Kaur v Minister for Immigration

[2014] FCCA 2224

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2224

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – Application for Student (Temporary) (Class TU) subclass 572 visas – applicants failure to comply with Schedule 5A of Migration Regulations 1966 (Cth) financial capacity requirements – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359AA

Migration Regulations 1966 (Cth), Sch 2, cls.572.223, 572.223(2)(a)(i), 572.223(2)(a)(iii), 572.322, 5A405, Sch 5A

First Applicant: KULWINDER KAUR

Second Applicant: GURMINDER SINGH RANDHAWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2034 of 2013

Judgment of: Judge Hartnett

Hearing date: 23 September 2014

Delivered at: Melbourne

Delivered on: 7 October 2014

REPRESENTATION

The First Applicant: In Person

The Second Applicant: No appearance

Counsel for the Respondents: Ms Randall-Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 25 November 2013 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2034 of 2013

KULWINDER KAUR

First Applicant

GURMINDER SINGH RANDHAWA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court was an application for judicial review of a decision of the Second Respondent (‘the Tribunal’) made on 28 October 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) dated 9 January 2012 refusing to grant the applicants’ Student (Temporary) (Class TU) subclass 572 visas.

2. The ground, as set out in the Application filed 25 November 2013, is as follows:-

   “1.    I am not satisfied with MRT decision on my application therefor (sic), I want to appeal against the decision in the Court.”

   As can be seen, there are no proper grounds stated in the application for judicial review of the decision of the Tribunal.  The First Respondent filed a Response on 4 December 2013 seeking that the application be dismissed and the applicants pay the First Respondent’s costs of the proceedings on the basis that the decision under review was not affected by jurisdictional error.

3. On 5 February 2014 Registrar Caporale ordered by consent, amongst other orders, that:-

   “3.    By 20 August 2014 the applicant file and serve:

   3.1    an amended application, if any, with proper particulars of the grounds of the application

   3.2    a supplementary court book, if any; and

   3.3    written submissions”

4. The applicants have not filed any amended application with proper particulars of the grounds of the application, nor have they filed any written submissions.  The First Applicant has, however, filed a letter to the Court dated 5 September 2014 setting out what are taken to be submissions.  That letter was served upon the solicitors for the First Respondent.

5. The First Respondent relies upon the material as contained in the Court Book filed 22 August 2014, which is evidence in the proceedings, and the First Respondent’s Contentions of Fact and Law filed 9 September 2014.

History

1. The applicants are citizens of India.  They applied for the Student (Temporary) (Class TU) subclass 572 visas (‘student visas’) on 8 September 2011. 

2. On 9 January 2012 the delegate refused to grant the applicants the student visas on the basis that the First Applicant did not have access to sufficient funds to meet the Schedule 5A of the Migration Regulations 1994 (Cth) (‘the Regulations’) financial capacity requirements, as set out in cl.572.223 of Schedule 2 of the Regulations.

3. On 18 January 2012 the applicants applied to the Tribunal for review of the delegate’s decision of 9 January 2012.  By letter dated 5 July 2013 to the applicants’ authorised representative, the Tribunal invited the applicants to appear at a hearing on 29 July 2013 at 9.00am.  The Tribunal noted that it had considered the material before it, but had been unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to give evidence and present arguments relating to the issues arising in their case. 

4. Additionally, the Tribunal invited the applicants to provide evidence that went to their enrolment, the satisfaction of the English language requirements and in particular, the following:-

   “4.    Evidence that, while you hold the visa, you will have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5A for the proposed period of your stay in Australia, as required by cl.572.223(2)(a)(iii.) Without limiting the ways in which this requirement may be satisfied, where you have shown evidence of a loan which is secured against a money deposit, the Tribunal specifically invites you to provide the following:

   ·   evidence of the source of funds used to create that money deposit;

   ·   evidence of the regular income of any person providing those funds (for example, official tax records); and

   ·   where the funds were obtained from selling land or a dwelling, evidence of a registered deed of sale, and that money has been received from the purchaser.

   I have attached relevant extracts of the Regulations for your reference.  Please note, the Tribunal will make its decision under the Regulations as they stood on the date of your visa application.  Evidence before the Tribunal indicates you applied for your visa on 8 September 2011.  The attached extracts are provided on the basis that you are enrolled in a course specified for a subclass 572 visa.  The criteria you are required to meet may change if your enrolment changes.

   The Tribunal invites you to provide the above information as soon as possible prior to the hearing but no later than the hearing date, and the Tribunal will seek to make a decision at the conclusion of the hearing.  The Tribunal notes that a delegate of the Minister first requested some of this information from you on 13 September 2011.  If you are unable to provide this information by the hearing date, the Tribunal will require good reason to grant additional time.”

5. On 29 July 2013 the applicants appointed a new authorised representative.  On the day of the hearing the First Applicant provided a number of documents in support of her financial capacity. 

6. On 5 August 2013, and after the hearing, the First Applicant’s authorised representative forwarded a number of financial documents to the Tribunal and further indicated that they would like to “clarify a few details in relation to the financial documents provided by our client’s sponsor”.

7. By letter dated 26 August 2013 the applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  This further hearing was scheduled to occur on 11 September 2013.  Again, the invitation letter sought specific evidence from the applicants. In particular the First Applicant was invited to provide evidence as follows:-

   “ * Your relationship with your mother;

   * Evidence that Balvir Kaur; Balveer Kaur and Balbir Kaur are the same person;

   * Evidence of the date of birth your mother;

   * Your mother’s telephone number or numbers in India; and

   * Evidence or a statement of the regular income of your mother, other than J Form receipts; preferably tax returns or a statement from an accountant or sufficient bank statements showing deposits corresponding with and commensurate with J form receipts.”

8. On 11 September 2013, the applicants again appeared before the Tribunal. They were assisted by their authorised representative and an interpreter in the Punjabi language.

9. By decision of 28 October 2013, the Tribunal affirmed the delegate’s decision not to grant the applicants student visas. Such decision was notified in writing to the applicants’ authorised representative in letter of 29 October 2013.

Tribunal hearing

1. The Tribunal correctly identified the criteria for the grant of the student visas are set out in the Regulations. Clause 572.223 of Schedule 2 of the Regulations relevantly provides as follows:-

   “(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)   An 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 the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (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; and

   (iii)   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; or

   (b)     for an applicant who is a person designated under regulation 2.07AO — the Minister is satisfied that:

   (i)   the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and

   (ii)   the applicant’s proficiency in English is appropriate to the proposed course of study; and

   (iii)   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.”

2. Clause 5A405 of Schedule 5A of the Regulations relevantly provides as follows in relation to financial capacity requirements:-

   “(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.

   (1A)   If the applicant is:

   (a)    fully funded; or

   (b)    an applicant:

   (i)    who is not funded, wholly or partly, by:

   (A)     the Commonwealth Government, or the government of a State or Territory; or

   (B)     the government of a foreign country; or

   (C)     a multilateral agency; and

   (ii)    who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and

   (iii)    for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or

   (c)    the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:

   (i)    a provincial or state government in a foreign country, with the written support of the government of that country; or

   (ii)    an organisation specified by the Minister in a Gazette Notice for this paragraph;

   the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.

   (2)   In this clause:

   acceptable individual means one or more of the following:

   (a)    the applicant;

   (b)    the applicant’s spouse or de facto partner;

   (c)    the applicant’s parents;

   (d)    the applicant’s grandparents;

   (e)    the applicant’s brothers and sisters;

   (f)    an uncle or aunt of the applicant who is:

   (i)    an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)    usually resident in Australia.

   financial support, from an applicant’s proposed education provider, means:

   (a)    a scholarship that:

   (i)    is awarded on the basis of merit and an open selection process; and

   (ii)    is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

   (iii)    is awarded to the greater of:

   (A)     not more than 10% of overseas students in a course intake; and

   (B)     not more than 3 overseas students in a course intake; or

   (b)    a waiver of the applicant’s course fees carried out in the following circumstances:

   (i)    the applicant is part of an exchange program that involves:

   (A)     a formal agreement between an education provider and an education institution in a foreign country; and

   (B)     the reciprocal waiver of course fees as part of that agreement;

   (ii)    the applicant proposes to study full‑time;

   (iii)    the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

   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 6 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.”

3. The Tribunal noted that the First Applicant was at the time of hearing enrolled in an Advanced Diploma of Management course. The issue before the Tribunal in the facts of this case was whether the First Applicant had given evidence in accordance with Schedule 5A of the Regulations for her assessment level, and whether she would have access to the necessary funds whilst she continued to hold her student visa.

4. The Tribunal noted that for the student visa, these requirements were contained in cls.572.223(2)(a)(i) and (iii) of Schedule 2 of the Regulations respectively. 

5. The Tribunal determined the relevant assessment level for the First Applicant’s financial capacity requirements, was assessment level 4,  the First Applicant being a holder of a passport of India.  The Tribunal determined the First Applicant was required to demonstrate access to $30,000.  In its Decision Record dated 28 October 2013, the Tribunal said at paragraphs 12 and 13:-

   “12. It is necessary to consider the primary decision record in respect of the evidence of funds the applicant gave to the delegate.  The applicant provided a copy of the primary decision record to the Tribunal.  The delegate’s decision records that the applicant provided two sets of documents relating to funds; both sets were the subject of an investigation by the Australian High Commission in New Delhi.  The first set was reported on 24 October 2011 as non-genuine because the bank indicated that the funds shown had been withdrawn and therefore no longer available.  The second set was reported on 7 December 2011 as non-genuine for the same reasons.  Both sets were evidence of overdraft facilities secured by fixed deposit accounts held by the applicant’s parents.

   13. The relevance to the Tribunal is that the evidence the applicant has given now in relation to financial capacity is in the form of an overdraft from the Oriental Bank of Commerce.  The ‘loan’ is secured by fixed deposit funds; all in the name of Balbir Kaur the applicant’s mother (her father has passed away).  So, in this regard, it appears that the evidence before the Tribunal is very similar as was previously provided to the delegate on two occasions and on both occasions the monies were withdrawn an (sic) no longer available to the applicant soon after the loan was established.”

6. The Tribunal went on to discuss the evidence with the First Applicant and indicated to her its concern as to why it should accept, on this occasion, that the funds would remain available to the First Applicant whilst she held a student visa.  The Tribunal indicated that it would consider sending the documents submitted by the First Applicant to the Australian High Commission (‘AHC’) in New Delhi for verification. 

7. The Tribunal subsequently sent the financial documents to the AHC in New Delhi and received a Report of the investigation on 22 August 2013. At the further hearing on 11 September 2013, the Tribunal put to the First Applicant the particulars of the Report from the AHC in New Delhi of 22 August 2013, in accordance with s.359AA of the Act. That Report stated that an inquiry was made with the bank where the accounts provided were held and the overdraft facility was issued. The inquiry confirmed fixed deposit accounts held in the name of Balbir Kaur as well as the overdraft and the disbursement amount as presented to the Tribunal.

8. The AHC in New Delhi had noted that the spelling of ‘Balbir Kaur’ was different from the spelling in other financial documents (passport) of the same purported person.  Further, the Tribunal noted to the First Applicant that there were discrepancies in the date of birth of the First Applicant’s mother’s.  Despite these matters, the Tribunal decided to proceed on the basis that the person known as Balbir Kaur in its various spellings and dates of birth, was the First Applicant’s mother. 

9. Of particular concern to the Tribunal was the evidence provided by the First Applicant to demonstrate evidence of funds in accordance with Schedule 5A of the Regulations. The First Applicant had referred the Tribunal to a number of documents which the Tribunal took to be evidence going to establish that the First Applicant’s mother had a stream of income, and to demonstrate that savings were placed in fixed deposit accounts.

10. The Tribunal said in respect of the financial documents provided and as set out in paragraph 22 of the Decision Record, the following:-

    “The Tribunal discussed difficulties it had in establishing a pattern of savings from the documents provided.  The Tribunal noted that there was little correlation between invoices or receipts for the sale of produce and amounts deposited in bank accounts.  Of greater concern to the Tribunal was the observation of a pattern throughout the bank statements of amounts deposited being withdrawn in full or almost in full on the same day or soon afterwards.  The applicant sought to explain this pattern by saying that the commission agents pay amount (sic) into her parents’ or her mother’s accounts and then the amounts are withdrawn in order to pay expenses; or that when her father was ill and dying her mother withdrew money to pay for his medical expenses.  However, the statements provided show this pattern being consistent for periods in 2009 to the present.  It is difficult to see from this any savings accumulated to establish fixed deposit accounts days or weeks before the Tribunal hearing.”

1. In relation to a credit facility in the amount of INR160,000 raised against a mortgage, the Tribunal noted that no further documents had been provided to show the “paper trail” or where the money was held other than a brief letter dated 30 July 2013.  This credit facility was apparently established on 8 June 2012 but accessed on 17 July 2013. 

2. The real concern for the Tribunal was whether the First Applicant, whilst she held the student visa, would have access to the necessary funds. It was that criterion which the Tribunal identified and discussed at length with the First Applicant. Having considered all of the evidence, the arguments and submissions the Tribunal determined that it was not satisfied the First Applicant did have access to the necessary funds and thus it was not satisfied the First Applicant met cl.572.223(2)(a)(iii) of Schedule 2 of the Regulations.

3. The Tribunal further held there was no evidence that the Second Applicant (the spouse of the primary Applicant) met the primary criteria for the student visa and, given that the First Applicant did not meet an essential requirement of cl.572.223 of Schedule 2 of the Regulations, the Second Applicant did not satisfy cl.572.322 of Schedule 2 of the Regulations.

Consideration

1. Although the Application itself contains no proper grounds of review, and thus the Court has no meaningful application before it to consider, in itself a basis for dismissal of the application, the First Applicant’s Submissions filed 5 September 2014 contend that the Tribunal’s findings were without a proper basis.  The First Applicant argued that the grounds on which the decision was made by the Tribunal were merely “hypothetical” and in Court submitted that the Tribunal’s reasons for decision were “imagination”.

2. The First Applicant submitted that it was not open to the Tribunal to conclude that it was not satisfied the First Applicant would have access to funds whilst she held the student visa on the basis of the evidence before it.  The First Applicant said in Submissions of 5 September 2014 in part:-

   “The member just gave his decision merely on his imagination without providing any solid proof or ground of his decision made. 

   I have provided all of the satisfactory evidences to support my availability of funds relevant to my studies which is in accordance with immigration law.”

3. It is well established that this Court does not engage in merits review of the Tribunal’s decision. The applicants were put on notice for quite some considerable period of time and, indeed, given a further hearing on the issues arising for the Tribunal. In particular, in hearing invitations to the applicants, they were required to produce evidence relating to access to funds in accordance with the financial capacity requirements of Schedule 5A of the Regulations. The Tribunal put to the applicants at the hearings the number of concerns it had in relation to the evidence provided by the applicants and afforded procedural fairness to them. The Tribunal’s findings were open on the available evidence before it, in particular the Tribunal’s lack of satisfaction that the First Applicant would have access to funds in accordance with Schedule 5A of the Regulations.

4. The application for judicial review cannot succeed and will be dismissed.  Costs shall follow the event.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 7 October 2014