Manua v Minister for Immigration
[2018] FCCA 990
•26 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANUA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 990 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – student visa – citizens of the Philippines – whether evidence of funds – whether merits review – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.5, ss.474, 476 Migration Regulations 1994 (Cth), reg.1.40, Sch.2, cll.572.111, 572.223, Sch.5A, Pt.4, cll.5A101, 5A408 |
| Cases cited: BCE15 v Minister for Immigration & Border Protection [2015] FCA 293 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; (2002) 67 ALD 615 |
| First Applicant: | MAYCHELLE MANUA |
| Second Applicant: | RHUMSKY MANUA |
| Third Applicant: | YAMUHR DIVO ANDREI MANUA |
| Fourth Applicant: | REESE SANUELLE ANDI MANUA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 618 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 19 April 2018 |
| Date of Last Submission: | 19 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 April 2018 |
REPRESENTATION
| For the First Applicant: | In person |
| For the Second Applicant: | In person |
| Third Applicant: | No appearance |
| Fourth Applicant: | No appearance |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 618 of 2016
| MAYCHELLE MANUA |
First Applicant
| RHUMSKY MANUA |
Second Applicant
| YAMUHR DIVO ANDREI MANUA |
Third Applicant
| REESE SANUELLE ANDI MANUA |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants have sought judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 17 November 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the first applicant, Mrs Maychelle Manua (“Mrs Manua”) a Student (Temporary)(Class TU) Vocational Education and Training Sector (subclass 572) visa (“Student Visa”). The Tribunal Decision appears in the Court Book (“CB”) 207-212.
The second applicant, third applicant and fourth applicant were all secondary applicants for Mrs Manua’s Student Visa. The second applicant is Mrs Manua’s partner and the third applicant and fourth applicant are her children.
Background
The background to the Judicial Review Application is as follows:
a)the applicants are a family unit from the Philippines: CB 2-4;
b)on 25 August 2015 Mrs Manua applied for the Student Visa having a confirmed enrolment to undertake a Certificate IV in Commercial Cookery and Diploma of Hospitality at Stanley International College Pty Ltd: CB 1–11;
c)on 22 September 2015, the Delegate requested evidence of the applicants’ financial capacity in the sum of $69,758: CB 53-64;
d)in support of the applicants’ financial capacity the applicants provided a letter from fellow church members Ian and Patricia Loftus, stating they had sufficient funds available and accessible to support the applicants, and attached a bank statement in support of this disclosing a balance in excess of $100,000 at the time: CB 77-79;
e)on 30 October 2015, the Delegate’s Decision was to refuse to grant the applicants the Student Visa on the basis that the Delegate was not satisfied that the applicants had provided acceptable evidence in relation to the financial capacity criterion in accordance with Sch.5A of the Migration Regulations 1994 (Cth) (“Migration Regulations”), and therefore they did not satisfy cl.572.223(2)(a) of Sch.2 of the Migration Regulations: CB 88-89;
f)the applicants applied for review of the Delegate’s Decision by the Tribunal, and when requested to provide further supporting evidence and documents regarding their financial capacity the applicants forwarded various financial documents concerning Mrs Manua’s aunt, Ms Elma Krzisnik (“Mrs Manua’s Aunt”) and mother, Ms Merlyn Murphy (“Mrs Manua’s Mother”) and other documents including academic transcripts for Mrs Manua: CB 120-124, CB 175-181 and CB 192-194;
g)on 12 October 2016 Mrs Manua partook in a hearing before the Tribunal (“Tribunal Hearing”); and
h)on 18 November 2016 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the Student Visa: CB 207.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted the Delegate assessed Mrs Manua’s Student Visa application against the criteria for a Subclass 572 visa on the basis of her confirmed enrolment in Vocational Education and Training (“VET”) sector courses, and the Student Visa was refused because Mrs Manua did not provide evidence in accordance with the requirements mentioned in Sch.5A of the Migration Regulations as required by cl.572.223(2)(a) of Sch.2 to the Migration Regulations: CB 208 at [3];
b)stated that the issue in the present case was whether Mrs Manua is a “genuine applicant for entry and stay as a student” having regard to the prescribed matters, and that the requirements of cl.572.223 of Sch.2 to the Migration Regulations differ depending upon whether or not Mrs Manua is, and was at the time of application, an “eligible vocational education and training student” who had a confirmation of enrolment in each course of study for which she was a student: CB 208 at [7]-[8];
c)found on the evidence before the Tribunal, Mrs Manua is not an eligible VET student with a corresponding Confirmation of Enrolment, and cl.572.223(1A) of Sch.2 to the Migration Regulations does not apply. As suggested, the applicant gave evidence that she had enrolment in a VET sector diploma, but she held no enrolment in at least an advanced diploma, and therefore cl.572.223(1A) of Sch.2 to the Migration Regulations did not apply: CB 208 at [9];
d)held that to meet the requirements of cl.572.223 of Sch.2 to the Migration Regulations, Mrs Manua must give evidence in accordance with the requirements set out in Sch.5A to the Migration Regulations for the highest assessment level of English language ability, financial capacity, and other prescribed matters, and that the Minister has to be satisfied that Mrs Manua was a genuine student having regard to the stated intention to comply with the Student Visa conditions, and that while Mrs Manua held a Student Visa the applicants would have access to funds sufficient to satisfy the financial capacity requirements in Sch.5A of the Migration Regulations: CB 208-209 at [10];
e)identified that Mrs Manua held a Philippines passport, and that the assessment level specified in the relevant instrument for a holder of a Philippines passport is assessment level 3, and that the evidentiary requirements for this assessment level are set out in Pt.4 of Schedule 5A of the Migration Regulations: CB 209 at [12]-[13];
f)found that Mrs Manua was enrolled in a six month Diploma of Hospitality and referred to her evidence that she was exploring studying an advanced diploma after this time: CB 209 at [14];
g)noted that one month had elapsed since the Tribunal Hearing, and leaving aside outstanding course fees and school costs, calculated that Mrs Manua was required to provide evidence of funds in the sum of $15,182 if she was to stay until April 2017: CB 209 at [18]-[19];
h)found that Ian and Patricia Loftus were not “acceptable individuals” as defined in cl.5A101 of Sch.5A to the Migration Regulations and therefore evidence of funds submitted from those individuals had no relevance: CB 209 at [21];
i)referred to evidence submitted of funds held by Mrs Manua’s Aunt and Mrs Manua’s Mother, but found that the evidence did not satisfy the Tribunal that those money deposits had been held for at least three months immediately before the date of the Student Visa application, nor was the Tribunal satisfied that the evidence of the incomes of Mrs Manua’s Aunt and Mrs Manua’s Mother, in the form of the government aged pensions, was sufficient for them together to accumulate at least $15,182: CB 210 at [27]-[28] and CB 211 at [33];
j)referred to evidence provided after the Tribunal Hearing of the income of a Mrs Sheryll Reyes Viado, but found that because no funds had been disclosed in that individual’s name, evidence of that income was not relevant for the purpose of Sch.5A of the Migration Regulations: CB 211 at [34]; and
k)ultimately found that the applicants did not satisfy cl.5A408 of Sch.5A to the Migration Regulations, and therefore could not satisfy cl.572.223(2)(a) of Sch.2 to the Migration Regulations: CB 211 at [35]-[36].
Judicial Review Application
The applicants filed the Judicial Review Application on 19 December 2016 stating the following grounds:
1. At the time of the visa application, the funds under the name of Ian and Patricia Loftus, is an honest document of aid that they extended during the time when the circumstance had arised.
2. At the time of the application, a CoE of 12-month course had been provided alongside completed (the first six months of the course) while waiting for the Tribunal Decision, and continuing to finish second six months as of the time of writing ,which plans of a new visa application will be filed upon finishing the course. Advanced Diploma study is only the second option, the reason why no CoE had been presented for this course of study.
3. Funds related to Elma Krzisnik and Merlyn Murphy have been provided, as well as transaction records, Their funds also have sufficiently supported the applicant’s and her dependent’s stay in the country, for more than three years, up to the time of writing. There is no evidence of debts in relation to expenses.
Mrs Manua swore an affidavit on 19 December 2016 annexing a copy of the Tribunal Decision.
On 1 February 2017 a Registrar of this Court made orders allowing the applicants to file an amended Judicial Review Application, any supporting affidavits and a written outline of submissions prior to the hearing of the matter on 19 April 2018. The applicants did not do so. Notwithstanding this, the applicants were provided an opportunity to make oral submissions at hearing. The Court explained to the applicants that the role of the Court in these proceedings is not to examine the merits of the Student Visa application, rather it must determine if the Tribunal committed a jurisdictional error. The Court briefly explained to the applicants the nature of jurisdictional error. To explain the legal concept of jurisdictional error to a self-represented litigant is a difficult task. In Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [24] per Kirby J (“Ex parte HB”) the High Court said “the subtleties of ‘jurisdictional error’ have sometimes escaped experienced judges”. It is not wholly surprising that the distinction between jurisdictional error and pleading for merits review and a more favourable decision might not be fully understood by the applicant: Ex parte HB at [24] per Kirby J; BCE15 v Minister for Immigration & Border Protection [2015] FCA 293 at [19] per Flick J.
The applicants’ submissions
The applicants’ oral submissions at hearing were as follows:
a)that Ian and Patricia Loftus had made a stand and helped the applicants in relation to their finances at a time that they had needed help;
b)that Mrs Manua’s Aunt and Mrs Manua’s Mother had not been able to provide their relevant documentation at the relevant time because of family issues;
c)the applicants had not fully comprehended the nature of the issues in respect of which they were required to provide information to the Tribunal, but that information was clear now, and if they were given a further chance they would be able to fulfil the relevant requirements; and
d)that the applicants had financially provided for themselves (including with assistance from family) during their stay in Australia, and had no financial debts outstanding.
Minister’s submissions
In seeking that the Judicial Review Application be dismissed with costs the Minister submitted:
a)the applicants’ grounds do not plead any jurisdictional error in the Tribunal Decision, and the Judicial Review Application is no more than a request for impermissible merits review;
b)ground 1 appears to cavil with the Tribunal’s finding that evidence of funds held by the applicants’ friends (Ian and Patricia Loftus) had no relevance for the purpose of cl.5A408 of Sch.5A to the Migration Regulations, however the Tribunal correctly found, that the applicants’ friends (Ian and Patricia Loftus) were not “acceptable individuals” as that term is defined and required that the applicants provide evidence that they had “funds from an acceptable source” as defined in cl.5A408(2) of Sch.5A to the Migration Regulations, with those funds held by an “acceptable individual”, defined in cl.5A101 of Sch.5A to the Migration Regulations to include an applicant or an applicant’s spouse, de facto partner, parent, grandparent, brother, sister, uncle or aunt;
c)ground 2 refers to Mrs Manua submitting a confirmation of enrolment for a 12 month course and having completed six months of the course. It is not clear what error Mrs Manua contends has been made by the Tribunal, but insofar as it might be contended that the Tribunal erred by considering financial capacity for a period of five months:
i)the Tribunal Decision was made on 17 November 2016 and Mrs Manua was due to complete her course on 7 April 2017;
ii)the applicants proposed to stay in Australia for a period of five months from the date of the Tribunal Decision; and
iii)clause 5A408(1) of Sch.5A to the Migration Regulations required that the applicants provide evidence of funds from an acceptable source sufficient to meet expenses for the first 12 months, defined to mean the period beginning on the day the Student Visa was expected to be granted to the applicants and ending either 12 months after the beginning of the period or, the last day of the applicants’ proposed stay in Australia, whichever date is earlier;
d)given that Mrs Manua’s course was expected to end five months after the Tribunal Decision, the Tribunal correctly considered the applicants’ financial capacity for the five month period;
e)ground 3 appears to cavil with the Tribunal’s assessment of evidence submitted in relation to Mrs Manua’s Aunt and Mrs Manua’s Mother, and the Tribunal’s finding that there was no evidence submitted to satisfy the Tribunal that money deposits were held for at least the three months immediately before the date of application, being an assessment made after the Tribunal considered the evidence in some detail: CB 210-211 at [26]-[30];
f)in respect of the correspondence confirming a reinvestment of a term deposit and the balances of account[s] held the Tribunal noted that those documents demonstrated funds held after the relevant period, being 25 May 2015, and for the applicants to demonstrate “funds from an acceptable source”, evidence needed to be submitted that an “acceptable individual” had held the funds for at least three months prior to the application date in accordance with cl.5A408(2) of Sch.5A to the Migration Regulations; and
g)the Tribunal correctly applied the relevant law to the facts, properly considered the applicants’ evidence, and made findings of fact that were open on the available evidence and for the reasons it gave.
In oral submissions the Minster, responding to the oral submissions made by the applicants, submitted that they were on notice of the relevant financial requirements, and pointed to the following:
a)a request to the applicants from the Delegate for more information dated 22 September 2015, as to, amongst other things, their financial capacity during the first 12 months of their proposed study and stay in Australia or the entire period if less than 12 months to meet course fees, living costs, school costs and travel costs, including setting out the nature of evidence of those matters (for example, bank statements), and that funds in the form of a money deposit had to be held by the applicant or an acceptable individual providing support for the applicant for a minimum of three months prior to the date of the Student Visa application being lodged: CB 53-55 and CB 61-62;
b)the request for financial capacity information was also referred to in the Delegate’s Decision, which included specific reference to the fact that the funds had to be held in an acceptable account for a period of three months prior to lodgement of the Student Visa application, and that on assessment of the financial documents provided, the evidence of financial support from Ian and Patricia Loftus could not be considered as an acceptable source of funds, an assessment which followed on from a setting out of the definition of “acceptable individuals” in cl.5A101 of Sch.5A to the Migration Regulations: CB 88-89;
c)an invitation to provide information dated 29 September 2016 from the Tribunal set out the relevant criteria, and the evidence required to be provided as to financial capacity, including the necessity for any money deposits to have been held with a financial institution for at least three months immediately before the date of the Student Visa application, and for detailed information about a person’s income sufficient to demonstrate that it was sufficient to accumulate the level of funding provided by that person (which was relevant to the information provided in relation to Mrs Manua’s Aunt and Mrs Manua’s Mother): CB 121 and CB 123; and
d)the invitation to provide information from the Tribunal also annexed a copy of the relevant provisions of the Migration Regulations in relation to the criteria for the Student Visa: CB 125-131.
It is also evident from the Tribunal Decision that at the Tribunal Hearing the Tribunal pointed out the deficiencies in the evidence, and explained the requirements, and gave an opportunity to the applicants to remedy any deficiencies in the evidence, or at least to provide further evidence and information to endeavour to meet the criteria, and that the applicants did provide further information, which the Tribunal did not consider to be relevant or of assistance: CB 210 at [23] and [26] and CB 211 at [32].
Legislative provisions
The definition of an “eligible vocational education and training student” in cl.572.111 of Sch.2 to the Migration Regulations is as follows:
… eligible vocational education and training student means an applicant for a Subclass 572 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector;
(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.
Regulation 1.40(2) and (3) of the Migration Regulations defines a “principal course” as follows::
(2) In a provision of:
(a) this Division; or
(b) Part 402, 570, 571, 572, 573, 574 or 575 of Schedule 2; or
(c) Schedule 5A;
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 402 (Training and Research) visa has undertaken 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, or an applicant for a Subclass 402 (Training and Research) visa has undertaken 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.
Mrs Manua was required to satisfy cl.572.223 of Sch.2 to the Migration Regulations which provides as follows:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A) If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant's eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant's family unit.
(2) If subclause (1A) does not apply:
(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
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.
The following relevant definitions in cl.5A101 of Sch.5A to the Migration Regulations are as follows:
acceptable individual means one or more of the following:
(a) the applicant;
(b) the applicant’s spouse or de facto partner;
(c) a parent of the applicant;
(d) a grandparent of the applicant;
(e) a brother or sister of the applicant;
(f) an uncle or aunt of the applicant who is:
(i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) usually resident in Australia
first 12 months, for an applicant, means the period that:
(a) begins:
(i) if the application is made outside Australia—on the day of the applicant’s expected arrival in Australia; or
(ii) if the application is made in Australia—on the day that the student visa is expected to be granted to the applicant; and
(b) ends on the earlier of the following:
(i) the day 12 months after the beginning of the period;
(ii) the last day of the applicant’s proposed stay in Australia.
Other relevant provisions of Sch.5A to the Migration Regulations include cll.5A108 and 5A408 which provide as follows:
5A108 Applicant must show enrolment or offer of place
(1) If the applicant is not a secondary exchange student, or is not seeking to satisfy primary criteria in Subclass 576 (Foreign Affairs or Defence Sector), or did not make his or her application using form 157E, the applicant must give, for each course proposed to be undertaken under the visa:
(a) a certificate of enrolment; or
(b) evidence that the applicant has been offered a place in the course.
5A408 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 12 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 12 months; 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.
(1A) If the applicant is:
(a) fully funded; or
(b) an applicant:
(i) who is not funded, wholly or partly, by:
(A) the Commonwealth Government, or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency; and
(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and
(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or
(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:
(i) a provincial or state government in a foreign country, with the written support of the government of that country; or
(ii) an organisation specified in a legislative instrument made by the Minister for this paragraph;
the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.
(2) In this clause:
financial support, from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full‑time;
(iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.
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;
(b) 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;
(c) a loan from a financial institution made to, and held in the name of, an acceptable individual;
(d) a loan from the government of the applicant’s home country;
(e) 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
Consideration
Jurisdictional error required
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). Rather, the Court must determine if the Tribunal Decision is affected by jurisdictional error: Migration Act, ss.474 and 476.
A jurisdictional error may exist where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that affects the Tribunal’s exercise or purported exercise of power resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. The error of the Tribunal must consist of a material breach of an express or implied condition of the valid exercise of a decision-making power under the Migration Act: Wei v Minister for Immigration & Border Protection [2015] HCA 51, (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226 at [23] per Gageler and Keane JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
Where a decision is found to involve jurisdictional error, that decision lacks legal foundation and consequently may be regarded in law as no decision at all: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; (2002) 67 ALD 615.
Grounds generally – merits review
Each ground of the Judicial Review Application plainly invites the Court to partake in impermissible merits review contrary to long accepted principles: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In the Court’s view, each of the grounds of the Judicial Review Application attempts to dispute the Tribunal’s findings of fact, and for that reason alone they can be dismissed. The Court has, nevertheless, addressed each ground of the Judicial Review Application below, as best it can.
Ground 1
The applicants submit, both on the face of ground 1 and in their oral submissions at hearing, that the offer of funds by Ian and Patricia Loftus was a genuine offer to support the applicants. The Tribunal made the following comments in respect to this “offer” at CB 209-210 at [21]:
Funding from friends
21. In that decision the delegate pointed out that the evidence of funding submitted in the name of friends did not meet the requirements of Schedule 5A because friends, such as Ian and Patricia Loftus (DIBP file f.29) were not acceptable individuals as defined. The tribunal finds this is so and evidence of funding submitted in the name of friends has no relevance under Item 5A408.
The Tribunal made no comment on the “genuineness” or the credibility of the funding offer given by Ian and Patricia Loftus, nor was it required to do so where that funding did not meet the funds from an acceptable source requirements of cl.5A408(2)(b) of sch.5A to the Migration Regulations. Because they were “friends” of the applicants, Ian and Patricia Loftus were not providing “funds from an acceptable source” to the applicants as they were not:
(a) the applicant;
(b) the applicant’s spouse or de facto partner;
(c) a parent of the applicant;
(d) a grandparent of the applicant;
(e) a brother or sister of the applicant;
(f) an uncle or aunt of the applicant who is:
(i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) usually resident in Australia
(See cl.5A101 of sch.5A to the Migration Regulations: definition of “acceptable individuals”).
It was therefore irrelevant if the funding offer was legitimate or genuine, because the funding was not from an acceptable source pursuant to the Migration Regulations.
There was no jurisdictional error in the Tribunal determining that funds provided by Ian and Patricia Loftus were not funds from an acceptable source, and therefore the applicants did not satisfy the criterion for the grant of the Student Visa. It follows that ground 1 must fail.
Ground 2
Ground 2 appears to be a statement of fact (in relation to the first six months of enrolment), a statement of intention (in relation to the proposed second six months of enrolment), and a statement of explanation in light of the statements of fact and intention as to why no confirmation of enrolment had been presented for the second six months, being the period of time during which Mrs Manua intended to study the advanced diploma. It is significant, however, that there is no assertion of jurisdictional error by the Tribunal.
If, as appeared to be posited by the Minister, ground 2 took issue with the assessment of the financial capacity of the applicants for a period of five months, then, as the Minister submits, that was the correct period having regard to the provisions of cl.5A408(1) of Sch.5A to the Migration Regulations when read in conjunction with the definition of “first 12 months” in cl.5A101 of Sch.5A to the Migration Regulations which provides that that period ends, for relevant purposes, on the last day of the applicants’ proposed stay in Australia, which was five months hence from the time of the Tribunal Decision.
To the extent the Mrs Manua is suggesting an issue with the confirmation of enrolment, the Tribunal stated as follows: CB 208 at [8]-[9]:
8. The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an 'eligible vocational education and training student' (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. 'Eligible VET student' is defined in cl.572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.
9. On the evidence before the Tribunal, the applicant in this case is not an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply. As suggested, the applicant gave evidence that she had enrolment in a VET sector diploma and as no enrolment in at least an advanced diploma is held, cl.572.223(1A) does not apply.
The evidence Mrs Manua provided was a confirmation of enrolment for a Diploma of Hospitality, and a certificate of completion in the Certificate IV in Commercial Cookery completed on 4 October 2016. Mrs Manua was not enrolled in an advanced diploma as required by cl.572.111 of Sch.2 of the Migration Regulations, hence she was required to satisfy the criterion of cl.572.223(2) of sch.2 of the Migration Regulations requiring her to meet the financial capacity criterion in sch.5A of the Migration Regulations. There was no legal error in this finding as on the material before the Tribunal, that being the certificate of enrolment in the diploma course provided by Mrs Manua to the Tribunal on 29 June 2016, Mrs Manua was not an eligible VET Student as her principal course of study the subject of the enrolment was only at a diploma level, and thus cl.572.223(1A) of sch.2 to the Migration Regulations did not apply and cl.572.223(2) of sch.2 to the Migration Regulations did apply, and it was against the latter sub-clause that Mrs Manua was, correctly, assessed by the Tribunal.
The Tribunal did not commit any jurisdictional error in relation to ground 2. It follows that ground 2 must fail.
Ground 3
In ground 3 the applicants again raise the issue of the Tribunal’s findings as to funds, and the source of funds relied upon to meet the relevant criteria.
In respect of funds and income from Mrs Manua’s Aunt and Mrs Manua’s Mother being proffered as evidence of the applicants’ financial capacity, the Tribunal gave detailed consideration to the issue at CB 210-211 at [22]-[34] as follows:
22. On review, the applicant did submit evidence of funding in the name of her Australian aunt, Ms Krzisnik and her Australian mother, Ms Murphy.
23. The tribunal went to considerable length to point out the deficiencies in the evidence submitted as it was evident the applicant did not appreciate the requirements of Item 5A408.
24. The detailed requirements of Item 5A408 were also contained in an invitation sent to the applicant prior to hearing.
25. On the evidence, the applicant has not completed 75% of the requirements of the course.
26. The tribunal spent considerable time at hearing explaining the requirement that any money deposit disclosed in the name of an acceptable individual must have been held for at least the 3 months immediately before the date of the application on 25 August 2015 (the savings period).
27. The applicant was advised that on the evidence submitted the tribunal would have no choice but to give a negative decision for the following reasons:
a. The evidence submitted of the term deposit of Ms Krzisnik (f.86) showed only a reinvestment of money on 16 December 2015 - after the savings period;
b. The 'foreign cash purchase' receipt was not a money deposit (f.85);
c. The balance letter for Ms Krzisnik (f.84) disclosed a bank balance in October 2016 – after the savings period;
d. The Centrelink document of Ms Krzisnik (f.83) disclosed an aged pension and indicated a balance for assets, but not what amount might be in a form acceptable under Schedule 5A such as a money deposit;
e. The balance letter for Ms Murphy (f.74) disclosed a bank balance in October 2016- after the savings period;
f. The Centrelink document of Ms Krzisnik (f.73) disclosed an aged pension and indicated a balance for assets, but not what amount might be in a form acceptable under Schedule 5A such as a money deposit;
28. As suggested at hearing, none of evidence submitted of funds satisfy the tribunal that money deposits were held for at least the 3 months immediately before the date of the application on 25 August 2015.
29. The applicant was given more time after hearing in which to give further evidence. No further evidence of funding was submitted.
30. For the reasons above, and explained in detail at hearing, the tribunal finds the applicant has not disclosed funding in a form which satisfies the 3-month savings period.
Regular incomes
31. As suggested at hearing, both Ms Krzisnik and Ms Murphy disclose income in the form of the government aged pension of around a little over $800 a fortnight and doubt was expressed that the tribunal would be satisfied that their incomes were sufficient to accumulate (or save) the amount of funding provided.
32. It was suggested the applicant might provide the tribunal with a calculation for each sponsor indicating how the aged pension is spent, and what amount is left as savings for each sponsor. No calculation or information has been provided in the time provided after hearing.
33. As suggested at hearing, the tribunal is not satisfied the sponsors have regular incomes sufficient to accumulate at the least $15, 182 together.
34. After hearing the applicant provided evidence of income of a separate individual, Sheryll Reyes Viado (f.116). As no funds have been disclosed in the name of that individual, that individual's income is not relevant for the purposes of Schedule 5A.
The reference to the “Centrelink document of Ms Krzisnik” (Mrs Manua’s Aunt) at [27f] in the quote from CB 210 above is clearly intended to be a reference to the Centrelink document of “Ms Murphy” (Mrs Manua’s Mother), being the Centrelink document which appears at CB 193-194. Mrs Manua’s Aunt’s Centrelink documents appear at CB 180-181, and there are only two sets of Centrelink documents in the materials before the Court. Further, the structure of CB 210 at [27] makes it plain that the reference to Mrs Manua’s Aunt, Ms Krzisnik, at [27f] should be a reference to Mrs Manua’s Mother, Ms Murphy.
The Tribunal Decision clearly considered the relevant evidence in detail, and put to Mrs Manua the issues the Tribunal had with the evidence and gave her an opportunity to provide further information. The Tribunal has not therefore fallen into an error in the SZBEL sense. Otherwise, it is well established the Tribunal can evaluate and weigh the evidence before it as it considers appropriate in the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ. It is obvious from the lengthy extract from the Tribunal Decision set out at [32] above that the Tribunal considered and weighed the evidence in a manner that was neither unreasonable nor illogical, and that the findings made were intelligible and justified with regard to the evidence and material before it. The fact that the applicants have seemingly continued to live and work and survive financially since the time the Student Visa application was made, as they submitted to the Court in their oral submissions, is irrelevant to the question of whether or not the statutory criteria under the Migration Act and Migration Regulations were met at the relevant time.
No jurisdictional error is established by ground 3.
Duty to a self-represented litigant
The Court has remained vigilant to any possible jurisdictional error which might arise on the face of the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J, and is satisfied no such jurisdictional error has arisen.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 26 April 2018
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