CHAVA v Minister for Immigration
[2013] FCCA 1032
•8 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAVA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1032 |
| Catchwords: MIGRATION – Judicial review of decision of the Migration Review Tribunal– Tribunal finding Applicant had not provided sufficient evidence that he met the financial capacity requirements of his student visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Webb v R (1994) 181 CLR 41 |
| Applicant: | SRIKANTH CHAVA |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 35 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 16 July 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2013 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.
The Application filed 14 January 2013 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 35 of 2013
| SRIKANTH CHAVA |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is one filed 14 January 2013 seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 19 December 2012. The Tribunal affirmed a decision made by a delegate of the Department of Immigration and Citizenship (as it then was) (‘the delegate’) dated 27 May 2011 to refuse to grant a Student (Temporary) (Class TU) visa to the Applicant.
The grounds of the application are as follows:-
“1. Review was affirmed not to grant the visa, wrong coe has been submitted to member (sic)
2. Tribunal member was rude and has not given one day to provide new coe
3. Apart of the coe every single document has been submitted perfectly”
The Applicant relies upon an Affidavit sworn by him on 14 January 2013. That affidavit annexed the decision record of the Tribunal of 19 December 2012 and otherwise contained a letter to the Court dated 14 January 2013 and written by the Applicant.
A Response was filed by the First Respondent on 21 January 2013. The First Respondent seeks that the application be dismissed. The response asserts that the application for judicial review does not provide any particulars or any legal ground of review and does not establish any jurisdictional error in the decision of the Tribunal dated 19 December 2012. The response further asserts that the Applicant invites the Court to undertake a review of the merits of the Tribunal’s decision which is not part of the function of the Court.
Orders were made by Registrar Caporale on 6 March 2013 and by consent which included that on or before 24 April 2013 the Applicant file and serve:-
a)any amended application including any additional grounds of review with complete particulars of each ground; and
b)any affidavits.
The Applicant has not filed and served any amended application nor affidavits. Further, the Applicant was to file and serve written submissions before the final hearing and no such submissions are before the Court. The First Respondent relies upon its Outline of Submissions filed 5 July 2013. There is also before the Court in evidence the Court Book as filed by the First Respondent on 15 March 2013.
History
The Applicant is a citizen of India who was born on 7 March 1988 and is now aged 25 years. He arrived in Australia on 22 February 2009 as the holder of a Student (Temporary) (Class TU) Subclass 572 visa current until 22 April 2011.
On 16 April 2011 the Applicant lodged an application with the Department of Immigration and Citizenship (as it then was) (‘the Department’) for a further Student (Temporary) (Class TU) visa. On 27 May 2011 the delegate refused to grant the Applicant the visa because the Applicant had provided no evidence that he met the financial capacity requirements in cl.5A405 of Schedule 5A and cl.572.223(2)(a)(i) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
In his application for a Student (Temporary) (Class TU) visa the Applicant indicated that he wished to be considered for the grant of a Student (Temporary) (Class TU) Subclass 572 visa. Amongst the documents required by the delegate to be provided by the Applicant was evidence that the Applicant had sufficient funds to support himself in Australia for the duration of his course of study. The Applicant was advised that financial support could only be provided by eligible family members, which included the Applicant’s parents. Further, the Applicant was advised that if the funds were in the form of a loan, he was required to provide evidence of the loan sanction and disbursement letters.
The Applicant applied to the Tribunal on 15 June 2011 for review of the delegate’s decision. The Applicant appointed an authorised recipient in connection with his review application and provided a copy of the delegate’s decision to the Tribunal. By a letter to the Applicant’s representative dated 18 October 2012, the Tribunal invited the Applicant to attend a hearing on 18 December 2012. The letter also invited the Applicant to submit further evidence to indicate that he met the criteria for the grant of a Student (Temporary) (Class TU) Subclass 572 visa including evidence that he met the financial capacity requirements in Schedule 5A of the Regulations and cl.572.223(2)(a)(i) of the Regulations. The letter invited the Applicant to submit the requested evidence no later than seven days prior to the hearing date and notified the Applicant that it would seek to make a decision at the conclusion of the hearing. On 19 October 2012 the Applicant responded to the Tribunal’s hearing invitation indicating that he would attend the hearing on 18 December 2012 with his representative. On 13 December 2012 the Applicant submitted a number of pieces of documentary evidence to the Tribunal which included:-
a)a Confirmation of Enrolment (CoE) for a Certificate IV in Frontline Management scheduled to run between 15 February 2013 and 15 August 2013;
b)a CoE for a Diploma of Management scheduled to run between 15 October 2013 and 30 July 2014;
c)an Overseas Student Health Cover (‘OSHC’) policy current until 5 March 2014;
d)results of an International English Language Testing System (‘IELTS’) test taken 17 November 2011 in which the Applicant achieved an overall band score of 5.5;
e)evidence of academic achievements in Australia;
f)notification from the State Bank of India dated 5 December 2012 of a “Demand Loan Against Deposit”. The document stated that a loan of Rs.1,215,000 ($21,004) was granted against a fixed deposit of Rs.1,350,000 (No 32691516917);
g)term deposit advice for account number 32691516917 for a 30 day deposit of Rs.1,350,000 made on 4 December 2012 with a maturity date of 3 January 2013.
The issue before the Tribunal was whether the Applicant met the financial capacity requirements in cl.5A405 of Schedule 5A of the Regulations such that he satisfied cl.572.223(2) of Schedule 2 of the Regulations. Clause 572.223(2) relevantly required that the Applicant give evidence that he met the financial requirements for his “assessment level” in Schedule 5A of the Regulations and that he would have access to the funds demonstrated. As the Applicant held an eligible passport of India he was required to meet the Schedule 5A of the Regulations requirements for assessment level 4 in order to satisfy cl.572.223(2) of Schedule 2 of the Regulations. So far as relevant, that criterion required that at the time of the decision the First Respondent be satisfied that the Applicant was a genuine applicant for entry and stay as a student because the Applicant met the requirements of cl.572.223(2) of Schedule 2 of the Regulations. Clause 572.223 is as follows:-
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii) 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; or
(b) for an applicant who is a person designated under regulation 2.07AO — the Minister is satisfied that:
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
(ii) the applicant’s proficiency in English is appropriate to the proposed course of study; and
(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter.”
The Applicant was not a person designated under reg.2.07AO of the Regulations. The Applicant was subject to assessment level 4. Schedule 5A of the Regulations specifies the requirements for assessment level 4 for subclass 572. Relevantly, it provides:-
“(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 36 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 36 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 6 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.”
During the course of the Tribunal hearing, the Tribunal spoke with the Applicant of his study history in Australia and his intended studies, being a Certificate IV in Frontline Management and a Diploma of Management scheduled to run until 30 July 2014. The Tribunal discussed with the Applicant the evidence required as referred to in the hearing invitation letter that had been forwarded to him. The Tribunal observed that the two CoEs provided for the Certificate IV in Frontline Management and the Diploma of Management satisfied the requirements of cl.572.222 of Schedule 2 of the Regulations. The Tribunal also noted that evidence of academic achievements since arriving in Australia satisfied clause 572.223(2)(a)(ii) of Schedule 2 of the Regulations. The Tribunal observed that the evidence of the OSHC provided was of a policy current to 5 March 2014 and that the IELTS certificate satisfied the English language proficiency requirements.
However, during the course of the hearing, the Tribunal told the Applicant and his agent that it did not believe the evidence submitted satisfied the requirements for the grant of a student visa and detailed the reasons. The Applicant had earlier indicated that he wished the application to be considered against the evidence provided to the Tribunal.
The Tribunal noted the financial evidence provided by the Applicant was documentation from the State Bank of India which stated that a loan the equivalent of $21,004 (AUD) had been granted to the father of the Applicant. This was supported by the affidavit provided by the Applicant at the commencement of the hearing being an affidavit sworn by his father on 17 December 2012. That loan had been granted against the security of a fixed deposit of 1,350,000 Indian rupees made on 4 December 2012. In respect of that and referring to the financial capacity requirements, the Tribunal noted that for the Applicant’s intended studies he needed to show access to sufficient funds to meet unpaid course fees of $7000 (AUD), living expenses of $31,000 (AUD) for 20 months and fares of $1000 (AUD) for a total of $39,000 (AUD). The Tribunal noted that the evidence put before it by the Applicant was that he had a loan equivalent to $21,004 (AUD) and therefore did not satisfy the requirements. When this matter was put to the Applicant, the Applicant submitted that he only wished to be assessed against the Diploma of Management and not the Certificate IV in Frontline Management thereby reducing the financial requirements. If the Applicant was only to be assessed as being enrolled in the Diploma of Management, the amount of funds he would be required to access to meet the financial capacity requirements would be significantly less. The Tribunal asked the Applicant on what basis he made this decision. The Applicant told the Tribunal that he believed the Diploma of Management would give him all the academic background required for him to get a job. In response to a question by the Tribunal, the Applicant said he had decided to cancel his enrolment in the Certificate IV in Frontline Management on 15 November 2012. The Tribunal asked the Applicant, if this was the case why he had provided the Tribunal with the two CoEs on 13 December 2012 as evidence of his intended studies. The Tribunal further noted that the CoEs provided had been printed on 16 November 2012, the day after he claimed to have made the decision to cancel his enrolment in the Certificate IV in Frontline Management. The Tribunal told the Applicant that his oral evidence conflicted with all the other evidence previously provided, including the two CoEs provided within the preceding week. In addition, the Tribunal put to the Applicant that it had referred to his enrolment in both courses on two separate occasions during the hearing and the Applicant had not raised that he intended to amend his study plans until after it was put to him that he did not meet the financial capacity requirements.
The Tribunal informed the Applicant that it was more persuaded by his previous submissions and therefore intended to assess his application with his intended studies being both a Certificate IV in Frontline Management and a Diploma of Management scheduled to run until July 2014. The Tribunal repeated its concern that the CoEs provided indicated his studies were scheduled to run until 30 July 2014. The OHSC policy submitted provided cover only until 5 March 2014. The Applicant was therefore advised that the Tribunal found he had not provided evidence of overseas student health cover for the period of his intended stay in Australia and therefore did not meet the requirements of cl.572.225 of Schedule 2 of the Regulations.
The Tribunal advised the Applicant, returning to the financial capacity evidence, that it found he had not provided evidence in accordance with the requirements of cl.5A405 of Schedule 5A of the Regulations to which he was subject and therefore did not satisfy cl.572.223 of Schedule 2 of the Regulations. The Tribunal told the Applicant the decision of the Tribunal was to affirm the decision under review. The decision record notes that the Tribunal made its decision and delivered same orally on 18 December 2012 and in written form on 19 December 2012. On the latter date a copy of the Tribunal’s statement of decision and reasons was forwarded by covering letter to the Applicant.
Consideration
To satisfy the financial capacity requirements in accordance with cl.5A405 of Schedule 5A of the Regulations, the Applicant needed to show access to a total sum of $39,000 (AUD). The evidence provided by the Applicant was that his father was his sponsor and as evidence of funds presented a loan the equivalent of approximately $21,004 (AUD).
The weight to be given to the Applicant’s claims and the evidence was a matter for the Tribunal to assess as part of its fact-finding function Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282). The Tribunal was not required to accept the Applicant’s contradictory evidence provided late in the hearing that he no longer wished to study a Certificate IV in Frontline Management and it was entitled to proceed to assess him against the Schedule 5A of the Regulations criteria for undertaking that course. These were factual findings open to the Tribunal on the evidence before it and cannot be reviewed by this Court.
In the Applicant’s Affidavit sworn 14 January 2013 the Applicant deposes to making a mistake by submitting an old CoE to the Tribunal which had been cancelled. He claimed that he tried to explain this to the Tribunal member but that the Tribunal member did not understand and “was not listening at all”. He also claimed to have “implored [the] tribunal member could (sic) investigate with my institute people whether my new Coe is issued or not before the hearing date that (sic) should have solved the situation”. There is no evidence that the Applicant required further time to submit any other evidence to the Tribunal, nor that he made any request of the Tribunal for any adjournment of his proceeding, or for the Tribunal to make any inquiries with his education provider. There is no transcript of what occurred at the Tribunal hearing and the Applicant’s contentions are contrary to the content of the statement of decision and reasons. They lack an evidentiary basis and cannot succeed. Furthermore, the Tribunal was under no duty to make inquiries of the Applicant’s education provider (Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12).
To the extent that the Applicant is alleging bias, I accept the submissions on the part of counsel for the First Respondent which is that such an allegation is very serious and must be distinctly made and clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531). There is nothing on the face of the Tribunal’s decision to indicate that the Tribunal member had a pre‑existing state of mind which disabled him from undertaking a proper evaluation of the material before him relevant to the decision to be made (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749). Nor is there anything that would lead a fair-minded observer to apprehend that the Tribunal member did not bring an impartial mind to the decision that had to be made (Webb v R (1994) 181 CLR 41 at 70-71).
The Tribunal considered the Applicant’s evidence as he put it before the Tribunal and gave cogent reasons for the rejection of some part of that evidence, namely, that the Applicant did not wish to be assessed against the Certificate IV in Frontline Management. Such a finding was plainly open to the Tribunal. Whilst the Applicant does not agree with the Tribunal’s factual finding in this regard, this does not lead the Court to determine that jurisdictional error has attended the decision. The Applicant seeks a merits review which is not available to him.
Ultimately the Tribunal found for reasons that were open to it on the evidence put before it by the Applicant, that the Applicant intended to study both the Diploma and the Certificate IV in Frontline Management and that he did not have access to the $39,000 (AUD) required to meet the Schedule 5A of the Regulations requirements in cl.572.223(2)(a)(i) of Schedule 2 of the Regulations. There is no proper basis for the Applicant to contend that he submitted “every single document perfectly” that was required in order for him to meet the criteria for the grant of the visa. The application will be dismissed and costs shall follow the event.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 8 August 2013
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