Kaur v Minister for Immigration

[2015] FCCA 296

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 296

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – application for Student (Temporary) Class TU Visa – no satisfactory evidence that the financial capacity requirements in cl.5A405 of Schedule 5A of Migration Regulations 1994 (Cth) were met – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.5A405 of Schedule 5A, Part 572 of Schedule 2 & cl.572.223 of Schedule 2

First Applicant: RANJIT KAUR

Second Applicant: SARBJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 175 of 2014

Judgment of: Judge Simpson

Hearing date: 5 February 2015

Date of Last Submission: 5 February 2015

Delivered at: Adelaide

Delivered on: 19 February 2015

REPRESENTATION

The Applicants: In person

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application filed on 21 May 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 175 of 2014

RANJIT KAUR

First Applicant

SARBJIT SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application for judicial review brought by a wife and husband.  The wife is the first applicant, Ranjit Kaur.  The applicants seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 5 May 2014.  The applicants have one ground which is a follows:

   “Member of MRT in decision paragraph 10 – 20 claimed that I have not provided evidence/documents related to the funds for my student visa and hence I do not satisfy cl.572.223(2)(a)(i).  Member stated in decision that He cannot consider the documents submitted at the time of application regardless at the time of decision Delegate at the time of application did not accept the funds provided at the time of visa application.  Member further stated that the funds were dated back in 2011 and early 2012.  I went through migration regulation and failed to understand which part of the regulation of migration law restrains member to consider the same funds.  I have been though (sic) law and member has to consider any funds which is (sic) being provided.  If any bank loan is dated back in 2011 or 2012 it does not specific any expiry date.  I have also shown that funds are available to me by way of bank transfers from overseas.  The funds shown by me were enough to cover my current enrolment.  Tribunal member failed to act in accordance with Migration Law and regulation thus made “Jurisdictional error” in its decision.”

2. The Tribunal affirmed a decision of the first respondent, then called the Minister for Immigration and Citizenship but now referred to as the Minister for Immigration and Border Protection (“the Minister”).  The Minister refused to grant the first applicant a Student (Temporary) Class TU visa (“the visa”).

3. The first applicant applied for the visa on 20 October 2011.  The matter was first dealt with by the Delegate of the Minister.  The applicant provided documents to the Delegate to attempt to demonstrate that at the time of the application, she satisfied the financial capacity requirements set out in cl.5A405 of Schedule 5A of the Migration Regulations 1994 (Cth) (“the Regulations”).  It was advanced by the applicant that her parents were in a position to meet her expenses for course fees.  Two letters dated 23 September 2011 from Punjab National Bank, Deepanwali Branch, District Kapurthala, alleged that an overdraft limit of, firstly, INR 1,475,000 (which was approximately AUD$27,750) had been sanctioned to Ms Bhupinder Kaur, the applicant’s mother, against a fixed deposit of INR 1,600,000, and secondly, INR 1,525,000 (which was approximately AUD $28,644) had been sanctioned to Mr Surinder Singh, the applicant’s father, against a fixed deposit of INR 1,650,000.

4. On 31 October 2011, checks of the financial documents were undertaken by the Australian High Commission in New Delhi.  The outcome showed that both of the overdrafts were availed to the respective savings accounts of Ms Bhupinder Kaur and Mr Surinder Singh.  At 16 November 2011, the applicant’s parents had a total of INR 1,000 (which is approximately AUD $19) in their specified bank accounts and the overdrafts were not available.

5. The Delegate put the information to the applicants for comment.  In response the applicant provided the Delegate with two further letters from Punjab National Bank, Deepanwali Branch, District Kapurthala, dated 24 November 2011, stating that a new overdraft limit of:

   a)INR 1,480,000 (approximately AUD $27,799) had been sanctioned to Ms Bhupinder Kaur against a fixed deposit of INR 1,600,000; and

   b)INR 1,520,000 (approximately AUD $28,550) had been sanctioned to Mr Surinder Singh against a fixed deposit of INR 1,650,000.

6. The applicant explained that her parents had enquired into other banking options to receive higher interest rates on their account balances.  It was said that these enquiries inadvertently resulted in their money being transferred to a different account.

7. On 2 December 2011, the subsequent financial information was referred to the Australian High Commission (“AHC”) in New Delhi to undertake checks.  The Punjab National Bank verified the information.  Following this enquiry, the AHC requested that the applicant’s father provide a one year statement for his account.  The applicant’s father stated he was unable to do this, as he did not keep all of his money in the bank, he opted to retain INR 1,500,000 (approximately AUD $28,174) at his home.

8. Again, the Delegate invited the applicant to comment on this information.  The applicant explained that her father received an income of RS 751,800 (approximately AUD $14,121) annually; received a monthly pension of INR 6,000 (approximately AUD $112); and had sold land for RS 2,057,500.

9. Despite the applicant’s allegations regarding her father’s income, she did not provide evidence that her parents’ regular income was sufficient to accumulate the level of funding being provided, as was required by cl.5A405(1)(c).

10. On 18 April 2012, the Delegate refused the visa on the basis that the applicant did not satisfy cl.572.223(2)(a)(i) of the Schedule 2 of the Regulations.

11. On 9 May 2012, the applicant applied for review of the Delegate’s decision by the Tribunal.  On 26 March 2014, the Tribunal invited the applicant to a hearing on 28 April 2014 and requested that she provide further evidence relating to, amongst other things, course fees already paid, and access to sufficient funds to cover the expenses of her stay in Australia.

12. The applicant replied to the above request on 2 April 2014 by declining to attend the hearing.  She also provided documents to the Tribunal which she had previously submitted to the Delegate.

13. On 5 May 2014 the Tribunal affirmed the decision under review.

14. In its reasons, the Tribunal began by summarising the applicant’s evidence.  It then outlined that the applicant had been invited to attend the hearing via telephone, not in person, and that the applicant’s representative was located in Melbourne.

15. Under the heading “Consideration of Claims and Evidence”, the Tribunal found that, having regard to the applicant’s current enrolment, the relevant subclass was Subclass 572 Vocational Education and Training Sector, the criteria for which are set out in Part 572 of Schedule 2 to the Regulations. It said that the issue in the present case was whether the applicant met cl.572.223.

16. The Tribunal considered that on the basis of her current enrolment, the applicant’s Schedule 5A capacity requirements for both applicants amounted to approximately $21,000. The Tribunal found that the financial information previously provided to the Delegate was not current because it was dated in 2011 and 2012. The Tribunal found that the evidence supplied by the applicant of two recent money transfers to the applicant was neither sufficient nor in accordance with “funds from an acceptable source”, as was required by cl.5A405.

17. The Tribunal found that the applicant had not given evidence to demonstrate that, at the time of the decision, she had sufficient funds in accordance with Schedule 5A of the Regulations. Accordingly, the applicant did not satisfy cl.572.223(2)(a)(i).

18. The Tribunal considered whether the second applicant met the primary criteria for a student visa and found that he did not.

19. The Tribunal concluded by affirming the decision not to grant the applicant the visa.

20. The application for judicial review to this Court was filed on 21 May 2014.  It sought an order that the Tribunal’s decision be quashed and that the matter be remitted for reconsideration.

21. A reading of the material discloses that essentially the applicant is complaining that the documents she submitted in an attempt to satisfy the financial capacity requirements should have been considered by the Tribunal but was not. The Tribunal clearly did consider the documents. It found them to be ineffectual for the purposes of the Regulations.

22. The applicant appears to misunderstand the requirement of cl.5A405 and the limited role of this Court in judicial review matters. This is despite her reference to “jurisdictional error” in the application. The mere reference by her to “jurisdictional error” does not include an appreciation on the applicant’s part of what the Court must look for in the limited context for which s.476 of the Migration Act 1958 (Cth) provides.

23. It is submitted on the part of the Minister that the applicant’s complaint is without merit and should be dismissed.  I agree.  No legal error, let alone jurisdictional error, is apparent in the Tribunal’s decision and procedure.  The applicant failed to satisfy the Tribunal that at the time of the decision she had funds from an acceptable source to meet course fees, living costs, and school costs, in accordance with cl.5A405 of Schedule 5A of the Regulations.

24. The application should be dismissed.

25. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 19 February 2015