Li v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 734
•7 JUNE 2004
FEDERAL COURT OF AUSTRALIA
Li v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 734
TIAN HUA LI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N72 of 2004JACOBSON J
7 JUNE 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N72 of 2004
BETWEEN:
TIAN HUA LI
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
JACOBSON
DATE OF ORDER:
7 JUNE 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N72 of 2004
BETWEEN:
TIAN HUALI
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
JACOBSON
DATE:
7 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for review under s 39B of the Judiciary Act1903 (Cth) of a decision of the Migration Review Tribunal (“MRT”) given on 22 December 2003, affirming a decision of a delegate of the Minister refusing to grant the applicant a student (temporary)(class TU) visa.
When the matter was called on for hearing this morning the applicant did not appear. I stood the matter down until 10.30 am, in case he was unavoidably delayed. However, when the matter resumed the applicant was still not present.
Mr Smith, of counsel, who appeared with Mr Lazarus, requested me to deal with the matter under O32 r2(1)(d), that is, to proceed with the trial generally so far as concerns any claim for relief in the proceeding.
The applicant was aware of the hearing because he was notified by a letter sent to the address given by him in the application for review. The letter was sent to him on 2 June 2004.
Moreover, the applicant was present in person before a Registrar of the court on 15 March 2004 when the matter was listed for hearing. There can, therefore, be no doubt that he was aware of the fact that the matter was listed for hearing this morning at 10.15 am. Accordingly, I propose to deal with the matter in accordance with O32 r2.
The MRT found that the applicant did not satisfy the relevant provisions of the Migration Regulations 1953 (Cth) (the “regulations”) which required the applicant to provide evidence that he had the financial capacity to continue a course of study commenced at Central Queensland University.
The applicant failed both before the delegate and the MRT notwithstanding that he had submitted evidence of a certificate of deposit with the Bank of China. However, it was necessary under the regulations that the deposit be held for, at least, six consecutive months before the application. The regulations also required the applicant to provide evidence of a regular income showing that the income was sufficient to accumulate the level of funding which was being provided.
The applicant failed to reply to requests from the department and from the MRT to provide such information.
In his application for review, the applicant states that the MRT ignored parts of his claim and ignored relevant material, or reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation. These matters are said to give rise to jurisdictional error.
The applicant applied for a class 573 visa to which clause 573.223 of the Migration Regulations 1953 (Cth) applied. Under clause 573.221 of the regulations the applicant was required to satisfy the criteria set out in clauses 573.222 to 573.234 of the regulations.
573.223(1) provided, as a condition of the class 573 visa, that the Minister must be satisfied that the applicant was a genuine applicant for entry and stay as a student because the applicant met the requirements of subclause (2). Clause 573.223(2) provided that an applicant met the requirements of the subclause if the applicant gave to the Minister evidence in accordance with the requirements mentioned in schedule 5A of subclause 573 and the assessment level to which the applicant was subject in relation to, inter alia, his financial capacity to undertake the course of study without contravening any conditions of the visa relating to work.
Clause 5A505(1) dealt with financial capacity and provided as follows:
The applicant must give:
(a)
evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the full period:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(b)evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c)evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
Clause 5A505(2) defined the term "acceptable individual". It included the applicant.
Subclause also define the term "funds from an acceptable source" as follows:
funds from an acceptable source
means one or more of the following:(a)a money deposit that an acceptable individual has held for at least 6 consecutive months before the date of the application;
(b)a loan from a financial institution to an acceptable individual;
(c)a loan from the government of the applicant’s home country;
(d)
financial support (such as a scholarship) from:
(i) the applicant’s proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or
(v) a multilateral agency.
Regulation 1.41 provided for the Minister to specify, by Gazette Notice, the assessment level for a passport issued by a foreign country in relation to each subclass of student visa to which an applicant would be subject.
Regulation 1.42 made provision for an applicant to be subject to an assessment level known as assessment level 2 if certain criteria were satisfied. It is unnecessary to set out the provisions of regulation 1.42 as were then in force.
The MRT set out the evidence applicable to the application which was before it. The evidence showed that the applicant had entered Australia on 6 March 1999 under a subclass 560 student (temporary) (class TU) visa. That visa was due to expire on 15 March 2002 and the applicant lodged the subject visa application on 18 March 2002.
The visa applicant claimed to have embarked on a program of study and the present application was made on the basis that he proposed to continue studying a Bachelor of Business Course at Central Queensland University.
The MRT noted that the applicant submitted a certificate of deposit in his own name for an amount in excess of $40,000 as evidence of his financial capacity. The deposit had been held from 10 February 2002.
The MRT referred to the fact that it had written to the visa applicant on 22 September 2003 under the provisions of s 359(2) of the Migration Act 1953 (Cth) (the “Act”) inviting him to provide evidence that he held the deposit for at least six consecutive months before 18 March 2002 and evidence that he had a regular income sufficient to accumulate that level of funding. The visa applicant did not respond to the invitation.
The MRT said at [14] that it was satisfied that the applicant had been invited to supply the additional material but that he had failed to respond to the invitation. The MRT therefore determined to make the decision without taking any further action to obtain the applicant's views on the information in accordance with s 359C. The MRT also determined to make its decision "on the papers" in accordance with s 360 of the Act.
The MRT said at [16] that the relevant issue was whether the visa applicant was a genuine applicant for entry and stay as a student in relation to the factors identified in clause 573.223 of the regulations.
The MRT observed at [18] that the relevant assessment level was level 4. The MRT said that it was satisfied that the applicant did not meet sub regulation 1.42 of the regulations because he did not satisfy the various requirements set out in regulation 1.42.
The essence of the MRT's reasons is to be found at [23] and [24]. The MRT observed that the certificate with the Bank of China had been held only since 10 February 2002. The MRT referred to the requirement that the deposit be held for at least six consecutive months and that the visa applicant had been invited but had failed to provide evidence that satisfied that requirement.
The MRT also referred to the requirements of subclause 5A505(1)(b) which required the visa applicant to show that he had a regular income sufficient to accumulate the level of funding that was provided and, again, that the applicant has not satisfied the Tribunal of that requirement.
Accordingly, the Tribunal found at [26] that the applicant did not satisfy clause 5A505 in relation to his financial capacity and did not meet subclause 573.223(2)(a) and that the application therefore failed.
The application for review under s 39B was in the most general terms. There is no suggestion of any error whatsoever in the MRT's reasons. I can see nothing to suggest any unreasonableness or illogicality within the established authorities. It follows that I am satisfied that there is no jurisdictional error.
Accordingly, the orders I propose to make are, firstly, that the application be dismissed and secondly, that the applicant pay the respondent's costs of the application.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 7 June 2004
No appearance for the applicant Counsel for the Respondent: J Smith & J Lazarus Solicitor for the Respondent: Sparke Helmore Date of Hearing: 7 June 2004 Date of Judgment: 7 June 2004
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