FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1321 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in application of financial capacity criterion – whether the Tribunal demonstrated bias – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 368D, 476 Migration Regulations 1994 (Cth), reg.1.03, sch.2 cl.573.223(2)(a), sch.5A cls.5A101, 5A508 Federal Circuit Court Rules 2001 (Cth), r.7.01, sch.1 pt.3 div.1 item 3 |
| First Applicant: | GAGANDEEP KAUR |
| Second Applicant: | HARVINDRA SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2132 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 31 July 2018 |
| Date of Last Submission: | 31 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr A. Alexsov |
| Solicitors for the Applicants: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr L. Brown |
| The Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application filed on 3 October 2016, as amended, be dismissed.
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Details
- Case
- [2020] FCCA 1321
- Decision Date
CaseChat Overview and Summary
The applicants, Ms Kaur and others, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant them a student visa. The delegate had refused the visa on the basis that the applicants failed to satisfy the financial capacity requirements, specifically that deposits held by Baj Singh with India Post were not with an acceptable financial institution as required by Schedule 5A of the Regulations. The applicants sought review of this decision at the Tribunal.
The primary legal issues before the court were whether the Tribunal erred in its application of the financial capacity criterion and whether the Tribunal demonstrated bias. The applicants contended that the Tribunal failed to properly consider the evidence they provided, including a "screen shot" of the Australian High Commission's Indian website which they claimed demonstrated that post office deposits were acceptable.
The court found no jurisdictional error. It reasoned that the Tribunal had provided ample opportunity for the applicants to submit evidence and arguments, including a detailed hearing invitation that specified the type of financial evidence required. The Tribunal considered the documents submitted by the applicants the day before the hearing, including their written submission and the alleged "screen shot." However, the Tribunal was not satisfied that the evidence presented met the requirements of the Regulations, particularly concerning the acceptability of the financial institution and the nature of the funds. The court concluded that the Tribunal's findings were open to it on the evidence before it and that there was no demonstrable bias.
The application was dismissed.
The primary legal issues before the court were whether the Tribunal erred in its application of the financial capacity criterion and whether the Tribunal demonstrated bias. The applicants contended that the Tribunal failed to properly consider the evidence they provided, including a "screen shot" of the Australian High Commission's Indian website which they claimed demonstrated that post office deposits were acceptable.
The court found no jurisdictional error. It reasoned that the Tribunal had provided ample opportunity for the applicants to submit evidence and arguments, including a detailed hearing invitation that specified the type of financial evidence required. The Tribunal considered the documents submitted by the applicants the day before the hearing, including their written submission and the alleged "screen shot." However, the Tribunal was not satisfied that the evidence presented met the requirements of the Regulations, particularly concerning the acceptability of the financial institution and the nature of the funds. The court concluded that the Tribunal's findings were open to it on the evidence before it and that there was no demonstrable bias.
The application was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 10 December 2015, the Delegate refused to grant the Applicants the Visa (Delegate’s Decision)[6].[6] CB 81- 87. The Delegate found that India Post was not included in the list of acceptable financial institutions maintained on the Australian High Commission New Delhi website. The Delegate was not satisfied that the money deposits held by Baj Singh with the Goluwala branch of India Post were held with an acceptable financial institution. The Delegate found that the First Applicant did not meet the financial requirements of Schedule 5A (specifically cl.5A508 of Schedule 5A) and therefore did not meet the requirements of cl.573.223(2)(a) of sch.2 to the Regulations. The Applicants sought review of the Delegate’s Decision at the Tribunal on 17 December 2015[7]. The Applicants were assisted by a migration agent.[7] CB 88-101. On 18 December 2015, the Tribunal wrote to the Applicants’ migration agent, acknowledging receipt of the application for review[8]. The Tribunal advised that if the Applicants wished to provide material or written arguments for it to consider, the Applicants should provide the material so as soon as possible. The Applicants did not provide any further material to the Tribunal[9].[8] CB 102-105.[9] CB 218, at [10]. On 25 August 2016, the Tribunal sent the Applicants’ migration agent an invitation to attend a hearing on 13 September 2016 and provided considerable detail in relation to the financial evidence that should be provided by the Applicants[10] (Hearing Invitation). The Hearing Invitation further stated as follows:a)The Applicants needed to provide evidence of funds from an “acceptable source”. b)If the Applicants sought to rely on a money deposit, they may need to evidence how long the deposit was held immediately before the date of the Visa Application. c)The Applicants should provide any further information and evidence at least seven (7) days before the hearing date[11]. [10] CB 106-110[11] CB 109. On 12 September 2016, the day before the Tribunal hearing, the Tribunal received some documents from the Applicants’ migration agent. These documents included a written submission from the Applicants (Applicants’ September 2016 Submission)[12], the response to the Hearing Invitation[13] and a copy of the bio-page of the First Applicant’s passport showing that Baj Singh was her father[14]. The Tribunal also received evidence of the First Applicant’s enrolment in a Bachelor of Business, which was scheduled to run until 30 June 2018 and for which the fees were $28,000[15]. The Applicants’ September 2016 Submission included a reproduction of what the Applicants claimed was a ‘screen shot” of the Australian High Commission’s Indian website (Website). In the Applicants’ September 2016 Submission, the Applicants claimed that the “screen shot” confirmed that post office deposits were acceptable[16]. [12] CB 136-141; 149-154; 194-199 and 218-219, at [15]-[16]. [13] CB 142-144.[14] CB 145-146.[15] CB 133-134.[16] CB 136-137.
Ratio Decidendi
Legal Principle Established
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