IKRAM v Minister for Immigration
[2014] FCCA 201
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IKRAM v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 201 |
| Catchwords: MIGRATION – Review of decision of the Migration Review Tribunal – Applicant refused Student (Temporary) (Class TU) visa, subclass 572 – meaning of “has funds” – whether the Tribunal asked itself the wrong question or applied the wrong test – ground for review successful – Tribunal’s decision set aside. |
| Legislation: Migration Amendment Regulations 2009, Schedule 3 Migration Regulations 1994 (Cth), Schedule 2,cl 572.223(2)(a)(i)(B),cl572.223(2)(a)(iii), cl 573 Schedule 5A, cl5A405(1)(a) |
| Cases cited: Asif v Minister for Immigration and Citizenship & Anor [2011] FCA 1104 |
| Applicant: | MUHAMMAD IKRAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 334 of 2012 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 12 September 2012 |
| Date of Last Submission: | 12 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Da Gama Pereira & Associates |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
There be a declaration that the decision of the Second Respondent dated 20 February 2012 was unlawful and invalid.
The decision be set aside.
The matter be remitted to the Second Respondent for determination according to law.
The Respondents be prohibited from relying upon or giving effect to the Second Respondent’s decision.
The First Respondent pay the Applicant's costs of and incidental to this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 334 of 2012
| MUHAMMAD IKRAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 26 March 2012, the Applicant seeks a review of the determination of the Migration Review Tribunal (‘the Tribunal’) dated 20 February 2012. That determination affirmed an earlier decision by a delegate of the First Respondent (“the Minister”) to refuse a Student (Temporary) (Class TU) Subclass 572 visa.
Pertinent Background
On 24 September 2009, the Applicant lodged an application for a Student (Temporary) Visa. This is a critical date in respect of to the Applicant’s contention as it predates an amendment to the Regulations (“the amendment”) that became operable on 1 January 2010.[1]
[1] Schedule 3, Migration Amendment Regulations 2009 (No. 14) (SLI No 331 of 2009).
The Applicant is of Pakistani nationality and is currently 28 years of age. He entered Australia on 17 June 2008 pursuant to a Subclass 572 student visa which was issued to him in Pakistan on 11 July 2007, being his first successful application for a student visa.
On 24 September 2009 the Applicant applied for a subsequent Subclass 572 visa. On 6 November 2009, a delegate of the Minister refused the Applicant’s application on the ground that he was unable to satisfy the requirements of clause 572.223(2)(a)(i)(B) of Schedule 2 of the Migration Regulations1994 (“the Regulations”).
However, it is to be noted that for the purposes of this review, the determination by the delegate was for different reasons from those which formed the basis of the Tribunal’s determination to affirm the delegate’s decision. This was due to the fact that by the time of the Tribunal hearing, the problems identified by the delegate had been, in effect, remedied.
Ground of review
The Applicant relies on one ground of review; namely
“The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal misinterpreted and/or misapplied the phrase ‘the applicant has funds from an acceptable source’ found in Clause 5A405(1)(a) of Schedule 5 of the Migration Regulations 1994.
Particulars
The Tribunal found that the applicant’s father was an acceptable individual who had a loan from a financial institution in his name and that the amount of the loan was sufficient to meet the applicant’s course fees, living costs and school fees between the date of the decision of the Tribunal (20 February 2012) and the completion of the applicant’s course (22 July 2012);
The Tribunal erred in construing the word ‘has’ to mean that the applicant needed to have reasonable access to the loan funds over the relevant period.”
Relevant Legislative framework
The applicant was required to satisfy clause 572.223 of Schedule 2 of the Regulations, which states:
572.223Financial Capacity
(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)The 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 to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A) [not relevant]
(B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition relating to work.
(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.
As the applicant held a Pakistani passport, he fell within Assessment Level 4, which meant that he was required to satisfy Clause 5A405 in Schedule 5A of the Regulations to be granted the visa.
Clause 5A405 provided:
5A405(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.
(emphasis added)
The amendment, however, inserted a new Subclause 572.223 (2)(a)(iii) which specifically required the Minister to be satisfied that an applicant has access to the funds. It states:
(iii)the Minster is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirement in Schedule 5A relating to the applicant’s financial capacity;
The concept of having ‘access’ to funds was introduced by the amendment. In the context of the requirements applying before the amendment, as is the situation in this case, no reference is made to the need to have access to the funds or to ensure that a visa applicant would have access to funds during the course of the study. He simply needed to have sufficient funds.
The Tribunal’s determination
The Tribunal accepted the evidence before it and determined that the requisite funds needed for the Applicant for the remainder of his course at the date of its decision was a lesser sum than the delegate had calculated; that the Applicant’s father was an acceptable source of funds and that otherwise the Tribunal was satisfied the requirements for the visa had been met, save in one respect.
The applicant had given evidence that his father had the requisite funds, but the process adopted by the applicant and his father was to transfer the funds, when required, to the father’s brother’s account in Pakistan and thereafter the funds were to be transferred to the applicant’s cousin in Australia who would then pass them onto the applicant. The explanation given for this convoluted process was that the father found this easier and that it saved on foreign bank (transfer and exchange) fees.
Based on this evidence, the Tribunal found that:
“The funds transferred from the applicant’s father to the cousin are under the control or influence of others as the applicant has no ability to determine the actual withdrawal of the funds himself. The applicant is entirely dependent on the cousin for the funds which are not held in the name of the applicant’s father (or indeed the applicant).”
In those circumstances the Tribunal stated:
“The Tribunal is satisfied that the arrangement described above does not reasonably enable the applicant to have funds from an acceptable source that are sufficient to meet the course fees, living costs and school costs for the requisite period to 22 July 2012. In these particular circumstances where there is such a tenuous reliance on third parties, considered overall, the Tribunal is not satisfied that the applicant has given evidence sufficient to satisfy the requirement under cl.5A405(1)(a) that he has funds from an acceptable source.”
The Tribunal found that the Applicant was otherwise a genuine applicant for entry and stay as a student within the terms of
cl. 572.223(2)(a)(ii) of the Regulations.
However, because of the tenuous reliance on third parties for funds and the finding therefore that such reliance did not satisfy the requirement that he ‘has funds’, the Tribunal found that the Applicant does not comply with the requirements of cl.572.223(2)(a)(i)(B) of the Regulations and accordingly affirmed the earlier decision of the delegate not to grant the visa.
Contentions
The contention of the applicant, simply put, is that in determining the issue of whether the applicant ‘has funds’, the Tribunal applied the requirement under the amendment that the applicant have access to the funds; and in doing so committed a jurisdictional error as under the applicable provisions before the amendment, there was only the need to have funds. The applicant’s contention is given weight, it was said, by the fact that there was a need for the amendment which stipulated the need to have access to funds.
In effect, it was contended that the Tribunal asked itself the wrong question; namely, does the applicant have access to funds as opposed to the then legislative requirement of just asking itself whether there are funds from an acceptable source. But for the amendment, the need for capacity to access funds was not a determinative aspect, so long as there were funds available from an acceptable source - which the Tribunal found there was.
In support of this contention, the applicant made reference to the Explanatory Memorandum in relation to the amendment, highlighting the following:
“New subparagraph 572.223(2)(a)(iii) requires the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
Schedule 5A to the Principal Regulations specifies that the applicant for a prescribed student visa subclass must have sufficient funds to meet; for a specified period of study; course fees, living costs, school and travel costs.
The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A to the Principal Regulations before granting the visa.
The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.”
(emphasis added)
The second part of the Applicant’s written contentions sought to argue that the Tribunal was in error in not considering the role of the cousin as potentially that of an acceptable individual under the Regulations. The applicant drew issue with the notion that the delivery of the funds by a cousin in Australia was a disqualifying feature. However, because of my determination on the first limb of the ground, there is no need to address the second limb.
The Minister’s principal contention is that the applicant seeks in effect a merits review; namely, a finding that the applicant does have funds as required. I do not accept this. As his Honour Gray J in Asif v Minister for Immigration and Citizenship & Anor [2011] FCA 1104 stated:
“The making of findings of fact is a matter within the Tribunal’s jurisdiction, and therefore cannot give rise to jurisdictional error, unless the Tribunal’s approaches the task of fact finding in a way that is legally impermissible, for example, by adopting an approach that is not available to it as a matter of law.”
In this case, there is, in my view, an argument over how the phrase “has funds” should be construed; whether the Tribunal was in error in applying an understanding it had of this requirement to have funds; It is proper to determine whether the Tribunal erred when it construed the ability to draw on the funds was too tenuous as the applicant relied on third parties or whether the Tribunal had asked itself the wrong question and applied the wrong test.
The Minister contended that the Tribunal was not in error as it is evident from the Tribunal's written decision that it was aware and alert to the amendment, which it referred to in its decision, and ipso facto would not have made a decision applying the amended regulation. Indeed, the Minister contended that the applicable existing regulation requiring the applicant to have funds, necessarily implied a need to determine the ability to acquire the funds.
Further, the Minister contended that a reading of the decision does not reveal any use of the word “access”, and certainly not in the context of access to funds.
Consideration
In my view, there is weight in the applicant's contention that prior to the amendment there was no need to address the issue of access to the funds; which presumably was perceived as a shortcoming necessitating the amendment. By necessary implication, the applicant contends, forcefully in my view, that the applicable regulation requires the applicant to have funds.
Whilst the Minister relied on an interpretation of the relevant regulation that implied the need for a capacity on the part of the applicant to draw down on funds to meet the need to have funds that it was within the ambit of that need for the Tribunal to find the connection between the funds and the applicant was tenuous; despite the Tribunal being aware of the amendment and having made no reference in its decision to the need to access the funds, I am of the view, however, that a fair reading of the Tribunal's decision clearly demonstrates the graveman of the Tribunal’s decision, is that the it thought the Applicant needed to have access to funds. Whilst the expression “access to funds’ was not used, the Tribunal clearly considered the applicant should have had access to funds as that access, or capacity to access the funds was tenous and reliant on third parties.
Conclusion
For the above reasons I am satisfied that the Tribunal did ask itself the wrong question and applied the wrong test which amounted to jurisdictional error and entitles the applicant to the remedy he seeks.
Accordingly, I shall make the orders sought in the application, together with an order that the Minister pay the applicant's costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 28 February 2014
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