Hasnat v Minister for Immigration
[2015] FCCA 2560
•24 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASNAT v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2560 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – application to show cause – whether the application raises an arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.44.12(1), 44.12(1)(a) |
| Applicant: | MOHAMMED ABUL HASNAT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2410 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 15 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2015 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Mr L Dennis of Sparke Helmore |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The applicant pay the first respondent’s costs.
The name of the second respondent be amended to read the Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2410 of 2014
| MOHAMMED ABUL HASNAT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The question before the Court is whether the application for judicial review filed in these proceedings raises an arguable case for the relief it seeks within the meaning of r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The relief the application seeks are constitutional writs directed to the second respondent (Tribunal) in relation to a decision it made to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) Vocational Education and Training Sector (Subclass 572) visa (Student visa).
Background
To have been entitled to the Student visa, the applicant had to satisfy the criterion specified by cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Subclause 572.223(1) required that the Minister be satisfied that the applicant was a genuine applicant for entry and stay as a student because the applicant met the requirement in subclause 572.223(2). That subclause provided that an applicant meets the requirements of that subclause if, among other things, the applicant gives the Minister evidence in accordance with the requirements mentioned in schedule 5A for the “highest assessment level” for the applicant.
The expression “assessment level”, when used in relation to a Student visa, is defined in reg.1.03 of the Regulations to mean the level of assessment specified for a kind of eligible passport for the student under reg.1.41 of the Regulations. Paragraph 1 of reg.1.41 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 expression “eligible passport” is defined in subreg.1.40(1) to mean a valid passport of a kind specified by the Minister in an instrument in writing for subreg.1.40(1) of the Regulations, and which satisfies any conditions which the Minister has specified in an instrument in writing for such passport. The relevant instrument in writing that applied to the applicant is Instrument IMMI 10/003 dated 16 March 2010 which commenced on 27 March 2010.[1] Instrument IMMI 10/003 specified Bangladesh passports as eligible passports and assigned an assessment level of 4 for such passports. Accordingly, the requirements mentioned in schedule 5A which the applicant had to satisfy were the requirements provided in that schedule for assessment level 4. Those requirements are found in Division 2 of Schedule 5A to the Regulations.
[1] Instrument IMMI 10/003 dated 16 March 2010 ceased on 24 March 2012 when it was replaced by Instrument IMMI 12/005 dated 21 March 2012 which commenced on 24 March 2012 and specified assessment levels for a kind of eligible passport in relation to an application for a Student visa made on or after 24 March 2010.
Clause 5A405 of Schedule 5A to the Regulations prescribed certain requirements relating to financial capacity for assessment level 4. Relevant to the application before the Court are the requirements specified in paragraph 1(a) of cl.5A405. That paragraph required the applicant to provide evidence that the applicant has “funds from an acceptable source” that are sufficient to meet three classes of expenses for the first 36 months, these being course fees, living costs, and school costs. Also relevant is paragraph 1(b) of cl.5A405 which required the applicant to provide evidence that the applicant had funds from an acceptable source that are sufficient to meet travel costs. The expressions “course fees” for an applicant in relation to a period is defined in cl.5A101 to mean “the fees for each course proposed to be undertaken by the applicant in the period, as indicated by the proposed education providers in a letter or other document”. The expression living costs in relation to assessments other than levels 1, 2, and 3 is defined in cl.5A104 to mean, among other things, an amount specified by the Minister in an instrument in writing for that clause (the basic rate). The relevant instrument is IMMI 09/138, which commenced on 1 January 2010. It specified AUD18,000 as the basic rate. The expression “funds from an acceptable source” is defined in subclause 5A405(2) to mean, among other things, “a money deposit that an acceptable individual has held for at least 6 months before the date of the application”. The expression “acceptable person” is defined to mean, among other things, the applicant or the applicant’s parents.
Evidence of financial capacity provided to Tribunal
The applicant submitted to the Tribunal the following items of evidence of financial capacity:
(a)Correspondence from the Laxmipur Post Office indicating the applicant’s father had purchased a 3 year Bangladesh Sanchaya Pathra in the value of BDT1.9 million with period dates between 1 April 2008 and 30 July 2009. The applicant’s father attested he had access to the funds and that the finds would be put towards the applicant’s study costs.[2] At the hearing before the Tribunal, however, the applicant said that these funds were no longer available for the applicant’s support.[3]
(b)Two statements of account in the applicant’s mother’s name showing a balance of BDT1,412,921.51 on 6 July 2014 and 14 July 2014. Additional statements were provided at the hearing showing a similar balance between 4 May 2014 and 4 June 2014.[4]
(c)Statements of account from the United Commercial Bank in the joint names of the applicant’s mother and sister for the period between 28 January 2012 and 17 June 2014. During the period the highest balance was BDT400,908 and the lowest balance was BDT980.[5]
(d)Statement of Account from the United Commercial Bank in the applicant’s name for the period between 29 June 2014 and 3 July 2014, which showed a closing balance of BDT32,915.[6]
(e)Commonwealth Bank statement in the applicant’s name for the period between 15 April 2014 and 21 July 2014 showing a highest balance of AUD1,530.76 and a lowest balance of AUD15.76.[7]
(f)Receipt of MaxForex transfer of AUD1,500 to the applicant’s Commonwealth Bank account.[8]
[2] CB46-47
[3] CB120, [16]
[4] CB101
[5] CB102-105
[6] CB114
[7] CB112
[8] CB113
The applicant submitted evidence of the applicant’s sister’s employment with the United Commercial Bank and tax details.[9] He also submitted a statement from both the applicant’s mother and sister stating they would provide the applicant with AUD20,000 in support of his study.
[9] CB106-108
Before the Tribunal
At the hearing on 22 July 2014 the Tribunal informed the applicant that the total relevant expenses required to established financial capacity was AUD48,572. This total consisted of the following amounts:[10]
(a)AUD11,760 being the total of remaining course fees disclosed by the certificates of enrolment presented by the applicant;
(b)living costs of AUD36,000 for two years, being the amount calculated by applying the base rate specified in instrument IMMI09/138; and
(c)AUD767 for travel costs, being the average cost of the cheapest fares for a one-way flight to the applicant’s home country.
[10] CB119, [14]
The Tribunal also informed the applicant that the AUD48,572 was the equivalent of BDT3,499,091.[11] The Tribunal discussed with the applicant the difficulties with the evidence of funds the applicant had submitted.[12] The Tribunal informed the applicant it would allow him until 1 August 2014 to provide any additional evidence, but the applicant did not do so.[13]
[11] CB119, [15]
[12] CB120, [21]
[13] CB120, [23]
Tribunal’s decision
The Tribunal considered the issue before it to be whether the applicant had “provided evidence of funds from an acceptable source sufficient to meet relevant expenses in cl.5A405(1)(a)”.[14] It found that the applicant had “not given evidence that he has funds from an acceptable source that are sufficient to meet relevant expenses for the period of his proposed stay in Australia”.[15]
[14] CB121, [24]
[15] CB121, [27]
First, the evidence from the applicant’s mother and sister “indicated that in the 6 months before the application was made” the funds available to them were “not sufficient to meet relevant costs and fees,” and “both the greatest and smallest deposits held by the relevant individuals during that time…[were] well below the BDT3,499,091 required”.[16] Second, even if the applicant still had the father’s funds available to him “they are not sufficient to meet relevant expenses, even if combined with that held by his sister and mother at the time”.[17] Third, the applicant provided no other evidence about his financial capacity such as “relevant loans or other support available to him”; the applicant only relied on “money deposits held by acceptable individuals”.[18]
[16] CB121, [25]. The BDT3,499,091 referred to in the Tribunal’s reasons for decision was less than the BDT3,499,091 the Tribunal discussed with the applicant at the hearing because the BDT3,499,091 reflected the tribunal’s calculation as at the date of its decision – CB119, [15]
[17] CB121, [24]
[18] CB121, [26]
Application for judicial review
The applicant raises three unparticularised grounds in his application:
1. The delegate to the Minister (DIMIA) failed to understand that I am a genuine applicant for stay as a student visa holder.
2. The delegate to the Minister failed to justify that I have access to funds declared according with Schedule 5A.
3. The delegate to the Minister failed understand that I have access to the funds my sponsor has provided.
On their face, none of these grounds raises an arguable case of jurisdictional error. They are directed to what the delegate failed to do. This Court does not have jurisdiction in relation to the decision of the delegate. Having heard submissions from the applicant, who is not legally represented, it appears that the applicant intended the word “delegate” to refer to the Tribunal rather than to the Minister. I propose, therefore, to consider the application before me on the assumption that the references to “delegate” in each of the grounds is a reference to the Tribunal.
As I understood the applicant, ground 1 is directed to the decision of a previously constituted Tribunal that considered the applicant’s case for review. That decision, however, is not relevant to the Tribunal’s decision that is the subject of the application that is before me and does not, therefore, raise an arguable claim for the relief the application seeks. To the extent, however, ground 1 is intended to be directed the Tribunal’s decision that is the subject of the application that is before me, it raises no arguable claim for the relief the application seeks. There is no arguable case that the Tribunal failed to understand the issues it was required to understand. The Tribunal correctly understood that the issue before it was whether the applicant is “a genuine applicant for entry and stay as a student”,[19] and that that issue, as it related to the applicant, turned on whether the applicant met the relevant evidentiary requirements prescribed by Schedule 5A to the Regulations. The Tribunal found the applicant was not “a genuine applicant for entry and stay as a student” because the applicant did not satisfy those evidentiary requirements and, in particular, the applicant did not provide evidentiary material that he had funds from an acceptable source sufficient to meet relevant expenses referred to in cl.5A405(1)(a) of Schedule 5A to the Regulations.
[19] CB118, [6]
Ground 2 as drawn is difficult to understand. When asked whether he wished to make submissions in relation to ground 2, the applicant said that the Tribunal asked him how he was to have access to accounts held by his sister and mother, and the applicant said he provided the Tribunal with documents. The applicant submitted the Tribunal did not consider those documents. That submission is not arguable. It is beyond argument the Tribunal considered the documents the applicant provided to the Tribunal.
Ground 3 as drawn also does not disclose an arguable case for the relief the application seeks. The Tribunal did not find the applicant did not have access to the accounts referred to in the documents the applicant provided to the Tribunal. The Tribunal found that the evidence from the applicant’s mother and sister indicated that in the 6 months before the application was made the funds available to them were not sufficient to meet the relevant costs and fees, and that both the greatest and smallest deposits held by them during that time were well below the amounts to which the applicant was required to provide evidence he had access.
Conclusion and disposition
The application does not disclose an arguable case for the relief it claims. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 24 September 2015
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