Lodhawala v Minister for Immigration & Anor

[2015] FCCA 238

FEDERAL CIRCUIT COURT OF AUSTRALIA

LODHAWALA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 238

Catchwords:
MIGRATION – Application for review of the decision of the Migration Review Tribunal – whether Tribunal identified the correct course of study for the purposes of reg.1.40 of the Migration Regulations 1994 (Cth) – whether Tribunal made a finding based on no evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 476

Migration Regulations 1994 (Cth), reg.1.40, Schedule 2, Schedule 5A

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Paudel v Minister for Immigration & Anor [2014] FCCA 665

Applicant: NEENAD LODHAWALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2986 of 2013

Judgment of: Judge Nicholls

Hearing date: 21 October 2014

Date of Last Submission: 21 October 2014

Delivered at: Sydney

Delivered on: 6 February 2015

REPRESENTATION

Solicitors for the Applicant: Mr P Guan of Paul Guan & Associates

Counsel for the Respondents: Mr B O’Donnell

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 29 November 2013 and amended on 7 October 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2986 of 2013

NEENAD LODHAWALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 November 2013 and amended on 7 October 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 25 October 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a Student (Temporary) (Class TU) visa (“the visa”) to Mr Neenad Lodhawala (“the applicant”).

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister in these proceedings (“Court Book” – “CB”). The Minister’s submissions filed in these proceedings provide relevant background. In my view, they are a fair and reasonable summary of the material in the Court Book. For convenience, I adopt the following for the purposes of this judgment ([8] – [14] of the Minister’s written submissions):

   “[8] The Applicant is a citizen of India (CB 1 at [10]). He arrived in Australia in 2008 on an earlier student visa and held various other student visas until March 2012 (CB 185 at [4]). The Applicant had previously studied for an MBA but had repeatedly failed his last few subjects. He formed the plan to study for two less business administration degrees in the hope that he would acquire the skills to return to and complete his MBA (CB 186 at [10]).

   [9] On 15 March 2012, the Applicant applied to the Minister’s Department for a student visa (Class TU) to study for a Diploma in Management (to be followed by an Advanced Diploma of Management) (CB 1-27).

   [10] On 30 March 2012, an officer of the Department wrote to the Applicant seeking, among other things (CB 28-31, bold in the original):

   Evidence you have sufficient funds to support yourself and your family members during your stay in Australia.

   You need to show that you have access to $26,000.

   You must show the money has been in an account for more than 3 months. Bank statements should be current.

   This amount is calculated so that you have access to enough money to cover your tuition fees plus AUD$1,500 per month for living expenses for the first 2 years of your study.

   …

   If the money is not in your name you will also need to provide evidence of the relationship between yourself and the person who holds the account (e.g. birth certificate, family register). Financial support can be provided by only eligible family members.

   In response, at various times before (and in one case after) the delegate’s decision, the Applicant provided various documents, including financial statements, statements from a family accountant and letters and an affidavit from his parents (CB 32-76).

   [11] On 29 June 2012 a delegate of the Minister refused the application (CB 96-104). The delegate found that the Applicant did not satisfy the visa criteria in clause 572.223(2) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations), in that the Applicant failed to provide evidence of funds as required by Sch 5A to the Regulations. It seems that the delegate did not see the documents that the Applicant had provided.

   [12] On 27 July 2012, the Applicant applied to the Tribunal for review of the delegate’s decision (CB 105-120; 121-125). On 5 September 2013, The Tribunal invited the Applicant to a hearing to be held on 14 October 2013 to give evidence and present arguments relating to the issues in the review (CB 126-129). The Applicant accepted this invitation (CB 132-3), and attended the hearing with his migration agent, on the appointed date (CB 145-147).

   [13] On the day of the hearing, the Applicant’s migration agent also provided the Tribunal with a number of documents relating to his academic past and financial support (CB 134-144, 148). The agent provided further financial documents to the Tribunal on 21 October 2013 (CB 149-164).

   [14] On 25 October 2013 the Tribunal decided to affirm the delegate’s decision to refuse the Applicant a student visa (CB 183-189). The Tribunal relevantly found that (CB 188-189):

   (1) For the purposes of the requirements of Sch 5A of the Regulations, the Tribunal assessed the Applicant against assessment level 4 (at [16]).

   (2) For the purposes of clause 5A404 of Sch 5A, the Tribunal calculated the total necessary funds to be $29,000 (at 19].

   (3) Though the Applicant had previously completed 81% of an Masters in Business Administration (MBA) (at [11]), he had provided no evidence that this was his “principal course” for the purposes of the visa application (at [26]). Instead, his principal course was an Advanced Diploma in Business Administration. Consequently, he did not get the benefit of para (a) of the definition of “funds from an acceptable source” in clause 5A405(2) and thus the relevant monies must have been held for at least 3 months before the visa application (ibid).

   (4) Regarding evidence of funds held by the Applicant’s father in the Ahmedabad Mercantile Co-op Bank (at [22]):

   (a) the Co-op was not a “financial institution” within the meaning of clause 5A101; and

   (b) in any case, there was no evidence that Applicant’s father had held the relevant balance in that account for at least 3 months before the date of the application, as required by clause 5A405(2).

   (5) The statements of stocks held by the Applicant’s father were insufficient to fulfil the requirements of Sch 5A (at [23]).

   (6) There was no evidence that the father had an approved loan from UCO bank for the required amount (at [23]).

   (7) Balances in the father’s statements of account with the State Bank of India in the 3 month prior to the application were insufficient (at [24]).

   (8) There was insufficient evidence that the father had been granted a loan for the requisite amount by the State Bank of India (at [25]).

   (9) Evidence of monies held by a friend of the family was not sufficient as that person was not an “acceptable individual” within the meaning of clause 5A405(2) (at [26]).

   As a result the Tribunal found that the Applicant did not satisfy the requirements of Sch 5A and thus did not satisfy the visa criterion in clause 572.223(2)(a)(i) of Sch 2 of the Regulations.

   [Emphasis in the original.]

2. The submissions also provide a helpful overview of the relevant regulatory scheme ([3] – [7] of the Minister’s written submissions):

   “[3] It is convenient to begin by setting out the relevant visa criteria. The Migration Regulations 1994 (Cth) (the Regulations) prescribe classes and sub-classes of visa and their criteria: ss 29 and 31 of the Act; Schs 1 and 2 of the Regulations. Under s 65 of the Act, the Minister (or his delegate) is to grant a visa application if he is satisfied that (among other things) the applicant meets the relevant visa criteria; and is obliged to refuse the application if he is not so satisfied. In deciding whether to affirm, vary, remit or substitute a new decision, the Tribunal stands in the shoes of the Minister or his delegate and exercises all his or her relevant powers: s 349.

   [4] The Applicant applied for Student Temporary (Class TU) visa: see Sch 1 to the Regulations, Item 1222. Based on the Applicant’s enrolment at the time, the Tribunal assessed that the only subclass for which the he was qualified was Subclass 572 – Vocational Education and Training Sector: Sch 2, Item 572 (see CB 185 at [3] and 187 at [13]). The criteria for such a visa in cl 572.223 provided, in relevant part:

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   a) …; and

   (b) the applicant meets the requirements of subclause (2).

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

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

   [5] Regulation 1.44 provided that a primary applicant for a student visa must give evidence in accordance with the requirements in Sch 5A for the highest “assessment level” for the relevant course of study for the subclass of student visa. Regulation 1.41 provided that the Minister must specify, by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which a primary applicant for a student visa criteria will be subject. The relevant instrument at the time was “IMMI 12/005”, which provided that, for a Subclass 572 visa, holders of Indian passports (such as the Applicant, see below) were to be assessed at “assessment level 4”.

   [6] Clause 5A405 in Sch 5A to the Regulations set out the required evidence for the financial capacity requirements with respect to Subclass 572 visas assessed at assessment level 4 (see the headings to Pt 4 and Div 2 of Sch 5A). It provided, in relevant part (key defined terms underlined):

   (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 24 months:

   (i) course fees;

   (ii) living costs;

   (iii) school costs; and

   …

   (2) In this clause:

   acceptable individual means one or more of the following:

   …

   (c) the applicant’s parents;

   …

   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 3 months immediately before the date of the application;

   [7] Clause 5A101 defined “money deposit” for the purposes of Sch 5A as “a money deposit with a financial institution”. The same clause defined “financial institution” thus:

   financial institution means a body corporate that, as part of its normal activities:

   (a) takes money on deposit and makes advances of money; and

   (b) does so under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operates, that the Minister is satisfied provides effective prudential assurance.

   [Emphasis in the original.]

Application before the Court

1. There are two grounds in the amended application. They are in the following terms:

   “1. The second respondent has made jurisdictional errors by wrongly identifying which course of study was his principal course of study, and therefore had assessed his application under the wrong assessment level.

   Particulars

   a. The applicant proposed to undertake three courses of study: Diploma in Business, Advanced, Diploma of Business and Master of Business Administration.

   b. The applicant has provided his Coe for Diploma in Business and Advanced Diploma of Business from ALIF Australia Pty Ltd (trading as Australian Institute of Technology and Education).

   c. The applicant had completed 81% Master of Business Administration from Australian Catholic University. At the tribunal hearing “The applicant said that he does want to finish the MBA”. He also said that he studied his diploma and advanced diploma to prepare for the completing his MBA.

   d. Reg. 1.40 (3) provides:

   (a) an applicant for a student visa proposes to undertake two or more courses of study that are registered courses, or an applicant for a Subclass 442 (Occupational Trainee) visa has undertaken two or more courses of study that are registered courses; and

   (b) either

   - (i) one of the courses of study (course A) is a prerequisite to another of the courses (course B); or

   - (ii) one of the courses of study (course B) may be taken only after the completion of another of the courses (course A).

   course B, not Course A, is the principal course

   e. Accordingly, MBA should be his principal course, and he should be accepted as applying for a subclass 573 visa and is subject to the assessment level 3.

   f. However, the second respondent held that his principal course is diploma or advanced diploma in business. He is therefore accepted as having applied for a subclass 572 visa and his application is therefore subject to the assessment level 4.

   2. The second respondent has made a jurisdictional error by basing no evidence in finding that the applicant father’s bank, Ahmedabad Mercantile Co-op Bank is not the financial institution as defined in cl. 5A101.

   Particulars

   a. “Although Mr Jyotindra Lodhawala has provided a certificate from the Ahmedabad Mercantile Co-op Bank certifying that he had a balance of Rs. 1700198 as of 21 March 2012, the Tribunal does not accept that the Ahmedabad Mercantile Co-op Bank is an acceptable ‘financial institution’ as defined in cl 5A101. (Tribunal Decision Record – Para 22; CB188).

   b. No evidence has been given to support the finding.

   c. The relevant facts shows that Ahmedabad Co-op Bank is the financial institution as defined in cl.5A101.”

Consideration of the Grounds of the Application

1. Ground one asserts that the Tribunal fell into legal error because it considered that the applicant’s “principal course” was an Advanced Diploma in Business Administration (“ABDA”), rather than a Masters in Business Administration (“MBA”). This was relevant in the current case for the purposes of the requirements of Sch.5A of the Migration Regulations 1994 (Cth) (“the Regulations”) and whether the applicant was able to satisfy the requirements for the grant of the visa, as set out at cl.572.223(2)(a) of Schedule 2 to the Regulations.

2. The term “principal course” was, at the relevant time, defined in reg.1.40 of the Regulations:

   “1.40 Eligible passport and principal course

   …

   (2) In a provision of:

   …

   (c) Schedule 5A;

   if an applicant for a student visa proposes to undertake a course of study that is a registered course … the course is the principal course.

   3) For subregulation (2), if:

   (a) an applicant for a student visa proposes to undertake 2 or more courses of study that are registered courses, …; and

   (b) either:

   (i) one of the courses of study (course A) is a prerequisite to another of the courses (course B); or

   (ii) one of the courses of study (course B) may be taken only after the completion of another of the courses (course A);

   course B, not course A, is the principal course.

3. The applicant’s argument before the Court was that in the relevant regulatory scheme, whatever is the “principal course” in an applicant’s proposed study, is an important element in determining, amongst other things, the financial capacity requirement, such as to satisfy the relevant regulatory criteria for the grant of the visa. What can be added to this is, that the type of course is relevant to whether the applicant can satisfy the requirements of Sch.5A of the Regulations for the grant of the visa.

4. Before the Court the applicant explained that he had developed a “strategy” in relation to his ultimate goal in completing his studies in Australia. To achieve this, the applicant “proposed” to take more than one course of study.

5. The delegate assessed the application for the visa on the basis of the applicant’s enrolment in a “Diploma of Management” (“DM”). The visa was refused because the applicant did not satisfy the delegate that he was a “genuine student” (c.572.223 of Sch.2 of the Regulations).

6. When his matter came before the Tribunal, the applicant was enrolled in an “Advanced Diploma of Business” (“ADB”). The applicant had been enrolled in an MBA course, but failed to complete this degree because he was, repeatedly, not able to pass two subjects. He proposed to take a DM so as to prepare him to be better equipped to do the subjects he had failed in relation to the MBA.

7. The applicant attempted to explain his strategy to the Tribunal. This is reported by the Tribunal, in its account of what occurred at the hearing, as set out in its decision record. This is the only evidence before the Court as to any explanation of this “strategy”.

8. That account shows that the applicant had told the Tribunal that he had “finished” 75% of his MBA course requirements. There were two subjects he repeatedly failed. He intended to undertake a “Diploma of Accounting” (“DA”) to assist him in understanding “basic information”.

9. The issue raised by the applicant in ground one of the application, is whether the Tribunal was “correct” in its finding, concerning which one of the courses referred to above was the applicant’s “principal course”. The Tribunal found that the applicant was “currently” enrolled in an “ADB” course and that this was his “principal course”. It proceeded to assess the application on that basis ([13] at CB 187). (In context, I understood this to be a reference to an Advanced Diploma in Business Administration (see “ABDA” above).

10. The issue for the Court now, having regard to the relevant regulations, and the circumstances presented to the Tribunal, is whether the “principal course” was the ADBA, or as the applicant now asserts, the MBA, or even the ADB.

11. The applicant’s submissions before the Court, as set out above, focussed on the applicant’s “strategy”, or as variously described before the Court, his “proposal” or “intention”.

12. It is clear on the applicant’s explanation provided to the Court, that the applicant’s relevant, initial, difficulty was his repeated inability to pass the two (sometimes referred to in the submissions as the “last three units”) subjects necessary to complete his MBA. To assist in addressing this, the applicant sought to study in a different diploma course. He explained before the Court that his “strategy” or “plan” was to then be able to return to his MBA.

13. As referred to above, the determination of what is an applicant’s “primary course”, for the purposes of the consideration of the application for the visa, is to be determined by reference to reg.1.40 of the Regulations. In circumstances where an applicant “proposes” to undertake more than one course of study, reg.1.40(3) of the Regulations provides the formula for determining which of the two, or more, courses is to be considered as the “principal course”, for the purposes of that consideration. (I note that reg.1.40(3) of the Regulations is expressed with reference to subclass 442 visas, but reg.1.40(4) of the Regulations (as at the relevant time) extends that provision to apply to, relevantly, amongst others, subclass 572 and 573 visas. The two potentially relevant subclasses on the application made by the applicant.)

14. That formula has two alternate points. First (at reg.1.40(3)(b)(i) of the Regulations) as between two courses, the principal course is that course for which the other course is a prerequisite. Second, (at reg.1.40(3)(b)(ii) of the Regulations), as between two or more courses, the principal course is the course that may be “only” taken after the completion of the other course or courses.

1. In the current case, the Tribunal proceeded on the basis that the applicant’s “principal course” was the ADB course, and by implication, not the MBA. I agree with the Minister that in the current circumstances presented to the Tribunal, there was no error in the Tribunal’s proceeding on this basis.

2. There was no evidence before the Tribunal that the ADB, or for that matter, any of the other courses variously referred to above, were “prerequisites” to doing the MBA, or that the MBA could only have been undertaken after completing the ADB.

3. In the current case, the applicant has sought to elaborate on his “plan” or “strategy” to the Court by, in effect, saying that the ADB was a “prerequisite” to doing the MBA, or that the MBA could only have been undertaken after the completion of the ADB.

4. In relation to reg.1.40(3)(b)(i) of the Regulations, the word “prerequisite” is not defined in the Regulations, or in the Act. However, the ordinary meaning of the word (see Shorter Oxford English Dictionary, 6^th Edition: “required as a prior condition” or “a thing required as a prior condition”) conveys a notion of some necessity imposed externally on the applicant, rather than a particular personal election or choice.

5. It may be that the applicant felt pressure being imposed on him by the need to acquire further knowledge or experience, before being able to pass the outstanding subjects for his MBA. However, as the Minister submits, that does not necessarily translate into a mandatory “necessity” of doing the ADB, imposed by any educational institution or course requirements. There was nothing before the Tribunal to suggest he could not have persevered with the MBA.

6. This view of reg.1.40(3)(b)(i) of the Regulations, is reinforced with the focus on the word “only”, as it appears at reg.1.40(3)(b)(ii) of the Regulations. That is, for the MBA to have been found to be the principal course, then the ADB or ADBA would have needed to be completed first, because the MBA could “only” be taken after the completion of these courses.

7. Further, there was no evidence before the Tribunal that the rules of the relevant educational institution, or the entry requirements to doing the MBA, required the ADB or ADBA as a prerequisite to doing the MBA. The applicant “chose” to do the ADB as a means of assisting him to pass the subjects of the MBA, which he had had difficulty in passing.

8. Relevant, primarily to reg.1.40(3)(b)(ii) of the Regulations, but also informing the view of reg.1.40(3)(b)(i) of the Regulations, taken above, is the evidence before the Tribunal, that in fact the applicant had already commenced his MBA before, or without, completing the ADB, or for that matter, the ADBA. That is, the ADB was not completed before the applicant commenced his MBA. Nor in the same sense could it therefore be said to have been a “prerequisite” to the MBA, certainly at the time of commencing the MBA.

9. The Tribunal found that the applicant had enrolled in an ADB “as his principal course” ([13] at CB 187). In his application for the visa, the applicant did not state, when invited by the relevant questions in the application form, that he intended to study for an MBA (see [33] at CB 5 and CB 6). The information that he gave was that he had previously studied for an MBA (see [32] at CB 5).

10. The application for the visa, therefore, when viewed in light of reg.1.40(3) of the Regulations, makes no reference to a proposal to undertake an MBA. The only relevant proposal was said to be for a DM (see CB 5). By the time the matter came before the Tribunal, the only courses identified by the applicant, for which he had enrolled and wished to study, were the ADB (see CB 150 – “Course Start Date: 07/12/2013” and “Course End Date: 06/06/2014”) and then after that, the ADB (see CB 152 – “Course Start Date: 14/7/2014” and “Course End Date: 11/1/2015”).

11. At the Tribunal hearing (14 October 2013), the applicant told the Tribunal that he had not studied for the MBA since 2011. He “believed” the relevant educational institution would allow him to return to complete the “remaining” subjects ([10] at CB 186). There was no evidence before the Tribunal that he had resumed enrolment in the MBA, or that the educational provider required, as a prerequisite to his resumption, that he undertake any other course, or that he must complete any other course before the MBA.

12. In all, it was open to the Tribunal on what was before it to proceed on the basis that the ADB was the “principal course”. No legal error is revealed by ground one.

13. Ground two asserts that the Tribunal fell into jurisdictional error in relation to its finding concerning evidence provided by the applicant to the Tribunal, in support of the need to satisfy relevant financial capacity requirements, while studying as a student in Australia. The particulars direct attention to [22] of the Tribunal’s decision record (at CB 188):

    “[22] The applicant has provided a statement from his father who says he will support the applicant and that the applicant also has a study loan. Mr Jyotindra Lodhawala, the applicant's father, states that he will support the applicant from his business income, stock holdings, savings and mortgage personal loan. The Tribunal has first considered the evidence that Mr Jyotindra Lodhawala will provide the applicant with sufficient funds from an acceptable source. Although Mr Jyotindra Lodhawala has provided a certificate from the Ahmedabad Mercantile Co-op Bank certifying that he had a balance of Rs. 1700198 as of 21 March 2012, the Tribunal does not accept that the Ahmedabad Mercantile Co-op Bank is an acceptable 'financial institution', as defined in cl.5A101.  Secondly, there is no evidence before the Tribunal that Mr Jyotindra Lodhawala had held this balance for at least the 3 months immediately before the date of the application.”

14. In short, the argument is that there was “no evidence” to support the Tribunal’s finding that the Ahmedebad Mercantile Coop Bank (“AMCB”) was not a “financial institution”, as defined in Sch.5A101 of the Regulations.

15. The applicant’s written submissions sought to rely on information now obtained by “visiting certain websites”, to say that the AMCB was an institution that fell within the definition of that term as set out in Sch.5A101 of the Regulations

16. There is no evidence before the Court that this information was before the Tribunal. At best, I understood that the applicant was inviting the Court to look at this information and find that the AMCB did meet the definition. It is trite to say that the Court cannot intervene to substitute its own findings of fact for those of the Tribunal. That invites impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

17. Before the Court, the applicant’s case was, with respect, difficult to understand. References to breaches of s.359A of the Act (not pleaded), and a duty on the Tribunal to inquire (not pleaded), remained unexplained, and were not satisfactorily developed into an arguable assertion of legal error, applicable in the circumstances presented in this case.

18. In any event, at the heart of ground two, is the assertion that there was no evidence before the Tribunal to support the finding it made about the AMCB. I agree with this assertion. I would add that there is no explanation in the Tribunal’s statement of review for its decision such that it can be said that that finding was reasonably open to it on the material before it.

19. In any event, it is not necessary to consider further what additional species of legal error the Tribunal fell into in this regard. The Minister conceded that there was no such evidence before it to base this finding.

20. Further, the Minister conceded that ([20] of the Minister’s written submissions):

    “[20] Ground 2 alleges that the finding summarised at para 17(4)(a) above was based on no evidence. The Minister concedes that the only evidence on which the Tribunal could have relied was the sort of lists prepared by Australian diplomatic missions analysed by Judge Nicholls in Paudel v Minister [2014] FCCA 665. The Minister further concedes that, on the basis of Paudel, this would be a jurisdictional error.”

21. On either basis the Tribunal fell into legal error, whether it be said to arise from the “no evidence” argument, or, from the analogous situation to be derived from Paudel v Minister for Immigration & Anor [2014] FCCA 665 (“Paudel”). There is no evidence before the Court now to support, or explain, the Tribunal’s finding that the AMCB was not an acceptable financial institution. Second, even if the Minister’s speculation that the Tribunal relied on lists from the relevant Australian High Commission (as explained in Paudel) then for the reasons set out in that case, the Tribunal would have fallen into error.

22. However, I agree with the Minister’s subsequent submission that to be entitled to the relief the applicant seeks, the applicant would need to show that the Tribunal’s decision to affirm the delegate’s decision was affected by that error. That is, that there would there have been a different outcome in the review (would the Tribunal have still affirmed the delegate’s decision), if the Tribunal had not made that legal error.

23. The answer, on the evidence before the Court is in the negative. The Tribunal was obliged to consider whether the applicant met relevant requirements as to financial capacity. That is, the applicant needed to provide evidence that he had available “funds from an acceptable source”, as that term is defined in cl.5A405(2) of the Regulations.

24. That provision was in the following terms (cl.5A405(2) of Schedule 2 to the Regulations):

    “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 3 months immediately before the date of the application;

    (b) financial support 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; or

    (vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or

    (vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or

    (viii)  an acceptable non-profit organisation;

    (c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;

    (d) a loan from the government of the applicant's home country.”

25. In this regard, the applicant provided the certificate from the AMCB. The Tribunal’s finding that the AMCB was not a “financial instituition” within the meaning of the relevant definition involved legal error.

26. However, I agree with the Minister that the Tribunal found that the applicant did not satisfy the requirements of cl.5A405(2) of the Regulations (as he needed to do if he was to be granted the visa) on two separate, and independent, bases. The second of those bases was that, irrespective of the status of the AMCB, there was no evidence that the necessary funds to the required level, or balance, had been held in the relevant account at the AMCB, for the period of at least three months before the date of the visa application.

27. There is no legal error revealed in, or by, this finding. This requirement emanated from the provisions of cl.5A504(2) of the Regulations. The Tribunal’s finding of “no evidence” in this regard was reasonably available to it, on what was before it. The consequence was that the applicant could not satisfy the requirement that he show he had funds from an acceptable source, as that concept was comprehensively defined in the Regulations. Ground two therefore is not made out.

Conclusion

1. The grounds of the application do not reveal jurisdictional error. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 February 2015