Kaur v Minister for Immigration

[2016] FCCA 1021

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1021

Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal – Indian citizen – financial requirements for student visa – whether requirements met – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 474, 476

Migration Regulations 1994 (Cth), Schedule 2, cl.572.223(2), Schedule 5A, cl.5A408

Cases cited:
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Applicant: AMANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 294 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 29 April 2016

Date of Last Submission: 29 April 2016

Delivered at: Perth

Delivered on: 5 May 2016

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Ms E Tattersall

For the Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 294 of 2015

AMANDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 1 July 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Student (Temporary) (Class TU) subclass 572 visa under s.65 of the Migration Act (“Temporary Student Visa”).

Background to the Tribunal Decision

1. The relevant background to the Tribunal Decision is set out hereunder.

Application

1. The applicant, a citizen of India, lodged an application for the Temporary Student Visa on 11 March 2014, and her husband and child applied for the Temporary Student Visa as members of the applicant's family unit: Court Book (“CB”) 1-23.

Request for information concerning financial capacity

1. In an email on 12 March 2014 sent to the applicant’s registered migration agent: see CB 21, the applicant was requested by the Department to provide more information, including information in relation to the applicant’s financial capacity: CB 24-30. Specifically, the Department sought information with respect to financial capacity as follows:

   Financial Capacity

   You need to show that you have access to AUD $71,591.

   Please provide evidence of funds to support yourself (this also includes those who are not joining you in Australia) during the first 24 months of your proposed study and stay in Australia.

   (AL 4)

   If the money is not in your name you will also need to provide evidence of the relationship between yourself and the person who holds the account (eg. Birth certificate, family register).

   You also need a letter from that person stating that the money is released to you to spend on your studies.

   If you supply deposit slips or loans from eligible family members overseas you need to show how you can access this money from Australia as well as the source of the income i. e. employment letter, payslips, tax return, bank account statements.

   You must show the money has been in an account for more than 3 months.

   Bank statements should be current.

   NB: Financial support can only be provided by eligible family members. These include:

   A· the applicant

   A· the applicant’s partner

   A· the applicant’s parents

   A· the applicant’s grandparents

   A· the applicant’s brothers and sisters

   A· an uncle or aunt of the applicant who is:

   - an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and usually a resident in Australia.

   If you're providing statements please make sure you provide 3 months history and HIGHLIGHT where your family have deposited money into your account.

   A savings history will not be required if you have successfully completed at least 75% of the course you are enrolled in, or if your funds are in the form of an Educational Loan. Having successfully completed 75% of your course does not exempt you from showing funds, only that you do not have to show the savings history of the funds.

   The required period in which the evidence of funds must cover you and your family and the length of time the funds have been held vary depending on your Assessment Level. Specific Application Checklists providing detailed information on financial capacity requirements based on your individual circumstances are available at immi.gov.au/students/checklists/

   CB 27-28.

Bank loan documents

1. The applicant provided a letter from the Oriental Bank of Commerce (“OBC”) dated 29 March 2014 (“OBC Letter”) certifying that a loan to the applicant’s mother of Rs.39,00,000 had been sanctioned against two term deposits: CB 32. Documents accompanying the loan documents appear to indicate that a property owned by the applicant’s mother was sold on 26 March 2014 and the amount paid for the property was deposited with the OBC in two term deposits which were used as security for the loan dated 29 March 2014: CB 33-37.

Department’s enquiries and applicant’s response

1. On 23 April 2014 the Department sought to verify with the OBC that the loan fund amount was still held in the applicant’s mother’s account, but was advised by the OBC that the entire amount had been disbursed on 29 March 2014 and that as of the date of enquiry (23 April 2014) the loan account had a zero balance, thereby leading the Departmental officer concerned to believe that the applicant no longer had access to the loan funds as claimed in the Temporary Student Visa application: affidavit of Ellen Lucy Goldsworthy Tattersall, affirmed 30 October 2015 at Annexure ELGT1 (“Ms Tattersall’s Affidavit”).

2. On 20 May 2014 the Department wrote to the applicant (sent by email to her registered migration agent: CB 52 and 56) and invited her to comment on information that the entire loan amount had been disbursed and the account had been closed on 29 March 2014: CB 52-56. Specifically, the Department said as follows:

   Adverse information received

   The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.

   The financial documents you provided from your sponsor as evidence of sufficient funds for your study and stay in Australia were referred to our overseas office for verification.

   The two bank loans your sponsor provided from Oriental Bank of Commerce were created on the 27 March 2014 and the account was closed on the 29 March 2014. This is the same date as the bank letter and loan certificates you provided were dated.

   Our overseas office concluded that as there are no funds available in the account and that you do not have access to sufficient funds.

   On the basis of these findings I am not satisfied that you have access to sufficient funds, as they are not available in this account. It also appears that you purposely provided false and misleading evidence to assist in the grant of your student visa application.

   CB 52.

3. On 16 June 2014 the applicant provided evidence that her mother closed the loan account on 29 March 2014 and invested the money with a broker that provided a higher interest rate, and that the money was returned to the applicant’s mother on 23 May 2014: CB 62-63. The broker was a Mr Gurbinder Singh Bittu, said to be the owner of Bittu Electronics & Finance (Broker), who (like the applicant’s mother) resided in the Amritsar District of the Punjab in India: CB 63-64. The mother attested (in an affidavit provided to the Tribunal) that she was not aware that the money should have been left in the loan account: CB 62.

Delegate’s Decision

1. On 2 October 2014 the Delegate refused to grant the applicant a Temporary Student Visa. The Delegate found that the applicant did not satisfy cl.572.223(2) of Schedule 2 to the Migration Regulations 1994 (“Migration Regulations”) as she had not provided evidence to show that she satisfied the financial capacity requirements for the grant of the Temporary Student Visa: CB 70-88. In particular, the Delegate found that:

   On 17 June 2014 the letter from your mother’s broker and the sworn affidavit documents you provided to the Department were referred to the Australian Embassy in New Delhi, India for verification. Investigations by the New Delhi office found that those documents did not demonstrate that you had access to the funds detailed in the original loan documents provided from your mother. The New Delhi office advised that the sworn affidavit and broker letter provided did not demonstrate an exchange of funds between your mother and the broker as it was an agreement made between two parties without a legally binding contract and did not demonstrate that the transaction occurred. The New Delhi office further advised that a broker are also known as a “local commission agent” are not recognised individuals/institutions who perform financial functions and are not detailed on the list of acceptable financial institutions found on the Australian High Commission website.

   It was also noted from your letter response to the department provided on 16 June 2014 that your mother indicated that the funds had been reinvested into the Central Bank of India following the funds being released from the broker, however no bank documents demonstrating the availability of these funds in an Central Bank of India account has been provided to date after it has been confirmed in the previous verification via the New Delhi office that the funds were no longer held in the Oriental Bank of Commerce account.

   …

   Based on current information available in relation to this application, you have been unable to provide and demonstrate satisfactory evidence of genuine access to sufficient funds in assessment of your financial capacity for this visa. I therefore do not have any evidence to demonstrate that you satisfy the criteria for clause 572.223(2) in consideration of this Student visa application for a Student subclass TU572 visa.

   CB 82-83.

Application to the Tribunal

1. The applicant lodged an application with the Tribunal for review on 16 October 2014: CB 89-91.

2. On 8 May 2015 the Tribunal invited the applicant to a hearing before the Tribunal on 4 June 2015: CB 103-107. The Tribunal requested that the applicant provide certain information and evidence at least seven days before the Tribunal hearing date, that information including the following:

   •evidence of fees of current or proposed course/s you have already paid, or still owe for past courses

   •evidence of funds from an acceptable source

   °   if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application

   °   if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

   •evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you

   •evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given

   CB 106.

3. On the afternoon of the day before the Tribunal hearing, 3 June 2015, the applicant, through her migration agent, provided written submissions: CB 117-122 and annexed bank statements from the Commonwealth Bank of Australia (“CBA”) and Central Bank of India (“CBI”): CB 125-134.

4. In the submissions made by the applicant’s registered migration agent it was submitted that the applicant’s mother took the funds out of the OBC account to obtain a higher interest rate, and that her intentions in so doing were genuine, and that the funds were still held subsequently by the mother. The migration agent submitted that the funds had subsequently been transferred to Australia from India into the applicant’s bank account, and attached bank records said to be from the CBI and the CBA showing evidence of the transfer from the applicant’s mother’s CBI account to the applicant’s CBA account of a total sum of $42,981: CB 121.

5. The applicant’s CBA GoalSaver account provided shows various debit and credit transfers between 16 March 2015 and 1 June 2015, but no detail as to the identity of the transferor in the case of credit amounts to the GoalSaver account: CB 129-130. The transactions in the Smart Access CBA account do show transfers from the applicant’s mother to the Smart Access account of three amounts of $13,903, $20,155 and $8,923, being $42,981 in total. The three transactions are dated (in reverse order) 1 June 2015, 9 February 2015 and 25 September 2014. The CBA accounts are at CB 125-130. The CBI account from which it is said that those transfers were made appears at CB 131-134, and provides statement from 1 April 2014 to 12 May 2015.

6. The Tribunal hearing took place on 4 June 2015 with the applicant, and her family members (her husband and child) and registered migration agent present: CB 135-138.

Tribunal Decision

1. The Tribunal Decision was delivered orally at the Tribunal hearing on 4 June 2015, and was later reduced to writing, and in its written form is in evidence as Annexure ELGT2 to Ms Tattersall’s Affidavit.

2. In the Tribunal Decision the Tribunal stated at [3]-[17] as follows:

   3. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations.

   4. You carry a passport of India and so your application was considered against assessment level 3.

   5. Your application was refused on 2 October 2014 because the delegate found you did not meet clause 572.223 because you had not provided satisfactory evidence you met the financial requirements for the grant of a visa.

   6. Those financial requirements which are detailed in 5A408 state that you must provide evidence of access to funds from an acceptable source, sufficient to meet your course fees, school fees for the children, your living costs as well as return travel expenses.

   7. The regulations are specific about how those funds can be provided and a copy of that legislation was provided with your primary decision where it explained if you intend relying on a money deposit, then that deposit would need to have been held for a period of at least 3 months before the date of the application.

   8. You're agent Mr Joshi tells me that what is required is evidence of some $42,000, and I am prepared to accept his calculations. What you have provided to the tribunal is a statement from the Central Bank of India for account number 3154605125 in the name of Mr Rajwinder Kaur. As it is your mother, it is surprising the bank would make such an error and have the account in the name of Mr Kaur, however it's a bank statement that runs from 10 April 2014 until February 2015 showing a range of transactions.

   9. As your application was lodged on 11 March 2014 and the regulations require evidence of funds held for a period of 3 months before the date of the application, means that this Central Bank document does not cover the relevant period and therefore cannot be considered.

   10. What you have also provided is pages of Commonwealth Bank statements of recent times. They are not for the relevant period but you say you provided them to show you currently have money in the bank, which I accept. You also claim they show transfers of money from your mother. The problem is that deposits into these accounts are not matched by withdrawals or transfers in the Central Bank of India statement, so the tribunal does not accept these documents provide evidence of transfers.

   11. On the evidence provided the tribunal is not satisfied you meet the financial capacity requirements detailed in 5A408.

   12. As discussed earlier, the original decision was made on 2 October 2014 and explained in detail that you had not provided evidence you met the financial capacity requirements and you were provided with a copy of the relevant legislation.

   13. When you applied to the tribunal for review of that decision on 21 October 2014, we sent you a letter acknowledging the application and stating if you wish to provide material or written arguments in support of your case you should do so as soon as possible. Nothing was received.

   14. The hearing invitation was sent to you on 8 May 2015, almost a month ago. It advised that financial capacity was an issue and asked you to provide evidence you met the requirements. It provided significant detail as to what was required and asked for a written response at least 7 days before the hearing.

   15. What we did receive were the documents I have just referred to, that were emailed to the tribunal late yesterday afternoon. You are represented by a migration agent who I presume understands the law and the requirements.

   16. You make the comments that if the tribunal likes you could organise to get a loan. In the circumstances the tribunal is not prepared to grant further time for the submission of evidence and therefore advises that on the available evidence it is the decision of this tribunal to affirm the decision under review.

   DECISION

   17. The Tribunal affirms the decisions under review.

Grounds

1. The grounds of the Judicial Review Application are as follows:

   1. Initially, upon the completion of my Diploma in Community Welfare from Cambridge International College, Adelaide, I aimed at applying for a Temporary Graduate 485 Visa and gaining some work experience in my field of study. Unfortunately, I was unable to do so. This led me to believe that it was necessary for me to enhance my knowledge and qualifications in order to secure a good job, which in turn resulted in my decision to study further. Upon conducting a significant amount of research, I decided to pursue a Certificate IV in Business followed by a Diploma of Management. With this in mind, I lodged the application for the extension of my student visa subclass 572 on the 11th of March 2014.

   2. On the 12th of March 2014, the delegate of the Minister requested for further information, to which I responded and provided additional documents as financial evidence, including a loan sanction from the Oriental Bank of Commerce. After assessing the documents, however, the decision maker stated that the funds from the loan had been previously been disbursed to Mrs Raj winder Kaur's (my mother) account on 29 March 2014, however the balance on this account was nil. On the 20th of May 2014, I provided further information explaining the reason for removal of funds, transfer receipts and bank statements showing the funds being transferred to a different banking institution. The main reason for the transfer of funds to a different bank was a higher interest gain and better returns on the funds available in the account. My mother was advised that the interest rate provided by the bank was very low and she was advised that she would be better off having the money invested with a broker. The rate of interest is way higher, resulting in a higher turnover. My mother considered that option and transferred the money from the Oriental Bank of Commerce and invested the funds with the broker.

   3. I wish to affirm that my mother and I have genuine intentions and the funds which I declared to the DIBP still exist. I did not have any intention of providing misleading information to the Department. It was a genuine mistake on my mother's part to withdraw the money, close the account and invest the funds within another financial institution.

1. Despite orders made by a Registrar of the Court on 16 September 2015 permitting the applicant to file and serve any amended application and any affidavits by 16 October 2015 and submissions 42 days before the hearing, no such amended application, affidavits or submissions have been filed.

Consideration

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. Clause 572.223(2)(c) of Schedule 2 to the Migration Regulations provides that an applicant meets the requirements for the grant of a Temporary Student Visa if the Minister is satisfied that, while the applicant holds the Temporary Student Visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A to the Migration Regulations.

3. Clause 5A408(1) of Schedule 5A to the Migration Regulations requires that the applicant give “evidence that the applicant has funds from an acceptable source ...”. Clause 5A408(2) of Schedule 5A to the Migration Regulations states that “funds from an acceptable source” means, relevantly:

   a)in relation to a money deposit, “a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application”; and

   b)in relation to a loan, “a loan from a financial institution made to, and held in the name of, an acceptable individual”.

   The applicant’s mother is an “acceptable individual”.

4. The applicant, in effect, contends that:

   a)the loan amount from the OBC was transferred by her mother to a broker at a higher interest rate and later transferred back to her mother by the broker, deposited in the CBI, and then transferred in three tranches from the mother’s account at the CBI to the applicant’s account or accounts at the CBA; and

   b)she and her mother have genuine intentions, she did not have any intention to provide misleading information and it was a genuine mistake on her mother's part to withdraw the money, close the OBC account and invest the funds with the broker.

5. The applicant has not provided any particulars or submissions that identify any jurisdictional error in the Tribunal Decision.

6. The grounds of the Judicial Review Application do not identify any jurisdictional error. Ground 1 does no more than outline the background to the application. Ground 2 sets out the Minister’s request for further information of the applicant’s financial arrangements, and the details of the loan arranged by the applicant’s mother and its transfer out of the OBC and to the broker. Ground 3 does no more than express the applicant’s and her mother’s allegedly genuine intentions, and that it was a genuine mistake on the applicant’s mother’s part to withdraw the monies from the OBC loan account, and to subsequently make alternative arrangements with respect to the loan account monies. Ground 3 also asserts that the funds declared by the applicant to the Department still exist.

7. The Tribunal identified and applied the relevant aspects of Schedules 2 and 5A of the Migration Regulations and made findings that were open to it on the evidence available that the applicant had not provided sufficient evidence:

   a)of funds held on deposit for the period of at least three months immediately before the date of application; and

   b)of funds from a loan from a financial institution,

   “held in the name of, an acceptable individual” in accordance with the requirements in cl.5A408(2) of Schedule 5A to the Migration Regulations.

8. As the funds concerned did not come into existence until the applicant’s mother’s property was sold on 26 March 2014 the requirement for funds to be held on deposit for a period of at least three months immediately before the date of the application was not met. Further, once the funds were disbursed from the OCB account to a broker, who was not a financial institution and in respect of which there might be some doubt as to whether the transaction occurred: see the Delegate’s Decision at [9] above, they were no longer funds from “a loan from a financial institution made to, and held in the name of” the applicant’s mother. The transfer of funds from the broker to the CBI and the subsequent disbursement of funds on various dates to the applicant’s CBA account do not constitute funds “from a loan from a financial institution”, because there is insufficient evidence to prove a chain of continuity of funds between the OCB, the applicant’s mother, the broker, the CBI, the CBA and the applicant in relation to transactions many months apart, and over more than 12 months subsequent to the original OCB loan: see, for example the Delegate’s Decision at [9] above, and the Tribunal Decision at [10], at [17] above.

9. On the evidence before the Tribunal, it was therefore open for it to find that it was not satisfied that the applicant met the financial capacity requirements. Indeed, that appears on the evidence to have been the only finding that the Tribunal could have made.

10. At hearing, the applicant was also not able to identify any jurisdictional error on the part of the Tribunal, and ultimately resorted to pleading with the Court that she ought to be allowed to stay to complete her studies based upon her personal circumstances. The applicant’s personal circumstances are irrelevant to the issue of whether she meets the criteria for the grant of a Temporary Student Visa, and would not have been a matter which the Tribunal could take into consideration, and therefore not a matter capable of constituting jurisdictional error for the purposes of the exercise of this Court’s jurisdiction. The plea based on the applicant’s personal circumstances must therefore fail.

Conclusion and orders

1. The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. In the Court’s view the Tribunal made the only decision which was open to it on the evidence. It follows that the application must be dismissed.

2. The Court will hear the parties as to costs.

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

Associate: 

Date:  5 May 2016