Junaid v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 234
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Junaid v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 234
File number(s): SYG 2545 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 27 February 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (class TU) (subclass 500) visa – Tribunal found applicant did not give evidence of financial capacity that satisfied requirements of legislative instrument – whether Tribunal erred in finding applicant did not provide satisfactory evidence of financial capacity or genuine access to funds – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 360(1), s 476
Migration Regulations 1994 (Cth) cl 500.214 of Schedule 2
Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 s 6, s 10
Cases cited: DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 229; 289 FCR 346
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 12 February 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms C Juarez of Minter Ellison ORDERS
SYG 2545 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD JUNAID
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $5,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 ZIPSER
INTRODUCTION
On 10 November 2020, the applicant filed an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 October 2020. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a student (class TU) (subclass 500) visa.
For the reasons that follow, the application is dismissed.
LEGISLATIVE SCHEME
Clause 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2) provided as a time of decision criterion for a subclass 500 student visa:
(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.
(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
At the time of the Tribunal’s decision in October 2020, the legislative instrument referred to in cl 500.214(4) was Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (2019 Instrument). Section 6 of the 2019 Instrument provided in part:
(1) For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5) or (6).
(2) The evidence of financial capacity:
(a) is in the form specified in section 10; and
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 – AUD 21,041 …
(iii) the following course fees …
Section 10 of the 2019 Instrument, titled “Evidence of financial capacity”, stated:
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.
FACTUAL BACKGROUND
In February 2015, the applicant, a citizen of Pakistan, first arrived in Australia on a student (class TU) (subclass 573) visa.
On 14 March 2018, the applicant lodged an application for a student (subclass 500) visa. The application form indicated that a registered migration agent assisted the applicant prepare the application.
On 3 May 2018, a delegate of the first respondent refused to grant the visa. The delegate, after noting that the applicant was “required to give the Minister evidence of financial capacity that satisfies the requirements specified in legislative instrument”, stated that the applicant did not provide sufficient evidence to establish genuine access to funds, and so did not satisfy cl 500.214.
On 18 May 2018, the applicant applied to the Tribunal for review of the delegate's decision. The application form indicated that the applicant had a representative who was a registered migration agent.
On 23 September 2020, the Tribunal sent a letter to the applicant inviting him to attend a hearing before the Tribunal by telephone on 8 October 2020. The letter also requested that the applicant provide specified information to the Tribunal at least seven days before the hearing date, including:
documents demonstrating you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia [and] evidence that the funds are of a kind specified in the relevant legislative instrument.
It appears from the Tribunal’s decision at [21] and documents in a Court Book prepared by the Minister’s solicitor for the hearing in this Court that the letter dated 23 September 2020 enclosed a copy of the 2019 Instrument.
On 7 October 2020, the applicant's representative emailed a number of documents to the Tribunal in response to the 23 September 2020 letter. The documents which responded to the request for documentary evidence of genuine access to funds comprised:
(a)letter from applicant’s father dated 6 October 2020 in which the father stated that he would “be financially supporting towards his studies and living expenses for the entire period of stay in Australia”; and
(b)statement from account of applicant’s father at FAYSA Bank for the period 1 to 5 October 2020 which showed an opening balance of 500 Pakistani Rupees (PKR) on 1 October, deposits into the account totalling 3,500,000 PKR on 5 October, and a closing balance of about 3,500,000 PKR on 5 October.
On 8 October 2020, the applicant appeared before the Tribunal by telephone to give evidence and present arguments, with the assistance of his representative.
On 8 October 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
TRIBUNAL’S DECISION
The Tribunal identified that the issue before it was whether the applicant met cl 500.214.
The Tribunal, after noting at [11] that the Minister had required the applicant to give evidence of financial capacity in accordance with cl 500.214(3), reviewed the evidence of financial capacity provided by the applicant.
The Tribunal referred to the bank statement and letter from the applicant’s father referred to in paragraph 12 above. The Tribunal asked the applicant about the source of funds in the bank statement. The applicant stated that his father had sold some land. The Tribunal noted that the applicant had not provided any information or documentation relating to the sale of any land, the transfer of funds, or evidence from his father relating to the sale of land. On this basis, the Tribunal was not satisfied as to the source of the funds or the period of deposit of the funds, and gave no weight to the bank statement from FAYSA Bank.
As the applicant had not provided any other evidence to show he had genuine access to funds for the purposes of the 2019 Instrument and cl 500.214(3), the Tribunal was not satisfied that he met the requirements of cl 500.214, and affirmed the decision under review.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 13 May 2020, the applicant filed in this Court an application for judicial review of the Tribunal’s decision (Application) which contained the following grounds (as written):
1.The Tribunal misconstrued the legislative instrument and failed to take into considerations the Applicants statement in the hearing that he had a weekly income of $1500. This amount satisfied cl500.214(3) of LIN 19/198 – Financial capacity instrument.
Particulars
Paragraph 23
2.The Tribunal made an unreasonable biased decision. The Tribunal inadvertently made the conclusion that the evidence of funding provided by the Applicant was misleading. The Applicant provided a valid bank statement belonging to his father as evidence sufficient funding to support his studies in Australia. The Tribunal came to an unreasonable conclusion that the funding was not genuine and accessible by the Applicant.
Particulars
Paragraph 25
3.The Tribunal was unreasonable when it failed to provide the Applicant the opportunity to provide further evidence to support his claim that he had genuine access to funding for his student visa.
Particulars
Paragraph 26
Following a period of inactivity, in 2024 the matter was prepared for a final hearing. On 27 March 2024, a registrar made procedural orders at a directions hearing at which the applicant appeared by telephone, including that the applicant file and serve a written submission, any amended application and any additional evidence by 19 April 2024. On 16 July 2024, a registrar made orders in chambers that the date by which the applicant was to file his materials was extended to 25 July 2024. On 11 December 2024, the parties were notified that the matter was listed for hearing on 12 February 2025.
The applicant did not file a written submission prior to the hearing on 12 February 2025.
Hearing on 12 February 2025
At the hearing in this Court on 12 February 2025, the applicant appeared unrepresented. He was assisted by an interpreter in the Urdu language.
Carmen Juarez from Minster Ellison appeared for the first respondent. Ms Juarez tendered a Court Book (CB) which contained the Tribunal’s decision and the documents which were before the Tribunal.
At the commencement of the hearing, I ensured the applicant had a copy of relevant documents. I directed the applicant’s attention to the Tribunal’s reasons for decision dated 8 October 2020. I explained that, for the applicant to succeed in this Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision. I explained to the applicant the main categories of jurisdictional error. After I explained these matters to the applicant, I asked the applicant if he wanted a break for 10 to 15 minutes to consider oral submissions he wanted to make. The applicant did not want a break.
I invited the applicant to make oral submissions. The applicant referred to the statement from FAYSA Bank referred to in paragraph 12 above. The applicant’s principal contention was to the effect that the bank statement provided satisfactory evidence that the applicant had genuine access to funds and the Tribunal’s finding to the contrary was wrong. I directed the applicant’s attention to the Tribunal’s decision at [22]-[25]. I asked the applicant why or how the Tribunal erred in not being satisfied that the bank deposits recorded in the bank statement proved that the applicant had genuine access to funds. The applicant replied to the effect that in the village in which his father lived, people traded using a barter system such that, despite the sale of land by the father, no documents were created which proved the sale. Towards the end of the hearing, the applicant added that the Tribunal should have given him additional time to provide further evidence that he had genuine access to funds.
Ms Juarez then made oral submissions which supplemented a written submission filed by the first respondent on 31 July 2024.
CONSIDERATION
Ground 1 in Application
Ground 1 states:
The Tribunal misconstrued the legislative instrument and failed to take into considerations the Applicants statement in the hearing that he had a weekly income of $1500. This amount satisfied cl500.214(3) of LIN 19/198 – Financial capacity instrument.
The Tribunal stated at [23] that the applicant informed the Tribunal at the hearing on 8 October 2020 that “he was currently working as an uber driver and earning about $1,500 per week”. In relation to this evidence, the Tribunal concluded at [26]:
… the applicant did not provide current proof of GAF to the Tribunal. There is insufficient evidence before the Tribunal that the applicant satisfies LIN 19/198.
The applicant’s complaint appears to be that the applicant’s oral evidence to the Tribunal that he was “earning about $1,500 per week” satisfied the requirements specified in the 2019 Instrument. However, s 6(2) of the 2019 Instrument stated that evidence of financial capacity must be “in the form specified in section 10”. Section 10 specified four forms of evidence of financial capacity. Oral evidence from the applicant concerning an approximate weekly income he was earning was not a permissible form of evidence. Further, that the applicant was earning about $1,500 per week was not evidence that he had “sufficient funds available” at the time of the Tribunal’s decision to meet the costs and expenses listed in s 6 of the 2019 Instrument.
Pursuant to cl 500.214, the obligation on an applicant to provide evidence of financial capacity which satisfies the requirements specified in the 2019 Instrument only applied if the applicant was “required to [provide such evidence] by the Minister”: see cl 500.214(3). It is stated in both the decision of the delegate of the first respondent (see CB 54.8) and the decision of the Tribunal at [12] that the Minister required the applicant to provide such evidence. While a copy of the request or requirement from the first respondent does not appear to be in the Court Book, this may be because the applicant did not challenge or contest in this Court proceeding:
(a)the finding in the Tribunal’s decision at [11] that “the Minister has required the applicant to give evidence of financial capacity in accordance with cl 500.214(3)”; or
(b)the application of the 2019 Instrument by the Tribunal in assessing whether the applicant had genuine access to funds.
Further, the Tribunal separately required the applicant to provide evidence of financial capacity when it wrote in its letter to the applicant dated 23 September 2020 that “You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument”.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2 in Application
Ground 2 states:
The Tribunal made an unreasonable biased decision. The Tribunal inadvertently made the conclusion that the evidence of funding provided by the Applicant was misleading. The Applicant provided a valid bank statement belonging to his father as evidence sufficient funding to support his studies in Australia. The Tribunal came to an unreasonable conclusion that the funding was not genuine and accessible by the Applicant.
The Tribunal at [22]-[26] considered the applicant’s evidence that he had genuine access to funds, including the bank statement referred to in paragraph 12 above. The Tribunal, after accurately summarising the content of the statement at [22], continued at [24]-[25]:
[24]The Tribunal inquired as to the source of the funds summarised in paragraph 22 above. The applicant advised his father had sold some land.
[25]The applicant did not provide any information or documentation relating to the sale of any land. He did not provide an affidavit or statutory declaration from his father that land had been sold and the proceeds would be applied to the education of his son in Australia. He did not provide any documentation that showed transfer of funds from the land purchaser to the land vendor. He did not provide a copy of a bill of sale relating to the land. He did not provide a copy of any documentation that showed transfer of the land or registration of land title either before or after the sale of the land. The Tribunal is not satisfied as to the source of the funds or the period of deposit of the funds. The Tribunal gives no weight to the bank deposit from FAYSA Bank summarised at paragraph 22 above.
Ground 2 takes issue with the Tribunal’s reasoning process at [25]. I am not persuaded there is any error in the reasoning process. It “is for a review applicant to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of relevant statutory requirements”: DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 229; 289 FCR 346 at [80]. The applicant needed to satisfy the Tribunal that, at the time of the Tribunal’s decision, he “has sufficient funds available to meet” (s 6(2) of 2019 Instrument) the costs and expenses listed in s 6(2). The Tribunal, for reasons it stated at [25], was “not satisfied as to the source of the funds or the period of deposit of the funds”. I consider that it was open to the Tribunal, for the reasons it gave, to be not satisfied about these matters.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3 in Application
Ground 3 states:
The Tribunal was unreasonable when it failed to provide the Applicant the opportunity to provide further evidence to support his claim that he had genuine access to funding for his student visa.
There is no evidence before the Court that the applicant asked the Tribunal for an opportunity to provide further evidence to support his claim that he had genuine access to funding for his student visa. The circumstances in which it would be unreasonable for the Tribunal, following a hearing at which an applicant appears and gives evidence, to not provide the applicant with a further opportunity to provide further evidence, when the applicant does not ask for such an opportunity, are rare. This is not one of those circumstances. Among other reasons, the applicant was on notice from the outset of his application to the Tribunal that he needed to satisfy the Tribunal that he had access to sufficient funds.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Other grounds
The applicant, at the hearing in this Court on 12 February 2025, appeared to genuinely believe that the bank statement in paragraph 12 above was sufficient evidence to demonstrate that he had genuine access to sufficient funds. As explained in paragraph 35 above, I consider there is no error in the Tribunal’s reasoning process at [25] arising from the fact that the applicant did not provide any of the additional information or documents referred to at [25]. A separate question is whether the Tribunal had an obligation to raise its concerns with the applicant at the hearing, such that a failure to do so might be a denial of procedural fairness or breach of the Tribunal’s obligation under s 360(1) of the Act to invite the applicant to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”.
While the applicant did not raise this contention with the Court, since the applicant has been unrepresented at all stages of the Court proceeding, as in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 at [23], “I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error”.
The scope of the Tribunal’s obligation to notify an applicant of relevant issues at a hearing is considered in cases such as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1; and SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404.
I consider there was no denial of procedural fairness or breach of the Tribunal’s obligation under s 360(1). I consider that the applicant was clearly on notice, from at least the delegate’s decision dated 3 May 2018 and the letter from the Tribunal dated 23 September 2020, that he had to provide evidence to demonstrate that he had genuine access to sufficient funds to meet his costs and expenses while in Australia. The Tribunal does not have an obligation to raise with an applicant a deficiency in evidence concerning this issue. Further, the applicant did not tender a transcript of the hearing before the Tribunal. Accordingly, he cannot establish in this Court proceeding that the Tribunal did not raise its concerns with the applicant at the hearing about the deficiency in evidence.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Ms Juarez sought an order that the applicant pay the first respondent’s costs in the sum of $5,900. Ms Juarez stated that the first respondent’s solicitor/client costs exceed $5,900. I consider that this claim for costs, which is below the scale amount of $8,371.30, is reasonable. I will make this order.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 27 February 2025
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