Lakhnotra v Minister for Immigration

[2016] FCCA 1829

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAKHNOTRA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1829

Catchwords:
MIGRATION – Application to review decision of former Migration Review Tribunal – whether the Tribunal erred in its application of the law – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), cls.573.111, 573.223, 5A507

Cases cited:

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437;

[2014] FCAFC 1

Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67;

[2014] FCAFC 16

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013]

HCA 18

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013]

FCA 317

Applicant: RAJESHKUMAR PARBATHAL LAKHNOTRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3612 of 2014

Judgment of: Judge Barnes

Hearing date: 13 July 2016

Delivered at: Sydney

Delivered on: 13 July 2016

REPRESENTATION

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3612 of 2014

RAJESHKUMAR PARBATHAL LAKHNOTRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal, dated 18 November 2014, affirming a decision of a delegate of the First Respondent not to grant the Applicant a student visa.  

2. The Applicant applied for a student visa on 7 May 2014. He provided some supporting documentation. His application was refused on the basis that he had not met the criterion for a Subclass 573 visa in cl.572.223 in Schedule 2 to the Migration Regulations 1994 (Cth) because he had not met English proficiency and financial capacity requirements as specified in Schedule 5A to the Migration Regulations.

3. The Applicant sought review by the Tribunal on 13 July 2014.  The Tribunal wrote to the Applicant on 18 September 2014 inviting him to a hearing on 20 October 2014.  In the hearing invitation letter the Tribunal also asked the Applicant to provide detailed listed information at least seven days before the hearing date to enable it to make a decision as quickly as possible.  It advised him that the Tribunal may make a decision at the end of his hearing. 

4. The information the Tribunal requested included a copy of the Applicant’s current certificate of enrolment; documents that showed he was currently enrolled in or had an offer of enrolment in a registered course; documents showing his past studies and explaining any gaps in his enrolments; and (as set out in a number of dot points) documents demonstrating he had sufficient funds or access to funds to pay specified costs.  The letter specified that the evidence required included, relevantly, evidence of funds from an acceptable source; evidence as to how long any deposit he sought to rely on was held; details of any loan; details of the regular income of any person providing funds and their relationship to him; and evidence that he had genuine access to such funds.  In addition, the Tribunal asked the Applicant for evidence that he met the English language proficiency requirements, which it explained varied depending on his particular assessment level and visa subclass. 

5. On 18 October 2014 (two days before the scheduled hearing), the Applicant’s migration agent sent a facsimile letter to the Tribunal, advising that the agent had been unable to get in touch with the Applicant until he received a call from him on 17 October 2014.  The Applicant said he had been in India in a remote location where there was no modern means of communication like mobile or internet, and that he had experienced several mishaps.  The letter attached some supporting documents, including about the Applicant’s illness and misplaced luggage.  The agent sought an extension of four weeks for the hearing and advised the Tribunal that the Applicant was “in the process of getting his documents together” and would provide them to the Tribunal “at the earliest” (sic).

6. As the agent was advised on 20 October 2014, the Tribunal agreed to the request to postpone the hearing.  It was rescheduled for 17 November 2014.  The Tribunal again indicated that the Applicant should provide any additional information or new information that he wished the Tribunal to consider. 

7. The written documentation sought by the Tribunal in its original hearing invitation letter was not provided seven days before the hearing.  The Applicant attended the Tribunal hearing on 17 November 2014.  The only evidence before the court of what occurred at that hearing is the Tribunal’s account in its reasons for decision.  At the hearing, the Applicant provided some documents, including a Confirmation of Enrolment for an English for Academic Purposes course commencing 12 May 2014 (sic) at the Queen Anne English College (otherwise known as the Jasmine Education Group Pty Ltd), and for a Master of Business Administration course at the Holmes Institute to commence on 14 July 2014 (sic), as well as documentation in relation to financial requirements, in particular a document said to be a copy of an Indian bank certificate stating that a named person had a savings account with a balance equivalent to about $31,500.  The Applicant told the Tribunal that the account holder was his brother.

8. In its reasons for decision the Tribunal acknowledged that in the visa application the Applicant had said that he was intending to undertake an English for Academic Purposes course, followed by the Master of Business Administration course.  On this basis it found that the applicable subclass of student visa was Subclass 573 and that the issue was whether the Applicant was a genuine applicant for entry and stay as a student having regard to the prescribed matters. 

9. The Tribunal understood that (consistent with what was stated in subclause 573.223(1A) in Schedule 2 to the Migration Regulations) the applicable requirements of this subclass differed depending on whether or not the Applicant “is, and was at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study”.  The Tribunal referred to the definition of “eligible higher degree student” in cl.573.111 and to the fact that it required that the Applicant was enrolled in a course of study for the award of a bachelor’s degree or master’s degree by coursework and that such course of study was provided by an “eligible education provider” and also that if the Applicant proposed to undertake any preliminary course of study he was also enrolled in that course and it was provided by the eligible education provider or an educational business partner of the eligible education provider.  The Tribunal pointed out that “eligible education providers” and “eligible business partners” were those specified by the Minister in an instrument. Having set out the law in that regard, the Tribunal then found, without further explanation, that on the evidence before it, the Applicant was not an eligible higher degree student with a corresponding confirmation of enrolment at the time of his visa application, and that therefore the criterion in cl.573.223(1A) did not apply. Hence it found that he must satisfy other criteria for a Subclass 573 visa which, relevantly, required him to give evidence in accordance with the requirements set out in Schedule 5A to the Migration Regulations for the highest assessment level applicable.

10. The Tribunal went on to consider whether the Applicant met such requirements in Schedule 5A, which it summarised. The Tribunal noted that the Applicant had not provided it with any comment in relation to the decision under review. It accepted that, as the delegate had recorded, the Applicant had not provided the Department with any evidence of his English language proficiency or financial capacity. It referred to the fact that in its letter of 18 September 2014, it had invited the Applicant to provide certain information relevant to these requirements at least seven days before the scheduled hearing, which he had not done. It acknowledged that at the hearing the Applicant had submitted copies of the confirmations of enrolment for the two courses mentioned, copies of documents relating to why he had not been able to attend the hearing on the first scheduled date, and the document purporting to be a certificate from a bank in India which he said related to his brother’s account.

11. The only evidence of what occurred at the hearing is the Tribunal’s account in its reasons for decision.  The Tribunal recorded that it drew the Applicant’s attention to information before it contained in records in the PRISMS website indicating he was not “currently” enrolled in any registered course and explained that the relevance of such information was that the visa could not be granted to a person who did not have an enrolment, or offer of enrolment. It explained that the records indicated that the Applicant’s enrolment in the MBA course had been cancelled on 24 July 2014 because he did not commence studies. It recorded that the Applicant did not seek more time to respond to this information when given the opportunity. It appears that the Tribunal was indicating that this information was put to the Applicant in accordance with s.359AA of the Migration Act 1958 (Cth). There is no evidence to the contrary.

12. The Tribunal recorded that the Applicant initially asserted that his enrolment was current, but later conceded it may have been cancelled and noted that he had been overseas for some time prior to October 2014. 

13. The Tribunal recorded that it also put to the Applicant that the documents he had provided did not provide sufficient evidence of his English language proficiency or of his financial capacity.  In particular, it explained that the test results he provided were for an IELTS test from September 2011, but that as that test was conducted more than two years before the date of the visa application, those results could not be used to establish the requisite English language proficiency for the applicable visa requirement.

14. The Tribunal also raised with the Applicant its concern that the document about his brother’s bank account (assuming that it was genuine) did not provide sufficient evidence of the Applicant’s financial capacity.  It explained that it did not state how long the funds in question had been deposited, that while it said the brother had money in the bank account there was nothing to say that the money was available to the Applicant for the purposes of his study, and that the amount might be insufficient to meet the Applicant’s course fees, living costs and travel costs.

15. The Tribunal stated: 

    20. The applicant asked the Tribunal for more time to provide relevant evidence.  The Tribunal said that it considered he and his agent had more than sufficient time to provide relevant evidence, given that the decision under review was made in June 2014.  Moreover, the Tribunal’s letter of 18 September 2014 should have alerted the applicant and his agent to the kind of evidence he needed to provide.  The Tribunal said that, in all the circumstances it was prepared to wait until noon the following day (18 November 2014) to provide evidence relating to his enrolment, his English language proficiency and his financial capacity.  The Tribunal reminded him that the onus was on him to provide evidence which would satisfy it that he met the relevant requirements.  If it was not satisfied that he met any one of those requirements, it would affirm the decision under review. (emphasis added)

16. The Tribunal had regard to the fact that on the 18 November 2014 the Applicant provided a copy of an offer of enrolment in the MBA course at the Holmes Institute showing course fees of $22,200; a receipt issued by the Holmes Institute showing that he paid $200 as a re-enrolment fee (or re-issue of the confirmation of enrolment as the receipt stated); and a copy of an affidavit signed by his brother stating that he had the financial ability and resources to sponsor the Applicant. 

17. The Tribunal addressed the issue of financial capacity.  It found that the bank statement submitted by the Applicant did not provide sufficient evidence of his financial capacity.  In particular, it found that this document did not state how long the funds in question had been deposited in the account.  It found that as there was no evidence that the Applicant had successfully completed at least 75 per cent of the requirements of the proposed course, there must be evidence that any money deposit held by an acceptable individual (which it found his brother would be) had been held for at least three months immediately before the date of the application.

18. The Tribunal also found that, as it had noted, the funds held in the brother’s bank account were equivalent to approximately $31,500, but having regard to course fees and also basic living costs of $18,610, the Tribunal found the total sum required under the applicable part of Schedule 5A was in excess of $40,000. In these circumstances, the Tribunal found the Applicant had not given evidence in accordance with the applicable Schedule 5A requirements relating to financial capacity and that therefore he did not satisfy the requirements of cl.573.223(2)(a) in Schedule 2 to the Migration Regulations.

19. The Tribunal then turned to the various ways in which the requirement of English language proficiency could be met under Schedule 5A. It found that although the Applicant had been requested in the letter of 18 September 2014 to provide evidence that he met the English language proficiency requirements, he had not done so. It acknowledged that he had provided a confirmation of enrolment for an English language course, but found that such document did not show that he had the necessary English language proficiency. The Tribunal also acknowledged that the Applicant had produced a test report form for an IELTS test conducted in September 2011 but found that as that test was conducted more than two years before the date of the visa application, the results of that test were not relevant to the provisions that the Applicant had to satisfy (in cl.5A507(a)-(b) in Schedule 5A).

20. The Tribunal also found that there was no evidence to suggest that the Applicant had at least five years of study in Australia.  It acknowledged the evidence of two years prior study in 2009 to 2011 (in master’s degrees) and an English language program the Applicant was said to have undertaken between May and June 2014 as well as his previous enrolment in a similar course to the one in which he currently had an offer of enrolment.  However it found that, as the Applicant had indicated in his application for the visa, that previous MBA course was scheduled to commence in July 2014.  Hence it found that any study the Applicant may have undertaken in that course was of less than five months duration, so that he did not meet the requirement of at least five years study in Australia to establish English language ability (see cl.5A507(e)).

21. In the absence of evidence that any of the other provisions in relation to English language proficiency were met, the Tribunal found that the Applicant had not given evidence in accordance with the applicable Schedule 5A requirements relating to English language proficiency. Therefore, and independently of its conclusion in relation to evidence of financial capacity, the Tribunal found that the Applicant did not satisfy the requirements of cl.573.223(2)(a) in Schedule 2 to the Migration Regulations, having regard to the absence of the requisite evidence of English language proficiency.

22. For these reasons, the Tribunal found that the Applicant did not meet the Subclass 573 criteria.  As there was no evidence he was eligible to be granted another subclass of student visa, the Tribunal found that it must affirm the decision under review.

23. The Applicant sought review by application filed in this court on 23 December 2014.  There is no ground of review specified in the application.  However, in the accompanying affidavit, the Applicant stated generally “MRT decision is wrong”.  He did not take the opportunity afforded by directions to file an amended application or written submissions, but had and took the opportunity to make oral submissions today.  It is convenient to deal first with the Applicant’s oral submissions.

24. The Applicant initially raised the fact that he had sought further time from the Department to provide financial information requested on 12 May 2014 (consistent with an exchange of emails in the Courtbook).  When I explained to him that the decision in issue in these proceedings was the Tribunal’s decision, he said that he had told the Tribunal that he had not had enough time to provide documents.  He expressed the view that this was why the application had been rejected.  He explained that his concern was that the Tribunal had not given him enough time to provide financial documents and submitted that in that sense the Tribunal decision was “wrong” because he had a genuine intention to study and should have been granted more time.

25. However the concerns expressed by the Applicant in relation to the Tribunal’s approach to his requests for more time are not such as to establish jurisdictional error.  First, any request the Applicant made to the delegate is not indicative of error on the part of the Tribunal, although it does indicate that at the time the matter was before the delegate the Applicant was aware of the need to provide further relevant information in relation to his financial capacity and other matters.  The delegate’s decision of 23 June 2014 also addressed those requirements. 

26. The Applicant sought review by the Tribunal in July 2014.  By letter of 18 September 2014 the Tribunal not only asked the Applicant to a hearing in October but set out, in some detail, evidence that should be provided at least seven days before the hearing. 

27. When the Applicant’s advisor sought a postponement of the hearing two days before the scheduled hearing date (on the basis that the Applicant had been overseas, out of contact and had had various mishaps), the Tribunal granted that postponement.  In the letter of 20 October 2014, granting the postponement of the hearing until 17 November 2014, the Tribunal reiterated the need for the Applicant to provide documents in support of his application.  The Applicant did not provide any further documents, despite that additional time.  

28. What occurred at the Tribunal hearing of 17 November 2014 is to be seen in light of these circumstances, in particular the fact that the Applicant was made aware, not only through the delegate’s correspondence and decision but also through the Tribunal’s hearing invitation letter of 18 September 2014, of the need to provide documents in relation to specified matters.

29. The only evidence of what occurred at the hearing is the Tribunal reasons for decision.  The Tribunal acknowledged that the Applicant asked for more time to provide “relevant evidence”.  It appears that this may have occurred after the Tribunal pointed out deficiencies in the evidence that the Applicant had provided in relation to his English language proficiency, financial capacity and current enrolment.

30. The Tribunal allowed only until midday the next day.  It did so on the basis that it considered that the Applicant and his agent had had more than sufficient time to provide the relevant evidence, given that the decision under review was made in June 2014; that the letter of 18 September 2014 should have alerted the Applicant and the agent to the kind of evidence needed; and the fact that the Applicant did provide some information on 18 November 2014.   

1. Insofar as the claim the Applicant raised today may be seen as contending that the Tribunal did not exercise its discretion in relation to granting him more time to provide additional evidence reasonably in the sense considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, such contention is not made out in the particular circumstances of this case. There is an evident and intelligible justification for the Tribunal decision in that respect in its reasons for decision. Having regard to all of the circumstances as set out above, this is not a case in which it can be said that the Tribunal’s discretion to exercise its power in that respect did not meet the standard of legal reasonableness. The Applicant had had an extended period of notice of the requirements that he had to provide (from the delegate’s correspondence and decision and, specifically, from the Tribunal’s hearing invitation of 18 September 2014, some two months before the Tribunal hearing). The Tribunal had agreed to the agent’s request two days before the scheduled hearing for an additional four weeks. This gave the Applicant additional time to provide documentary evidence. Any claim based on a lack of reasonableness in the Tribunal’s decision on 18 November 2014 to allow further time, but only to midday the next day, is not made out in the particular circumstances of this case.

2. I also note that there is no suggestion on the evidence before the Court that the Applicant sought additional time after the hearing (for example, on 18 November 2014) or that he gave any reasons for any inadequacies in the documents provided after the hearing.

3. Beyond this, insofar as the Applicant contended that the Tribunal decision is “wrong”, there was no particularisation in the application or the affidavit.  If this is a disagreement with the merits of the Tribunal decision (on the basis that the Applicant contends that he was a genuine Applicant to study) it takes issue with the merits of the Tribunal decision and does not establish jurisdictional error.

4. The Applicant did not take issue with the Tribunal’s findings in relation to English language proficiency or his financial capacity, although he did suggest that he had provided the requisite evidence on 18 November 2014.  It appears that, in relation to financial capacity, he is referring to the affidavit of his brother which stated generally that the brother had adequate financial ability and resources to meet the sponsorship commitment and obligation and to support the Applicant, who was sincere and hardworking.  However, while the Tribunal did not analyse this affidavit in its assessment of financial capacity, it acknowledged receipt of the affidavit and it is clear that the affidavit did not address the deficiencies in the financial evidence which the Tribunal considered in some detail in its reasons for decision.  In these circumstances it cannot be said that the Tribunal failed to have regard to critical evidence in a manner constituting jurisdictional error (cf Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317).

5. No jurisdictional error is apparent in the manner in which the Tribunal addressed the English language proficiency requirements in the applicable part of Schedule 5A to the Migration Regulations. I note that it appears that the Tribunal may not have understood that in fact some information had been provided by the Applicant to the delegate in relation to his English language proficiency and financial capacity, although as the relevant information was also provided to and considered by the Tribunal, whether or not it had been provided to the delegate is not of any significance and the Tribunal’s finding in that respect is no more than a factual error.

6. I raised an issue with the solicitor for the Minister about the fact that the Tribunal simply found, without explanation, that on the evidence before it the Applicant in this case was not an “eligible higher degree student” with a corresponding confirmation of enrolment at the time of application.  The Minister’s solicitor had anticipated such a concern and provided submissions. 

7. The Tribunal gave no reasons for this finding other than referring to the applicable provisions in the Migration Regulations. As the solicitor for the First Respondent pointed out, under the relevant provisions in the Migration Regulations in relation to Subclass 573, in particular the definition of “eligible higher degree student” referred to in the Tribunal decision, if the Applicant had been an eligible higher degree student with a confirmation of enrolment in each course of study for which he was an eligible higher degree student, the applicable criteria would not have been those in cl.573.223(2) and in Schedule 5A and may, in fact, have been more easily met by the Applicant (see cl.573.223(1A)). However the Tribunal concluded that cl.573.223(1A) did not apply.

8. As the Tribunal recognised, at the applicable time, cl.573.111 in Schedule 2 to the Migration Regulations defined an eligible higher degree student as meaning:

   an applicant for a Subclass 570 visa in relation to whom the following apply:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (i) a bachelor’s degree; or

   (ii) a master’s degree by coursework.

   (b) the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study;

   (i) the applicant is also enrolled in that course; and

   (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

9. As the Tribunal stated, eligible education provider in turn means an education provider specified as an eligible education provider in an instrument made under cl.573.112.  The solicitor for the First Respondent provided the court with a copy of Instrument IMMI 14/007 that commenced on 22 March 2014 and was applicable at the time of the visa application of 7 May 2014.  It is apparent that the Holmes Institute (which was the education provider specified for the master’s course in which the Applicant was enrolled at the time of application (as well as re-enrolled in prior to the Tribunal decision)) was not specified as an eligible education provider at the time of application.  Similarly, insofar as the Applicant was, at the time of application, enrolled in the English for Academic Purposes course referred to in the Tribunal decision (for which a confirmation of enrolment had initially been provided), the institution conducting that English language course (Jasmine Education Group Pty Ltd trading as Queen Anne English College) was not an educational business partner in relation to an eligible education provider in the sense required in paragraph (c) of the definition of eligible higher degree student.  As the provider of the principal course of study was not an eligible education provider, in turn, the provider of the English course could not meet the requirements of paragraph (c) of the definition of eligible higher degree student. 

10. Having turned my mind to that definition (with the assistance of submissions from the Minister), the initial concern raised by the fact that the Tribunal did not provide reasons for that finding beyond referring to the applicable provisions in the Migration Regulations and to an Instrument is not such as to indicate that the Tribunal misapplied the law or otherwise fell into jurisdictional error in reaching the conclusion that it did about the applicable criteria in relation to the Applicant’s Subclass 573 visa application. Such conclusion was clearly open to the Tribunal and indeed was compelled by the material before it, having regard to the provisions in the Migration Regulations to which it referred. I do note, however, that it would have been preferable had the Tribunal provided clearer reasons for its finding in that respect. In any event, no jurisdictional error is established on that basis.

11. In these circumstances, as no jurisdictional error has been established on any of the bases contended for by the Applicant or arising on the material before the court, the application must be dismissed. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 21 July 2016