BASNET v Minister for Immigration

[2016] FCCA 2410

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASNET v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2410

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether Tribunal made jurisdictional error by affirming delegate’s decision not to grant Student (Temporary) (class TU) (subclass 572) visa (572 visa) on grounds different from those on which delegate relied for not granting 572 visa – whether applicant misunderstood the evidence he was required to provide to establish the financial capacity criterion for the grant of a 572 visa – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), reg. 1.41(1), 1.42(1),
Migration Regulations 1994 (Cth), Schedule 2, cl. 572.223, 572.223(2)(a)
Migration Regulations 1994 (Cth), Schedule 5A, cl. 5A405, 5A405(1),
5A405(2)

Applicant: BASHUDEV BASNET

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2435 of 2014

Judgment of: Judge Manousaridis

Hearing date: 16 September 2015

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

Applicant in person.

Solicitors for the Respondents:

Mr M Glavac of

Clayton Utz

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2435 of 2014

BASHUDEV BASNET

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Nepal, applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (class TU) (subclass 572) visa (572 visa).

Background

1. The applicant applied for a 572 visa on 14 March 2013. A delegate of the Minister refused the applicant’s application because the applicant failed to provide evidence of English language ability and, as a result, the applicant did not satisfy cl.572.223 of the Migration Regulations 1994 (Cth) (Regulations).[1]

   [1] CB20-21

2. The Tribunal affirmed the delegate’s decision. This Court, however, set that decision aside on 5 May 2014. The Tribunal, differently constituted, also affirmed the delegate’s decision, not because the applicant did not provide evidence of English language ability, but because it was not satisfied the applicant met the financial capacity criterion prescribed by cl.572.223 of Schedule 2 to the Regulations. It would be useful to set out the relevant provisions before I consider the reasons for which the Tribunal affirmed the delegate’s decision.

Relevant Provisions

1. At the time of the Tribunal’s decision, cl.572.223 provided (emphasis added) as follows:

   (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.

2. Sub regulation 1.42(1) of the Regulations provides that an “applicant for a student visa who seeks to satisfy the primary criteria is subject to the highest assessment level at the time of application for the relevant course of study for the subclass of student visa”. “Assessment level” and “highest assessment level” are defined in reg.1.03 of the Regulations. “Assessment level” is defined to mean “the level of assessment (being level 1, 2, 3, 4, or 5) specified for a kind of eligible passport for the student visa under regulation 1.41”.

3. Regulation 1.41(1) provides that the “Minister must specify, by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject”. The Minister did so specify by IMMI 12/005. That instrument, which applies to student visa applications made on or after 24 March 2012, specified, in connection with 572 visas, an assessment level of 4 for passports issued by Nepal.  Given the applicant applied for a 572 visa, and he is the holder of a Nepalese passport, the highest assessment level that applied to the applicant is assessment level 4.

4. The evidentiary requirements for assessment level 4 for 572 visas are set out in Part 4 of Schedule 5A to the Regulations. The financial capacity requirements are set out in cl.5A405(1), which provides:

   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.

5. Subclause 5A405(2) defines a number of terms set out in cl.5A405(1) including “acceptable individual”, “financial support” and “funds from an acceptable source”. The term “funds from an acceptable source” is defined to mean “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”.

Tribunal Hearing

1. The Tribunal invited the applicant to appear before it by letter dated 2 June 2014. In that letter, the Tribunal also invited the applicant to provide various items of evidence, including evidence that the applicant satisfied the financial capacity requirements “in any of the alternative ways applicable for your assessment level set out in Schedule 5A of the Regulations”, and noted that if the applicant was relying on a money deposit “this must have been held for at least 3 months immediately before the date of the application”.[2]

   [2] CB165-166

2. The applicant appeared before the Tribunal on 3 July 2014 to give evidence and present arguments. The applicant provided a letter dated 24 March 2013 marked “Received at Hearing 3.7.14” from his migration agent addressed to the Tribunal stating the applicant had “processed for bank loan with Class A bank from Nepal and require at least 2 weeks to process that. He will show bank loan and evidence of access to funds within 2 weeks from the date of hearing”.[3]

   [3] CB113

3. The applicant provided a number of documents to the Tribunal on the day of the hearing. The Tribunal noted the documents did not contain any evidence relating to financial capacity. The Tribunal provided the applicant additional time to submit further evidence. The applicant provided documents to the Tribunal on 17 July 2014 and 24 July 2014. The Tribunal noted that although the applicant gave evidence at the hearing that his parents were organising a loan, the applicant did not provide any evidence about that loan after the hearing. The applicant did, however, provide documents to the Tribunal relating to financial capacity including a “sponsor letter” signed by the applicant’s mother in which she stated she is “able to sponsor for his entire studying and living period by providing my Bank Balance, which is maintaining by me and family income sources and other assets”.[4] The applicant’s mother enclosed a “Certificate of Account Balance” issued by Nabil Bank which certified the balance of her account as at 12 July 2014 was NPR 1,301,364.73, being the equivalent of AUD 14,362.26. The certificate further noted that the applicant’s mother had been maintaining the account since 15 October 2009.[5] A Statement of Account issued by Nabil Bank for the period 10 March 2014 to 12 July 2014 was also provided which showed a balance of NPR 1,301,364.73.[6]

   [4] CB189

   [5] CB191

   [6] CB192

4. The Tribunal noted that for the applicant to satisfy the requirements of cl.5A405, the applicant had to give evidence that he had funds from an acceptable source to meet course fees, living, and travel expenses for a period of six months which the Tribunal assessed as totalling AUD12,310.[7]

   [7] CB218, [20]

Tribunal’s Decision

1. The Tribunal was not satisfied on the material before it that the applicant had successfully completed at least 75% of the requirements of his principal course. The Tribunal, therefore, found paragraph (a) of the definition of “funds from an acceptable source” did not apply.[8]

   [8] CB218, [21]

2. The Tribunal was satisfied that Nabil Bank was a “financial institution” for the purposes of cl.5A101, and that the evidence of the applicant’s mother’s Nabil Bank account constituted evidence of a money deposit held by an “acceptable individual”. The Tribunal was not satisfied, however, that the applicant’s mother had held funds at least equivalent to the required funds of AUD12,310 for at least 3 months immediately before 14 March 2013, being the day on which the applicant applied for the 572 visa. That is so because the bank statement the applicant provided to the Tribunal covered the period from 10 March 2014 to 10 July 2014, a period the Tribunal noted was “well after the date of application”.[9]

   [9] CB219, [23]

3. The Tribunal, therefore, was not satisfied the evidence provided by the applicant of funds held by the applicant’s mother in the Nabil Bank satisfied the requirements of paragraph (aa) in the definition of “funds from an acceptable source”. The Tribunal found, therefore, that the applicant failed to provide evidence that he has funds from an acceptable source to meet specified expenses. Consequently, the Tribunal found the applicant failed to satisfy the financial capacity requirements of cl.5A405 and therefore, did not satisfy cl.572.223(2)(a) of the Regulations.

Grounds of application

1. The application for review contains the following grounds:

   1.The Applicant was denied procedural fairness by the Respondents and committed jurisdictional error.

   Particulars

   a.The Applicant applied for subclass 572 visa which was refused due to IELTS

   b.The Applicant has provided IELTS results to MRT

   c.Federal Circuit court has decided in the favour applicant and requested MRT to reconsider their decision.

   d.The Respondents made a decision without giving the relevant consideration to facts presented and MRT has again refused visa application on the basis of financial capacity and did not consider new evidence provided to them.

   e.The Respondents asked to provide new evidence to show that applicant currently meet financial requirement during MRT hearing, however made the decision advising that applicant did not provide evidence to show that he met financial requirement at the time of applicant [sic].

2. Paragraphs (a), (b), and (c) of the particulars appear to be directed to the Tribunal’s affirming the delegate’s decision not to grant the applicant a 572 visa on a ground that was different to that on which the delegate relied for refusing to grant the applicant a 572 visa. As I have already noted, the delegate refused to grant the applicant a 572 visa because the applicant failed to provide evidence of English language ability, whereas the Tribunal affirmed the decision because the applicant failed to provide evidence that he has funds from an acceptable source to meet specified expenses. The financial capacity requirements constituted criteria for the granting of 572 visas. The Tribunal, therefore, was not only entitled to consider whether those criteria had been satisfied; it was bound to consider them. That is so because the Tribunal could not set aside the delegate’s decision unless the Tribunal was satisfied the applicant met the criteria for the grant of a 572 visa. Paragraphs (a), (b), and (c), therefore, do not disclose any jurisdictional error by the Tribunal.

3. Paragraph (d) of the particulars claims the Tribunal failed to consider facts and “new evidence”. The ground does not identify the facts or the new evidence the applicant claims the Tribunal failed to consider. It might be that the applicant has in mind the documents the applicant provided to the Tribunal after the hearing. Even if that is so, it is not clear which documents it is alleged the Tribunal did not consider. It is not apparent from the material before me that the Tribunal did overlook any facts or material evidence. Paragraph (d), therefore, also discloses no jurisdictional error.

4. Paragraph (e) of the particulars appears to claim the Tribunal required the applicant to provide evidence of financial capacity that was “current” at the time of the hearing before the Tribunal, yet the Tribunal decided the applicant did not provide such information as at the time the applicant applied for the 572 visa. In other words, paragraph (e) in effect claims the Tribunal misled the applicant into believing that he need only provide evidence of his financial capacity as at the date of the hearing.

5. Before me, the applicant, who is not legally represented, submitted he had not understood that he was required to provide evidence that he held or someone else held money in an account continuously for three months before the date on which he applied for the 572 visa. The applicant said his mother had the relevant money in an account since 2009, and he asked whether he could now provide evidence of that fact.

6. Whether or not the applicant understood he needed only to prove financial capacity as at the time of the hearing before the Tribunal, there is nothing in the material before me to suggest the applicant formed such view, or, if he did, he formed that view as a result of any act or omission by the Tribunal, or that the Tribunal acted in a way that could have induced or encouraged any such belief. On the contrary, the evidence suggests, and I find, the Tribunal made it clear to the applicant the information he was required to provide. In the Tribunal’s letter dated 2 June 2014 by which it invited the applicant to appear before it for the purposes of giving evidence and presenting arguments,[10] the Tribunal invited the applicant to provide information including:

   Evidence to show that you have funds from an acceptable source to cover course fees, living costs, school costs (where relevant) and travel costs for the relevant period. If you are relying on a money deposit, this must have been held for at least 3 months immediately before the date of the application. (Emphasis added)

   [10] CB102 at CB103

7. In any event, I am not satisfied the applicant misunderstood that he only needed to provide evidence of financial capacity as at the time he appeared before the Tribunal. The applicant provided a letter from Nabil Bank that certified the applicant’s mother held money in an account since 15 October 2009. That suggests that the letter may have been prepared on the instructions of the applicant, and that those instructions, in turn, may have reflected a consciousness by the applicant that he was required to show that his mother held money for a continuous period before the applicant applied for the 572 visa. It is not necessary, however, that I make a finding that the applicant was in fact conscious of that requirement, because, to the extent any mistaken belief by the applicant is relevant, the onus is on the applicant to prove he held a mistaken belief; and I am not satisfied the applicant has proved he held any mistaken belief.

8. For these reasons, ground 1 fails.

9. The second ground of review is as follows

   The Second Respondent made jurisdictional error by making a decision which was unreasonable by finding that the Applicant had understood the definition stated in the Regulations.

   Particulars

   a.  The Applicant is a student and was not capable of understanding complex legal definitions. In addition, the law changes frequently and it is obvious that reasonable layman can find will find him under the dilemma and confusion.

   b.  The Applicant had requested the Respondent to allow him further time to submit the financial documents if additional documents were required. Respondent made no attempt to advise what evidence he was looking for.

10. On a literal reading of this ground, the complaint is the Tribunal found the applicant had understood the definitions stated in the relevant Regulations. The Tribunal made no such finding. The claim, however, appears to be that the Tribunal failed to inform the applicant of the evidence the applicant should provide to the Tribunal. I do not accept this claim.

11. First, in the letter by which the Tribunal invited the applicant to appear before it to give evidence and present arguments, the Tribunal described in detail the evidence the applicant should provide to the Tribunal. Second, the Tribunal’s reasons for decision show the Tribunal informed the applicant of the various matters about which he should provide evidence. Third, there is nothing to suggest the applicant did not understand what evidence he was required to provide to the Tribunal. Fourth, to the extent the applicant did not understand, or fully understand, the evidence he was required to provide to the Tribunal, there is nothing in the material before me to indicate the Tribunal was aware the applicant did not have that understanding, or from which it ought reasonably to have been aware the applicant did not hold such understanding.

1. For these reasons, ground 2 also fails.

Disposition

1. The applicant has not succeeded in establishing the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 16 September 2016