Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 660
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 660
File number(s): PEG 352 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 19 August 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Malawi – Student (Temporary) (class TU) Student (subclass 500) visa – whether evidence of sufficient funds for study– whether certificate of enrolment at time of decision – whether jurisdictional error Legislation: Migration Act 1958 (Cth) s 476
Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 s 10
Migration Regulations 1994 (Cth) Sch 2, cll 500.211, 500.214
Cases cited: Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250; (2019) 93 ALJR 629; (2019) 79 AAR 9; (2019) 367 ALR 695
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 5; (2019) 363 ALR 599; (2019) 163 ALD 38
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (2019) 136 ALR 481; (2019) 41 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Singh v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 25 October 2021 Place: Perth Counsel for the Applicant: Ms S Frankel Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Mr V Ghosh Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 352 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EDINA CHIKWEU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
19 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 25 November 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
On 25 November 2020 the applicant, Ms Edina Chikweu (“Ms Chikweu”), lodged in the Perth Registry of this Court an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks judicial review of a 23 October 2020 decision of the Administrative Appeals Tribunal (“Tribunal’s Oral Decision” and “Tribunal” respectively) that affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant Ms Chikweu a Subclass 500 (Student) visa (“Student Visa”).
The Judicial Review Application contains a single ground which is set out at [9] below.
MATERIAL BEFORE THE COURT
The following materials are before the Court:
(a)a Court Book (“CB”) totalling 238 pages, marked as Exhibit 1;
(b)the affidavit of Ms Chikweu sworn on 25 November 2020 (“Chikweu Affidavit”);
(c)the affidavit of Ms Sarah Leora Frankel affirmed on 24 September 2021 (“Frankel Affidavit”) appending the transcript of the hearing before the Tribunal (“Tribunal Hearing Transcript”);
(d)Ms Chikweu’s Outline of Submissions (“Ms Chikweu’s Submissions”); and
(e)the Minister’s Outline of Submissions (“Minister’s Submissions”).
BACKGROUND TO THE TRIBUNAL DECISION
The relevant background to the Tribunal Decision is as follows:
(a)Ms Chikweu is a citizen of Malawi who first arrived in Australia on 25 December 2005: CB 59;
(b)Ms Chikweu has enrolled in a number of courses of study in Australia, many of which were cancelled or not completed, but which included a Bachelor of Social Science which was completed in December 2019: CB 232 at [19]
(c)on 12 February 2019 Ms Chikweu applied for a further Student Visa to complete a Bachelor of Social Science course (“Proposed Bachelor’s Course”): CB 42-71
(d)on 13 May 2019 the Delegate’s Decision was to refuse the Student Visa because Ms Chikweu had not provided evidence of access to funds in the form required by the relevant legislative instrument: CB 118-125;
(e)on 17 May 2019 Ms Chikweu applied to the Tribunal for review of the Delegate’s Decision: CB 126-127;
(f)on 17 September 2020 the Tribunal invited Ms Chikweu to a hearing on 23 October 2020 (“Tribunal Hearing”) and requested that Ms Chikweu provide a copy of her Confirmation of Enrolment (“COE”) and further information about her financial position (“Request for Further Financial Information”): CB 136-139;
(g)on 21 September 2020 Ms Chikweu requested additional time to respond to the Request for Further Financial Information (“Additional Time Request”): CB 140;
(h)the Tribunal responded to Ms Chikweu’s Additional Time Request, asking for the information to be furnished seven days before the Tribunal Hearing: CB 142;
(i)Ms Chikweu failed to provide the material within the seven days, and the Tribunal emailed her on 2 October 2020 indicating that any witness statements and supporting evidence was to be submitted immediately: CB 143;
(j)on 5 October 2020 Ms Chikweu responded saying she would be providing material shortly: CB 144;
(k)on 6 October 2020 Ms Chikweu supplied the Tribunal with documents in response to the Request for Further Financial Information: CB 147-158, 159-179 and 180-186. These documents were as follows:
(i)a letter of financial support for Ms Chikweu, written by her friend, Mr Dean Griffiths: CB 161 (“Griffiths Letter”);
(ii)Mr Griffiths’ identity documents, including his Heavy Vehicle Driver’s Licence and his Australian passport: CB 162 (“Griffiths Identity Documents”);
(iii)bank statements from:
(A)Rural Bank in the names of “G S & C M Griffiths & Son” for the period 29 September 2020 to 6 October 2020 and 9 September 2020 to 16 September 2020: CB 163-164;
(B)Rural Bank in the name of “D S Griffiths” for the period 29 September 2020 to 6 October 2020 and 3 July 2020 to 21 September 2020: CB 165-166; and
(C)Bendigo Bank in the name of “D S Griffiths” for the period 3 January 2020 to 2 July 2020: CB 167-168 (collectively the “Chikweu Financial Information”);
(iv)Edith Cowan University (“ECU”) Request for Payment Tax Invoices dated 25 September 2020 (“ECU Invoices”) for:
(A)Semesters 1 and 2 2015;
(B)Semesters 1 and 2 2016;
(C)Semesters 1 and 2 2017;
(D)Semesters 1 and 2 2018;
(E)Semesters 1 and 2 2019; and
(F)Term 4 2019 (“ECU Invoices”): CB 169-179;
(v)a witness letter from Ms Chikweu’s friend, Ms Eviness Pemphero Nyalugwe (“Ms Nyalugwe’s Letter”): CB 182-184; and
(vi)a certificate of service from Ms Chikweu’s then employer (“Employment Certificate”): CB 185-186
(l)on 16 October 2020 Ms Chikweu emailed the Tribunal to advise that she had enrolled in a Bachelor of Social Work, but that her application was not yet accepted and would take almost four weeks to process: CB 187;
(m)on 22 October 2020 Ms Chikweu sent the Tribunal a letter of offer and a scholarship offer from ECU (“ECU Course Offer”): CB 192-202; and
(n)on 23 October 2020 the Tribunal held a hearing (“Tribunal Hearing “) which Ms Chikweu participated in by phone (due to the COVID-19 pandemic restrictions preventing the Tribunal from holding an in-person hearing): CB 203-206.
TRIBUNAL DECISION
At the Tribunal Hearing the Tribunal’s Oral Decision was delivered: CB 203-205.
On 2 November 2020 Ms Chikweu made a request for the Tribunal to provide the reasons for the Tribunal’s Oral Decision in writing: CB 210.
On 11 November 2020 the Tribunal sent written reasons for the Tribunal Decision to Ms Chikweu: CB 227-238 (“Tribunal’s Written Decision”): CB 227-238
In the Tribunal’s Written Decision the Tribunal:
(a)at CB 230 at [3] and 231-232 at [10]-[20] had regard to, among other things:
(i)the information Ms Chikweu provided to the Department of Immigration and Border Protection;
(ii)PRISMS records, regarding Ms Chikweu’s enrolment as a student in courses in Australia;
(iii)Ms Chikweu’s movement records;
(iv)the Griffiths Letter;
(v)the Griffiths Identity Documents;
(vi)the Chikweu Financial Information;
(vii)the ECU Invoices;
(viii)Ms Nyalugwe’s Letter;
(ix)the Employment Certificate; and
(x)the ECU Course Offer;
(b)at CB 235-236 at [49]-[55] raised with Ms Chikweu concerns it had regarding:
(i)how much money she believed she would need for the first 12 months of her studies for her Proposed Bachelor’s Course;
(ii)why she would want to study further in light of her having been in Australia for 15 years;
(iii)why she did not have a current COE;
(iv)what her plan was regarding having been in Australia for 15 years on temporary student visas;
(v)when she was planning to return to Malawi;
(vi)her extensive study history, as evidenced by her PRISMS record; and
(vii)her financial situation;
(c)concluded it would be a “very, very hard struggle” for Ms Chikweu to meet the indicative fee of $12,320 for her Proposed Bachelor’s Course based upon her current financial situation, her hours of work and her anticipated income: CB 234-235 at [42];
(d)accepted she would be entitled to recognition of prior learning for some aspects of the Proposed Bachelor’s Course: CB 234-235 at [42];
(e)at CB 235 at [48] found it concerning as to how Ms Chikweu was surviving at the time of the Tribunal Hearing, taking into account:
(i)the amount of her rent:
(ii)that she worked on an occasional basis; and
(iii)that she did not go out and ate very cheap food as she was trying to save money to study her Proposed Bachelor’s Course;
(f)found it difficult to accept or understand why Ms Chikweu said she did not know what to do when asked why she did not have a COE: CB 235 at [50];
(g)asked Ms Chikweu why she did not have a COE for study in 2020 and when Ms Chikweu explained that it was because her Student Visa had expired in March 2019 and that she was waiting for the Tribunal to conduct its process and was waiting for a decision from the Tribunal, found it difficult to accept her explanation as to why Ms Chikweu did not study in 2020 and considered that she must have known that she could study on a Bridging visa as she had done so while on a Bridging visa in 2019: CB 235 at [51];
(h)specifically asked why Ms Chikweu did not have a COE as at the date of the Tribunal Hearing, and when Ms Chikweu said that she received a Letter of Offer the day prior as part of the ECU Course Offer, held that a Letter of Offer is not for the Tribunal’s purposes, a COE, and found that Ms Chikweu was not enrolled: CB 236 at [52];
(i)again asked why she was not enrolled and when Ms Chikweu said that she was not sure if she could go back to school found it curious in light of what it had already outlined, and noted that Ms Chikweu had previously studied for a considerable period of time on a Bridging visa: CB 236 at [50]-[53];
(j)raised with Ms Chikweu that the records indicated that she was not currently enrolled and that her enrolment had ceased in about December 2019 and indicated that that information, if accepted, would be the reason or part of the reason for affirming the Delegate’s Decision: CB 236 at [58];
(k)Ms Chikweu confirmed that the records indicated that she was not currently enrolled and that her enrolment had ceased in about December 2019;
(l)gave Ms Chikweu over half an hour to consider her answer to its question about why she was not currently enrolled and that her enrolment had ceased in December 2019. After 35 minutes, Ms Chikweu answered that it was a hard question for her to answer and that she knew she must have a COE, that she did not know what to do, that she wanted to first hear from the Tribunal and that she did not know it would take the Tribunal so long to get to her matter and to make a decision: CB 236 at [59]. Ms Chikweu then qualified her answer and said that she did not realise at the time she -came before the Tribunal that she would need another COE, which the Tribunal found difficult to reconcile because the invitation to come before the Tribunal made it quite clear that the COE or current COE or other documents to show she was currently enrolled was an issue that would likely be canvassed in the Tribunal Hearing, and that Ms Chikweu would have been on notice that the COE was an issue: CB 236 at [60];
(m)found that it had not been provided with any evidence to suggest that Ms Chikweu was currently enrolled and that it had considered her evidence or explanation as to why she was not enrolled but that it did not persuade the Tribunal that there were any extenuating or compelling reasons why Ms Chikweu was not enrolled as of the date of the Tribunal Hearing: CB 237 at [67]; and
(n)affirmed the Delegate’s Decision: CB 237 at [68].
JUDICIAL REVIEW APPLICATION
9The Judicial Review Application for Ms Chikweu contains a single ground, as follows:
1.The Second Respondent’s decision was affected by jurisdictional error in that it failed to take into account relevant material that was before it.
Particulars
a.On 6 October 2020 the Applicant sent an email to [email protected] annexing various documents intended as evidence of available funds to meet her living expenses in Australia.
b.The Second Respondent found at paragraph 28 of the written decision record that the Applicant had not provided any documents or information in the required form, which included evidence of a money deposit with a financial institution. In making this finding, the Second Respondent failed to consider the documents provided by the Applicant on 6 October 2020.
Ms Chikweu’s submissions
Ms Chikweu’s Submissions were as follows:
(a)the Tribunal Hearing was conducted on the basis that the Tribunal had not received any documentary evidence from Ms Chikweu about her financial resources for her studies since the refusal of her Student Visa on 13 May 2019;
(b)the basis for the conduct of the Tribunal Hearing is evident from the fact that during the Tribunal Hearing, the Tribunal listed out all emails and documents which were before it but omitted to mention all of the documents in the Chikweu Financial Information: Tribunal Hearing Transcript, page 6, line 12 – page 7, line 25;
(c)when questioning Ms Chikweu about her financial capacity, the Tribunal made no reference to Mr Griffiths’ bank statements, which had been provided to it on 6 October 2020: Tribunal Hearing Transcript, page 14, lines 7-29;
(d)towards the end of the Tribunal Hearing, the Tribunal made the following statement at Tribunal Hearing Transcript, page 20, lines 22-29:
You have not even provided any evidence of your financial capacity. You told me there is a witness or a gentleman that could give me oral evidence about the possibility of him, as I understand, funding you. The problem with that is that I can’t just accept that. I need, I needed evidence of your financial capacity, being monies held with financial institutions, or loans with a financial institution, a government loan, or scholarship or financial support. You’ve given me a letter confirming a scholarship for about 20 per cent of the fees, I think. But when I weigh all those things up, I wouldn’t be satisfied that you do have evidence of financial capacity.
(e)in the Tribunal’s Oral Decision at CB 233 at [28]:
You have provided nothing of any particular weight or value to this tribunal for the hearing today upon which it could determine your capacity to pay. Even if you had been able to provide a certificate of enrolment there was no sufficient evidence before me upon which I could make a finding in your favour as to your capacity to pay. You did not provide any documents or information in the form that is required to do so. And the evidence of financial capacity are actually specified in the instrument and they needed to be evidence of a money deposit with a financial institution or a loan with a financial institution, government loans, a scholarship or financial support.
(f)in the Tribunal’s Written Decision at CB 234-235 at [42], the Tribunal stated:
Whilst I’m not required to give findings of fact as to the financial aspect in this decision for reasons I am about to outline it would appear to me to be a very, very hard struggle based upon your current financial situation and your hours of work and your anticipated income for you to be able to meet that amount of money. There is no evidence in an admissible form as required for me to find that you would have that capacity.
(g)contrary to the Tribunal’s statements that “nothing of any particular weight or value” and “no evidence in an admissible form” had been provided to it, Ms Chikweu had in fact provided evidence in the form required by the relevant legislative instrument, Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (“LIN 19/198”), specifically Mr Griffiths’ bank statements together with a letter of support confirming that the funds in the statements were accessible to her: CB 159-179; and
(h)the failure to consider the evidence of Mr Griffith’s bank accounts and letter of support caused the Tribunal to be unable to correctly exercise its jurisdiction when deciding the preferable outcome in Ms Chikweu’s case.
Minister’s Submissions
The Minister’s Submissions were as follows:
(a)it is axiomatic that “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (2019) 136 ALR 481; (2019) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(b)the Minister nevertheless accepts that an inference is available that the Tribunal did not consider, or take into account, the Chikweu Financial Information;
(c)even if the Tribunal failed to take into account the Financial Information, the Minister submits that any failure was not material to the Tribunal Decision and, thus, did not constitute a jurisdictional error;
(d)the Tribunal stands in the shoes of the Delegate and has to determine for itself on the material before it the decision which the Tribunal considers should be made: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250; (2019) 93 ALJR 629; (2019) 79 AAR 9; (2019) 367 ALR 695 at [14]-[15] per Kiefel CJ, Keane and Nettle JJ, and [51] per Bell, Gageler, Gordon and Edelman JJ;
(e)on the material before the Tribunal on 23 October 2020, Ms Chikweu failed to satisfy one of the requirements for a Student Visa – that she have a current COE at an eligible institution;
(f)in circumstances where Ms Chikweu failed to satisfy the requirement for a current COE, the Tribunal was correct to affirm the Delegate’s Decision: Singh v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 (“Singh”) at [11]-[14] and [31] per Banks-Smith J; Dhawan v Minister for Immigration [2020] FCCA 1335 (“Dhawan”) at [64]-[66] and [69] per Judge Kendall;
(g)it is necessary for Ms Chikweu to establish that the Tribunal’s non-compliance with the alleged obligation, in this case, to consider, or take into account, the Chikweu Financial Information, could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 5; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”) at [45]-[47] per Bell, Gageler, and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [30] per Kiefel CJ, Gageler and Keane JJ and [72] per Edelman J;
(h)Ms Chikweu’s single ground of review does not address the basis for the Tribunal Decision; and
(i)even if the Tribunal had taken into account the Chikweu Financial Information, this could not realistically have resulted in a different decision because it did not assist Ms Chikweu to show that she held a current COE.
CONSIDERATION
Clause 500.211(a) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) provides as follows:
One of the following applies:
(a) the applicant is enrolled in a course of study;
Clause 500.214 of Sch 2 to the Migration Regulations is as follows:
(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2)While the applicant holds the visa, sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant's intended stay in Australia; and
(b)the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.
LIN 19/198 sets out the requirements for the primary applicant for a Student Visa as follows (emphasis added):
(2) The evidence of financial capacity
…
(b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
(i) travel expenses; and
(ii) the following living costs and expenses:
(A)if the primary applicant intends to stay in Australia for a period of 12 months or more - AUD21,041 (annual living costs); and
…
(3) The evidence of financial capacity:
(a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and
(b)demonstrates that the primary applicant's parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:
(i)if there is no secondary applicant- at least AUD62,222; or
…
…
10 Evidence of financial capacity
The following forms of evidence of financial capacity are specified:
(a) money deposit with a financial institution;
(b) loan with a financial institution;
(c) government loans;
(d) scholarship or financial support
Relevant to a consideration of the Judicial Review Application, the legislative requirements for a Student Visa under Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) are therefore that Ms Chikweu:
(a)be enrolled in a course of study and provide evidence of that enrolment: Migration Regulations, Sch 2, cl 500.211; and
(b)have enough money for the duration of her stay in Australia: Migration Regulations Sch 2, cl 500.214.
If Ms Chikweu intended to demonstrate that she had genuine access to money for the duration of her stay in Australia but someone else is providing the money, then she had to demonstrate:
(a)evidence of the relationship with the person providing her with funds for her study;
(b)the identity documents of the person providing her the funds for her study; and
(c)evidence of any financial support the person providing her the funds has given her or another student visa holder in the past.
Is ground 1 made out?
In Ms Chikweu’s case, at the time of the Tribunal Decision, Ms Chikweu provided the following supporting documents:
(a)the Griffiths letter: CB 161;
(b)the Griffiths’ Identity Documents: CB 162;
(c)the Chikweu Financial Information: CB 163-168;
(d)the ECU Invoices: CB 169-179
(e)Ms Nyalugwe’s letter: CB 182-184
(f)the Employment Certificate: CB 185-186; and
(g)the ECU Course Offer,
and (a), (b) and (c) above were also provided as evidence of the person providing funds to Ms Chikweu.
The Chikweu Financial Information meets only one of the requirements detailed above at [14] under s 10 of the LIN 19/198 and the other documents sent by Ms Chikweu can be described as vague, unclear and inadequate.
The content of the letter of financial support from Mr Griffiths is as follows (reproduced without alteration):
My name is Griffiths, Dean Stuart, and I am a farmer / Farm hand worker with Grain and Sheep and a citizen of Australia. I am submitting this recommendation letter of financial in support of Edina Chikweu’s application for Student Visa in Australia.
I have know Ms Chikweu for almost Five years at one of my friend’s house in Perth, in this time; I have found Ms Chikweu to be a kind lady, earnest, understanding, trustworthy lady.
I agree to provide financial support for Edina Chikweu up to the completion of her studies
If you have any questions, please feel free to contact me
In the Tribunal’s Written Reasons at CB 230 at [6] the Tribunal notes that the Delegate did not consider Ms Chikweu met the personal annual income required to satisfy the financial requirement, and that considered as a whole, the Delegate was not satisfied that Ms Chikweu had sufficient evidence of financial capacity as required by LIN 19/198.
The Chikweu Financial Information does not assist Ms Chikweu as there is no basis for concluding that the evidence of financial capacity relates to Ms Chikweu’s “parent, spouse or de facto partner”. Further, the Chikweu Financial Information does not establish, in any event, that Mr Griffiths had a personal annual income of $62,222 in the 12 months immediately before the Student Visa application was made. And, finally, the Chikweu Financial Information is for periods of time in 2020, and therefore post-dates the time at which the Student Visa application was made on 12 February 2019, and therefore cannot meet the requirements set out in LIN 19/198 of demonstrating income in the 12 months immediately before the Student Visa application was made.
It was for Ms Chikweu to establish that the Tribunal made a jurisdictional error: but there is nothing in relation to the Chikweu Financial Information, or the other financial information generally, which was before the Tribunal, which suggests that the Tribunal made any error in failing to find that Ms Chikweu met the financial requirements for the grant of the Student Visa. It is implicit in the Tribunal’s Written Decision at CB 236 at [55]-[57] and 237 at [68] that the Tribunal took the view that Ms Chikweu did not satisfy the financial criteria for the grant of the Student Visa.
On the above bases, ground 1 of the Judicial Review Application is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Separate basis for not meeting the criteria
In order to obtain a Student Visa Ms Chikweu had to have a current COE: Migration Regulations, Sch 2, cl 500.211(a). There was no evidence (and it does not appear to be in dispute) that Ms Chikweu did not have a current COE at the time of the Tribunal’s Oral decision, and it would appear that Ms Chikweu had no capacity to study as she did not have a Bridging visa entitling her to study at the time of the Tribunal Hearing: CB 235 at [50]. Further, it would appear that Ms Chikweau was “waiting for a decision from the Tribunal” before doing anything further: CB 235 at [51].
There are many, many judgments of the federal courts dealing with applicants for a Student Visa without a COE at the time of decision by the Tribunal, and who therefore failed to meet the criteria in cl 500.211(a) of Sch 2 to the Migration Regulations to be enrolled in a course of study. Brief reference to two fairly recent judgments will suffice for present purposes.
In Singh at [29]-[31] per Banks-Smith J the Federal Court of Australia observed that:
29. Before me, the appellant said that he did not have a certificate of enrolment because he wished to await the grant of a visa before incurring the costs of enrolment. He also said he wanted a second chance to continue his studies, as he came to Australia for that purpose.
30.Whilst I can well understand the appellant's desire to continue studies in Australia, the matters he has raised do not comprise a basis for finding appellable error on the part of the primary judge.
31.It is clear that the Tribunal properly understood its task. It ascertained that the appellant had failed to provide evidence of enrolment at the date of its decision and applied the relevant definition, as required for the purpose of considering whether the criterion for the subclass 500 visa was met. It applied the definition correctly. Accordingly, no jurisdictional error on the Tribunal's part is disclosed and the primary judge did not err in dismissing the review application.
In Dhawan at [58] per Judge Kendall the then Federal Circuit Court of Australia observed that (emphasis in original):
… it was not relevant why the applicant was not enrolled. It was only relevant whether he was enrolled. Hence, the fact that he was not allowed an opportunity to explain “why” is of no consequence.
It is plain in this case that:
(a)Ms Chikweu did not have a COE at the time of the Tribunal’s Oral Decision; and\
(b)the Tribunal:
(i)ascertained and understood that Ms Chikweu did not have a COE at the time of the Tribunal’s Oral Decision;
(ii)set out and understood the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations;
(iii)correctly applied the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations to the facts; and
(iv)came to the correct conclusion that Ms Chikweu did not meet the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations, and was therefore correct to affirm the Delegate’s Decision to refuse Ms Chikweu’s application for a Student Visa.
It follows that there was no jurisdictional error in the Tribunal Decision.
It also follows that because there was a proper alternative basis upon which the Tribunal could conclude, and did conclude, that Ms Chikweu did not meet the criteria for
Student Visa, that any error in relation to non-consideration of the Chikweu Financial Information, even if that was made out, which it was not in the Court’s view, was simply not material as Ms Chikweu did not have a current COE. Consequently there was no realistic possibility that the Tribunal could have decided the matter differently: SZMTA at [38], [44] and [45] per Bell, Gageler and Keane JJ, MZAPC at [1]-[3] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
At hearing it was suggested for Ms Chikweu that the Tribunal ought to have adjourned to allow for a COE to issue in relation to her Letter of Offer from ECU. The Court notes that a Letter of Offer is not a COE meeting the requirement under cl 500.211(a) of the Migration Regulations, but in any event it is not apparent that Ms Chikweu had a Bridging visa entitling her to study at the relevant time, and it would appear that because she did not have a Bridging visa entitling her to study she was “not sure … [she] could go back to school”: CB 236 at [53]. There was therefore nothing in the evidence to affirmatively suggest that Ms Chikweau might obtain a COE within any reasonable period of time warranting an adjournment of the Tribunal Hearing. In all the above circumstances, it was open to the Tribunal, on the evidence before it, to conclude that Ms Chikweu did not meet the Student Visa criteria because she did not have a COE.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)ground 1 does not establish material jurisdictional error in the Tribunal Decision; and
(b)there is a separate basis for finding that Ms Chikweu did not meet the criteria for the Student Visa, namely, that she had no current COE.
It follows from the above conclusions that there will be an order dismissing the Judicial Review Application. There will also be an order to amend the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 19 August 2022
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