offered a place in, a principal course of study at a relevant institution.
The delegate concluded that the applicant was not able to provide financial information that satisfied the conditions of the visa.
Tribunal Decision
On 19 May 2015, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 19 July 2016, the Tribunal notified the applicant that his hearing had been scheduled to take place on 9 August 2016 and he was invited to provide, ahead of that hearing, all documents on which he intended to rely. The Tribunal also provided the applicant with Direction No 53 which identified various matters which would be addressed by it in assessing whether the applicant satisfied the genuine temporary entrant criterion for his student visa application.
On 5 August 2016, the Tribunal made a further request of the applicant for the provision of information, including his financial capacity to meet the requirements of his course of study, and attached a copy of the relevant provisions of Sch 5A of the regulations.
The Tribunal conducted a hearing on 9 August 2016 which was attended by the applicant and was of some three hours duration.
On 31 August 2016, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a further student visa. In affirming that decision, the Tribunal provided a statement of reasons for doing so (Reasons).
The Tribunal identified that the delegate had refused the application because the applicant’s evidence did not satisfy the requirements prescribed by Sch 5A as required by cl 573.223(2)(a) of the regulations: [3]. The Tribunal identified those evidentiary requirements at [13] and concluded that, although the delegate’s decision made clear that the evidence supplied in relation to financial capacity had not been met and despite being notified of the need to address those deficiencies in his evidence “no further evidence has been received”: [14]-[25].
The Tribunal found that the applicant had not provided evidence which satisfied the requirements of Sch 5A and did not meet cl 573.223(2)(a): [26]-[27].
The Tribunal found that the criteria for the grant of a Subclass 573 visa were not met and affirmed the decision under review: [28]-[29].
Procedural History
On 28 September 2016, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application.
On 28 October 2016, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
On 29 March 2017, orders were made by consent regulating the preparation of the proceeding for trial including by affording opportunities to the applicant to file any amended application, further evidence and submissions. However, those opportunities were not taken.
Judicial review
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. Such a decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[5] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[5]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
As the applicant was self-represented before me, I have examined the materials on the court book, the decisions of each of the delegate and Tribunal and the application for judicial review. Although an interpreter was made available to the applicant, he did not require that assistance and made submissions on each of the issues which he sought to address.
In the body of his application, the applicant stated that he was not satisfied with the decisions of the Tribunal and the Department of Immigration and Border Protection. As to the former complaint, this may be understood as indicating the applicant’s unparticularised dissatisfaction with the decision. As to the latter complaint respecting the delegate’s decision, it is clear this court has no jurisdiction to conduct a review of a delegate’s decision to refuse the application.[7]
[7] Act, s 476(2)(a).
The applicant’s ‘claims’ as set out in the attachment to the application contained four grounds of review.
Ground 1 – failure to consider departmental file
Ground 1 reads:
The decision of Administrative Appeals Tribunal (AAT) is affected by jurisdictional error in that it decided the application without considering the information before it in relation to the application. The information before the Tribunal was the departmental file. The Tribunal should have at least considered the information before it. Not considering the information also amounts to denial of procedural fairness and denial of natural justice
This ground of review is without substance and it is readily apparent that the Tribunal did in fact consider the departmental file: see, eg, [19]-[21].
Ground 1 is rejected.
Grounds 2 & 4 – failure to consider applicable regulations
Ground 2 reads:
The decision of AAT is further affected by jurisdictional error in that they did not considered new regulations & policy related to Visa subclass 500 (Student Visa) which come in effect from 1st July 2016. There is no restriction in terms of who can provide financial support.
The applicant set out beneath this ground of review an extract of an instrument dated 29 April 2016 (IMMI 16/018), relating to the evidence required as to financial capacity for Subclass 500 (Student) visas.
Ground 4 reads:
That [the Tribunal] has made jurisdictional error not to implement new regulation pertaining to subclass 500.
In substance, the applicant complains that the merits review of his visa application was evaluated without regard to the applicable criteria.
The applicant had applied for a Higher Education Sector (Subclass 573) visa. It is clear that the delegate assessed the applicant against the criteria for a Subclass 573 visa and that this was refused because the applicant had not provided evidence in accordance with the requirements in Sch 5A, as required by clause 573.223(2)(a). The issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student, having regard to the prescribed matters.
The primary criteria for a Subclass 573 visa were set out in Pt 573 of
Sch 2 to the Regulations. There were some recent amendments made to the Regulations by the Migration Legislation Amendment (2016 Measures No. 1) Regulations 2016 (Amending Regulation), including the repeal of Part 573 of Sch 2 to the Regulations (Sch 4, item 32):
5404 Operation of Schedule 4
(1) The amendments of these Regulations made by Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (other than items 44, 48 and 49 of that Schedule) apply in relation to an application for a visa made on or after 1 July 2016. (emphasis added)
By Item 5404 above, the amendments made to Sch 4 of the Regulations commenced on 1 July 2016. The transitional provisions to the Amending Regulation make clear that the amendments made by Sch 4 apply in relation to an application for a visa made on or after 1 July 2016.
Applied to the present case, the visa application had been lodged on 13 March 2015. In the result, the Amending Regulation, which did not have retrospective effect, operated only upon applications made from 1 July 2016 and did not apply to the present application: Pyaneeandee v Minister for Immigration and Border Protection.[8]
[8] [2017] FCCA 861, [57]-[59] (Nicholls J).
As the visa application in the present case was made on 13 March 2015, the applicant was accordingly required to satisfy the primary criteria set out in Part 573 of Sch 2 to the Regulations.
The Tribunal correctly assessed the applicant against the criteria for a Subclass 573 visa and was not required to assess the application under the new student visa criteria where the Amending Regulation applied.
Grounds 2 and 4 are rejected.
Ground 3 – applicable criteria
Ground 3 reads:
That I have genuine excess to the funds ($29810) required for course fees, living costs, school costs and travel costs and have all documents related to the funds.
Insofar as the Amending Regulation applied to applications made on or after 1 July 2016, the criteria in Sch 5A continued to apply to applications that had been lodged before that date.
By their combined operation, cll 5A508(1)-(2) of the applicable regulation required the applicant to provide evidence that he had funds from an ‘acceptable source’ and an ‘acceptable individual’.
Relevantly, “funds from an acceptable source” included a money deposit held by an acceptable individual, for a period of at least 3 months immediately before the date of the application.
As noted above, a dispositive issue before the delegate had been that the applicant had not furnished evidence of financial capacity. Following lodgement of the application for review, on 19 July, and 5 August, 2016, the Tribunal invited the applicant to provide evidence respecting his financial capacity to undertake the proposed study in accordance which Sch 5A, Item 508, providing copies of the applicable regulation.
The applicant did not respond to either of those invitations and, contrary to his submissions, the applicant furnished no further documentary information to the Tribunal as to his financial capacity: [24]-[26].
However, the applicant gave evidence at the Tribunal hearing that he had the required level of funds, being from a maternal uncle, Ashok Kumar, who lived in India: [16]. The Tribunal noted that Ashok Kumar was not an ‘acceptable individual’ as defined in the Regulation: [16]. This meant that any the financial documents received could not be accepted as evidence of the applicant having access to sufficient funds: [17].
The Regulations relevantly stated as follows at the time of decision:
acceptable individual means one or more of the following:
(a)-(e) . . . ;
(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.
Within the meaning of that definition, the Indian uncle did not constitute a person who could be considered for the purposes of providing funds.
As the Tribunal observed, the applicant had been squarely on notice of the need to address this deficiency in proof of his financial capacity and had not: cf Singh v Minister for Immigration and Border Protection.[9]
[9] [2019] FCA 2149, [22]-[30] (Beach J).
Ground 3 is rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 4 June 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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