Kaur v Minister for Immigration

[2015] FCCA 2989

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2989

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – application for student visa – satisfaction of conditions attaching to visa – finding of fact by Tribunal – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.360; 474; 476

Migration Regulations 1994, r. 1.03, 572.223; Sched 5A

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163

Applicant: HARSIMRAN KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 389 of 2014

Judgment of: Judge Brown

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Adelaide

Delivered on: 5 November 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 15 October 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,825.00.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 389 of 2014

HARSIMRAN KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings, Harsimran Kaur, seeks the issue of constitutional writs to quash a decision of the Migration Review Tribunal, made on 10 September 2014, not to grant her a student (temporary) (class TU) visa pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is a citizen of India, who first arrived in Australia on 21 April 2009, pursuant to a student visa.  Between the date of her arrival and 15 June 2011, the applicant successfully completed a number of courses related to hospitality at a private educational provider in Adelaide. 

3. On 15 June 2011, the applicant applied for a further student visa.  She proposed to study for a certificate of business and diploma of management, at Durban International College, also located in Adelaide.

4. On 22 June 2011, the Minister’s delegate acknowledged receipt of the application, and amongst a number of other documents, requested the following:

   “Please provide evidence that you have sufficient funds to support yourself, and any family members accompanying you, in Australia for the duration of your course of study.  This includes:

   Course Fees              $7,000

   Living expenses      $18,048

   Travel expenses        $1,000

   Total AUD              $26,048”

5. The Minister’s delegate further noted that this financial support could only be provided by eligible family members and it needed to be demonstrated that the funds had been held for at least six months prior to the date of the relevant application, in a financial institution which was deemed acceptable by the department.[1]

   [1]  See casebook at page 12

6. On 11 October 2011, a delegate of the Minister for Immigration & Border Protection refused to grant the student (temporary) (class TU) visa on the ground that the applicant had not satisfied the conditions contained in clause 572.223(2)(a) of the Migration Regulations 1994. 

7. Essentially, this stipulates that an applicant for the visa in question has access to funds, from an acceptable source, sufficient to meet necessary course fees; and living expenses; for the first three years of any applicant’s proposed stay in Australia to complete a course of education. 

8. As indicated above, the applicant had been advised of this requirement.  The delegate’s decision noted that, on the day of the decision, the applicant had not provided the evidence in question.  On this basis, the application for the vocational education visa was refused.

9. The applicant sought a review of this decision in the Migration Review Tribunal on 21 October 2011.  The review was dealt with, by the Migration Review Tribunal, on 10 September 2014.  As indicated above, the decision of the Tribunal was to affirm the decision of the delegate not to grant the visa.  It is this decision, which is the subject of these proceedings.

10. The Migration Review Tribunal has been abolished.  Its functions are now carried out by the Administrative Appeals Tribunal.  In these circumstances, the first respondent, the original decision maker seeks an order that the second respondent’s name, in these proceedings, be amended to the Administrative Appeals Tribunal. 

11. The applicant commenced these proceedings, within time, on 15 October 2014.  She prepared her own application.  The sole ground of her application is as follows:

    “Review of Tribunal decision. I am not satisfied with it.  She did not considered all the points to make decision.  I am full-time student from 2011 to present.  My new course going to start on 27^th of October.  I need student visa which is refused by Tribunal for not valid reasons.  I need to know why its not acceptable to give me for student valid visa.  I am living in Australia from 5 and half years to present. I file my Tax, I am part-time worker and full-time student.  I will be very thankfull if you review the decision made by the Tribunal.”

12. The first respondent contends that no jurisdictional error has been established, either in the application or the decision itself.  Rather Mr Tredrea, counsel for the Minister, contends that the applicant is seeking to have this court rehear her application on its merits, which it is not permitted to do.  In these circumstances, the first respondent seeks the dismissal of the application and costs in the sum of $6,825.00.

The legal principles applicable

1. Part VIII of the Migration Act, deals with judicial review of what are termed migration decisions.  The expression migration decision includes what is termed a privative clause decision.  This latter expression, pursuant to section 474, means any decision of an administrative character made under the Migration Act. 

2. Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in migration decisions. 

3. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the Refugee Review Tribunal by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

4. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of privative clause decisions. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

5. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.

6. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[2]

   [2]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

7. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[3]

   [3]  See Craig v South Australia (1995) 184 CLR 163

The Tribunal decision

1. Pursuant to section 360 of the Act the Tribunal is required to invite any applicant to appear before the Tribunal, to give evidence and present arguments relating to the issues in the case concerned. Ms Kaur was issued such an invitation on 25 July 2014 to appear before the Tribunal on 28 August 2014. In this invitation, she was requested to provide the Tribunal with the following evidence and documents:

   ·A copy of her current certificate of enrolment;

   ·Documents to evidence that she was currently enrolled in a course or had an offer of enrolment in a registered course;

   ·Documents relating to her past studies in Australia;

   ·An explanation of any gaps in her enrolment history;

   ·Documents that demonstrated she had sufficient funds, or access to funds, to pay course fees, living costs, and travel costs;

   ·Proof of medical insurance;

   ·Evidence of English language proficiency;

   ·Evidence that she had completed Year 12 or its overseas equivalent.

2. The relevant decision of the Tribunal indicates that the applicant sent a bundle of documents, to the Tribunal, in response to this request.  They comprised the following:

   ·A confirmation of enrolment, at Durban International College, for an advanced diploma of marketing course commencing 27 October, 2014, with tuition fees costing $6,000.00;

   ·A statement on Canada Trust letterhead, for Ranbir Boparai, of Abbotsford, British Columbia, indicating a net worth in Canadian dollars of $36,877.93;

   ·An affidavit deposed by Ranbir & Amandeep Singh Boparai of Abbotsford, British Columbia deposing that they are married and have a family income of $50,000 per year and the applicant is respectively their sister and sister-in-law;

   ·Evidence of income for Amandeep Boparai dated 28 March 2011;

   ·Various other documents related to the applicant’s previous studies, both in Australia and India;

   ·Evidence as to the applicant’s proficiency in English;

   ·Evidence as to private health insurance;

   ·Evidence as to the applicant’s character.

3. On 27 August 2014, the applicant sent the Tribunal an email, which indicated that she had sent her documents relating to her visa but that these documents related to her old funds.  She further advised that she was waiting for her new funds, which related to her mother and were held in India.  She further asserted that these funds had been delayed, because of a holiday in India. 

4. The applicant appeared before the Tribunal on 28 August.  She was provided with an interpreter fluent in both English and Punjabi.  At this hearing, the central issue appears to have been whether the applicant had demonstrated that she had funds, from an acceptable source, to support her studies, in Australia or would be able to provide proof of such funds within a reasonable period of time.  In this context, the Tribunal calculated that the applicant was required to furnish evidence that she had funds in an amount of AUD$35,400.00.

5. At the hearing, the applicant was also informed by the Tribunal that it was necessary for her to establish that an acceptable individual had held funds to this value, for at least six months immediately before the date of the application.  The date of the application, in this matter, as previously indicated was 15 June 2011, which meant that the relevant date for the holding of funds, in the applicant’s case, was at least 15 December 2010.

6. In these circumstances, given the Canada Trust document, in the name of Ranbir Boparai, had on its footer, the date 6/11/2011, the Tribunal was not satisfied that the applicant had provided proof of means of financial support, as required by the relevant regulation.  In these circumstances, the Tribunal determined as follows:

   “The applicant said Ranbir Boparai is her sister. The Tribunal noted that the applicant provided her sister's “personal assessment” which was undated.  At the time of writing this decision, the Tribunal notes a date in small print in the footer of the document, which reads ‘6/11/2011’.

   The Tribunal explained that the applicant must show evidence of the relevant amount of funds and that the funds have been held since at least 15 December 2010.

   The applicant asked the Tribunal to allow her additional time and she would give the Tribunal a bank statement from 2010. She said her mother has arranged for papers to be provided by her bank but·there have been holidays in India and the documents are not yet available. She said her mother has funds in a fixed deposit. Asked when her mother made arrangements to obtain financial documents, the applicant said it was after the applicant received the hearing invitation, dated 25 July 2014.

   The Tribunal gave the applicant an extension of time, until close of business on 9 September 2014, to provide additional information.[4]

   [4]  See casebook at [19]-[22] at page 118

7. The Tribunal decision indicates that, on 9 September 2014, the applicant provided a further documentary submission to it.  The Tribunal described the documents in the following terms:

   “A term deposit advice from Karur Vysya Bank, for Rsl,000,000 held in the name of the applicant's mother. The date of deposit is 8 September 2014, the period is 46 days and the maturity date is 24 October 2014.

   A confirmation of deposit from Punjab National Bank, for the amount of Rsl,300,000 held by the applicant's mother. The funds were lodged on 21 October 2012 for a period of 12months, maturing on 21 October 2013.

   A letter, dated 6 September 2014, from Punjab National Bank, stating that, on maturity of the above mentioned fixed deposit, the principal plus interest (INRl ,427,970) were lodged in a fixed deposit for a further period of 12 months; maturing on 21 October 2014. ·

   Her mother's identification card and an affidavit of financial support.

   A bank statement for an account held by the applicant's mother at Bank of Baroda. The statement is for the period 1 August 2013 to 16 August 2014.”[5]

   [5]  Ibid at [24]

8. In its decision, the Tribunal referred to the considerations contained in clause 572.223 of the Regulations.  In particular, pursuant to regulation (2) the applicant satisfies the Minister that he or she has access to funds at the highest assessment level applicable to that applicant during the relevant period of his or her study in Australia.  These requirements are set out in Schedule 5A to the Regulations.

9. The concept of assessment level is defined in regulation 1.03.  It is determined by the Minister by reference to the kind of passport held by the applicant concerned.  In the case of the applicant, who is the holder of a passport from India, the assessment level is 4. 

10. Requirements for assessment level 4 are set out in regulation 5A405, in respect of financial capacity.  This clause defines the expression funds from an acceptable source as being a money deposit that an acceptable individual has held for at least the six months immediately before the date of the application.  There is no controversy the relevant date of application is 15 June 2011.  The expression acceptable individual includes the parents or siblings of an applicant. 

11. Applying these considerations, the Tribunal found as follows:

    “The applicant is required .to give evidence of funds from an acceptable source for the amount of AUD35,400 (living expenses to 15March 2016 of $27,900, course fees of $6,000 and costs of $1,500). This is equivalent to about INRl,981,549.

    As the applicant has provided evidence of money deposits, and as she has not successfully completed at least 75% of her principal course, she is required to give evidence that an acceptable individual has held the required amount since at least 6 months immediately before the date of application. As the visa application was lodged on 15 June 2011, she must give evidence that the funds were held since at·least 15 December 2010.

    The applicant has not given any financial evidence, to the Department or to the Tribunal, of any funds which were held by an acceptable individual since 15 December 2010. The only financial evidence relating to 2010 is for the income of the applicant's sister and brother-in­law during that year.”[6]

    [6]  Ibid at [31]-[33]

12. Accordingly, the Tribunal found that the applicant was required to establish a deposit equal to or more than $35,400 Australian as at 15 December 2010.  It found that the evidence from both the applicant’s sister and brother-in-law and more recently from her mother did not satisfy this criterion. 

13. In my view, the Tribunal correctly applied the relevant legal considerations.  It made findings of fact, on the basis of the evidence made available by the applicant.  In my view, it cannot be said that these findings of fact did not fall within the Tribunal’s jurisdiction remit or that the findings are unreasonable or irrational, to such a degree, to vitiate that jurisdiction. 

14. To the contrary, in my view, the findings of fact made by the Tribunal, were clearly open to it.  It is not the function of this court, on review, to look behind such findings of fact. 

15. For all these reasons, I have come to the conclusion that the application must be dismissed.  In all these circumstances, I will make these orders as sought by the first respondent.  In my view, costs should follow the event and I will order that the applicant pay the first respondent’s costs fixed in the sum of $6,825.00.

16. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:         5 November 2015