Kunwar v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 641
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kunwar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 641
File number(s): SYG 1934 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 7 May 2025 Catchwords: MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – student visa – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Migration (LIN 19/198: Evidence of financial capacity-Subclass 500 Visa and Subclass 590 Visa) Instrument 2019
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 9 April 2025 Place: Sydney Applicant: The applicant appeared in person Counsel for the First Respondent: Mr T Reilly for the first respondent Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1934 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUSHIL KUNWAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $6,100.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MCCABE:
Mr Kunwar wants to remain in Australia so he can pursue a course of study but his application for a student visa was rejected. The Administrative Appeals Tribunal affirmed the decision to refuse the application for a visa. The Tribunal was troubled by the applicant's failure to provide evidence which would confirm he had proper access to funds provided by his parents. On that basis, the Tribunal concluded Mr Kunwar did not satisfy the 'financial capacity' requirements in cl 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth).
Mr Kunwar filed an application for judicial review of the Tribunal's decision. The application set out detailed grounds of review that referred to supposed shortcomings in the decisions of both the delegate of the minister and the Tribunal. The decision of the delegate is not before me, so the grounds of review are misconceived to the extent they allege error in the delegate's decision. I am not satisfied the criticisms of the Tribunal's decision are made out, and I am unable to identify any other material jurisdictional error. I must therefore dismiss the application for review. My reasons for that decision are set out below.
BACKGROUND TO THE TRIBUNAL'S DECISION
The applicant, Mr Kunwar, is a citizen of Nepal. He first came to Australia in 2008. He successfully completed a Certificate IV in Business and a Diploma of Management. In 2018, he applied for a Student (subclass 500) visa. He said in his application that he wanted to study a Bachelor of Accounting. The application for a visa was refused. In the decision record dated 15 May 2018 (reproduced in the court book at pp 33ff), the delegate said the applicant did not provide sufficient supporting information that established the applicant had financial capacity as required under cl 500.214(3) of the Regulations.
Mr Kunwar applied to the Tribunal for review of the delegate's decision. The Tribunal wrote to the applicant on 8 June 2018 to acknowledge the application. In that letter (reproduced at pp 39-40), the Tribunal invited the applicant to provide any material he wished the Tribunal to consider. There is no record of the applicant responding to that invitation. The next contact from the Tribunal recorded in the court book occurred on 22 May 2020. On that date, the Tribunal issued a hearing invitation to the applicant. The invitation referred to a hearing by telephone on 10 June 2020. The invitation noted the Tribunal had decided to hold a hearing because it was unable to make a favourable decision on the basis of the material already before the Tribunal. The invitation included a specific request that the applicant provide a confirmation of current enrolment and records of past studies and:
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.
OR
•Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds. [Emphasis added]
Mr Kunwar provided confirmation of enrolment documents and submissions in advance of the hearing but it seems he did not provide documents addressing the underlined category of documents sought in the Tribunal's hearing invitation (set out above).
I do not have a transcript of the Tribunal's hearing, but the Tribunal's statement of reasons records several matters being discussed. The Tribunal was concerned the applicant's record was such that he might not be able to satisfy cl 500.212(a). That sub-clause dealt with the question of whether the applicant was a genuine temporary entrant. The Tribunal was also concerned about the financial capacity issues that lay at the heart of the delegate's decision. The Tribunal's statement of reasons records Mr Kunwar being asked about the financial arrangements that his parents had made. Mr Kunwar is said to have replied that his parents transferred monies into his account. The reasons for decision note at [11]:
…the Tribunal requested evidence of this. It noted that financial capacity and access to funds were in issue and that it required evidence of sufficient funds and how he accesses those funds. He said his parents have been supporting him and he has evidence of the funds transfers to show this. When asked how long he required to provide such evidence he responded 1 week.
Following the hearing, the Tribunal wrote to the applicant on 11 June 2020 asking him to provide further information regarding the 'genuine temporary entrant' requirement in cl 500.212(a) by 20 June 2020: court book at pp71ff. The letter included a copy of Direction Number 69, which guides the assessment of the 'genuine temporary entrant' criterion. Mr Kunwar sought and received an extension of time to provide the information by 4 July 2020. The information and a submission were duly provided. They are reproduced in the court book at pp 83ff. The submission makes clear (at p 84) Mr Kunwar understood the delegate's primary reason for refusing the application for a visa arose out of his (ie, Mr Kunwar's) failure to establish he met the "financial requirement criterion". The submission goes on to acknowledge Mr Kuwar had been given the opportunity to provide financial documents. The documents provided included translations of a 'letter of sponsorship' from the applicant's parents and financial data about their business. The following day, the applicant provided a recent bank statement which showed a positive balance in his father's account.
THE TRIBUNAL'S DECISION ON REVIEW
I have already noted the Tribunal raised concerns about whether the applicant was able to satisfy the 'genuine temporary entrant' criterion in cl 500.212(a) of the Regulations. Those concerns were reflected in the reasons for decision but the Tribunal did not ultimately make any findings on the issue. Its decision focused on the requirements in cl 500.214 dealing with financial capacity. Clause 500.214(1) provides the applicant for a student visa must have "genuine access" to funds, and cl 500.214(2) sets out the kind of expenses towards which the funds must be applied. Clause 500.214(3) says the minister (or the Tribunal on review, I would interpolate) may require the applicant to provide evidence of financial capacity that conformed to the requirements in a legislative instrument. Clause 500.214(4) authorises the making of that instrument. A copy of an extract from the relevant legislative instrument was annexed to the Tribunal's reasons for decision at pp 115ff.
The Tribunal accepted the applicant had established there were sufficient funds in a bank account held by his father to meet the expenses mentioned in cl 500.214(2): at [27]. On that basis, the Tribunal found the applicant met the requirements in cl 500.214(2): at [31]. The Tribunal also accepted that a deposit in a savings bank was a satisfactory form of financial support for the purposes of cl 500.214(3): at [28]-[29]. The sticking point for the Tribunal lay in the requirement in cl 500.214(1) that the applicant have "genuine access" to the funds. The Tribunal explained at [33]:
At hearing the applicant stated that his father and family have been providing him with financial support in the past and when asked how he accesses their financial support he said they transfer money into his account and the Tribunal requested evidence of this. Despite this request and the applicant being given time, which was extended, to provide post-hearing submissions and information after the hearing no such evidence has been provided. The Tribunal is of the view if the applicant's father/parents have been providing him with financial support in the past and it is his claim they will continue to do so into the future, he would be able to provide evidence of how he has accessed their funds in the past, which is indicative of how he will access them in the future. No such evidence has been provided from his bank accounts or that of his father or family demonstrating transfer of any funds to the applicant or any other way he accesses funds from them to support his stay in Australia. Despite the letter of sponsorship, on the evidence before it as at the time of this decision the Tribunal cannot be satisfied that the applicant will have genuine access to funds of a kind mentioned in subclause (2), being sufficient funds to meet his costs and expenses during his intended stay in Australia.
As the Tribunal was not satisfied the applicant had genuine access to the funds as required under cl 500.214(1), the Tribunal decided the decision of the delegate should be affirmed.
THE APPLICATION FOR JUDICIAL REVIEW
Mr Kunwar's application for judicial review identifies four grounds of review that are extensively particularised. The first three of those grounds refer to errors made in the decisions of both the delegate and the Tribunal. That is a problem because the delegate's decision is not before me. The Court's jurisdiction is limited to reviewing the Tribunal's decision. That much is clear from s 476(2) of the Migration Act 1958 (Cth) which provides the Court has no jurisdiction to review a primary decision within the meaning of that section. It follows those grounds are misconceived insofar as they refer to the delegate's decision.
Mr Kunwar conceded he did not draft the application for review and the grounds contained therein. He said he had the assistance of a solicitor who undertook that work on instruction. After I explained the concept of material jurisdictional error - the only basis on which the Court could intervene in the Tribunal's decision - I asked him to explain his criticisms of the Tribunal's decision in his own words. He was unable to assist me. He acknowledged he had not provided the Tribunal with any information after the hearing which confirmed how he accessed the funds contained in the bank account. He said he may yet be able to provide that information, but that is not relevant to my review of what the Tribunal did when it made its decision.
That said, I turn to the individual grounds of review. I will only address each ground to the extent they refer to the Tribunal's decision.
The first ground alleges the Tribunal denied the applicant "natural justice and/or procedural fairness and erred by failing to consider and give appropriate weight to the facts and evidence in the Applicant's claims". In the particulars, the applicant alleges the Tribunal failed to consider the totality of the evidence in determining the applicant's financial capacity. The particulars also say the Tribunal's finding that the applicant did not have access to the funds in the account was "prejudicial, speculative and very restrictive". The statement of particulars went on to contend the Tribunal "failed to give sufficient weight to the fact that the Applicant had access to his father's….funds in the past" and asserted those funds existed in the account and were available to the applicant as suggested in the 'sponsorship letter' from the applicant's parents. The Tribunal was said to have failed to take into account the applicant's difficulty in obtaining documentary evidence given restrictions imposed in connection with Covid-19. The particulars to the first ground conclude by asserting:
… The Applicant prima facie provided sufficient evidence in relation to having access to sufficient funds - which are his father's personal bank account demonstrating adequate funds, the sponsorship letter and the father's willingness to provide these documents amidst the difficulties of the pandemic.
The last statement I have quoted encapsulates the complaint in the first ground. It is convenient to focus on that statement because it also illustrates why that ground must fail.
The assertion that the applicant “prima facie provided sufficient evidence” is ultimately an invitation to the Court to undertake merits review. That is not the function of the Court. It is irrelevant whether a different decision-maker might have reached a different view on the evidence before the Tribunal, or whether it might have assigned different weight to the individual items of evidence. The Tribunal's decision ultimately turned on a narrow question derived from cl 500.214(1): did the applicant demonstrate he had "genuine access" to the funds in question? In answering that question, the Tribunal was plainly aware of the letter of sponsorship from the applicants' parents: it referred to the letter at [18]. The Tribunal's finding that the applicant failed to establish how and when he had accessed the contents of his father's bank account was plainly open to the Tribunal on the evidence. The applicant was invited to provide evidence on that issue following the hearing, but he failed to do so - a fact Mr Kunwar acknowledged at the hearing before me. Mr Kunwar was unable to explain what relevant evidence the Tribunal missed in its deliberations on this narrow question.
There is no basis for the complaint that the Tribunal failed to afford procedural fairness. The applicant was on notice before the Tribunal hearing that his financial capacity was a live issue. Indeed, he had been aware of the central importance of evidence going to that issue since the delegate's decision was made on 15 May 2018. It is unclear how Covid-19 restrictions - particularly those which applied in Nepal - impacted on his ability to demonstrate how he accessed the funds from Australia.
It is unclear why the applicant says the Tribunal's approach to asking and answering the dispositive question was "prejudicial, speculative and very restrictive". The Tribunal plainly had regard to the relevant material and there is nothing to suggest it had regard to evidence or considerations that were irrelevant to the question it correctly identified.
The first ground of review must fail.
The second ground of review is, to some extent, a repeat of the first ground. The applicant contends the Tribunal failed to have regard to relevant considerations. The particulars specify the Tribunal's failure "to take into account and give appropriate weight to the nature and character of the Applicant's funds in overseas [sic] and the Applicant's father's sponsorship letter…". The particulars also contend the Tribunal failed to consider the history of the applicant's father providing support and the fact he was prepared to continue doing so. This ground fails for similar reasons as those discussed above. The Tribunal made factual findings to the effect that the funds existed in an account in the applicant's father's name. The Tribunal was not satisfied the applicant had access to those funds because the applicant failed to provide evidence of those funds being accessed in the past. The applicant knew the question of genuine access was a live one, and he failed to address it to the Tribunal's satisfaction. The Tribunal's finding in this regard was open to it in the circumstances. The second ground is not made out.
The third ground of review contends the Tribunal "applied the guiding policies and procedures inflexibly without having proper regard to the Applicant's circumstances". This ground is misconceived in that the Tribunal was not applying "guiding policies and procedures": it was applying the terms of cl 500.214 and Migration (LIN 19/198: Evidence of financial capacity-Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (IMMI 19/198). IMMI 19/198 is a legislative instrument authorised by cl 500.214(4) which supplies criteria to be used in undertaking the assessment required in cl 500.214(3). As I have already explained, the Tribunal appears to have had regard to all the relevant evidence. It accepted the applicant was able to satisfy some of the requirements imposed under the law, but a gap in the applicant's evidence meant the Tribunal was not satisfied there was a pattern of actually accessing the funds in the account in the past - something which the Tribunal might reasonably expect to see if the applicant had genuine access to the funds as he claimed. The Tribunal's finding was clearly open on the evidence. There is nothing irrational or illogical in the Tribunal's reasoning.
The particulars to this ground assert the Tribunal failed to have regard to the applicant's "strong record of compliance of immigration history in relation to his visa(s) including having genuine access to 'sufficient funds'". That claim misses the point of the Tribunal's decision, which was that the applicant was unable to substantiate a history of access or demonstrate his ability to access the funds on an ongoing basis. The Tribunal acknowledged the applicant's parents had signed the sponsorship letter, and it accepted there were funds in the account as alleged. It was nonetheless open to the Tribunal to reach the conclusion it did on the evidence.
The particulars in this ground also contend the Tribunal failed to consider cultural evidence to the effect that Nepalese parents would feel obliged to support their children - which would tend to support a conclusion that access would be facilitated. But Mr Reilly, counsel for the minister, pointed out there is no suggestion that cultural evidence to that effect was provided to the Tribunal. The Tribunal cannot be criticised for failing to take into account evidence that was not provided.
The third ground of review must also fail.
That brings me to the fourth and final ground of review. It suggests the Tribunal had regard to an irrelevant factor. The particulars identify that irrelevant factor as being the absence of records of any transfers of funds to the applicant. The particulars suggest that is an irrelevant consideration because banks in Nepal were closed during this period due to Covid-19, which meant it would be difficult to obtain evidence of transfers and transfers might not have occurred in any event because online access to banks was frustrated because of shutdowns. The particulars explained:
… The fact that the Applicant's father had provided appropriate bank statements with sufficient funds and the sponsorship letter in this instance, in our view, is sufficient access to the funds. [Emphasis added]
The bolded words in the quoted extract point to the misconception in this ground. The Tribunal's concern to see evidence of the applicant accessing the funds is not irrelevant to the issue at hand: whether the applicant has genuine access to the funds is the central question in the case. Whether or not a differently constituted Tribunal might have been satisfied with the bank statements and the letter of sponsorship, the Tribunal in this case was not - and there is nothing illogical or irrational in its insistence on the applicant providing further evidence which established the fact of access. While the applicant and his lawyer might hold a different view, that is not the issue. This ground of review must fail.
CONCLUSION
The Tribunal's decision is not affected by a material jurisdictional error. The application for review must therefore be dismissed.
That leaves only the question of costs. The minister has asked for costs in a fixed amount of $6100. Mr Reilly says that amount approximates the amount actually incurred by the minister in dealing with the proceedings. He pointed out the amount is less than that indicated by the Court's scale. I asked the applicant what he had to say about an award of costs in the event he was unsuccessful. While he was plainly concerned about the financial burden of an award of costs against him, he did not otherwise suggest it was inappropriate.
I am satisfied it is appropriate to make an award of costs in this matter in favour of the minister. There is no doubt the minister has incurred costs in responding to the application for review. If those costs are not met by the applicant who initiated the process, they will have to be met out of public monies. I am also satisfied an award of a fixed amount of $6,100 is reasonable in circumstances where that amount was incurred, and it is less than the amount indicated on the Court's scale.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 7 May 2025
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