DHA v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHA & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1459

Catchwords:
MIGRATION – Student visas – no enrolment in course – no financial support evidence.

Legislation:

Migration Act 1958 (Cth), s.474

Migration Regulation 1994 (Cth), sch.2: cl.572; sch.5A: cl.5A402, 5A405

First Applicant:

SARBJIT KAUR DHA

Second Applicant:

DALJIT SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 1028 of 2012

Judgment of:

Judge Coates

Hearing date:

9 July 2013

Date of Last Submission:

9 July 2013

Delivered at:

Brisbane

Delivered on:

27 September 2013

REPRESENTATION

Solicitors for the First Applicant:

Self-represented

Solicitors for the Second Applicant:

Self-represented

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the Migration Application filed 23 November 2012 and Amended on 9 January 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1028 of 2012

SARBJIT KAUR DHA

First Applicant

DALJIT SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 22 April 2008 the applicants arrived in Australia on subclass 573 student visas.
They are a married couple.
They are Indian nationals.
On 28 July 2010 the student visas expired.
Five days before the expiry, on 23 July 2010, the first applicant made a further application for a temporary student visa.
On 4 November 2010 a delegate for the Minister for Immigration and Citizenship refused the grant of the visa.
The second applicant applied as a member of the first applicant’s family unit.
On 26 November 2010 the first applicant lodged an application for review with the Migration Review Tribunal.
On 20 August 2012 an invitation sent to the applicants on 10 July 2012, to attend a hearing on 19 September 2012, was returned unclaimed to the Tribunal on 20 August 2012.
On 21 August 2012 a further invitation was sent to a new address.
Among other things, the Tribunal asked for further evidence including evidence that the first applicant satisfied the financial capacity requirements for a student visa.
On 19 September 2012 at the hearing the first applicant confirmed that she held no current enrolment for any registered course.
The Tribunal explained that the first applicant needed to show enrolment in an approved course and that the Tribunal would need to be satisfied that she had access to sufficient funds to meet financial capacity requirements for the visa.
The Tribunal extended time for further evidence to 5 October 2012, the applicant submitting such by 2 October 2012.
On 16 October 2012 the applicant provided a new confirmation of enrolment document from Mead Business College for a Diploma of Business stating 12 November 2012 and ending 11 November 2013.
On 25 October 2012 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant’s student (temporary) (class TU) visas on the ground that the applicant had not provided evidence of financial capacity.
On 23 November 2012 this application was filed.
An amended application needed to be filed and this was done on 9 January 2013 because there were no stated grounds for the original application.
The grounds listed are as follows and I only produce them as it is evident that it is self-prepared and on their face only go to factual matters.
They are as follows:

“1. First I apply student visa in 23 July 2010 then after 3 month processing the immigration not give us a visa they say which the loan you are show that one is fraud. That the loan which is show on my mother name Mohan Kaur that time I have a lawyer Vishal Sharma who is a working as a migration lawyer in Melbourne. He did every thing for us submit my file arrange a loan from Punjab national bank in India on my mother mane. That loan is not approved in head bank in Delhi.

2. I apply for MRT after 18 month they call me and say your hearing for the MRT decision is on 19 September 2012 then we attend the hearing on that day the lady who is a treat us with our case Jan Speirs she say you need to provide that all documents again like a valid health insurance, the letter from collage where you are going to study, and the funds for supports your self and your partner as well. Then she was say to us your funds must be 6 month older then the date of you apply a student visa in 23 July 2010. You not need to show that the same account which is you show on last time to the immigration. Then she say if you want then you can show a funds on your name and on your partner name as well. We show a funds on my partner name Daljit Singh and this my funds is real and still in our bank account in India. She give us a decision on 26 October 2012 and she say you bank account is hold on too many people name. She did not give us a visa again.

3. This time we apply for judicial review in federal magistrates court on 23 November 2012 for the justice. This time I want to let you know my funds is real and still in my bank account in India what I let you know in India every one thinking they have a joint account with some one like a life partner or with parents or with children because if the main person is die the who is access the all money because the is not give the to any other person they give the money to that person who is a include in the account otherwise the all money going to in government trust. I just remind you I want a justice because this time my money is real and still in our bank account in India. I want remind you when I came in Australia that time I am pregnant and I miss my 3 month study and the immigration not give us a that 3 month visa as well I just finish my that 3 month study in that time while the visa application is on processing because the immigration take a 3 month to give us a decision.”

Pursuant to s.474 of the Migration Act 1958, review of the decision is only open if there has been jurisdictional error on the part of the decision-maker.
The relevant student visa here is subject to the criteria set out in Subclass 572 of Schedule 2 to the Migration Regulations 1994.
Clause 5A405 states:
“(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.”
The term “funds from an acceptable source” includes, pursuant to the Migration Regulation 1994, Schedule 5A, cl.5A405(2)(aa) “a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application”.
This application must establish jurisdictional error and it is usually a requirement that such error be identified in what are called the grounds.
The applicants, being unrepresented, had no understanding of that requirement.
I examined the case they put forward to determine whether jurisdictional error could be identified. In that sense the facts or indeed relevant issues must be identified.
The salient issue here was that there was a finding that the first applicant could not show evidence of the necessary financial capacity as specified in cl.5A405, at the time of the hearing.
This is first addressed at paragraphs 36 to 38 of the reasons and then in a detailed manner from paragraphs 41 to 62.
The paragraphs show the Tribunal was aware of the various provisions which had to be assessed as against the evidence.
Keeping in mind that the applicant has to establish jurisdictional error, the challenge seems to be about the findings on applicant’s financial capacity.
The regulations require money to cover 36 months of residency in Australia.
The financial capacity goes to course fees, living costs, travel costs and total costs.
The Tribunal assessed the evidence and found that the first applicant did not give evidence of having the necessary financial support for the 36-month period. At paragraph 46 the finding was that the financial capacity was for 13 months.
The mistake the applicant makes, in my view, is that she appears to be challenging the factual findings as to the money available coming from an acceptable source.
The Tribunal referred to the provisions – stating that funds have to be from an acceptable source as defined in cl.5A405. The Tribunal decision reproduced the clause, which states:
“(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 a least the 6 months immediately before the date of the applicant
and
(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual.”
The Tribunal then looked for acceptable sources on the applicant’s evidence before it.
The Tribunal referred to the evidence which the applicant supplied about funds held in the Punjab and Sind Bank and the Punjab National Bank and that such had not been held for at least 6 months prior to the date of the visa application on 23 July 2010.
On other documents presented to the Tribunal of loans and deposits with the Punjab National Bank, the Tribunal found that the bank did not verify the documents to be genuine and therefore the delegate had found them to be fraudulent.
It was on that basis that the Tribunal did not accept that the bank documents submitted to the department in 2010 met the requirements of cl.5A405.
Consequently, the Tribunal was not satisfied that the first applicant could provide evidence that she had funds from an acceptable source.
She therefore did not have the necessary financial capacity and the second applicant, who is the applicant’s spouse, was also held as not meeting the requirements
On those ground the Tribunal affirmed the delegate’s decision.
In oral submissions the applicant failed to address the issue of jurisdictional error and although I considered what her submissions may amount to, either taking irrelevant information into consideration or not taking relevant information into consideration – based on claims that the department did not check her claims with the bank –I could not arrive at that conclusion.
The Tribunal clearly gave the applicant opportunity to address the issues of financial capacity and it was then up to the applicant to address or supply the required evidence. The Tribunal considered the evidence as it found it and asked the right question by putting the applicant on notice that issues of financial capacity, as well as enrolment, had to be addressed.
The Tribunal identifies its decision was based on an assessment of the evidence provided as to whether the applicant:
a)gave satisfactory proof of funds from an acceptable source as required by cl.5A405(1)(a) and (b), and
b)gave satisfactory proof as required by cl.752.223 in relation to a course of study as a genuine student.
The so-called grounds of appeal and submissions address factual issues only and that decision-making process is not open to this court on an application for a review.
I find that the decision of the Tribunal is subject to s.474 of the Migration Act 1958, that it is a privative decision and that the application has not made out a ground for judicial review.
The application must be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Coates

Associate:

Date: 27 September 2013

[2013] FCCA 1459

27 September 2013

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction