KAUR v Minister for Immigration

[2013] FCCA 816

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 816

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal decision – Tribunal finding primary applicant not providing proof of sufficient funds for purposes of her student visa – Tribunal’s decision ignored funds not held for six months before date of application – Tribunal’s decision correct.

Legislation:
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), cl.572.223, sch.5A, cl.5A405

First Applicant: KIRANDIP KAUR

Second Applicant: HARDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1532 of 2012

Judgment of: Judge Burchardt

Hearing date: 28 May 2013

Date of Last Submission: 28 May 2013

Delivered at: Melbourne

Delivered on: 1 August 2013

REPRESENTATION

The Applicants: No appearance

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1532/2012

KIRANDIP KAUR

First Applicant

HARDEEP SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of Migration Review Tribunal (“the Tribunal”) lodged by two applicants.  The second applicant’s application stands or falls wholly on the outcome in respect of the first applicant.  I will accordingly refer to the first applicant as the applicant in this judgment. 

2. The application filed on 5 December 2012 asserts that the applicant applied for a student extension, and then a review to the Tribunal of the decision, and asserts relevantly under the grounds of application;

   “I think MRT Tribunal and department of immigration did not look my situation.”

3. It should be noted that the affidavit in support relevantly asserts:

   “I come in Australia on student visa .then My application for student visa was refused by department of immigration and citizenship .i have also apply to MRT. I am not happy with these decision.”

   The affidavit then goes on to annex the decision of the Tribunal which was dated 12 November 2012.  No grounds of application are articulated.

4. On 20 February 2013, Registrar Caporale made orders which inter alia required the applicant to file and serve an Amended Application, if any, a Supplementary Court Book, if any, and written submissions.  No such documentation has been filed.  The matter was called at 10.15am today and again at 10.35am, and on neither occasion did either of the applicants appear.  The Court is thus left, in effect, with the written submissions of the first respondent, and the decision of the Tribunal.

5. In the circumstances, much of what follows by way of factual recitation necessarily derives from the Court Book (“CB”) and the distillation of the facts set out in the outline of submissions of the first respondent. 

6. The applicants are citizens of India who applied for Student (Temporary) (Class TU) visas (“the 572 visas”) on 13 April 2011.  The applications were made on the basis that the first applicant was enrolled in a course leading to the award of a Certificate III in Hospitality.

7. On 15 April 2011, a delegate of the Minister wrote to the applicant to inform her that she was required to provide further information within 28 days, including evidence of sufficient funds to support herself in Australia in a total of $50,240.  The delegate received no response to this letter, and for that reason on 18 May 2011 refused to grant the 572 visa applications.  The reason for the refusal, of course, was that the applicants had provided no evidence of sufficient funds.

8. On 6 June 2011, a representative of the applicants applied to the Tribunal for a review of the delegate’s decision, and on 27 September 2012 the applicants were sent a letter inviting them to appear before the Tribunal on 12 November 2012 (CB72-75 and 95-98).

9. The letter inviting the applicants to attend advised them inter alia that the Tribunal would be assessing the criteria set out in cl.572.223(2)(a)(i) of Schedule 5A of the Migration Regulations 1994 (“the Regulations”), and for that purpose they were invited to provide evidence of sufficient funds.

10. On 12 November 2012, the Tribunal affirmed the delegate’s decision.  The statutory scheme is referred to both in the Tribunal’s decision, which is at CB160-169, and in the first respondent’s Outline of Submissions. 

11. It is clear beyond doubt that the applicants were required to provide evidence of their financial capacity within the meaning of the Regulations. I accept the submission of the first respondent that the terms of cl.5A405 are mandatory and the Tribunal was required to refuse the applicants if those requirements were not satisfied.

12. I turn to the Tribunal’s decision.  The Tribunal set out at CB161-167 the nature of the application made and the relevant law.  In my view, no criticism is open to the Tribunal in this regard. 

13. At CB 167-168, the Tribunal set out the claims and evidence before it. I note that the applicant appeared before the Tribunal on 12 November 2012 to give evidence and present arguments with the assistance of an interpreter. The Tribunal explained the purpose of the hearing and the issues to be decided, and pointed out that the delegate had refused the application because the applicant did not meet the funding requirements of cl.5A405. The Tribunal noted that having regard to her then two confirmations of enrolment she required evidence of funds totalling $47,935.

14. The Tribunal recorded at paragraphs 18 and following (CB168):

    “The applicant said that she had these funds, and referred the Tribunal to a batch of term deposit receipts in the name of her father, which she handed up at the beginning of the hearing. 

    The applicant said that she had not been enrolled or studied for about 18 months because she did not have sufficient funds. 

    In relation to the English language proficiency requirement at cl.5A404, the applicant said that she had completed an IELTS test over two years ago, but did not have any evidence with her at the hearing, despite an explicit request accompanying the hearing invitation that she provide any evidence relevant to this requirement at or before the hearing.”

15. The Tribunal found in favour of the applicant in the sense that she was enrolled in a Certificate III and a Diploma in Hospitality, and that she proposed to undertake study in courses which were specified in Subclass 572, and that the applicant held an eligible passport from India.  However, the Tribunal went on at paragraphs 24-26 (CB168) to say under the heading “The Schedule 5A Requirements”:

    “The applicant has provided 10 term deposit receipts in her father’s name.  Whilst their combined face value equates with the amount of funds required, only three were issued before the date of application for the visa on 13 April 2011.  However, these were only established in March 2011, and therefore were not held for six months immediately prior to the date of application.  The Tribunal therefore disregards them. 

    The applicant has provided no other claim or evidence pertaining to her funds. 

    On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which she is subject, in relation to the necessary financial capacity.  Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).” 

    The Tribunal went on to dismiss the claim accordingly.

16. In my view, the Tribunal’s decision was clearly correct. The requirements of the Regulations require funds to have been held for six months before the date of application. The Tribunal’s decision to ignore the funds that had only been held for a lesser period was plainly correct. No grounds have been articulated by the applicant as to why the Tribunal’s decision was in error. The application will be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  1 August 2013