Kibogong v Minister for Immigration
[2020] FCCA 3055
•12 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIBOGONG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3055 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider materials – whether the Tribunal failed to make a relevant inquiry – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.500.214 of sch.2 |
| Cases cited: Abebe v Commonwealth (1999) 198 CLR 510 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593 |
| First Applicant: | BETTY JEPYEGON KIBOGONG |
| Second Applicant: | BERNARD KIBET CHERES |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 340 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 10 November 2020 |
| Date of Last Submission: | 10 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 12 November 2020 |
REPRESENTATION
| Counsel for the Applicants: | Ms S Manera |
| Solicitors for the Applicants: | Rothstein Lawyers |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 340 of 2019
| BETTY JEPYEGON KIBOGONG |
First Applicant
| BERNARD KIBET CHERES |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Kenya. They are wife and husband respectively. The first applicant arrived in Australia on a student visa in 2013 (Court Book (“CB”) 12).
On 15 March 2017, the first applicant, Ms Kibogong, applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-36). Her husband, the second applicant, was included as a member of the “family unit”.
On 4 July 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 38-47). The delegate found that the first applicant did not meet cl.500.214 of the Migration Regulations 1994 (Cth) (the “Regulations”) as she had not provided evidence that she met the financial capacity criterion. As the first applicant was not granted the visa, the second applicant was also refused the visa.
On 25 July 2017, the applicants sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 48-50). The applicants attached various supporting documents to their application including a statutory declaration from the first applicant’s uncle and an “Account Statement” from Diamond Trust Bank (CB 51-52).
On 12 July 2019, the applicants’ migration agent forwarded documents to the Tribunal. Those documents included a letter that stated that the first applicant was enrolled in a Bachelor of Nursing and was expected to complete her studies in July 2020 (CB 66) and a confirmation of offer in a Bachelor of Business in Management
(CB 67-72).
On 26 July 2019, the applicants’ migration agent forwarded further documentation that included a confirmation of enrolment issued by Murdoch University and a previous confirmation of enrolment in another course at Curtin University (CB 78-81).
On 31 July 2019, a current bank statement and identity documents were provided to the Tribunal (CB 91-95). Later that day, the applicants attended a hearing before the Tribunal (CB 99-101).
At the conclusion of the hearing on 31 July 2019, the Tribunal gave an oral decision that affirmed the delegate’s decision (CB 105).
On 28 August 2019, the applicants filed a judicial review application in this Court seeking review of the Tribunal’s decision. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth).
Tribunal’s Decision
A written record of the Tribunal’s decision was produced on 13 September 2019. That decision is 4 pages long and spans 26 paragraphs.
The Tribunal began by summarising the procedural history of the matter. It noted that the delegate had refused the visa on the basis that the first applicant did not meet cl.500.214 and confirmed that the applicants had appeared before the Tribunal with the assistance of a migration agent (at [3]-[8]).
The Tribunal then identified that the issue on review was whether the applicant met the financial criterion and genuine access to funds criteria in cl.500.214 of the Regulations (at [9]). The Tribunal explained:
10. To meet cl.500.214, the applicant must (if required by the Minister) give evidence of financial capacity that satisfies the requirements specified in an instrument: cl.500.214(3). The Tribunal must also be satisfied that the applicant will have genuine access to the funds: 500.214(1).
11. A delegate of the Minister has made a legislative instrument under cl.500.214 (3) specifying requirements to meet the evidence of financial capacity. The legislative instrument applicable to the applicant in the circumstances of her application for a Student visa is IMMI 18/010.
The Tribunal then noted that the invitation to the hearing had requested that the first applicant provide evidence that she met the financial capacity criterion in accordance with IMMI 18/010 (at [12]).
The Tribunal continued:
13. Prior to this hearing the applicant has not provided evidence which satisfies the requirements of having genuine access to funds.
14. At the hearing today you were again requested to provide this evidence to the Tribunal such as evidence you meet the requirements of having genuine access to funds to meet your costs and expenses during your intended stay in Australia and the costs and expenses for each member of your family unit. You have not done so.
15. The applicant submitted a confirmation letter from Murdoch University dated 10 September 2018 but this Confirmation of Enrolment did not show the relevant costs involved for the costs of the course and any outstanding course fees, hence the Tribunal was not able to calculate the relevant costs for the applicant and her husband and as a result were not able to meet clause 500.214.
16. The applicant through her migration agent requested further time in which to submit evidence of financial capacity and genuine access to funds. The Tribunal carefully considered the request for further time, and after due consideration the Tribunal is not satisfied that an extension of further time is appropriate.
17. The migration agent stated during the hearing that she understood that the applicant had already been requested on a number of occasions to supply this information. The migration agent had also asked for this information and had not been provided it.
18. The applicant has had since 2017 to provide the relevant documentation to the Tribunal when she applied to the Tribunal to have her decision reviewed. On 12 July 2019 the applicant was invited to attend the hearing today via telephone and in that invitation the relevant request for documentation was asked for.
19. Accordingly, there is no evidence before me that you meet the financial requirements of having the financial capacity and genuine access to funds.
20. Therefore the Tribunal is not satisfied that at the time of this decision, the applicant meets the financial capacity requirements and accordingly cl.500.214 is not met.
The Tribunal then considered whether the second applicant met the requirements of cl.500.311. Noting that the first applicant did not satisfy cl.500.214, the Tribunal found that the second applicant could not meet the criteria and could not be granted the visa (at [21]-[24]).
The Tribunal affirmed the decision to refuse the applicants the visa (at [26]).
Proceedings in this Court
The applicants’ application for judicial review filed on 28 August 2019 contained a single ground of review which argued that the Tribunal “unreasonably failed to adjourn the review and allow more time for the applicants to obtain documents”. However, the applicants filed an amended judicial review application on 20 November 2019.
The amended application for judicial review contains two new grounds of review, as follows:
2. The Tribunal made a jurisdictional error by failing to consider the documents relating to the Applicants’ access to sufficient funds, provided in support of the application for review and submitted prior to the Tribunal making a decision.
Particulars
(a) The Applicants’ migration agent sent an email to the Tribunal on the day of the hearing at 12.06pm Australian Eastern Standard Time (AEST). The email was sent prior to the commencement of the Tribunal hearing. The email contained a scanned colour copy of a person who was alleged to be the Applicants’ financial guarantor, and a copy of a letter from Commonwealth Bank dated 30 July 2019 confirming the person’s bank balance (At CB 91);
(b) The Tribunal hearing was scheduled to take place at 1.30pm AEST, however it commenced at 2.07pm AEST. The Tribunal received the email 2 hours and 1 minute prior to the commencement of the hearing;
(c) The Tribunal did not take these documents into consideration in making a decision. The Tribunal expressly told the Applicants that he would not take review these documents;
(d) The Tribunal in his decision record stated that he had “carefully considered the request for further time and after due consideration the Tribunal is not satisfied that an extension of further time is appropriate.” (At CB 111, [16]). However, during the hearing the Tribunal takes approximately 10 seconds to make up his mind not to consider the additional documents provided on the morning of the hearing.
(e) These documents were directly relevant to whether the Applicants had access to sufficient funds to support their stay in Australia. The bank statement from the Applicants’ guarantor stated that she held an amount of $45,683 .56.
3. The Tribunal made a jurisdictional error by failing to consider the Applicants’ oral and documentary evidence that the First Applicant (the primary visa applicant) was currently enrolled in a course of study and had paid the applicable course fees, and had paid for their living expenses in Australia since the time of the visa refusal.
Particulars
(a) The First Applicant told the Tribunal that she was “about to finish her studies” (Annexure KSC 1 to the Affidavit of Ken Shen Chong at page 10);
(b) The Applicants’ representative told the Tribunal that ‘“the applicant has been paying for her own studies for the last past two years” (Annexure KSC 1 to the Affidavit of Ken Shen Chong at page 9);
(c) In the hearing the Tribunal did not ask the Applicants any questions about how they had been financially supporting themselves up until the time of the hearing. The Tribunal also did not ask the First Applicant when she was due to complete her studies. This was relevant to the question of whether the Applicants met the financial requirements of having the financial capacity and genuine access to funds.
The applicants also filed an affidavit of Ken Shen Chong sworn
20 November 2019. The affidavit attached a transcript of the hearing that occurred before the Tribunal on 31 July 2019.
The materials before the Court thus include those referred to above, a Court Book numbering 117 pages (marked as Exhibit 1), an outline of written submissions filed by the applicants on 10 August 2020 and an outline of written submissions filed by the Minister on 17 August 2020.
Before this Court, the applicants were represented by Ms Manera. The Minister was represented by Ms Ellis. The Court thanks both lawyers for the clarity of their oral and written submissions. The Court will refer to any oral submissions made by Ms Manera and Ms Ellis where necessary below.
Legislative Scheme
Clause 500.214 of the Regulations provides:
(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2)While the applicant holds the visa, sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b) the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.
(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
The Minister submits, correctly, that Regulations envisage a two stage inquiry.
First, the Tribunal must determine “the amount of funds” required by the applicants (“Stage One”).
Second, the Tribunal must assess whether there is evidence in a “prescribed form” that shows that the applicants have access to the amount required (“Stage Two”).
It is agreed that the issue in these proceedings relates to the two stages identified by the Minister.
It is apparent that in order for the decision-maker (here, the Tribunal) to determine whether an applicant has “genuine access to funds”, the “amount of funds” must first be calculated. This is the focus of Stage One (i.e., determining the “quantum of funds necessary”).
What constitutes “sufficient funds” is determined by reference to cl.500.214(2) and (3).
The relevant instrument for the purposes of cl.500.214(3) is IMMI18/010. Section 6(2) of IMMI 18/010 requires evidence of “financial capacity” that:
(b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
(i) travel expenses; and
(ii) the following living costs and expenses:
(A)if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD20,290 (annual living costs); and
(B)if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and
(iii) the following course fees, minus any amount already paid:
(A) if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study; or
(B) If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period study in Australia; and
…
(c)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:
(i) travel expenses; and
(ii) for each secondary applicant who intends to stay in Australia for a period of 12 months or more – the following costs (annual living costs):
(A) for a spouse or de facto partner - AUD7,100; and
(B) for a dependent child - AUD3,040; and
(iii) for each secondary applicant who intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and
Sections 6(2)(b)(ii) and 6(2)(c)(ii) of IMMI 18/010 detail the amount that is required to meet cl.500.214(b) of the Regulations. Here, funds in the amount of $27,390 are needed in order to cover the applicants’ costs and expenses for one year. If their intended stay is less than one year, then a lesser amount is determined “pro-rata”.
Clause 500.214(3) and IMMI 18/010 also requires that the applicants demonstrate that they have access to additional funds to meet travel expenses and course fees.
In order to meet s.6(2)(b)(i) and (iii) and s.6(c)(i), the Tribunal must have sufficient information before it to determine “the sum of the travel costs and the course fees”.
Once the quantum of funds is determined, then (and only then) will the Tribunal be able to move to Stage Two.
Stage Two requires that the applicants provide evidence that they have funds available in the sum determined in Stage One. IMMI 18/010 requires that the evidence be “in the form specified”. The “form specified” is defined as follows:
10 Evidence of financial capacity
The following forms of evidence of financial capacity are specified:
(a)money deposit with a financial institution;
(b)loan with a financial institution;
(c)government loans;
(d)scholarship or financial support.
In Stage Two, the Tribunal must determine whether an applicant has provided evidence (in a form that is specified in s.10 of IMMI 18/010) of the funds calculated in Stage One are. For example, if an applicant provides evidence in the form of a loan from a financial institution that equates to a sum in excess of the amount determined in the first part of the inquiry, then the second stage of the inquiry is met.
If the funds are not in a valid form, then they are not evidence of “available” sufficient funds.
Arguably, a third stage/inquiry arises which requires the Tribunal to determine whether the applicant has “genuine” access to the funds that are available (i.e., that the evidence that the applicant provides is “genuinely” available). For example, if a deposit is made shortly prior to the hearing by a family member, it may be necessary to consider if the applicant can genuinely access those funds or if they were transferred for the purpose of meeting the criteria to have “available” funds at the time of decision in a certain amount.
However, this “third stage/inquiry” does not arise in these proceedings. The Tribunal’s decision turns on the issue of quantum and form as relevant to the funds needed and available.
Consideration
Ground 1
Ground 1 in the original application for judicial review dated
28 August 2019 was abandoned and need not be assessed here.
Ground 2
Ground 2 provides:
2. The Tribunal made a jurisdictional error by failing to consider the documents relating to the Applicants’ access to sufficient funds, provided in support of the application for review and submitted prior to the Tribunal making a decision.
Particulars
(a) The Applicants’ migration agent sent an email to the Tribunal on the day of the hearing at 12.06pm Australian Eastern Standard Time (AEST). The email was sent prior to the commencement of the Tribunal hearing. The email contained a scanned colour copy of a person who was alleged to be the Applicants’ financial guarantor, and a copy of a letter from Commonwealth Bank dated 30 July 2019 confirming the person’s bank balance (At CB 91);
(b) The Tribunal hearing was scheduled to take place at 1.30pm AEST, however it commenced at 2.07pm AEST. The Tribunal received the email 2 hours and 1 minute prior to the commencement of the hearing;
(c) The Tribunal did not take these documents into consideration in making a decision. The Tribunal expressly told the Applicants that he would not take review these documents;
(d) The Tribunal in his decision record stated that he had “carefully considered the request for further time and after due consideration the Tribunal is not satisfied that an extension of further time is appropriate.” (At CB 111, [16]). However, during the hearing the Tribunal takes approximately 10 seconds to make up his mind not to consider the additional documents provided on the morning of the hearing.
(e) These documents were directly relevant to whether the Applicants had access to sufficient funds to support their stay in Australia. The bank statement from the Applicants’ guarantor stated that she held an amount of $45,683 .56.
Applicants’ Submissions in Relation to Ground 2
In written submissions dated 10 August 2020, the applicants submit as follows in relation to ground 2:
a)the relevant documents provided prior to the hearing (the “Pre-Hearing Documents”) that the Tribunal failed to consider were:
i)the passport bio data page of a relative of the applicants and their proposed financial guarantor (CB 94); and
ii)a Commonwealth Bank statement dated 30 July 2019 for that relative (CB 95);
b)the Tribunal expressly told the applicants that it would not review these documents before making a decision;
c)despite the fact that the Tribunal did not have the “financial records for the course”, the Tribunal nevertheless should have considered the evidence provided by the Pre-Hearing Documents;
d)the Pre-Hearing Documents were corroborative evidence of the applicants’ claim in their visa application that they had genuine access to funds. The Pre-Hearing Documents were directly relevant to whether the applicants had genuine access to sufficient funds to support their stay in Australia;
e)the Commonwealth Bank statement for the relative was an acceptable form of evidence of financial capacity under IMMI18/010;
f)further, the first applicant had given evidence that her uncle would be responsible for tuition fees, living and incidental expenses of the applicants. This was not considered by the Tribunal; and
g)the Tribunal deliberately overlooked this documentary evidence and made a jurisdictional error.
Minister’s Submissions in Relation to Ground 2
The Minister’s submissions dated 17 August 2020 contend as follows in relation to ground 2:
a)the applicants complain that the Tribunal failed to consider the Pre-Hearing Documents. The Pre-Hearing Documents went to the assessment of whether there was evidence in a prescribed form. Any evidence provided in relation to assessment of whether there was evidence in a prescribed form could not assist in circumstances where the Tribunal did not know the amount of funds the applicants were required to have access to;
b)what is made clear from the transcript is that the Tribunal did not accept the financial evidence provided the morning of the hearing because the Tribunal did not have the financial records for the course the first applicant was studying;
c)it is well established that whether the Tribunal is obliged to consider evidence will depend on the circumstances of the case and the nature of the evidence. The relevant factors in determining whether the Tribunal was required to assess an item of evidence include the cogency and place of the evidentiary material in the assessment of the applicants’ claims and the decision maker’s reasons.
d)it cannot be argued that the Pre-Hearing Documents were relevant to the review when the applicants had not provided the necessary documentation to allow the Tribunal to make a determination of the amount of funds they required. That is, the Tribunal had to have been able to determine the amount of funds required before it could assess whether the applicants had sufficient access to these funds;
e)this is the exact line of reasoning adopted by the Tribunal when it stated that it would not accept the Pre-Hearing Documents. The Tribunal was unable to calculate the amount of funds required by the applicants, rendering any financial evidence that the applicants had provided in relation to the access to funds meaningless;
f)the applicants’ contention that the Tribunal “nevertheless should have considered” the evidence in circumstances where it was “corroborative evidence of the Applicants’ claim in their Student visa application form that they have genuine access to funds (CB 12)” is misguided for two reasons:
i)the claim in the applicants’ visa application that they had genuine access to funds related to the applicants’ ability to support themselves in Australia in relation to a different course with different course costs, namely, the Bachelor of Business for which the visa application was initially made (CB 1 and 33) and not the Bachelor of Nursing for which the first applicant sought the visa before the Tribunal; and
ii)more critically, the claim and financial evidence were meaningless in the absence of the applicants providing the necessary documentation to allow the Tribunal to make a determination of the amount of funds required. The applicants’ argument that the Tribunal should have considered the first applicant’s uncle’s evidence fails for the same reasons;
g)if, contrary to the Minister’s submissions, the Tribunal is found to have erred in not considering the Pre-Hearing Documents, such an error cannot be said to have been material to the Tribunal’s decision. As the applicants had not provided the necessary documentation to allow the Tribunal to make a determination of the amount of funds required, failing to consider evidence that purported to show that the applicants had access to an amount of funds could not have deprived the applicants of the possibility of a successful outcome. Nor could it have “realistically resulted in a different decision”; and
h)the Tribunal correctly found that the applicants had provided insufficient evidence for the Tribunal to calculate the relevant costs required and therefore that they did not meet cl.500.214. Indeed, it was the only finding open to it.
Consideration – Ground 2
The applicants argue that the Tribunal overlooked, or failed to consider, the Pre-Hearing Documents. The Pre-Hearing Documents comprised of:
a)a colour passport of the first applicant’s aunt who was described in the email as the applicants’ financial guarantor; and
b)a bank statement in the name of the aunt demonstrating that, on the date of the Tribunal hearing, the aunt had access to $45,683.56.
The applicants say that the failure to assess these documents amounts to a failure to consider corroborative evidence.
Relevantly, the applicants refer to the following passages in Minister for Immigration & Citizenship v SZRKT [2013] FCA 317 at [111]-[112]:
111. In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112. As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.
Here, the Tribunal does not expressly refer to the Pre-Hearing Documents. However, a failure to refer to evidence does not demonstrate that it has been overlooked. It may well be, for example, that the Pre-Hearing Documents were not considered material to the Tribunal’s assessment: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593 at [46].
It is noted that the Tribunal stated as follows during the hearing:
AGENT: Ok, the email was sent this morning with a guarantor passport and current bank statement as of today, and I also would also like to comment that the applicant has been paying for her own studies for the past two years....
TRIBUNAL: Yeah, that still under what we are talking about doesn’t come into that
AGENT: Yes, yes, yes. So would um obviously I am assuming that you will need time to have a look at the bank statement we have submitted, but I was also hoping to submit a statutory declaration from the guarantor as well.
TRIBUNAL: Well I am actually considering making a decision today.
AGENT: Yep. So, would the documents that I sent through with the current bank statement be sufficient for that decision if you were to take a look at that?
TRIBUNAL: Depends if I am going to accept it.
AGENT: I understand, I understand. Yep.
TRIBUNAL: But no, I am not going to accept these today because I don’t have the financial records for the course.
This passage arguably explains why the Pre-Hearing Documents were not deemed cogent or relevant to the Tribunal’s assessment. As the Tribunal notes, the applicants had not provided the necessary financial records for the relevant course. Without those records, the Pre-Hearing Documents were not “directly relevant” to anything before the Tribunal.
Put simply, the Pre-Hearing Documents were not relevant because the Tribunal did not have the information it needed to make a finding in relation to Stage One (being information that detailed the funds required to meet s.6(2)(b)(iii)). The Pre-Hearing Documents were relevant to Stage Two. Before getting to Stage Two, however, a finding had to be made in relation to Stage One. Here, the Tribunal could not (due to a lack of information) make a finding in relation to Stage One.
In the circumstances, it was not necessary for the Tribunal to consider the Pre-Hearing Documents. Put another way, there was no utility in the Tribunal considering the Pre-Hearing Documents when it could not calculate the quantum that the applicants were required to demonstrate. Even if the Tribunal accepted that the bank statement was evidence that the applicants had genuine access to $45,000, that did not overcome the fact that the Tribunal could not determine what “sufficient funds” were required (i.e., whether $45,000 was “sufficient”).
To the extent that particular (d) of Ground 1 suggests that the Tribunal took only “ten seconds” to make up its mind on whether to consider the documents and that this is problematic, there is no evidence that this is in fact what occurred. The transcript does not contain time stamps.
In any event, the fact that the Tribunal said it was not going to “accept” the Pre-Hearing Documents should not be read as the Tribunal not having considered those documents. When read in context, the Tribunal is simply saying that the Pre-Hearing Documents did not relate to “what [the Tribunal was] talking about” which, relevantly, was records relating to the first applicant’s course fees. The Tribunal must have considered the Pre-Hearing Documents in order to determine that they were not relevant to what ultimately proved to be the dispositive issue.
The applicants’ written submissions also raise for the first time the fact that the Tribunal did not consider the evidence that the first applicant’s uncle would be responsible for tuition fees and the applicants’ living and incidental expenses. At the hearing, Counsel for the applicants again referred to the evidence from the first applicant’s uncle (CB 66) and stressed that this evidence was not “properly considered”.
The Court does not accept that the Tribunal failed to consider this evidence.
The Tribunal transcript records as follows:
Well, from what you are saying I don’t have [inaudible] your agent may want to make comment here but I do not have your course costs in front of me, so I am not able to calculate those. I don’t have in front of me urn ... any evidence to show that you have access to these funds. I have nothing transferred or converted into Australian dollars.
The evidence from the uncle was in the form of a bank statement which showed that the uncle’s bank account had a balance of 3,448,278.80 Kenyan Shillings. The balance was not “transferred or converted into Australian dollars”. It can at least be inferred that the Tribunal was aware of the documents from the uncle, considered the content of them and noted an evident deficiency. Nonetheless, as noted above, whether the applicants had access to funds in a certain amount was not relevant to the Tribunal’s disposition of the application. The “evidence of funds from the uncle” could not assist the Tribunal in determining what constituted “sufficient funds”. Hence, any failure to consider the documents from the uncle was not material in any event.
The Tribunal did not fail to consider any “directly relevant evidence” or any “critically corroborative evidence”. The evidence that the applicants refer to as not having been considered was not evidence which went to what was the determinative issue – i.e., the amount the applicants were required to have access to.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 provides:
3. The Tribunal made a jurisdictional error by failing to consider the Applicants’ oral and documentary evidence that the First Applicant (the primary visa applicant) was currently enrolled in a course of study and had paid the applicable course fees, and had paid for their living expenses in Australia since the time of the visa refusal.
Particulars
(a) The First Applicant told the Tribunal that she was “about to finish her studies” (Annexure KSC 1 to the Affidavit of Ken Shen Chong at page 10);
(b) The Applicants’ representative told the Tribunal that ‘“the applicant has been paying for her own studies for the last past two years” (Annexure KSC 1 to the Affidavit of Ken Shen Chong at page 9);
(c) In the hearing the Tribunal did not ask the Applicants any questions about how they had been financially supporting themselves up until the time of the hearing. The Tribunal also did not ask the First Applicant when she was due to complete her studies. This was relevant to the question of whether the Applicants met the financial requirements of having the financial capacity and genuine access to funds.
Applicants’ Submissions in Relation to Ground 3
In written submissions filed 10 August 2020, the applicants submit:
a)it is acknowledged that the applicants did not provide to the Tribunal a Confirmation of Enrolment (“COE”) with details of the cost of the first applicant’s course of study and any outstanding course fees. Instead, the first applicant provided a COE issued on 10 September 2018 that confirmed the course name, course code, start date and end dates, and the student’s name;
b)the cost of the first applicant’s course fees were easily accessible via the Commonwealth Register of Institutions and Courses for Overseas Students (“CRICOS”) website;
c)the first applicant’s oral evidence in the hearing was that she was “about to finish her studies”. A letter from a manager of the Student Centre of Murdoch University dated 22 May 2019 confirmed that the first applicant was expected to complete her course requirements in July 2020. She had two semesters to go (i.e. 1 year) to complete her course;
d)the Tribunal had all of the relevant information needed to find out the cost of the first applicant’s course of study. The Tribunal could have ascertained the course costs from the CRICOS website and the Murdoch University website;
e)during the hearing the Tribunal failed to ask the first applicant the costs of her course for her remaining two semesters.
f)the Tribunal failed to make any enquiries of the applicants or their registered migration agent as to the course cost, or the total cost of their course and expenses during their proposed period of stay in Australia;
g)the Tribunal did not consider the declaration in the applicants’ student visa application form that they have access to sufficient funds to support themselves for the total period of stay in Australia;
h)furthermore, the Tribunal failed to consider that the applicants had been living and supporting themselves financially in Australia since the visa application had been refused on 4 July 2017. The first applicant had been paying her course costs, had progressed through her course, and had only 2 semesters to go to complete her course;
i)the Tribunal failed to make any enquiries of the applicants or their registered migration agent as to whether the applicants had genuine access to funds, except for asking why the requested documents had not been provided;
j)the Tribunal failed to consider:
i)the first applicant’s oral evidence in the hearing;
ii)the letter from the Student Centre of Murdoch University dated 22 May 2019;
iii)the claims in the student visa application form regarding funding for stay; and
iv)the COE from Murdoch University dated 10 September 2018.
k)the failure to consider the above is a jurisdictional error. While the Tribunal would have required information from the Murdoch University and CRICOS websites to ascertain the actual course cost, this was publicly available information; and
l)the Tribunal did not make any relevant enquiries of the applicants or their representative that would have assisted the Tribunal in ascertaining whether the applicants had genuine access to funds to support their stay in Australia. The Tribunal simply did not consider any of the evidence put forward by the applicants. The Tribunal did not consider whether the applicants genuinely had access to funds to meet their costs and expenses during their intended stay in Australia.
Minister’s Submissions in Relation to Ground 3
The Minister’s written submissions dated 17 August 2020 provide as follows in relation to ground 3:
a)the allegation that the Tribunal overlooked the applicants’ evidence that the first applicant was currently enrolled in a course of study, had paid the applicable course fees, and had paid for the applicants’ living expenses in Australia since the time of the visa refusal cannot be made out;
b)it is well established that the Tribunal is not required to refer to every piece of evidence and every contention made in its reasons and, critically, none of this evidence went to the dispositive issue in the review, which was the determination of the amount of funds the applicants were required to have access to. The applicants concede as much in their written outline and their agent conceded as much to the Tribunal at hearing;
c)it is clear from the materials before the Court that there was no evidence of how long the first applicant’s course would actually take, save for a vague reference to the first applicant’s expected course completion date being “July 2020” on a letter provided from the first applicant’s education provider on 22 May 2019;
d)contrary to the applicants’ submission that the confirmation of enrolment letter issued on 10 September 2018 contained course start and end dates, no such dates are recorded. Therefore, the Tribunal was unable to calculate the applicants’ living costs and expenses as required by s.6(2)(b)(ii) and 6(2)(c)(ii) of IMMI 18/010;
e)there was also no evidence provided of the first applicant’s outstanding course fees, which the Tribunal required in order to perform the calculations prescribed under s.6(2)(b)(iii) of IMMI 18/010;
f)accordingly, whilst pieces of the applicants’ evidence did not find expression in the Tribunal’s reasons, the inference should not be drawn that it was overlooked. Instead, the proper inference is that the evidence was not sufficiently relevant to the dispositive issue before the Tribunal to warrant mention in the reasons. No error arises from the Tribunal not referring to this evidence;
g)insofar as the applicants allege that the Tribunal failed to make enquiries of the applicants and their agent at the Tribunal hearing, it is well established that it is for the applicants to put whatever evidence or argument they wished to the Tribunal to enable it to be satisfied that the applicants met the criteria for the visa;
h)as the Tribunal recorded, the applicants, who were represented before the delegate and the Tribunal, had had since 2017 when they applied to the Tribunal for review to provide the evidence. The hearing invitation dated 12 July 2019 specifically asked the applicants to provide evidence, but they did not do so. The applicants’ agent stated that they were aware of the repeated requests and she (the agent) had asked the applicants to provide the information but the applicants had not done so. Therefore, the applicants’ allegation that the Tribunal failed to ask the applicants or the agent about course costs and expenses during the applicants’ proposed stay at the Tribunal hearing cannot give rise to error;
i)insofar as the applicants allege that the Tribunal failed to make enquiries of the CRICOS website and the Murdoch University website, no error arises. The Tribunal did not have any general duty to inquire, and it is in “rare or exceptional circumstances” that a “failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.” This is not such a circumstance;
j)the applicants submit that the course fees were “easily ascertainable” via the CRICOS website, using a CRICOS code which related to the course code on the first applicant’s confirmation of enrolment letter, and, had the Tribunal undertaken this enquiry, it would have found that the fees for the first applicant’s three year course were $93,474. Even if this was an “obvious enquiry” (which the Minister does not concede), this enquiry of itself would not have provided the Tribunal with all of the information necessary to perform the calculations required under IMMI 18/010;
k)there was no evidence provided of the first applicant’s outstanding course fees, nor how much of her course she had already paid for. There was also only a vague reference to the first applicant being expected to complete the course in July 2020. The course units may also not have cost the same amount per semester, and the first applicant may have overloaded on courses at one stage or under loaded on courses at another. The Tribunal could not definitively know the outstanding balance of the first applicant’s course fees, how many semesters remained, nor how many months the applicants intended to remain in Australia;
l)even if the Tribunal did make the proposed enquiries on the CRICOS website and find the figure of $93,474 for the three years of the first applicant’s course, such a fact could not have been “critical” such that it provided “a sufficient link” to the outcome of the review, and numerous other questions remained to be decided before the Tribunal could be satisfied that the first applicant was entitled to the visa; and
m)if the applicants are suggesting that the Tribunal ought to have assumed on the evidence before it that the first applicant had one year remaining of her course, and therefore that her remaining course fees were one third of $93,474 (i.e. $31,158), the evidence provided on 31 July 2019 that the applicants had access to $45,683.56 would not have been sufficient to satisfy the amount prescribed under IMMI 18/010. This is because s.6(2)(b)(ii)(A) and 6(2)(c)(ii)(A) of IMMI 18/010 required that the applicants, if they intended to stay in Australia for 12 months or more, had access to annual living costs of $20,290 (for the applicant) and $7,100 (for the second applicant), in addition to the remaining course fees of $31,158. The sum of these figures is $58,548, which is significantly more than the $45,683.56 that the applicants had access too.
Consideration – Ground 3
In effect, ground 3 identifies two errors:
a)a failure to consider; and
b)a failure to make inquiries.
The Court will address both alleged errors in turn.
A Failure to Consider
The applicants claim that the Tribunal failed to consider:
a)the declaration in the applicants’ student visa application form that they have access to sufficient funds to support themselves for the total period of stay in Australia;
b)the fact that the applicants had been living and supporting themselves financially (including paying course costs) in Australia since the delegate’s decision;
c)the first applicant’s oral evidence in the hearing; and
d)the letter from the Student Centre of Murdoch University dated 22 May 2019 and the COE at Murdoch University dated 10 September 2018.
In relation to the declaration in the applicants’ student visa application form that they had access to sufficient funds to support themselves for the total period of stay in Australia, this was irrelevant. The applicants made that declaration at a time when the first applicant was studying a different course at a different institution. Hence, that declaration was not relevant to the circumstances at the “time of the decision”. It was a declaration made two years earlier in relation to different circumstances. The same can be said for the evidence provided by the first applicant’s uncle at CB 66.
Further, the declaration in the visa application was irrelevant to the Stage One inquiry. The declaration was of no assistance to the Tribunal in determining what constituted “sufficient funds”. The declaration was also irrelevant to the Stage Two inquiry. A declaration is not a form of evidence prescribed by IMMI 18/010.
The fact that the Tribunal does not refer to this evidence can be explained on the basis that the evidence was simply not relevant.
In relation to the argument that the Tribunal failed to consider the fact that the applicants had been living and supporting themselves financially in Australia since the delegate’s decision, for the same reasons outlined above this argument must also fail. Whether the applicants had previously supported themselves adequately was not a “relevant” consideration in circumstances where the quantum of funds required could not be determined on the evidence before the Tribunal.
The applicants state that the Tribunal failed to consider the first applicant’s oral evidence that she was “about to finish her studies”.
Before this Court, Counsel for the applicants drew attention to the letter from the Student Centre of Murdoch University dated 22 May 2019 which stated that the first applicant was due to complete her studies in July 2020. Also before the Tribunal was the COE from Murdoch University dated 10 September 2018 which, it is argued, supported the first applicant’s oral evidence that she was about to finish her studies.
It cannot be said that the Tribunal failed to consider these documents. In fact, the Tribunal references them during the hearing and specifically notes that they do not contain the “financials”. The Tribunal also makes express reference to the document at CB 66 in its decision (at [15]).
Accordingly, the Tribunal did not fail to consider the documents.
If the applicants are suggesting that, as a whole, the Tribunal failed to consider these matters, the Court disagrees. The Tribunal noted that there was no evidence before it to enable it to determine the course fees. All of the evidence that the applicants now say was “overlooked” did not (as the Tribunal correctly notes) provide any indication as to what the applicants’ remaining course fees amounted to.
The applicants have not established that the Tribunal “failed to consider” any relevant consideration.
A Failure to Inquire
In Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at [25], the High Court stated as follows in relation to whether the Tribunal ought to make an inquiry:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.
The duty to inquire arises in only limited circumstances. In Minister for Immigration & Citizenship v MZYCE [2010] FCA 767 it was explained:
37. In my view, the Tribunal did not fail to discharge its statutory function of reviewing the decision to refuse the first and second respondents protection visas by failing to make inquiries that might have revealed information about the genuineness of the newspaper articles. By its letter dated 4 August 2008, the Tribunal had given to the first respondent clear notice that it might not accept the truth of the allegations contained in the newspaper articles. The first respondent had every opportunity to provide further information to the Tribunal to persuade it otherwise. If he had wished the Tribunal to go to the internet, he could have said so, and could have provided the sort of material that he did provide subsequently, too late, to the Federal Magistrates Court. In the normal course, people are entitled to expect that documents will be treated as genuine and acted upon. It is also true that, in the case of newspaper clippings, the ordinary person would be astonished by a suggestion that their authenticity might be questioned. For all that, however, the first respondent was told clearly that their reliability was in issue. If he failed to provide further information that would satisfy the Tribunal that the newspaper articles were authentic, his case was likely to suffer.
38. Having expressed to the first respondent its concerns, the Tribunal was not then obliged to do what the first respondent did not do, and seek further information about the authenticity of the newspaper articles. To the extent to which the federal magistrate held otherwise, his Honour was in error.
Here:
a)
as the Tribunal notes, the applicants had been on notice since
12 July 2019 that documentation relevant to the financial capacity criterion was required. The applicants were on notice that the Tribunal might not grant them the visa if they did not provide appropriate evidence;
b)the applicants’ migration agent expressly acknowledged at the hearing that she was aware that the letter from the Student Centre of Murdoch University dated 22 May 2019 and the COE from Murdoch University dated 10 September 2018 did not contain the necessary information (i.e., as to costs); and
c)the migration agent requested further time to ask for “further detail” from Murdoch University. She did not indicate that the costs could be obtained from CRICOS or Murdoch University via the information that the Tribunal had before it. Further, the applicants did not request that the Tribunal do so.
At hearing, Counsel for the applicants stated that the Tribunal’s invitation did not expressly ask for evidence or information relating to the amount of the course fees.
The invitation stated as follows:
3. Either:
• Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument
The invitation also references IMMI 18/010, which states:
(b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
…
(iii)the following course fees, minus any amount already paid:
(A) if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study; or
…
It is clear from the above that IMMI 18/010 (if not expressly, then implicitly) requires an applicant to provide sufficient information and evidence for the Tribunal to determine, as a question of fact, what fees remain owed.
The applicants were on notice of what was required. Further, any claim that they were not on notice is overshadowed by the fact that the applicants’ agent was alert to the fact, and conceded, that the information in the enrolment letters did not contain the relevant information.
The Tribunal was not obliged to seek further information or make inquiries because, as was the case here, the applicants or their agent had simply failed to do so themselves.
There was no duty to inquire in the circumstances of this case.
Further, and in any event, the Court does not consider the principles in SZIAI to have offended here.
The applicants submit that it was an “obvious inquiry” for the Tribunal to access the CRICOS website and the Murdoch University website to determine the fees that applied to the first applicant’s course. They say that the letter from the Student Centre of Murdoch University dated 22 May 2019 and the COE from Murdoch University dated 10 September 2018 provided the Tribunal with all of the information that it needed to access the relevant course fees.
The Court disagrees.
During the hearing, the Tribunal stated:
…I have no financial evidence, I have no COE in front of me where I can then calculate the costs…
…
Your confirmation of enrolment at Murdoch University that’s dated 10 September 2018 has no financials on it, for the Tribunal under clause 500.214 to calculate the required funds required an amount of money sitting there of what is required for your course
…
I do not have your course costs in front of me, so I am not able to calculate those.
It is clear that the Tribunal was aware that it did not have the necessary information to calculate the “costs” or “sufficient funds” that the applicants required.
While obtaining information about the cost of a course might be considered an “obvious inquiry to make”, the Court does not consider that that information here was “readily ascertainable” or as straightforward as the applicants’ suggest.
Finding the total cost of the course as a whole (which is what a search on CRICOS or the Murdoch University website would have provided) would not have provided a “sufficient link” to the outcome. It could not have provided the Tribunal with the requisite information to carry out Stage One.
Here, there were a variety of differentials:
a)there was no indication of the number of units that the first applicant had left to study. While the evidence suggested that the first applicant had only two semesters left, the first applicant could have been studying fewer units or more units in her final year (noting that there is some suggestion that she studies less units in 2018 (CB 80)). The number of units, relevantly, would determine the course costs. The Tribunal had no information in this regard;
b)the cost of individual study units varies. Without knowing the individual units the first applicant had left to complete, accessing the CRICOS website or Murdoch website would not have allowed the Tribunal to obtain the information needed. Further, to require the Tribunal to individually search for units would, in the Court’s view, take the information beyond being “readily ascertainable”; and
c)the applicants’ agent had submitted that the first applicant had paid for her study for the two previous years. The Tribunal had no information before it as to how much of the first applicant’s course fees were outstanding or if she had made payments in advance (which was relevant – as per s.6(2)(b)(iii) of IMMI 18/010).
Accordingly, any failure to make inquiries or undertake searches on the CRICOS website or the Murdoch University in order to obtain the course costs does not demonstrate jurisdictional error.
The applicants also submit that the Tribunal ought to have asked the first applicant or the migration agent what the total course costs and expenses were. The applicants refer to previous Tribunal decisions in which the Tribunal has asked such questions of applicants in relation to this issue.
It is for the applicants to advance whatever evidence and arguments they wish in order to satisfy the Tribunal that they meet the visa criterion: Abebe v Commonwealth (1999) 198 CLR 510. It is not for the Tribunal to ask specific questions so as to elicit information from the applicants that might help them advance their case.
The applicants were represented by a migration agent. At no time did the migration agent or the first applicant suggest to the Tribunal that they knew the course costs. Rather, they suggested that they needed time to find out.
The fact that other Tribunals have previously asked applicants questions about their course fees is irrelevant. Each case is fact specific and, as the applicants concede, previous Tribunal decisions are not binding.
There was no error in the failure to ask the first applicant or her agent what the “estimated course costs” were.
The only complaint that the applicants make is that the Tribunal should have done what the applicants neglected to do: gather the relevant information. There is no duty on the Tribunal to do so and in the circumstances of this case the fact that the Tribunal did not do so does not identify any jurisdictional error.
Ground 3 is dismissed.
Conclusion
The application for judicial review does not identify any jurisdictional error. The application is, accordingly, dismissed.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 November 2020
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