Balineni v Minister for Immigration & Anor

The Federal Court of Australia considered an appeal against a decision of the Department of Immigration and Citizenship, which had refused to grant the applicant a Skilled–Independent Overseas Student (Residence) (Class DD) visa. The applicant argued that the decision was unlawful because the Department had not completed a requisite precondition, which prevented him from complying with a requirement for the visa application. The Department’s procedure required the applicant to complete a document called Form 1134 – Declaration, which had three parts. However, the Department had not completed Part A of the form, which meant that the applicant could not complete Part B and, therefore, could not make the requisite investment. The applicant brought this issue to the attention of the Tribunal, but it found against him for failing to comply with a requirement with which he could not comply.

The court had to decide whether the Tribunal had erred in law by finding against the applicant for failing to comply with a requirement with which he could not comply because the Department had not complied with a requisite precondition. The court held that the Tribunal had erred in law because the test for the visa application was whether the applicant “has deposited” at least AUD100,000 in a designated security for a term of not less than 12 months, not whether the applicant had shown that he had the relevant funds available to him. The court also held that the Tribunal had erred in law by finding that the applicant had not provided any evidence to suggest that he had the relevant funds available to him.

The court quashed the decision of the Department and remitted the applicant’s application for a Skilled–Independent Overseas Student (Residence) (Class DD) visa to the Department for determination according to law. The court also ordered the Department to pay the applicant’s costs fixed in the sum of $5000.00.