Kamal v Minister for Immigration
[2015] FCCA 3136
•28 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAMAL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3136 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) visa application – review of decision of Migration Review Tribunal – interpretation of criteria contained in part 572 of sch.2 to the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Constitution (Cth), s.75(v) Migration Act 1958 (Cth), ss.474, 476 Migration Regulations 1994 (Cth), regs.572.223 of sch.2, 5A104 and 5A405 of sch.5 |
| Applicant: | M M ASHIQUR RAHMAN KAMAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 1 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 October 2015 |
| Date of Last Submission: | 28 October 2015 |
| Delivered at: | Perth |
| Delivered on: | 28 October 2015 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the First Respondent: | Mr D. Carroll |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
The name of the second respondent be amended to Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 1 of 2015
| M M ASHIQUR RAHMAN KAMAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Introduction
The applicant applied for a Student (Temporary) (Class TU) visa on 8 March 2013. That application was refused by a delegate of the Minister, and on review, the Migration Review Tribunal[1] affirmed that decision. The applicant now seeks judicial review of the Tribunal’s decision. The Court’s jurisdiction to review the Tribunal’s decision arises under s.476 of the Migration Act 1958 (Cth). That jurisdiction is the same as the High Court’s jurisdiction under sub-s.75(v) of the Constitution (Cth).
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015, s.3 sch.2.
As a result of this Court’s jurisdiction and the operation of s.474 of the Migration Act, the applicant has to show that the Tribunal’s decision was affected by jurisdictional error. That means, that the Tribunal did not do its job properly; in other words, it either acted in a manner which was unfair or inconsistent with the procedural requirements of the Act, it misunderstood its role or, it made significant errors of another nature that affected the way in which it exercised its power or its duty to review.
Background
It is necessary to turn to the background of the matter and the way in which both the decision by the delegate and the Migration Review Tribunal came to be. First, though, it is necessary to understand what the applicant had to establish in order to obtain a visa. The Minister, upon having considered a valid application for a visa, is only to grant that visa if he or she is satisfied that the applicant has satisfied the criteria for the grant of the visa. The criteria for visas are contained in various places, depending on the type of the visa.
The applicant applied for a class TU visa. At the time of the application in March 2013, there were a number of subclasses of this visa. Each subclass was divided according to the level of study that was intended to be undertaken by the visa applicant. In this case, as the applicant was intending to study an Advanced Diploma of Management, the relevant subclass was 572, known as a Vocational Education and Training Sector subclass. The criteria for the grant of that visa were contained in pt.572 of sch.2 to the Migration Regulations 1994 (Cth) at the time of the visa application.
Relevant to this application, and particularly to the decisions that were made on the application for a visa, were the criteria in cl.572.223.
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant meets the requirements of subclause (1A) or (2).
(1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
(a)the applicant gives the Minister evidence that the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii)educational qualifications required by the eligible education provider; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2)If subclause (1A) does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
Essentially, it required that the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student. The applicant must give the Minister evidence in accordance with the requirements mentioned in sch.5A for the highest assessment level for the applicant: see sub-cl.572.223(2).
The requirements of cl.5A405 relate to financial capacity. They are fairly detailed. Subclause 5A405(1) provided that;
(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 24 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 24 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.
There are two important defined terms in that subclause. The first is “funds from an acceptable source”, and the second is “living costs”. Funds from an acceptable source are defined as follows:
funds from an acceptable source means one or more of the following:
(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 at least the 3 months immediately before the date of the application;
(b) financial support from:
(i) the applicant’s proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or
(v) a multilateral agency; or
(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or
(vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or
(viii) an acceptable non‑profit organisation;
(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;
(d) a loan from the government of the applicant’s home country.
The term “acceptable individual” in that definition is also defined and includes an applicant’s brothers and sisters but does not include an applicant’s sister-in-law or brother-in-law.
The term “living costs” is also defined as having the meaning given by sub-cl.5A104(1). Relevantly, that subclause defines “living costs” as “an amount specified by the Minister in an instrument in writing for this clause (the basic rate)”. The relevant specification was made by the Minister at the time of the application in a legislative instrument entitled Specification Evidence of Further Funds and Living Costs and known as IMMI 12/054. In cl.3 of that instrument, the Minister specified an amount of AUD$18,610 per year for the purposes of sub-cl.5A104(1). That instrument came into effect on 1 July 2012.
In effect, then, the applicant had to provide evidence that he had funds from an acceptable source – including his brother but not including his sister-in-law – to meet his course fees, living costs (which were the amount of $18,610 per year), school costs and travel costs, as well as providing a declaration that he has access to those fees. He also had to provide evidence of regular income of an individual providing the funds. Shortly after the applicant had applied for his visa, an officer of the department requested him to provide further information in connection with that application.
By email dated 19 May 2013, the applicant was asked to provide, amongst other things, evidence that he had sufficient funds to support himself and the total costs of proposed study and stay in Australia. He also had to prove that those funds had been held for three months prior to the date of the application being made, together with a signed letter of support from the person. In response to that request, the applicant ultimately sent a number of documents showing that his sister-in-law supported his application and that she had access to a certain amount of money, the amount of which is not relevant for present purposes.
Delegate’s decision
A delegate of the Minister made the decision on 21 January 2014 to refuse to grant the visa. The essential reason for the decision was that the applicant’s sister-in-law was not an acceptable individual within the meaning of that term in sch.5A to the Regulations. For that reason, the delegate was not satisfied that the applicant satisfied the criteria for the grant of the visa. The applicant applied to the Tribunal for review of that decision. By letter dated 3 September 2014, he was invited to a hearing to be conducted on 6 October 2014.
That letter also requested that the applicant provide a certain amount of information. Included in that request was that the applicant provide documents showing that he was currently enrolled in a course or had an offer of enrolment in a registered course, and documents that demonstrated that he had sufficient funds or access to funds to pay course fees, living costs, school costs where relevant, and travel costs, over the relevant period. At the hearing, the applicant told the Tribunal that he was not enrolled in any course.
The member said to him that it was a threshold requirement for the grant of a student visa that he be enrolled in a course. The applicant asked for time to provide evidence of the enrolment, and the Tribunal allowed him time to do that. After the hearing, the applicant provided a number of documents to the Tribunal. Amongst those documents was an affidavit of the applicant’s brother, together with evidence that he held an account with a bank in the amount of $10,064.72. A bank statement was included with that affidavit. The statement period was from 1 August 2014 to 29 August 2014 and consisted of one page.
Another document provided by the applicant was an affidavit of his own in which he said that he had the financial capacity to pay for the costs associated with his study in Australia. The applicant stated that his brother would pay for his one-way return airfare to Bangladesh. He also stated that his course fees were $7,800 and he had already paid $1,600. Lastly, the applicant noted that his living costs would equate to approximately $18,610 per year but that he would be staying with his brother at his home and that his brother would bear all his living costs, including board and lodging. He added that his brother in Bangladesh would be providing necessary financial support.
Tribunal’s decision
The Tribunal made its decision on 8 December 2014. It first calculated the amount required to meet the financial capacity parts of the criteria for the grant of the visa. It first found that, based upon the certificate of enrolment and the applicant’s affidavit just referred to, the applicant had outstanding course fees in the amount of $6200. Secondly, it noted that the living costs were calculated at the basic rate, which, as at the date of the application for the visa, was $18,610 per year, and referred to the instrument IMMI 12/054.
Next, it calculated that on the basis of the certificate of enrolment, the applicant would finish studying on 27 March 2015. On that basis, it regarded that four months was the appropriate period for calculating living costs, based upon the period between the day the student visa was expected to be granted to the applicant and the last day of the applicant’s proposed stay in Australia. Thus, it arrived at an amount of $6203 for living costs. Next, it had regard to the amount of travel costs and it calculated those at the amount of $1,000. The total of the amount required for financial capacity, then, was $13,403. The Tribunal then said at [20]:
The applicant’s evidence of financial capacity is, therefore, deficient in the following aspects
(a)it is not sufficient in amount;
(b)as he has not provided evidence that he has completed at least 75% of the requirements for his principle course, the money deposit in his brother’s name upon which he relies does not meet the requirement that he show that it has been held for at least the 3 months immediately before the date of the application; and
(c)he has not provided evidence of the regular income of his brother to meet cl.5A405(1)(c).
For those reasons, it found that cl.5A405 was not satisfied and that the applicant had not given evidence in accordance with the sch.5A requirements and so did not meet sub-cl.572.223(2)(A).
Accordingly, the Tribunal found that the criteria for the grant of the visa were not met and that the decision under review must be affirmed.
Consideration
The only ground of the application is that the Tribunal did not look at the evidence properly. At the hearing today the applicant explained that the issue he takes with the Tribunal’s decision was that the Tribunal miscalculated the amount required in respect to financial capacity. In particular, he said that because his brother would pay for all of his living expenses and that he was living with his brother and his sister-in-law, the living costs of AUD$6,203 in the Tribunal’s decision was wrong and for that reason the overall calculation of the financial capacity was mistaken.
On the other hand, Mr Carroll, who appeared for the Minister, submitted that the living costs were a defined term within sch.5A and they were as specified by the Minister in the instrument IMMI 12/054. Further, Mr Carol argued that even if that were not correct and the amount stated was mistaken, there were two other bases for the Tribunal’s decision, namely, that it was not shown by the applicant that the funds were held for at least three months immediately before the date of the application and, secondly, the applicant had not provided evidence of the regular income of his brother.
Mr Carroll’s submissions are correct. First, although it may seem odd to the applicant, the living expenses of which he was required to give evidence in order to satisfy the criteria for the grant of a visa were not necessarily his actual living expenses. They were what was defined by sch.5A which is specified by the Minister in an instrument and, as I have said, in instrument IMMI 12/054 that amount was $18,610 at the time of the visa application. The Tribunal’s calculation was based upon a proportion of that, being for the amount of time that the applicant would be reasonably expected to be in Australia undertaking the course for which he had applied for a visa, namely, four months.
That was the correct approach, given that the figure in the instrument was for one year and would, of course, not be necessary on any view for four months. For that reason alone, the ground raised by the applicant does not succeed. In any event, there are alternative bases for which the Tribunal made its decision and even if the Tribunal was mistaken in the amount that it calculated, it was correct to find, as it did, that the applicant did not satisfy the criteria for the ground of the visa. The applicant also had to give evidence that the relevant funds had been held for at least three months immediately before the date of the application and there be evidence of regular income, as required by cl.572.223.
As I have noted, the evidence that the brother held the amount of $10,064.72 only related to the period of one month in August 2014, whereas the application for the visa had been made in March 2013. As the evidence concerning the funds held by the brother did not relate to or have any rational connection with the period from January to March 2013, the Tribunal was clearly correct to find that the applicant had not satisfied that particular requirement of cl.572. Similarly, there was no evidence of the regular income of the brother and that was an additional reason for which the Tribunal was correct.
Thus, even if the Tribunal had made a mistake in the calculation of the amount of the funds required, that mistake did not ultimately affect its decision. That sort of mistake is not what is described as a jurisdictional error and, as I have noted above, the applicant must establish there be a jurisdictional error in order to succeed in the application.
Conclusion
For those reasons, I find that there is no jurisdictional error in the Tribunal’s decision and the applicant must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 27 November 2015
0
4