KOCALIOGLU v Minister for Immigration

[2014] FCCA 992

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOCALIOGLU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 992

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – Applicant did not meet English language proficiency requirement – Applicant did not have adequate overseas student health cover – no jurisdictional error – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.357A, 368D, 379AA(1), 397A, 397B
Migration Regulations 1994 (Cth), Reg.1.41, Sch.2, 572.223, 572.223(2)(a)(i), 572.223(2)(a)(ii), 572.223(2)(a)(iii), 572.225, Sch.5A, cls.5A101, 5A104, 5A408(1), 5A408(2), Part 4 Div. 2

Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 817
SZNSL v Minister for Immigration and Citizenship [2009] FCA 1543

Applicant: SERHAT KOCALIOGLU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 783 of 2013

Judgment of: Judge Hartnett

Hearing dates: 6 February 2014 and 22 April 2014

Delivered at: Melbourne

Delivered on: 16 June 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed 31 May 2013 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 783 of 2013

SERHAT KOCALIOGLU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant filed an Application for judicial review on 31 May 2013.  The Applicant sought judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 8 May 2013 which affirmed a decision of the First Respondent by his delegate (‘the delegate’) not to grant the Applicant a Student (Temporary) (Class TU) visa.  The grounds of the Application are as follows:-

   “1. The decision of the Tribunal was a denial of procedural fairness and natural justice.

   PARTICULARS

   An oral decision was made on 8 May 2013, stating that the statement of decision and reasons will be forwarded as soon as it is available.  It is now 28 May 2013 and I have not received any reasons for the refusal of my application.  I should be provided with reasons to enable me to work out why my application was unsuccessful and it should be provided within a reasonable time to enable me to seek out legal advice and appeal the decision, should I believe there are grounds for appeal.”

2. Those grounds were re-stated in an Affidavit sworn 28 May 2013 in support of the Application filed 31 May 2013.

3. The First Respondent filed a Response to the application on 19 June 2013 opposing the application and in the First Respondent’s Outline of Submissions filed 29 January 2014, the First Respondent submitted that the application should be dismissed with costs.  The evidence before the Court is otherwise as contained in a Court Book filed 7 October 2013 on behalf of the First Respondent, the First Respondent’s Outline of Submissions filed 29 January 2014, the First Respondent’s Outline of Further Submissions filed 20 February 2014, and documents as contained in a Supplementary Court Book filed 20 February 2014.  The Applicant filed further material on 20 February 2014 under cover of letter of 17 February 2014 to which there were annexed documents, being a Commonwealth Bank List of Transactions document for the period 1 to 17 May 2013 inclusive, a translation from the Turkish language of page 100 of the Court Book filed 20 February 2014 from Turkish to English, Medibank Private correspondence of 6 February 2014 to the Applicant, and a letter of offer and student enrolment agreement from the Angad Australian Institute of Technology Proprietary Limited dated 7 May 2013.

4. The Applicant applied for a Student (Temporary) (Class TU) Subclass 572 visa on 4 April 2011 (‘the visa application’). As at the date of the visa application, criteria contained in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) for the visa application included a requirement that, at the time of decision, the Applicant give to the Minister of Immigration and Citizenship (as he then was) (‘the Minister’):-

   a)evidence in accordance with the requirements mentioned in Schedule 5A of the Regulations for the “highest assessment level” for the Applicant (cl.572.223(2)(a)(i) of Schedule 2 of the Regulations); and

   b)evidence of adequate arrangements in Australia for health insurance “during the period of the applicant’s intended stay in Australia” (cl.572.225 of the Schedule 2 of the Regulations).

5. At the time of the visa application, the relevant assessment level to which a person who holds a Turkish passport and who seeks to satisfy the criteria for a Student (Temporary) (Class TU) Subclass 572 visa was assessment level 3 (Reg.1.41 of the Regulations).

6. Part 4, Division 2 of Schedule 5A of the Regulations imposed requirements for assessment level 3, including in relation to financial capacity. Clause 5A408(1) of Schedule 5A of the Regulations relevantly provided as follows:-

   “The applicant must give, in accordance with this clause:

   (a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 months :

   (i)  course fees;

   (ii)  living costs;

   (iii)  school costs; and

   …”

7. In relation to the Applicant, “course fees”, “living costs” and “school costs” had the meaning given to them by cls.5A101 and 5A104 of Schedule 5A of the Regulations and IMMI09/138. Further, “the first 24 months” meant the period commencing on the day the visa was expected to be granted and ending 24 months after that date or the last day of the Applicant’s supposed stay in Australia, whichever was earlier. Clause 5A408(2) of Schedule 5A of the Regulations defined funds from an acceptable source to mean, among other things (the Applicant did not seek to provide evidence of funds from an acceptable source within any of the other alternative definitions provided in cl.5A408(2) of Schedule 5A of the Regulations):-

   “(a) if the applicant:

   (i) has successfully completed at least 75% of the requirements for his or her principal course; and

   (ii)  has applied for the visa in order to complete the course; and

   (iii)  does not propose to undertake any further course;

   a money deposit held by the applicant or an individual who is providing support to the applicant;

   (aa) if paragraph (a) does not apply — a money deposit that the applicant, or an individual who is providing support to the applicant, has held for at least the 3 months immediately before the date of the application;

   …”

   I note here that the Applicant had not completed at least 75 per cent of his course and thus paragraph (aa) above applied, and that the date of application was 4 April 2011.

Background

1. The Applicant is a citizen of Turkey. He first arrived in Australia on 17 August 2008 as the holder of a student visa. He was granted further visas.  On 4 April 2011, he applied onshore to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for a Student (Temporary) (Class TU) Subclass 572 visa.  Included with the visa application was a Certificate of Enrolment in a Diploma of Building and Construction due to commence on 23 May 2011 and to finish on 10 September 2012. 

2. On 13 April 2011, the Department sent an email to the Applicant’s representative requesting that the Applicant provide information as to his financial capacity in respect of the first 24 months of his intended stay in Australia, or for the duration of his course of study, if less than 24 months, in addition to information regarding overseas student health cover, valid to at least 10 November 2012.  The Applicant did not respond to such email, and thus did not provide the necessary information. 

3. On 13 May 2011, the delegate refused to grant the visa application. The basis of the delegate’s decision was that the Applicant did not meet the requirement of cls.572.223 and 572.225 of Schedule 2 of the Regulations. The delegate determined there was insufficient information provided at the time of lodgement to satisfy him that the Applicant met Schedule 5A of the Regulations criteria for his assessment level and that he held overseas student health cover for the proposed duration of his stay.

4. On 10 June 2011, the Applicant applied to the Tribunal for merits review of the delegate’s decision.  Enclosed with the Application for Review to the Tribunal dated 10 June 2011 was evidence regarding the Applicant’s financial capacity.  The Applicant also appointed SAI Legal as his “authorised recipient”. 

5. By facsimile dated 11 April 2013, the Applicant was invited to appear before the Tribunal on 8 May 2013 to give evidence and present arguments. In that correspondence, the Tribunal also invited the Applicant to provide evidence that he satisfied the requirements of cls.572.223(2)(a)(i) and 572.225 of Schedule 2 of the Regulations.

6. Extracts of Schedule 2 and 5A of the Regulations were enclosed with the Tribunal’s correspondence. Specifically brought to the Applicant’s attention were the requirements of cls.572.223(2)(a)(i), 572.223(2)(a)(ii), 572.223(2)(a)(iii) and 572.225 of Schedule 2 of the Regulations.

7. The correspondence from the Tribunal included:-

   “…If you have enrolled in a new course, depending on the type of evidence of funds you provide, you may be required to show a savings history for 3 months prior to the date of your visa application…”

   and

   “3. Evidence of adequate arrangements for health insurance during the period of your intended stay in Australia having regard to cl.572.225. The Member considers that adequate arrangements for health insurance should cover the duration of the course or courses in which you have indicated you are enrolled and at least one additional calendar month.

8. On 8 May 2013, the Applicant appeared before the Tribunal to give evidence and present arguments in support of his application for the visa.  He provided the Tribunal with a number of documents at the hearing including:-

   a)an undated letter from a bank, described as ‘Garanti Bankasi A.S.’, noting that Hamiyet Buyukgedik held funds in various accounts, without any reference to the period of time that those funds had been held;

   b)a letter from a bank described as ‘T.C. Ziraat Bank ASI A.S’, noting that Sacide Buyukgedik held funds, as at 22 April 2013, in the sum of $19,005, without any reference to the period of time those funds had been held;

   c)evidence of health insurance in respect to the period 1 May 2012 to 9 May 2013;

   d)a letter of offer, dated 7 May 2013, for a place in a registered course in an Advanced Diploma of Management at the ‘Angad Institute of Technology’, to commence of 20 May 2013 and to finish on 20 May 2014;

   e)an undated letter from a bank described as ‘Garanti Bankasi A.S’, noting that Oya Akgul held funds in various accounts, without any reference to the period of time those funds had been held; and

   f)a letter from Oya Akgul, dated 31 August 2012, undertaking to provide “all necessary financial support” to the Applicant.

9. Earlier correspondence had been forwarded to the Tribunal by the Applicant’s representative additional to the above which included letters from Hamiyet Buyukgedik and Sacide Buyukgedik both dated 22 April 2013, both undertaking to “provide all necessary financial support” to the Applicant. 

10. On 8 May 2013, the Tribunal made an oral decision affirming the decision of the delegate not to grant the visa application of the Applicant. The Tribunal’s written statement of Decision and Reasons dated 17 May 2013 (‘the Decision Record’) was sent under cover of letter dated 20 May 2013 to the Applicant’s authorised recipient. The Supplementary Court Book filed 20 February 2014 contains an Australia Post lodgement receipt for the purposes of demonstrating that the Tribunal’s letter dated 20 May 2013 was also despatched that same day by registered post. In particular, the “AP article ID number” noted on the lodgement receipt corresponds with the “registered post sender to keep” number affixed to the Tribunal’s letter which is reproduced at Court Book 210. The provision of the Decision Record accorded with the statutory requirements. Section 368D of the Migration Act 1958 (Cth) (‘the Act’) provides:-

    “If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 368(1) within 14 days after the decision concerned is made. The applicant is taken to be notified of the decision on the day on which the decision is made.”

11. Section 368D of the Act does not require the Tribunal to give a review Applicant the Decision Record in accordance with either s.397A or 397B of the Act. Accordingly, the Tribunal may give the Applicant the document by “any method that it considers appropriate”, pursuant to s.379AA(1) of the Act. The Tribunal’s Decision Record was dated 17 May 2013 and sent to the Applicant’s authorised recipient on 20 May 2013. The Tribunal therefore complied with the requirements of s.368D of the Act to notify the Applicant of its oral decision within 14 days. In any event, as submitted by counsel for the First Respondent, s.357A of the Act states that Part V division 5 (which does not include s.368D of the Act), is:-

    “… an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”

12. As further submitted by Counsel for the First Respondent, there can be no failure to afford procedural fairness in circumstances where a decision has already been made.[1] Thus, the only ground on which the Applicant sought judicial review of the Tribunal’s decision, namely, its alleged failure to provide the Applicant with a written statement of such decision within a reasonable time cannot be made out.  The Tribunal did that which it was required to do, and in so doing afforded the Applicant procedural fairness.  There is no jurisdictional error evident in respect of the ground set out in the Application.

    [1] Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 817 at [8], [10]-[11] per Kiefel J.

13. In its Decision Record, the Tribunal determined that the highest assessment level of the Applicant for the purposes of Schedule 5A to the Regulations was level 3. It correctly set out the applicable law and identified for the Applicant compliance with cls.572.223 and 572.225 of Schedule 2 to the Regulations as being matters in issue before it. The Tribunal found that persons providing support to the Applicant held the requisite amount of funds ($23,500), but found that the Applicant did not provide evidence that those funds were held for the required three-month period of time, that is for three months prior to lodgement of the visa application (which was 4 April 2011) for the purposes of cl.572.223(2)(a)(i) of the Regulations. Thus, the evidence was not in accordance with the requirements in Schedule 5A of the Regulations for subclass 572 and the assessment level to which the Applicant was subject, in relation to the necessary financial capacity. The Tribunal also found the Applicant did not provide evidence of adequate health insurance arrangements for the period of time the Applicant intended to stay in Australia for the purposes of cl.572.225 of the Regulations. These were crucial criteria making it not necessary for the Tribunal to consider other criteria.

Other consideration

1. The only other matter to be considered on this judicial review application is whether the Tribunal’s decision accorded with the statutory scheme pertaining to the criteria for the grant of the visa at the relevant time. At the Tribunal hearing on 8 May 2013, the Applicant provided evidence of an offer of enrolment in a course in Advanced Diploma of Management at the Angad Institute of Technology to commence on 20 May 2013 and finish on 20 May 2014. It was this course the Applicant relied on for the purpose of his application for the visa. As the Applicant had not commenced the course as at 8 May 2013 he was required by cl.572.223(2)(a)(i) of Schedule 2 and cl.5A408(1) of Schedule 5A to the Regulations to give evidence to the Tribunal that he or a person providing support to him, had held sufficient funds for at least three months immediately prior to the date on which the Applicant applied for the visa. The Tribunal found as a matter of fact the Applicant failed to provide such evidence. The Tribunal also found, as a matter of fact, that the Applicant did not provide evidence of adequate health insurance arrangements for the period of time that he intended to stay in Australia and for the purposes of cl.572.225 of the Regulations. It is not a matter for this Court to review the Tribunal’s findings of fact.

2. The First Respondent argued that the Applicant’s failure to give evidence in accordance with the requirements of cls.572.223(2)(a)(i) and 572.225 of the Regulations was fatal to his application for the visa. Counsel for the First Respondent argued that, therefore, the Tribunal’s decision was the only one open to it on the factual material before it.

3. The Applicant argued that he had the necessary health insurance cover and that he had not otherwise failed to satisfy the requisite statutory requirements. The Applicant argued that the Tribunal should have inquired further in order for it to properly perform its function. The Applicant argued that the Tribunal should have investigated the document that appears at Court Book 100, it being an obvious inquiry about a critical fact, the existence of which was easily ascertainable. That document before the Tribunal was in untranslated form. It appeared to be from a bank and referred to two dates, being 4 January 2011 and 5 April 2011. It also exhibited a sum sufficient to satisfy the requirements. The Applicant argued it was evidence of his satisfaction of the requirements of cl.572.223(2) of the Regulations. The First Respondent argued that the Tribunal did not have a duty to obtain a translation of material that an Applicant sought to rely upon except in limited circumstances which were not applicable here.[2] The First Respondent submitted that there was nothing obvious about the document at Court Book 100.  In particular, in the absence of translating the document, the Tribunal would have been unable to give any context to the numbers which appeared on the face of the document.  The translation was provided by the Applicant to this Court under cover of letter of 17 February 2014. It was not before the Tribunal.

   [2] Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25] per Wilcox, Whitlam and Marshall JJ; SZNSL v Minister for Immigration and Citizenship [2009] FCA 1543 at [23] – [24] per Flick J.

4. The First Respondent further argued that even if the Tribunal was required to conduct further inquiries regarding the document at Court Book 100, the Tribunal, in any event, found as a separate and independent basis for its decision that the Applicant did not provide evidence of adequate health insurance arrangements for the period of time the Applicant intended to stay in Australia for the purposes of cl.572.225 of Schedule 2 to the Act. That alone, was fatal to his application for the visa. Again, under cover of the same letter of 17 February 2014, the Applicant provided further material to this Court which was not before the Tribunal and being a letter from Medibank Private dated 6 February 2014 advising that:-

   “… once we’ve processed your payment, the details of your membership will be as follows:

   …

   Your membership will commence: 01 May 2012

   Payment method: Upfront Payment

   Membership date paid to: 09 February 2014”

   In addition, the Applicant provided to this Court and not the Tribunal a Commonwealth Bank Statement which did not satisfy the necessary requirements and nor was it evidence as to his enrolment in the Angad Australian Institute course or more particularly his payment of overseas student health cover. There was no proof before the Tribunal, or is there now, of the Applicant submitting health insurance cover monies for the relevant period.

1. Dealing firstly with the issue of health insurance. At the Tribunal hearing and at the time of its decision, the Applicant clearly did not have the correspondence dated 6 February 2014 and did not have the necessary evidence to satisfy the statutory requirements. The Tribunal’s finding that “… the evidence of health insurance is not adequate arrangements for health insurance in Australia for the period of time the applicant intended to stay in Australia…”[3] was supported by the evidence and open to it.  It was a correct finding of fact. The Applicant had to prove on 8 May 2013 to the Tribunal that he had health cover to at least 20 May 2014, being the end date of his course. The letter obtained for this hearing (from Medibank Private) did not satisfy that requirement, even accepting that a payment was actually made by the Applicant. This finding, on its own, was fatal to the Applicant’s case, and remains so in this Court. The Tribunal did not commit jurisdictional error in this regard.

   [3] Migration Review Tribunal’s Decision Record dated 17 May 2013 at [35].

2. For completeness, I turn also to the question of the finding with respect to the Applicant’s proof of necessary financial capacity, though it is unnecessary given paragraph 25 above. The First Respondent accepted that if the document at Court Book 100 had been translated it would have provided the necessary proof as to financial capacity, including that there were sufficient funds over the requisition period. The First Respondent submitted, however, that there was nothing obvious about the document which would have required the Tribunal to translate it. I disagree with that. I think it was an obvious enquiry about a critical fact before it on the day of the hearing, as contained in a document tendered by the Applicant.

3. Finally, the documents placed before this Court by the Applicant are not admitted into evidence in this proceeding as clearly they were not before the Tribunal. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] Nicholson J said:-

   “… It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘… whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘… are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”

4. Even were that not the case, for the reasons stated herein, the Applicant’s application for review would still fail. Costs will follow the event.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  16 June 2014