Mathai v Minister for Immigration

[2016] FCCA 578

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATHAI & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 578

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Indian citizen – refusal of student visa – financial capacity requirement – whether Tribunal committed to further hearing if not satisfied that financial capacity requirement met – whether a denial of procedural fairness – whether error in time over which financial capacity requirement to be calculated – whether error in calculation of loan amount – whether incorrect exchange rate used for calculation of loan amount – whether failure to consider relevant material or claim made – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 474, 476

Migration Regulations 1994 (Cth), Sch.2, cll.572.223(1) and (2), 573.223, Sch.5A, cll.5Al04(1), 5A508(2)(b)

Deputy Commissioner of Taxation v Conley & Ors [1998] FCA 1321
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26
Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; (2009) 83 ALJR 1017; (2009) 258 ALR 434; (2009) 110 ALD 238
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303
Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
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
MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123; (2010) 117 ALD 441
NADR v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 167
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407
Re Thomas Quade & Ors v Commonwealth Bank of Australia [1989] FCA 424 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

First Applicant: JAIN MALIEKKAL MATHAI

Second Applicant: CIJO GEORGE

Third Applicant:  ANNAMERIE CIJO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 215 of 2015

Judgment of: Judge Lucev

Hearing date: 17 February 2016

Date of Last Submission: 17 February 2016

Delivered at: Perth

Delivered on: 17 March 2016

REPRESENTATION

For the First Applicant: In person

For the Second Applicant: In person

For the Third Applicant: The First and Second Applicants

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

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 215 of 2015

JAIN MALIEKKAL MATHAI

First Applicant

CIJO GEORGE

Second Applicant

ANNAMERIE CIJO

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding commenced on 19 May 2015 by the applicant, Jain Maliekkal Mathai (“Ms Mathai”) filing an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review (“Judicial Review Application”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal, made on 29 April 2015 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made more than three years earlier on 25 November 2011 by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister” – the Minister for Immigration & Citizenship at the time of the Delegate’s Decision) to refuse Ms Mathai a Student (Class TU) visa (“Student Visa”). The Tribunal Decision appears at Court Book (“CB”) 320-330.

Background to Judicial Review Application

1. The background to the Judicial Review Application is as follows:

   a)Ms Mathai is a citizen of India: CB 2 who lodged an application for the Student Visa on 27 September 2011: CB 2-18;

   b)Ms Mathai ’s husband and child applied for the Student Visa as members of her family unit: CB 3-4;

   c)on 25 November 2011 the Delegate refused to grant Ms Mathai the Student Visa on the basis that she did not satisfy cl.573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) with respect to the English language proficiency requirement: CB 98-103;

   d)Ms Mathai lodged an application for review of the Delegate’s Decision with the Tribunal on 7 December 2011: CB 104-110;

   e)almost two and one half years later, on 8 May 2014 the Tribunal affirmed the Delegate’s Decision, but did so on the basis that Ms Mathai did not satisfy cl.573.223(2)(a)(i) of Schedule 2 to the Migration Regulations in relation to the financial capacity requirement (“Earlier Tribunal Decision”): CB 219-227;

   f)following an application for judicial review of the Earlier Tribunal Decision made to this Court, the Earlier Tribunal Decision was quashed and the matter was remitted to the Tribunal by a consent order of this Court on 20 October 2014: CB 230;

   g)on 22 December 2014 the Tribunal (differently constituted from the Tribunal which delivered the Earlier Tribunal Decision) invited Ms Mathai to appear before it to give evidence and present arguments: CB 240-241;

   h)on 5 February 2015 Ms Mathai appeared at a hearing before the Tribunal together with her registered migration agent: CB 283-284 (“Tribunal Hearing”);

   i)at the Tribunal Hearing the Tribunal agreed to defer making a decision for a period of two weeks so that Ms Mathai could obtain and lodge further documentation in support of her application: CB 321 at [7]; and

   j)the Tribunal agreed to three subsequent requests to defer making its decision, and no subsequent requests for further extensions were made: CB 321 at [7].

Tribunal Decision

1. In the Tribunal Decision the Tribunal observed that:

   a)Ms Mathai was enrolled in a Master of Business Administration (“MBA”) course as her principal course and accordingly the subclass of Student Visa that she could be granted was subclass 573 under cl.573.223 of Schedule 2 to the Migration Regulations: CB 322 at [9];

   b)the issue was whether Ms Mathai was a genuine applicant for entry and stay as a student having regard to prescribed matters: CB 322 at [9];

   c)Ms Mathai held an Indian passport and the applicable assessment level was level 3 and that the evidentiary requirements for subclass 573 were set out in Part 5 of Schedule 5A to the Migration Regulations: CB 322 at [12];

   d)Ms Mathai attended the Tribunal Hearing without providing the Tribunal with a Confirmation of Enrolment in respect of her MBA: CB 322 at [14];

   e)Ms Mathai subsequently provided a Confirmation of Enrolment issued on 5 February 2015 (the date of the Tribunal Hearing) showing a course duration of 23 February 2015 to 15 July 2016, from which it was evident that Ms Mathai had more than one year remaining on her course, and in relation to which the Tribunal found that there were at least 14 months remaining in the MBA course, but determined to calculate the financial requirements on the basis of only 14 months: CB 322-323 at [15];

   f)Ms Mathai’s calculation for meeting the financial requirement provisions in Schedule 5A of the Migration Regulations were based on her having 12 months remaining in her course, and allowing for payment of course fees of $18,830. By Ms Mathai’s calculations she needed a loan of $33,345.50 in order to meet the relevant financial capacity requirements: CB 322-323 at [15]-[16];

   g)Ms Mathai had provided evidence of an initial payment of $1,000 towards her course fees, and a photocopy of a cheque dated 27 February 2015 for the balance ($17,830) of the course fees made payable to ECU, but noted that no receipt showing that the cheque was in fact deposited with ECU was ever provided to the Tribunal: CB 323 at [17];

   h)based upon a remaining course duration of 14 months Ms Mathai was required to show evidence of access to funds in the amount of $38,151 comprising $4,500 in travel costs and $33,651 in living expenses in relation to herself and the secondary applicants, but excluding course fees of $17,830: CB 323 at [19]-[20];

   i)utilising an exchange rate of 49.80 Indian rupees to the Australian dollar Ms Mathai’s loan of 1.5 million Indian rupees equated to $30,120, which, even on Ms Mathai’s calculations for 12 months funding, failed to establish that she had sufficient funds: CB 323 at [22];

   j)Ms Mathai had made various attempts through a number of sources to obtain the required funds, but those attempts, or the evidence in support of them, was insufficient, because:

   i)in a submission on 26 February 2015 Ms Mathai advised that finance sought from Crown Wealth Management was no longer an option;

   ii)although it had been indicated that there was land which could be used as security for a loan, no evidence of a loan apart from the 1.5 million Indian rupee loan (secured against a deposit of 2 million rupees with the Union Bank of India) was in evidence: CB 323 at [23];

   iii)evidence of funds available from a Mr Philip Thomas was not accompanied by evidence that those funds had been held for three months prior to the date of the application, and were therefore not funds which could be counted towards the financial capacity requirements under Schedule 5A of the Migration Regulations: CB 324 at [24];

   iv)evidence of funds held in the names of Mr B Thomas and Mr S Mathew in a Commonwealth Bank account had not been shown to have been held in deposit for three months prior to the date of application and could not therefore be considered for the purposes of Schedule 5A of the Migration Regulations: CB 324 at [26];

   v)a bank statement in the name of L George did not extend for a period of at least three months immediately before the date of the application (and therefore did not meet the financial capacity requirements in Schedule 5A of the Migration Regulations), and in any event the amount of funds was quite small: CB 324 at [27];

   vi)there was no evidence to show that other funds which were said to be available in September 2011 continued to be available as current funds or current loans: CB 324 at [29]-[30]; and

   vii)evidence of ongoing income, including income from employment, was not sufficient to meet the financial capacity requirements in Schedule 5A of the Migration Regulations: CB 324 at [25], and evidence of income from Ms Mathai’s husband, who is the second applicant, did not constitute funds from an acceptable source for the purposes of Schedule 5A of the Migration Regulations: CB 324 at [28];

   k)the Tribunal postponed making the Tribunal Decision for almost two months after the Tribunal Hearing to provide Ms Mathai with the opportunity of obtaining and lodging the relevant financial documents, but Ms Mathai did not indicate that further funds were pending or would be provided, and in those circumstances the Tribunal considered that it was appropriate to make the Tribunal Decision on the information before it: CB 324 at [31];

   l)the Tribunal accepted that Ms Mathai had demonstrated funds in the amount of $30,120, but considered that that fell short of the required amount of $38,151. Therefore, even if it were to accept that the course fees had been paid in full, Ms Mathai did not establish the requisite financial capacity: CB 325 at [32]; and

   m)the Tribunal found that Ms Mathai did not satisfy cl.573.223(2)(a)(i) of Schedule 2 to the Migration Regulations and the Delegate’s Decision must be and was affirmed: CB 325 at [33]-[34].

The Judicial Review Application

Grounds

1. Ms Mathai relies on the following ground of review as set out in the Judicial Review Application:

   1. I do have lot of supporting files to submit, so I am attaching all documents along with this application. However I am doing this submition by my own, if the court find anything inappropriate please advise us.

   (Transcribed from the Judicial Review Application without amendment)

Registrar’s orders

1. A Registrar of the Court made orders on 22 July 2015, which permitted Ms Mathai to file an amended application including complete particulars by 21 August 2015, and to file and serve any written submissions as required by 6 January 2016. Ms Mathai has elected not to do so.

Ms Mathai’s Affidavits

1. Ms Mathai has filed two affidavits, one sworn on 19 May 2015 (“Ms Mathai’s 19 May 2015 Affidavit”), and the other sworn on 27 May 2015 (“Ms Mathai’s 27 May 2015 Affidavit”).

Ms Mathai’s 19 May 2015 Affidavit

1. The Minister formally objected to the following documents exhibited to Ms Mathai’s 19 May 2015 Affidavit being read on the basis of relevance, as they were not before the Tribunal at the time of the Tribunal Decision:

   a)an undated statement of Ms Mathai (appearing at page 16);

   b)a receipt from ECU in relation to the payment of fees in the amount of $17,830;

   c)an email from ECU dated 4 May 2015;

   d)a course planner from ECU for Semester 2, 2011 (appearing at page 25);

   e)a certificate from Federal Bank dated 3 March 2015 certifying that Mr Philip Thomas had deposits with the bank since August 2012 (appearing at page 35). It was noted that the certificate was produced in relation to Ms Mathai’s Student Visa;

   f)a letter from Nirmal Medical Centre dated 30 June 2009 (appearing at page 83); and

   g)a letter from St John’s Computerised Clinical Laboratory dated 5 May 2009 (appearing at page 84).

2. The above documents might have been relevant to merits review before the Tribunal. To the extent that they might have been relevant to merits review before the Tribunal they ought to have been produced to the Tribunal. They were not. As such, they are not admissible before this Court on judicial review, and each of the documents objected to by the Minister will be struck out of Ms Mathai’s 19 May 2015 Affidavit on the basis that it is irrelevant to the Judicial Review Application presently before the Court.

3. Several issues are raised in the balance of Ms Mathai’s 19 May 2015 Affidavit, effectively by way of submissions. These issues are dealt with by the Court under “Consideration” below.

Ms Mathai’s 27 May 2015 Affidavit

1. The Minister formally objected to Ms Mathai’s 27 May 2015 Affidavit in its entirety on the basis of relevance, for the following reasons:

   a)in relation to Ms Mathai’s complaint made to the Office of the Migration Agents Registration Authority, and the finding of the Professional Standards Officer about her migration agent, this evidence was not before the Tribunal at the time of the Tribunal Hearing or the Tribunal Decision and is therefore not relevant to the Judicial Review Application. Further, the migration agent the subject of the complaint was Ms Mathai’s representative before the Delegate and not the Tribunal; and

   b)the third paragraph of Ms Mathai’s 27 May 2015 Affidavit purports to be a reference given by Ms Mathai’s teacher, and again was not before the Tribunal at the time of the Tribunal Hearing or the Tribunal Decision, and is not relevant to these proceedings.

2. The content of Ms Mathai’s 27 May 2015 Affidavit is irrelevant to the matters that the Court must consider in relation to the Judicial Review Application. It follows that Ms Mathai’s 27 May 2015 Affidavit will not be read by the Court.

Consideration

Legislation

1. Under s.65 of the Migration Act the Minister (in this case the Tribunal) is required to be satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied, and if so to grant the relevant visa, but if not so satisfied, to refuse to grant the relevant visa.

2. Clause 573.223 of Schedule 2 to the Migration Regulations provided, relevantly, as follows:

   573.223 (l) 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

   (ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (B) any other relevant matter; and

   (iii) 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 SA relating to the applicant's financial capacity; or

   (b) for an applicant who is a person designated under regulation 2.07AO .....

3. Clause 5A508 of Schedule 5 to the Migration Regulations deals with financial capacity, and relevantly provides as follows:

   5A508 (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

   (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 24 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 by the Minister in a Gazette Notice 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:

   ……………………….

   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 the applicant or an individual who is providing support to the applicant;

   (b) if paragraph (a) does not apply - a money deposit that the applicant, or an individual who is providing support to the applicant, 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, the applicant or an individual who is providing support to the applicant;

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

   (e) financial support from:

   …………………………

1. Select Legislative Instrument 2014 No. 30 (SLI 30/2014) amended the assessment levels and financial capacity requirements in the Migration Regulations, but only for visa applications lodged on or after 22 March 2014. Therefore, the relevant legislation to be applied in relation to the applicable assessment levels and financial capacity requirements in this matter, where the application was lodged in September 2011, was that in force immediately prior to 22 March 2014. Ms Mathai was therefore required to provide evidence that she had ‘funds from an acceptable source’ that were sufficient to meet certain specified expenses (including course fees and living costs) for the first 24 months or, if less than 24 months, until the last day of her proposed stay in Australia as well as travel costs. Further, IMMI 14/004 provided that, for the purpose of cl.5Al04(1) of Schedule 5 of the Migration Regulations, the base rate in relation to living expenses is $18,610 per year.

Jurisdictional error

1. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ (“Plaintiff S157”). Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: 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 (“Yusuf”).

The sole ground in the Judicial Review Application

1. The ground relied upon by Ms Mathai in the Judicial Review Application raises no competent ground of jurisdictional error. It constitutes no more than a plea for impermissible merits review based on Ms Mathai’s dissatisfaction with the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (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”), and is therefore not made out and does not prove jurisdictional error in the Tribunal Decision.

Other possible grounds of the Judicial Review Application

1. Although there is but a single, and hopeless, ground of review in the Judicial Review Application as filed, Ms Mathai’s 19 May 2015 Affidavit does, by way of what are effectively submissions made therein, put the following possible grounds of review forward for determination by the Court:

   a)that the Tribunal denied her procedural fairness by failing to have a further hearing in circumstances where it had indicated that if it was not satisfied with the documents provided by Ms Mathai in relation to the financial capacity requirement that it would conduct another hearing;

   b)that the Tribunal erred in the calculation of the financial capacity requirement because it mistook the length of the course Ms Mathai was undertaking;

   c)that the Tribunal erred in calculating the amount of the loan that had been obtained by Ms Mathai from the Union Bank of India, by reason of the fluctuating exchange rate; and

   d)that the Tribunal ignored relevant material, or failed to have regard to a relevant consideration, namely, various financial documentation that Ms Mathai submitted from family and friends.

Further hearing

1. Ms Mathai asserts that the Tribunal said that if it was not satisfied with the documents provided by Ms Mathai in relation to the financial capacity requirement that there would be a further hearing.

2. Ms Mathai has not filed a transcript of the Tribunal Hearing which evidences that the Tribunal made comments which could give rise to a reasonable expectation that there would be a further hearing if the Tribunal was not satisfied with the documents provided by Ms Mathai concerning the financial capacity requirement. The best evidence available of what occurred is therefore the Tribunal Decision: Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666; FCR at [59] per Perram J. In the Tribunal Decision the Tribunal stated (CB 321 at [7]):

   At the end of the hearing the tribunal agreed to defer making a decision for two weeks in order that the applicants could obtain a (sic) lodge financial documentation in support of the visa application. Subsequently the tribunal agreed to three further requests to postpone making a decision for the purposes of the applicants obtaining and submitting required financial documentation. The tribunal agreed to defer making a decision until 5:00pm on 2 March, then 16 February and subsequently, until 30 March 2015. No further requests for an extension of time were made.

   and similarly where it stated (CB 324-325 at [31]):

   The tribunal agreed to postpone making a decision for almost 2 months after the hearing date in order to provide the applicant multiple opportunities of obtaining and lodging relevant financial documentation. The applicants have not indicated that evidence of further funds is pending or will be provided. In all of the circumstances the tribunal considers it appropriate to make a decision on the basis of the information before it.

3. The Tribunal Hearing record also does not support the contention that there might be a further hearing. Under the heading “Hearing outcome” it indicates that the Tribunal Hearing was “completed” at a particular time, and that Ms Mathai or her representative were to provide further information by 5.00pm 19 February 2015: CB 285. Nothing in the Tribunal Hearing record indicates that there was to be a further hearing. Likewise, an examination of the subsequent correspondence between Ms Mathai’s representative and the Tribunal, as a consequence of which various extensions of time in which to provide the documentation were granted by the Tribunal, indicates that there was to be a further hearing: CB 286-317. In particular:

   a)on 17 February 2015 Ms Mathai’s representative sent an email to the Tribunal concerning the documentation, in which the representative said (CB 286):

   At the hearing you were kind enough to indicate that we might have additional time to tend to negotiations, could we please have until Monday 02 March to finalise transactions and provide the supporting documentation necessary to meet the visa requirements?

   b)on 11 March 2015 a Tribunal officer wrote to Ms Mathai’s husband, the second applicant, as follows (CB 304):

   The presiding member has noted your request for further time to provide financial documentation. In reference to your statement lodged after the hearing, the presiding member has indicated that he did not advise you at hearing to obtain a loan. Rather additional time was offered for you to make arrangements with the assistance of your representative to obtain documents demonstrating you meet the financial capacity requirements for the grant of the student visa. It has now been more than a month since the hearing and two and a half months since the hearing invitation was issued. The presiding member has advised that he will not make a decision prior to 9:00 am on 16 March 2015 in order for you to have further time to provide financial documentation. Should another request be made for additional time after 9 AM on 16 March 2015 you should provide clear details with evidence in support as to the timeframe when you would be able to obtain and lodge such documents. The presiding member will then consider any such further request.

   c)on 19 March 2015 a case note records the details of contact with Ms Mathai’s representative by an officer of the Tribunal in which it was stated (CB 312):

   … that the tribunal will delay making a decision until 5:00 pm on 30 March 2015 but may not grant any further time after that unless there is a good reason and clear evidence regarding when financial documentation will be provided to the tribunal.

4. The Court is therefore not satisfied that the Tribunal did indicate to Ms Mathai that there would be a further hearing if the Tribunal was not satisfied with the documents provided by Ms Mathai in relation to the financial capacity requirement. Rather, the Tribunal Decision, the Tribunal Hearing record, and the post-Tribunal Hearing correspondence between the Tribunal and Ms Mathai’s representative and Ms Mathai’s husband, indicate that the Tribunal was simply awaiting the provision of documents, and there is nothing to indicate that it intended to have a further hearing. Ms Mathai has not produced a transcript of the Tribunal Hearing to support her claim. There was, therefore, no jurisdictional error in relation to there being no further hearing.

5. In any event, the Tribunal was not required to convene a further hearing. Where documents submitted post-hearing do not raise a new or additional issue, but instead relate to an extant issue, in this case whether Ms Mathai met the relevant capacity requirements, no further hearing is necessary. In Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; (2009) 83 ALJR 1017; (2009) 258 ALR 434; (2009) 110 ALD 238 at [51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ, the High Court observed that:

   Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah's evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing.

6. In the above circumstances, there is no jurisdictional error in the Tribunal failing to have a further hearing once the period for the provision of further documents by Ms Mathai had expired. Further, even if the Tribunal was, as it ultimately was, not satisfied that the documents satisfied the financial capacity requirement the Tribunal was not required to convene a further hearing. In these circumstances, there was no jurisdictional error by the Tribunal on this issue.

Calculation of the financial capacity requirement

1. The difference in the calculation of the financial capacity requirement between that made by Ms Mathai’s representative and the Tribunal is based on the differing durations used by each.

2. Ms Mathai submitted at hearing that the course would be one year in length: CB 322 at [15]. It is unclear as to the basis for Ms Mathai considering that she was only required to demonstrate funds for a 12 month period. Although as at the date of the decision cl.5A508(1) of Schedule 5A of the Migration Regulations required an applicant to evidence funds from an acceptable source sufficient to meet expenses for the first 12 months, that provision did not apply to Ms Mathai. Evidence before the Tribunal included the following:

   a)a certificate of enrolment was provided that demonstrated that Ms Mathai’s course, which commenced in February 2015, would end in July 2016: CB 293; and

   b)an email provided to the Tribunal dated 22 January 2015 in which ECU stated “... that course has been archived and it would require you completing 3 x units in Semester 1, 2015, 3 x units in Semester 2, 2015 and 1 x unit in Semester 1, 2016”: CB 259.

   Based on the above information, it was open for the Tribunal to conclude that Ms Mathai was required to demonstrate living expenses for a 14 month period.

3. Ms Mathai’s submission concerning the calculation of the financial capacity requirement constitutes no more than a plea for merits review. The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to evidence in support of, and opposed to, particular claims, is a matter for the Tribunal to assess as part of its fact finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ. The Tribunal clearly identified the correct issue, and asked the correct questions. The Tribunal Decision demonstrates that it considered the available evidence and engaged in an “active intellectual process” and gave “genuine” consideration to the relevant criteria in cl.572.223(1) and (2) of Schedule 2 to the Migration Regulations before arriving at conclusions which were available on the evidence: Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26.

4. In all of the above circumstances it was open for the Tribunal to find that Ms Mathai’s financial capacity requirement had to be calculated on a period of 14 months and not 12 months. It follows that no jurisdictional error arises as a consequence of the calculation being based upon a 14 month period rather than a 12 month period.

Calculation of the loan amount

1. In relation to the calculation of the loan amount, Ms Mathai asserts that the Tribunal should have found that the loan obtained was equal to the amount of $33,333.33 as when she obtained the loan the value of the Australian dollar against the Indian rupee had been fluctuating and the Bank Manager of the Union Bank of India had valued the loan at 45 Indian rupees to one Australian dollar giving a loan amount of $33,333.33, compared to the Tribunal’s calculation of $30,120 based on one Australian dollar being valued at 49.80 Indian rupees of 25: Ms Mathai’s 19 May 2015 Affidavit at [4]. The Tribunal had before it no evidence as to the exchange rate applied by the Union Bank of India to Ms Mathai’s loan. Even if it did, it would have been entitled to use a different exchange rate to calculate the amount of the loan, given the notorious variance in exchange rates: see, for example, Re Thomas Quade & Ors v Commonwealth Bank of Australia [1989] FCA 424 at [15] per Morling J; Deputy Commissioner of Taxation v Conley & Ors [1998] FCA 1321. Further, in the absence of evidence as to the exchange rate used by the Union Bank of India in relation to the loan, it was open to the Tribunal to use such exchange rate as it considered appropriate. In the absence of any evidence as to the exchange rate used by the Union Bank of India in relation to the loan, and in the absence of any suggestion that the exchange rate used by the Tribunal was not an applicable rate at the time of the Tribunal Decision, and where there is no factual error in the conversion of the Indian rupee loan to Australian dollars using that exchange rate, there can be no jurisdictional error as defined in Plaintiff S157.

2. There is no error demonstrated here in circumstances where, even if the Tribunal had found that Ms Mathai had evidenced funds of $33,333.33, the loan would still have fallen short of both the amount of $33,345.50, being the amount Ms Mathai’s representative calculated she was required to demonstrate, and $38,151, being the amount that the Tribunal calculated she was required to demonstrate. Much was made at hearing by Ms Mathai of the “fact” that she was only $12.50 short of evidencing financial capacity. The submission however rests upon the false assumption that the amount calculated by her representative as been required to demonstrate financial capacity is correct. For reasons set out above, it is not correct, and the Tribunal’s calculation, based as it is upon the necessity to demonstrate the capacity to fund living expenses over a period of 14 months and not 12 months, is correct. Therefore, rather than being $12.50 short of evidencing financial capacity, Ms Mathai was, in fact, more than $4,800 short of demonstrating financial capacity.

3. In the above circumstances there was no jurisdictional error by the Tribunal in calculation of the loan amount, nor was there, in the Court’s view, any factual error in the calculation of the loan amount, based on what has not been proven to be an exchange rate which is in error in any way.

Consideration of the evidence submitted

1. Ms Mathai asserts that the Tribunal failed to consider evidence provided by her to the Tribunal, namely the financial documentation from her brother, cousin and family friend: Applicant’s 19 May 2015 Affidavit at [4].

2. The failure to have regard to relevant material is a jurisdictional error: Yusuf, cited above at [16], as is the failure to respond to a substantial, clearly articulated argument relying upon established facts, the failure to respond being a failure to accord natural justice and therefore a jurisdictional error of the kind outlined in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ (“Dranichnikov”).

3. The Tribunal made reference to:

   a)the letter and supporting documentation provided in relation to Ms Mathai’s family friend (Phillip Thomas), and specifically noted that it had taken this into account: CB 324 at [24]; and

   b)the funds held in the name of Ms Mathai’s brother and cousin, B Thomas and S Mathew: CB 324 at [26].

4. It should not lightly be inferred that the Tribunal failed to consider this evidence in circumstances where it made express reference to it. In any event, the fact a Tribunal’s reasons do not include a line-by-line refutation of all of the evidence does not mean that certain evidence was overlooked: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407, and a failure to consider evidence is not of itself a jurisdictional error if Ms Mathai’s claims are nonetheless understood and considered: Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 per North and Lander JJ at [28] and Katzmann J at [35]; MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [83] per Keane CJ, Perram and Yates JJ. In this case the evidence was not, in any event, overlooked. Ultimately, however, in relation to both sources, the Tribunal did not count those funds towards the financial capacity requirements because no evidence was provided that the funds had been held for three months prior to the date of application, that being a requirement of cl.5A508(2)(b) of Schedule 5 to the Migration Regulations.

5. In the above circumstances, there was no jurisdictional error in relation to the consideration of evidence, the evidence concerned, and its effect, having been considered by the Tribunal.

Conclusions and orders

1. The Court has concluded that the Tribunal Decision is not the subject of jurisdictional error as alleged, or at all. As there is no jurisdictional error in the Tribunal Decision, it is a privative clause decision within the meaning of s.474 of the Migration Act. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

2. 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: 17 March 2016