Barevadiya v Minister for Immigration

[2015] FCCA 832

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAREVADIYA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 832

Catchwords:
MIGRATION – Judicial review – student temporary visa – evidence of funds – failure to meet financial capacity criteria – requirements for the grant of a student visa –  failure of Tribunal to take into account relevant considerations – application dismissed.

Legislation: 

Migration Regulations 1994, cl.572.223 schedule 2

First Applicant: MINESHKUMAR PRAVINBHAI BAREVADIYA

Second Applicant: JIGNASABEN MINESHKUMAR BAREVADIYA

First Respondents: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 702 of 2014

Judgment of: Judge Jones

Hearing date: 25 March 2015

Date of Last Submission: 25 March 2015

Delivered at: Melbourne

Delivered on: 25 March 2015

REPRESENTATION

Solicitor for the Applicant: In Person

Counsel for the Respondent: Ms Grinberg

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the Application for judicial review filed on 15 April 2014 be dismissed. 

2. That the Applicants pay the First Respondent’s costs, in the sum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 702 of 2014

MINESHKUMAR PRAVINBHAI BAREVADIYA

First Applicant

JIGNASABEN MINESHKUMAR BAREVADIYA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(revised from transcript)

1. By their application dated 15 April 2014, the Applicants seek judicial review of a decision of the Migration Review Tribunal, made on 9 April 2014, affirming a decision of a delegate of the First Respondent made on 25 October 2013 not to grant Student (Temporary) (Class TU) visas to the applicants.  By way of background, the Applicants are citizens of India and are a married couple.  They applied for the visas on 9 July 2013, and their application is set out at Court Book 1 to 8. 

2. The second applicant is the wife, and was included in the application as a member of the family unit of the first applicant.  On 10 July 2013, a delegate of the First Respondent wrote to the applicants, asking them to, among other things, provide evidence that they had sufficient funds to support themselves.  They were asked to demonstrate a three-month saving history of funds totalling $31,265 for the period immediately before the lodgement of the visa application on 9 July 2013.  This is set out at Court Book 9 to 19.

3. At Court Book 14, the delegate set out the components of the costs that were required to be covered, including course fees, living expenses and travel, and then set out the total sum, being, in Australian dollars, $31,265.  At Court Book 15, the delegate stated in the correspondence to the applicants:

   “All applicants must demonstrate at least a three-month saving history of their funds.  This saving history is calculated for the three-month period immediately before the lodgement of your application on 9 July 2013.”

4. There seems to be no dispute that the saving period therefore was from 10 April 2013 to 9 July 2013. On 6 August 2013, in response to that request, the applicants then responded to the request for further information and provided evidence of financial capacity. This is set out at Court Book 24 to 68. As I have already indicated, on 25 October 2013, a delegate of the Minister refused to grant the applications for the visa, on the basis that the applicants had not satisfied the delegate that they met the criteria cl.572.223 in schedule 2 of the Migration Regulations 1994, in particular, the financial capacity requirements as set out in schedule 5A to the Regulations.  I will come to those criteria shortly.  That decision is set out at Court Book 69 to 82. 

5. On 14 November 2013, the applicants applied to the Tribunal for a review of the delegate’s decision.  That is set out at Court Book 83 to 93.  On 10 December 2013, the Tribunal invited the applicants to appear before the Tribunal to give evidence and present arguments relating to the decision under review.  Amongst other things, the applicants were invited to provide evidence that satisfied the financial capacity criteria.  This correspondence is set out at Court Book 101 to 104. 

6. On 29 January 2014, the applicants provided the Tribunal with written submissions, which relate, in essence, to the reasons that the first applicant wishes to study, a copy of an enrolment in a Diploma of Marketing at Barkly International College (Court Book 125) – and a number of documents, including documents related to the financial capacity.  This is set out at Court Book 127 to 144.  The hearing by the Tribunal was conducted on 30 January 2014, at which the first applicant appeared and gave evidence.  As I have indicated, the Tribunal, on 9 April 2014, affirmed the delegate’s decision to refuse to grant the visas.

7. I will turn first to the Tribunal’s decision, which include also the particular criteria the applicants were required to meet under the Act and the Regulations. Given the applicant was enrolled in a Diploma of Marketing as his principle course, the Tribunal correctly identified the relevant subclass for the applicants as subclass 572. The Tribunal then identified the relevant criteria for the grant of the visa to be cl.572.223 of schedule 2 of the Regulations. That clause relevantly stated, at subparagraph (1):

   “The Minister is satisfied the applicant is a genuine applicant for entry and stay as a student because:  (b) the applicant meets the requirements of subclause (2).”

8. Subclause (2) of the criteria, of that clause, stated:

   “An applicant meets the requirements of this subclause if the applicant gives the Minister evidence in accordance with the requirements mentioned in schedule 5A for the highest assessment level for the applicant.” 

9. There is no dispute that, having regard to the definitions of the assessment level and the high assessment level, the relevant assessment level for the Applicant who held a passport from India was assessment level 4. The Applicant concurs with this finding of the Tribunal, which was set out at Court Book 150, paragraphs [9] to [10]. The Tribunal attached to its decision schedule 5A of the Regulations, which specifies the requirements of assessment level for a subclass visa 572 and cl.572.223. This is set out at Court Book 152 as an attachment to this decision.

10. The Tribunal also conveniently set out, at Court Book 152, clause 5A405, dealing with financial capacity which was applicable to the applicant.  I have gone through those requirements with the applicant today, who is self-represented, and he accepts what was required from him.  In essence, the applicant was required to give evidence that he has funds from an acceptable source sufficient to meet specified expenses for the first 24 months, pursuant to subclause (2) of clause 5A405. 

11. The acceptable individuals, in this case, were his father and his grandfather.  And then, turning to the meaning of “funds from an acceptable source,” set out in subclause (2), the Applicant accepts that, in his circumstances, subclause (aa) was the relevant paragraph, which required a money deposit that an acceptable individual has held for at least the three months immediately before the date of application – in other words, from 10 April 2013 to 9 July 2013.  The Tribunal noted, in its decision, that it explained these matters to the Applicant, and the Applicant said that he had understood the primary decision, which he believed had been made because the evidence he produced did not meet the financial requirements.

12. The Tribunal stated this, at paragraph 15 and 16:

    “The Tribunal discussed the financial requirements, and referred to the primary decision, a copy of which the applicant provided with the review application.  Specifically, it discussed funds from an acceptable source, in clause 5A405, noting he was required to provide evidence of a money deposit held for at least three months immediately before the date of application.  The Tribunal explained that the applicant claimed he understood that, with his application having been lodged on 9 July 2013, he was therefore required to provide evidence of a money deposit held from 10 April 2013 to 9 July 2013.”   

13. That is reflective of the Applicant’s understanding today.  I should say that, at paragraph 12, the Tribunal set out the financial evidence which the Applicant provided in his submission prior to the Tribunal hearing, and it set out financial documents which the Applicant now asks the Court to turn to, one of which is a handwritten document on the Bank of India letterhead, stating the Applicant’s father had a matured Public Provident Fund account with a balance of 788,535 rupiah, and evidence of four fixed deposits, all issued on 13 November 2013. 

14. In its decision, the Tribunal stated, in relation to the financial information, the following – at [17] and [18]. 

    “The Tribunal observes the only document provided to the Tribunal for the relevant period was a copy of a statement from the Maharashtra Bank –

    ...and during the relevant period it contained a balance of only AU$4400, which did not satisfy the requirements.  The applicant told the hearing that the access bank statement showed monthly deposits of his father’s salary, as it showed an opening balance of 1 July 2013 of 584,423 rupiah.  He claimed he believed it was apparent that adequate funds had been held for the three-month period prior to that date”. 

15. At paragraph 19, the Tribunal indicated its response to the Applicant’s submission, which was that the Tribunal required evidence of funds that had been held for the period from April to July 2013, and this document did not meet that evidence.  The Tribunal told the Applicant then – and this is set out at paragraph 20 – that the evidence that he had provided did not satisfy the requirements for the grant of a student visa – by which I mean the financial requirements.  The Tribunal noted, at paragraph 21, that at the time that it made its decision, which was 9 April 2014, it had not received further evidentiary material from the Applicant.

16. Consequently, the Tribunal found that the Applicant had not given evidence in accordance with the applicable schedule 5A requirements, and therefore did not satisfy clause 572.223, subsection (2)(a). The Tribunal found that the criteria for the grant of the subclause 572 visa were not met, and there was no evidence that the Applicant was eligible for the grant of a student visa of another subclass, and affirmed the decision under review. This is set out at paragraphs [22] to [25], at Court Book 151.

17. In the first applicant’s application for judicial review, he sets out his grounds as:

    “I applied for student visa on 9 July 2013, Department of Immigration, which was refused.

    Then I apply to MRT for review of that decision on October 2013.”

    And finally it states:

    “I think MRT and the Department of Immigration did not look at my financial document evidence at time of application.”

18. The applicant was self-represented, and I indicated to him that the function of the Court was not to look at the merits of his claim – in other words, his financial documents – but to focus on the Tribunal’s decision and to decide whether it had made a serious legal mistake.  He conceded that the first two grounds specified in his application were really background matters, so I am satisfied that the Court can put them to one side.  I indicated to the applicant that the Court did not have jurisdiction to consider a primary decision of a delegate of the Minister – that was prohibited – and I am satisfied that the Applicant accepted this.

19. Consequently, the ground of review that I will focus on is the ground of review where the applicant alleges that the Tribunal did not look at his “financial document evidence at time of application”.  I take this to mean that the Tribunal failed to take into account relevant considerations, which failure gives rise to jurisdictional error.  The Applicant well understood the nature of the requirements he was required to satisfy, and that being that the acceptable individuals, either his father or grandfather, had a money deposit that was held for at least three months immediately before the date of the application – that is over the period 10 April 2013 to 9 July 2013. 

20. In his oral submissions today, he identified two categories of financial documents that he says the Tribunal failed to take into account in making its decision.  The first is a document that is set out at Court Book 132, which needs to be read with a savings account from the Bank of India set out at Court Book 134.  At Court Book 134 there is set out a savings account, which commences on 26 March 2007 – this is with the Bank of India, held in his father’s name – and ends on 30 March 2013. The Applicant says this must be read together with the document set out at Court Book 132, which is correspondence dated 27 January 2014 from a manager of the Bank of India at the particular branch, I assume, which, in its essence, states that there is a balance outstanding in the first Applicant’s father’s  account of 788,535 rupiahs. 

21. This amount is identical, as the applicant has pointed out, to the amount which is set out at Court Book 134, for the balance for the date 30 March 2013 – namely, 788,535 rupiah.  The first Applicant maintains that it can be assumed from this that his father had in that account over the relevant period – and we are talking about April to July 2013 – 788,535 rupiah.  And, consequently, the Tribunal failed to take into account a relevant consideration.  It seems to me that, as the Minister has pointed out in response, there is, in fact, a gap.  That is, clearly the Applicant’s father had a balance on 30 March 2013 of 788,535 rupiah.  Clearly, according to the evidence, he had a balance on 27 January 2014 of the same amount.

22. I am not satisfied that, indeed, an assumption can be made that that balance of 788,535 rupiah was – without more evidence –was maintained from March 2013 to January 2014.  The Tribunal made it clear that it considered this information, and it did not fit in with the requisite period the applicant was required to satisfy – namely, from April 2013 to July 2013.  The Minister points out that even if this was a relevant consideration, it did not give rise to jurisdictional error, in that using the conversion the Tribunal applied from rupiahs to Australian dollars, that amount would convert to Australian dollars – that is, the 788,535 rupiah – to $14,058, which, taken together with the $4500 the Tribunal was satisfied the Applicant had in the relevant period, would not amount in total to the 31,000 or so Australian dollars the Applicant was required to demonstrate. 

23. Consequently, I will find that there is no jurisdictional error on this point.  The next category of documents that the first Applicant points to are what he says are fixed-term deposits under his grandfather’s name, and these are set out at Court Book 128 to 131.  The first Applicant says this:  the fixed-term deposit – well, he initially said this, I should say, they are fixed-term deposits, and the date of these fixed-term deposits is set out as 13 November 2013.  Consequently, being a fixed-term deposit for one year, which is what is set out in those documents, the Tribunal ought to have considered, and ought to have been satisfied that his grandfather had a money deposit over the year preceding that date – in other words, from 13 or 14 November 2012 to 13 November 2013. 

24. The fixed-term deposits recorded at Court Book 128 to 129 are in the amount of 172,514 rupiah. At Court Book 130, the fixed-term deposit is $356,349, and at court book 131, $535,963. Therefore, one would assume that there would be round about close to 900,000 to a million in rupiah.  I am satisfied that these deposits reflect an amount, all four of them, close to a million rupiah. The Minister pointed out, in response to the applicant’s submission that this demonstrates, because they are fixed-term deposits, that there was this amount of money over the relevant period – namely, April 2013 to July 2013 – that each of the fixed-term deposits say the same. They say that the issue date is 13 November 2013, and the due date is 5 November 2014.

25. In response to this, the Applicant then said, “Well, these are renewal term deposits.”  I asked him where the evidence for this was, but he was unable to locate them in the Court Book.  Consequently, I can say this:  firstly, I am satisfied that the Tribunal did consider these fixed term deposits, because it identified them in its decision at paragraph 12;  but, secondly, in any event, the fixed term deposits themselves only indicate that there was an amount of around one million rupiah or more placed by the applicant’s grandfather into term deposits on 13 November 2013, that would mature on 5 November 2014.

26. Clearly, this is not relevant to the period which the Applicant was required to meet.  Consequently, in relation to this point raised by the Applicant, I find that there was no jurisdictional error.  My finding is this:  that the Tribunal did not engage in jurisdictional error in relation to its consideration of the financial requirements under the Act, and in its consideration of the applicant’s evidence that he was required to provide to meet those requirements.  Consequently, I would dismiss the Applicants Application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date: 16 April 2015