Liu v Minister for Immigration

[2015] FCCA 714

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 714

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a temporary student visa – Tribunal receiving an additional document after notifying its decision – Tribunal recalling its decision, reopening the review and publishing a second decision – additional document found not to alter the outcome – whether the Tribunal was functus officio after publishing its first decision considered – whether the Tribunal erred in its second decision in dealing with the additional document considered.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.5

Migration Regulations 1994 (Cth)

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v SZIAI (2009) 259 ALR 429

SZTRI v Minister for Immigration & Anor [2014] FCCA 1803

Applicant: XIAFEI LIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2608 of 2013

Judgment of: Judge Driver

Hearing date: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Solicitors for the Applicant: Mr K Geering of Raddison Lawyers

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application as amended on 30 January 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of the proceedings as a whole, fixed in the sum of $11,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2608 of 2013

XIAFEI LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Mr Liu sought judicial review of a decision of the Migration Review Tribunal (Tribunal) on 26 September 2013 to affirm a decision of a delegate of the Minister to refuse him a temporary student visa.  On 26 March 2015, I dismissed Mr Liu’s application as amended on 30 January 2015 with costs.  The following are my reasons for those orders. 

2. The following statement of background facts relating to the visa application and the decisions of the Tribunal on it is derived from the submissions of the parties.

3. Mr Liu is a citizen of the People’s Republic of China.  On 12 October 2011, he applied for a student visa[1].  He was assisted by a registered migration agent[2]. 

   [1] Court Book (CB) 1

   [2] CB 18

4. In the application, Mr Liu indicated that he intended to study two consecutive courses: a Certificate II in Information Technology (commencing 18 November 2011 and finishing on 8 March 2012) and a Diploma in Information Technology (commencing 20 April 2012 and finishing on 24 January 2013.  He provided a letter of offer for those courses[3].  Those courses were courses of the type prescribed for a Subclass 572 (Vocational Education and Training Sector) visa[4].

   [3] CB 21

   [4] see Migration Regulations 1994 (Cth) (Regulations), regulation 1.40A and IMMI 10/069

5. Clause 572.223(2)(iii) of Schedule 2 to the Regulations made it a “time of decision” criterion that the Minister be satisfied that Mr Liu will have access to certain funds as required by Schedule 5A.  Mr Liu provided no information or evidence relevant to this criterion.

6. On 14 February 2012, a delegate of the Minister refused the application[5].  The delegate was not satisfied that Mr Liu had provided evidence of having sufficient funds, and so found that he did not satisfy clause 572.223 of Schedule 2 to the Regulations, or clause 5A405 of Schedule 5A to the Regulations. 

   [5] CB 30

7. On 14 March 2012, Mr Liu applied to the Tribunal for review of the delegate’s decision[6].  On 14 August 2013, the Tribunal wrote to Mr Liu and invited him to attend a hearing on 17 September 2013[7].  The letter was sent to Mr Liu’s migration agent.  The letter requested Mr Liu to provide certain information, including:

   [6] CB 35

   [7] CB 52

   1.    A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2.    Documents that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   …

   5. Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

   ·evidence of fees of current or proposed course/s you have already paid, or still low for past courses

   ·evidence of funds from an acceptable source

   ·     if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application

   …

8. It may be noted that the date of the hearing was subsequent to the date of completion for the second of the courses identified in the visa application.  Mr Liu subsequently enrolled in a Diploma in Business which commenced on 2 September 2013 and concluded on 2 March 2014[8].  It is evident from CB 67 that this was also a vocational course of the type prescribed for Subclass 572[9].

   [8] CB 67

   [9] see IMMI 12/037

9. Mr Liu attended the hearing, but did not provide any financial information.  He was allowed further time but still did not provide further information[10]. 

   [10] CB 73[8], [9]

10. On 24 September 2013, the Tribunal published a decision affirming the delegate’s decision[11]. 

    [11] CB 72

11. Shortly thereafter, the Tribunal received further financial material from Mr Liu [12]. It was a document purporting to evidence bank deposits totalling RMB140,000 between 18 September 2013 and 18 December 2013. The name of the deposit holder is in Chinese and Roman characters and discloses that the deposit holder was Mr Liu’s father.

    [12] CB 82

12. After receiving the material, the Tribunal decided to reopen the matter and consider the further material. It held that it could do so because the matter was not finally determined in accordance with s.5(9) of the Migration Act 1958 (Cth)[13].  The parties proceeded on the basis that the Tribunal was justified in so doing.

    [13] CB 88[4]

13. The Tribunal made a second decision on 26 September 2013 again affirming the decision under review[14].  Like the delegate, the Tribunal was not satisfied that Mr Liu had provided the necessary financial evidence.  It is this this decision that is challenged in this Court.

    [14] CB 87

The judicial review application

1. These proceedings began with a show cause application filed on 25 October 2013.  Mr Liu was initially self represented.  On the basis of his original application, I ordered (on 29 November 2013) that the matter be listed for a show cause hearing on 29 April 2014, after providing Mr Liu with the opportunity to file and serve an amended application and additional evidence.

2. At the show cause hearing on 29 April 2014, I was persuaded that the application raised an arguable case for relief and ordered the Minister to show cause why relief should not be granted pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth). I listed the matter for a final hearing on 12 December 2014.

3. Mr Liu subsequently obtained legal representation.  At the hearing on 12 December 2014 his solicitor requested an adjournment in order to amend the application.  I provided that opportunity, subject to a costs penalty for costs thrown away.  The grounds in the amended application are:

   1A. The decision of the Migration Review Tribunal (“Tribunal”) on 26 September 2013 to affirm the decision of the Minister’s delegate to refuse to grant the applicant a Student (Temporary) (Class TU) (Sub Class 572) Visa (“decision”) was attended by jurisdiction error by wrongly concluding that the additional material provided by the applicant was, on the face of it, irrelevant.

   Particulars

   (i) On 24 September 2013 the Tribunal received a Certificate of Personal Deposit issued by the China Construction Bank listing an account in the name of the applicant’s father (being an “acceptable individual” as defined for “acceptable source” purposes as per clause 5A405 of Schedule 5A to the Regulations) and for one of the two periods that the Tribunal requested the applicant to demonstrate financial capacity for.

   2. In circumstances where the Tribunal received relevant additional material from the applicant and reopened the matter to consider that additional material and that the Tribunal was to make an adverse finding against the applicant based on the additional material, the decision of the Tribunal was attended by jurisdictional error by the Tribunal not inviting the applicant to provide further material and/or comment on and/or clarify any perceived deficiencies the Tribunal had in respect to the additional material.

   Particulars

   (i) The Tribunal on 23 September 2013 provided to the applicant a Notification of Decision and the Decision Record.  On 24 September 2013 the Tribunal received a Certificate of Personal Deposit issued by the China Construction Bank confirming the deposits from the applicant’s father and reopened the matter and failed to invite the applicant to provide further material and/or comment and/or clarify the additional material.

   3. The decision was attended by jurisdictional error by the Tribunal because of a fundamental misunderstanding of the law by asking the applicant to provide evidence of financial capacity for the “current time” and for the 6 month period leading up to the date of application.

   Particulars

   (i) During the course of the hearing the learned Tribunal member requested of the applicant that he “show” financial capacity for the “current time” and for the 6 month period leading up [to] his application.

   [The relevant discourse can be found at track 2 commencing 19:40 to 22:34 of the CD audio recording of the hearing prepared by the Tribunal].

4. I received as evidence the court book filed on 19 November 2013 as well as two affidavits: first, the affidavit of Mr Liu made on 12 February 2015 (subject to the deletion of [10] of the affidavit and the document referred to therein) and the affidavit of Winnie David made on 20 March 2015, to which is annexed a transcript of the Tribunal hearing.

5. Both Mr Liu and the Minister made both oral and written submissions.

Consideration

Did the Tribunal have jurisdiction to make a second decision?

1. As noted above, the Tribunal initially made a decision on 24 September 2013[15] and notified that decision to Mr Liu and his representative by letter of the same date sent by facsimile[16].  There is no evidence whether the decision was also notified to the Secretary, but, in my opinion, that is not material.  On the basis of my decision in SZTRI v Minister for Immigration & Anor[17], it is in my opinion highly likely that the Tribunal was functus officio after notifying its first decision to Mr Liu and his migration agent.  It would follow, on the basis of that reasoning, that the Tribunal had no jurisdiction, after receiving the additional document from Mr Liu, to recall its decision, reopen the review and make a fresh decision.  In my opinion, it is highly likely that the operative decision of the Tribunal is the first decision and not the second.

   [15] CB 72

   [16] CB 70-71

   [17] [2014] FCCA 1803

2. The solicitor for Mr Liu conceded, during the course of argument, that if that be the position, the judicial review application must fail, because the grounds of review attacked the second decision, on the basis of the additional document provided by Mr Liu.

3. The parties had proceeded upon a common understanding that the Tribunal was not functus officio after publishing its first decision, and that the operative decision was therefore the second decision.  Because of that common understanding, the parties did not put into evidence the material that would have permitted me to make a concluded decision on the question of the Tribunal’s jurisdiction.  Accordingly, while I think it highly likely that the Tribunal was functus officio after publishing its first decision, I agreed to consider the grounds of review on the basis that it was not. 

The legislative framework and the Tribunal decision

1. As noted above, one of the “time of decision” criteria for a Subclass 572 visa was contained in clause 572.223 of Schedule 2 to the Regulations.  The clause is set out in full at CB 91.  It provided, relevantly:

   572.223 (1)   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

   (2)   An applicant meets the requirements of this subclause if:

   (a)  for an applicant who is not a person designated under regulation 2.07AO:

   (i)   the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and …

2. Mr Liu was not a person designated under regulation 2.07AO, and so was required to give the Tribunal (standing in the shoes of the Minister) “evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant”.

3. The relevant assessment level for Mr Liu was level 4.  That is because Mr Liu held a passport from China[18].  There are five assessment levels which reflect an assessment by the relevant delegated legislator of the level of stringency that should be applied to the assessment of various requirements.  Level 4 is the second-most stringent category in Schedule 5A, although IMMI 11/011 did not prescribe any countries in level 5 which is the most stringent level.

   [18] see CB 1, IMMI 11/011 page 6

4. The relevant clause of Schedule 5A which set out the requirements that this applicant must meet was clause 5A405.  The clause is set out in full at CB 92 – 94.  It provided, relevantly:

   5A405    Financial capacity

   (1)     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 36 months:

   (i)      course fees;

   (ii)     living costs;

   (iii)   school costs; and

   …

   (2)     In this clause: …

   funds from an acceptable source means one or more of the following:

   (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 an acceptable individual;

   (aa)   if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application; …

5. Thus, Mr Liu was required to provide evidence of funds to meet course expenses that fell within the definition of “funds from an acceptable source”.   The content of that obligation turned, relevantly, on the degree of completion of the “principal course” and whether Mr Liu proposes to undertake any further course.  If the degree of completion was less than 75%, or if Mr Liu proposes to undertake a further course, then Mr Liu was required to provide evidence of funds “held for at least the 6 months immediately before the date of the application”.

6. The expression “principal course” is defined in regulation 1.40(2).  It provides:

   1.40(2)    In a provision mentioned in subregulation (4), if an applicant for a student visa proposes to undertake a course of study that is a registered course, or an applicant for a Subclass 442 (Occupational Trainee) visa has undertaken a course of study that is a registered course, the course is the principal course.

   …

   1.40(4)    Subregulation (2) applies to any of the following provisions:

   …

   (c)    a provision of Schedule 5A.

7. At the time of the Tribunal’s decision Mr Liu was only proposing to undertake a single course of study that was a registered course, namely the Diploma of Business, which commenced on 2 September 2013.  Properly construed, that was his principal course.  Plainly, on 25 September 2013 he had not completed 75% of the requirements for that course, and the Tribunal so found[19]. Alternatively, if the “principal course” was one of the courses identified in the visa application, then Mr Liu plainly proposed to undertake a further course and was not seeking this visa only to complete an incomplete course.  On any view, then, he did not fall within clause 5A405(2)(a) of Schedule 5A to the Regulations. 

   [19] at [15]

8. Mr Liu was thus required by clause 5A405(2)(aa) to provide evidence of sufficient funds from an acceptable source for the six months prior to the date of the application. 

9. Plainly, Mr Liu did not provide this evidence.  He provided evidence for a different period.  As the Tribunal held at [17]:

   There is evidence of current money deposits in excess of the amount required, however, there is no evidence of this having been held by an acceptable individual for the 6 months immediately before the date of application.  These deposits are not evidence then of funds from an acceptable source.  There is no other evidence of funds from an acceptable source …

10. In those circumstances, the Tribunal could not be satisfied that the criterion in clause 572.223(2)(a)(i) had been satisfied.  It was thus, in my opinion, bound to affirm the decision under review.

Ground 1A – irrelevant material or procedural unfairness?

1. In this ground, Mr Liu contends that the Tribunal erred by concluding that the additional material he provided was irrelevant.  During the course of argument, I put the view that the ground could be expressed slightly different, namely that it was unfair or unreasonable for the Tribunal to disregard or give no weight to something that it had itself asked for.  The Tribunal in its second decision found that the additional document provided by Mr Liu did not assist him because it did not establish that funds were held during the six month period before he applied for the visa.  It is apparent from the transcript of the Tribunal hearing[20] that the Tribunal raised with Mr Liu the proposition that he would need to demonstrate that funds were held both in that six month period and also currently.  The Tribunal in its second decision made no reference to the relevance of the document in respect of the requirement that funds be held at the time of decision.

   [20] Transcript, page 9-10

2. In my opinion, no jurisdictional error is demonstrated by this ground.  It might have been ungenerous of the Tribunal to not concede in its reasons that Mr Liu had provided part of what he had been told was necessary but the fact is that he had not provided all of what he had been told was necessary.  He had been told specifically that he would need to provide evidence of the retention of funds for the six month period prior to his application for the visa.  The document he provided related to the then current period.  Plainly, while the document might have been considered relevant, it was not sufficient. 

3. I reject this ground. 

Ground 2 – should the Tribunal have made a further enquiry of Mr Liu or extended a further hearing invitation?

1. There was no jurisdictional error.  This is not a case where Mr Liu asked for extra time[21].  This is a case where Mr Liu attended the hearing without the requisite documents, was told what documents were required[22], and then provided documents that did not meet the requirements.  The Tribunal was acting well within its jurisdiction by determining at [16] to proceed to a decision without awaiting any further material.

   [21] cf Minister for Immigration v Li (2013) 249 CLR 332

   [22] see [10]

2. It was for Mr Liu to present his application.  The Tribunal was not required to provide a running commentary on its views of his evidence, or make any further inquiries of him.  The Tribunal’s duty to inquire is strictly limited, and does not extend to circumstances such as the present[23].

   [23] Minister for Immigration v SZIAI (2009) 259 ALR 429

1. In addition, it is clear from the transcript of the hearing that the Tribunal had told Mr Liu that he should provide any additional material by 4.30pm on Friday, 20 September 2013.  He did not do so.  While the Tribunal had intimated that a decision might not necessarily be made on 20 September, it was clear that that was relevantly the deadline for further material.  The additional material was provided later and proved to be insufficient.  The Tribunal was under no obligation to pursue Mr Liu for further clarification or for yet further material.

2. I reject Ground 2.

Ground 3 – did the Tribunal misunderstand the law or did it mislead Mr Liu?

1. In this ground, Mr Liu asserts that the Tribunal erred by asking him to provide evidence of financial capacity for both the “current time” and the six month period prior to the visa application.  While the ground is expressed in terms of error of law, it could equally have been put as asserted procedural unfairness, on the basis that the Tribunal had misled Mr Liu as to what was required of him. 

2. In my opinion, there was no error by the Tribunal on either account.  It was clear from the relevant part of clause 5A405 that, if Mr Liu was to rely on a money deposit from an acceptable individual, it would have to have been held for at least six months immediately before the date of his visa application.  That was made clear to him by the Tribunal at the hearing.  Less obvious, but still readily apparent from clause 572.223(2)(a)(iii) was that Mr Liu would also have to demonstrate that he would have access to the funds at the time of the decision.  That was what the Tribunal was seeking to explain to him by reference to the “current period”.

3. I find that the Tribunal not only understood the relevant visa criteria but explained them with sufficient clarity to Mr Liu at the hearing. 

4. Ground 3 fails.

Conclusion

1. Mr Liu has failed to demonstrate any jurisdictional error in the second decision by the Tribunal.  The first decision was not challenged.  It follows that whether the first or second decision is the operative decision, it is a privative clause decision with the result that the judicial review application must be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 March 2015