KAUR v Minister for Immigration

[2020] FCCA 1226

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1226

Catchwords:
MIGRATION – Visa application – judicial review of student visa application – application dismissed – student’s failure to satisfy financial capacity requirements of the visa – no failure to consider material – no unreasonableness in denying adjournment.

Legislation:

Migration Act 1958 (Cth), s.363

Migration Regulations 1994 (Cth), Schedule 2, cl 500.214

Cases cited:

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

First Applicant: GURPREET KAUR

Second Applicant: GURPARTAP SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1864 of 2018

Judgment of: Judge McNab

Hearing date: 18 February 2020

Date of Last Submission: 18 February 2020

Delivered at: Melbourne

Delivered on: 22 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Petric

Solicitors for the Applicant: Vernon Da Gama & Associates

Counsel for the Respondents: Mr Creedon

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 27 June 2018 and amended on 14 February 2020 be dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $6,000.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1864 of 2018

GURPREET KAUR

First Applicant

And

GURPARTAP SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 27 June 2018 and amended on 14 February 2020, the first applicant and the second applicant (together, ‘the applicants’) seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 31 May 2018. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant Student (Temporary) (Class TU) Subclass 500 visas (‘the visas’).

2. The matter was heard on 18 February 2020.

3. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The background to this matter is accurately set out in the submissions filed on 4 February 2020 on behalf of the Minister:

   3. The first applicant (the applicant) and her husband (the second applicant) are both citizens of India.

   4. On 2 December 2016, the applicants applied for the visa.

   5. On 23 January 2017, the delegate sent a request for further information regarding the visa application to the applicants’ authorised representative, including a request for evidence of financial capacity. No response was provided.

   6. On 21 February 2017, the delegate refused to grant the first applicant the visa on the basis that she did not satisfy cl 500.214 of Sch 2 to the Migration Regulations 1994 (the Regulations), which required the applicant to have genuine access to funds to meet their own expenses and the expenses of their dependent. Consequently, the husband’s visa application was also refused as he did not satisfy cl 500.311.

   7. The applicants lodged an application for review with the Tribunal on 9 March 2017.

   8. On 3 May 2018, the Tribunal sent a letter to the applicants (via their authorised representative) inviting them to appear before the Tribunal on 31 May 2018. The hearing invitation requested that the applicants provide evidence that demonstrated financial capacity at least 7 days before the hearing date.

   9. On 31 May 2018, the applicants appeared before the Tribunal to give evidence and present arguments, assisted by their authorised representative.

   10. On the same day, 31 May 2018, the Tribunal made an oral decision to affirm the delegate’s decision to refuse the visa.

   (citations omitted, emphasis in original)

Grounds of review

1. The applicants sought review on the following grounds:

   Ground 1 – The Tribunal’s exercise of power to refuse the Applicant’s visa, fell into an error of law as it ignored relevant material and constituted a jurisdictional error

   Particulars

   1. The applicant was required to demonstrate a level of financial capacity pursuant to cl 500.214 of Sch 2 Migration Regulations 1994 by referring to instrument IMMI 18/010 (Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas)) (IMMI18/010)

   2. IMMI18/010 determined the applicant required approximately $47,390 to satisfy the instrument.

   3. The form of evidence to demonstrate financial capacity are specified in S10 of IMMI18/010 as:

   i. money deposit with a financial institution;

   ii. loan with a financial institution;

   iii. government loans; and

   iv. scholarship or financial support.

   4. The Applicant provided evidence to the Tribunal at the relevant time in satisfaction of its financial capacity as follows:

   i) $19,600.00 in the form of two deposit of INR 5,00,000 (at a conversion rate of 1 AUD=51.020408INR (‘the conversion rate)) available in the name of the Applicant’s parents-in-law (‘the sponsors’);

   ii) $5,300.00 being the deposit paid by the Applicants towards her course study;

   iii) $5,094.00 in the Applicants Commonwealth Bank of Australia joint account;

   iv) $15,094.63 being the sum of INR 77,0134 (at the conversion rate) available as Fixed Deposits in the sponsors bank account with Punjab and Sind Bank; and

   v) Affidavits of financial support made by the Applicant’s sponsors;

   5. The Tribunal deemed the financial capacity of the Applicant to be $19,600.00;

   6. The Tribunal in its exercise of power ignored the relevant material referred to in paragraphs 3(ii), (iii), (iv) and (v);

   7. The relevant material that was ignored by the Tribunal was relevant, cogent and important;

   8. The relevant material that was ignored by the Tribunal would have materially led to a different outcome.

   Ground 2 – The Tribunal unreasonably exercised its discretion to refuse the grant of an adjournment

   Particulars

   1. The Tribunal’s exercise of its power to refuse the applicant’s visa by ignoring relevant material fell into an error of law and constituted a jurisdictional error (‘the Tribunals jurisdictional error’);

   2. The applicant sought an adjournment to acquire further funds by a student loan in response to the Tribunal’s jurisdictional error;

   3. The Tribunal has the power to adjourn a review pursuant to s363(1)(b) of the Migration Act 1958 (Cth);

   4. The Tribunal considered the following in the exercise of its discretion:

   i. The delegates decision was made on 21 February 2017, over 12 months ago; and

   ii. The Tribunal invited the applicant to provide evidence of financial support about 3 weeks before the hearing.

   5. The Tribunal in the exercise of its power failed to give weight to a relevant factor of importance in particular:

   i. The genuine availability of financial support from the Applicant’s sponsors; and

   ii. The evidence of $45,088.63 in the form of bank deposits, leaving a small shortfall of $2,301.67

   6. The Tribunal’s reasoning process in the exercise of its discretion lacks an evident and intelligible justification.

Applicants’ submissions

Ground 1

1. The applicants claim that the Tribunal overstated the financial capacity required by them by failing to take into account the $5,300 already paid for the first 12 months of the applicant’s study course. Further, the applicants assert that the following material (‘the financial material’) was not referred to in the Tribunal’s reasons and was therefore not considered:

   i) $19,600.00 in the form of two deposit of INR 5,00,000 (at a conversion rate of 1 AUD=51.020408INR (‘the conversion rate)) available in the name of the Applicant’s parents-in-law (‘the sponsors’);

   ii) $5,300.00 being the deposit paid by the Applicants towards her course study;

   iii) $5,094.00 in the Applicants Commonwealth Bank of Australia joint account;

   iv) $15,094.63 being the sum of INR 77,0134 (at the conversion rate) available as Fixed Deposits in the sponsors bank account with Punjab and Sind Bank; and

   v) Affidavits of financial support made by the Applicant’s sponsors;

2. Making reference to Kiefel CJ, Galeger and Keane JJ’s decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (‘Hossain’) at [36], the applicants submit that the financial material:

   (a)was directly cogent and important in assessing his financial capacity in satisfaction of clause 500.214;

   (b)was ignored by the Tribunal; and

   (c)would have materially led to a different outcome.

3. With regard to the Tribunal’s reasons, the applicant claim that a Court is ‘generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review’.

Ground 2

1. The applicants claim that the Tribunal’s refusal to accede to a request for an adjournment (to enable them to get access to further funds by way of a student loan) constituted a jurisdictional error. It is also said that the Tribunal failed to give weight to the following ‘relevant factors of importance’ when deciding to refuse the application:

   (d)the availability of financial support from the applicant’s sponsors; and

   (e)the evidence of $45,088.63 in bank and course deposits, leaving a small shortfall of $2,301.67.

2. In the alternative, the applicants assert that the Tribunal’s failure to consider the first applicant’s sponsor’s affidavits of financial support rendered its ‘reasoning process in the exercise of its discretion [lack] an evident and intelligible justification.’ The applicants rely on Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 to support the proposition that this failure was:

   […] akin to a “disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, (which) may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves.”

First respondent’s submissions

1. The Minister prepared submissions before the applicants’ filed and served an amended application and submissions.

2. In his submissions filed 4 February 2020, the Minister says that, at the time of the Tribunal’s decision, the applicants did not satisfy the financial capacity requirements stipulated in clause 500.214 referring to Migration (IMMI 18/010: Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2018 (‘IMMI 18/010’). At [24] of his submissions the Minister asserts that:

   24. As the applicant could only demonstrate that they had access to $19,600 AUD worth of funds, and they were required to have $42,090AUD at the time of decision, they therefore did not satisfy cl 500.214.

3. The Minister submits that while the Tribunal overstated the financial capacity required by the first applicant for the grant of the visa, this error ‘was not material to the Tribunal’s decision because the financial evidence presented by the applicants’ was far less than the $42,090 required.

4. Further, citing Hossain, the Minister clams that this miscalculation of financial evidence ‘could have made no difference to the decision made’ and that it is not a jurisdictional error.

Consideration

1. The applicants had two grounds of review, neither of which have merit.

2. The first ground was that the Tribunal had failed to take into account relevant evidence in finding that the first applicant did not meet the threshold in proving that she had access to funds sufficient to meet the amount of approximately $47,000 per annum.

3. The second ground related to an unreasonable failure on the part of the Tribunal to adjourn the proceeding to allow the first applicant to apply for a student loan.

Ground 1

1. The Minister accepts that the Tribunal may have made an error in failing to appraise the sum of $5,300 paid towards course fees, thereby reducing the threshold amount from $47,000 to about $42,000. Otherwise the Tribunal relied upon the evidence and submissions presented to it in finding that the applicants had access to $19,100.

2. It is considered by the Minister that the Tribunal did not take into account deposits in a Commonwealth bank account in the sum of about $5,300, however the materiality of that error comes into question.

3. I accept the submission put on behalf the Minister that even if that amount had been take into account, there would still have been a shortfall and therefore any error on the part of the Tribunal in computing the level of financial resources required is not a jurisdictional error as it does not materially affect the correctness of the decision.

4. As to the affidavits of financial support made by the applicants’ sponsors, the Tribunal must apply IMMI 18/010. That instrument provides by regulation 10 that the following forms of evidence of financial capacity are specified:

   a)money deposited with a financial institution;

   b)a loan with a financial institution;

   c)a government loan; and

   d)a scholarship for financial support.

5. The first applicant’s parents provided an affidavit of financial support (CB 104) sworn 10 May 2018. In that affidavit there is a document purporting to certify a credit balance in the parents’ bank account. The Tribunal at [5] makes reference to the applicant’s evidence regarding those funds. There is no error in the Tribunal not taking into account those funds as there was insufficient evidence that those moneys were held to the applicant’s benefit. Even if that amount had been taken into account, the correctly calculated level of financial capacity would not have been met.

6. Regarding a failure on the part of the Tribunal to take into account the sum of approximately $15,100, I accept the Minister’s submission that the Tribunal was entitled to act and rely upon the submissions made by the applicants’ agents who advised the Tribunal that those moneys:

   a)had already been paid to the applicants;

   b)had already been spent;

   c)were not funds available to them; and therefore

   d)should not be taken into account by the Tribunal.

Ground 2

1. The Tribunal has explained why it refused the adjournment application. The Tribunal noted that the applicants had been on notice of the hearing for some time and that the first applicant had appeared before the delegate in excess of 12 months prior to the Tribunal hearing.

2. The applicants had been provided with ample time to provide evidence of satisfaction of the financial capacity requirements. It was not a case where a loan had been applied for and approved, nor a case where there was evidence that approval was imminent and that the level of the loan was sufficient to meet the requirements.

3. This is not a case of extreme irrationality or unreasonableness and certainly not a case where it could be said that no reasonable Tribunal member would make that decision: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] per Crennan and Bell JJ.

Conclusion

1. For these reasons the application must be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 22 May 2020