Mushtaq v Minister for Immigration & Anor

[2013] FCCA 198

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUSHTAQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 198

Catchwords:
MIGRATION – Judicial review – student visa – financial capacity of applicant to undertake course of study – merits review not available – Wednesbury unreasonableness not established.

Legislation:
Migration Act 1958 (Cth), ss.359, 474

Migration Regulations 1994, Sch.2 cl.527.223

Cases cited:
Abebe v Commonwealth (1999) 197 CLR 510
Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: UMER MUSHTAQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1320 of 2012

Judgment of: Judge F. Turner

Hearing date: 22 April 2013

Date of Last Submission: 22 April 2013

Delivered at: Melbourne

Delivered on: 17 May 2013

REPRESENTATION

The Applicant appeared In Person with the assistance of an Urdu interpreter

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 19 October 2012 is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1320 of 2012

UMER MUSHTAQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) that affirmed the decision of a delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant sets out no grounds in his application for judicial review filed on 19 October 2012, but included some detail in his Affidavit filed on the same date.

3. By orders dated 12 February 2013, the Court ordered the applicant to file and serve written submissions by 13 March 2013. That was not done. The applicant’s Affidavit (supra), sets out what he claims are jurisdictional errors by the Tribunal. The Court discerns three grounds therein. They are:

   (1)The applicant submits that the Tribunal erred in deciding the requisite quantum of funds of which the applicant had to provide evidence.

   (2)The Tribunal erred by failing to take his mother’s rental income into account, and did not warn him that it may not.

   (3)The Tribunal failed to apply the correct exchange rate in deciding the quantum of funds the applicant provided evidence of.

4. The Court heard the application on 22 April 2013 when the first respondent was represented by Mr Wood of Counsel and the applicant appeared in person, with the aid of an Urdu interpreter.

5. The Court invited the applicant to put submissions in support of his application. The applicant alleged that he was not warned by the Tribunal that it intended to exclude rental income received by his mother when determining whether the applicant had sufficient funds to support himself.

6. The Tribunal delivered its decision on 1 October 2012 affirming the decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa (Court Book “CB”) p.170).

7. The delegate had refused to grant the applicant a visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 of the Migration Regulations 1994 (the “Regulations”).

8. Clause 572.223 provides as follows:

   572.22 Criteria to be satisfied at time of decision

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

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

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

   (i)the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:

   (A)    the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and

   (B)    the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and

   (C)    other requirements under Schedule 5A; 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; or

   (b)for an applicant who is a person designated under regulation 2.07AO – the Minister is satisfied that:

   (i)the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relation to work, because the applicant:

   (A)has access to sufficient funds of the person’s own or provided by a relative; or

   (B)is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force; and

   (ii)the applicant’s proficiency in English is appropriate to the proposed course of study; and

   (iii)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.

9. The applicant is not a person designated under reg.2.07AO (CB p.46 [27] and p.178.6). Regulation 2(a) therefore applies. The applicant had to give the Minister evidence of:

   ·“the financial capacity of the applicant to undertake each of the courses of study without contravening any condition of the visa relating to work.”

10. The Tribunal stated at CB p.172 [8]-12] as follows:

    Pursuant to 572.223(2)(a) the applicant must provide evidence in accordance with the requirements in Schedule 5A to the Regulations. The relevant clause in Schedule 5A is dictated by the assessment level to which the applicant is subject.

    Applicable Assessment Level

    ‘Assessment level’, for a student visa, means the level of assessment (being level 1, 2, 3, 4 or 5) specified for a kind of eligible passport for the student visa under r.1.41: r.1.03 of the Regulations. Regulation 1.41 provides that the Minister must specify by Gazette Notice an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa (other than an applicant designated under r.2.07AO) will be subject.

    Regulation 1.40 provides that the assessment level is determined by reference to the applicant’s principle course, as defined in r.1.40 of the Regulations, as at the time of decision. ‘Relevant course of study’ is defined to mean a type of course for the subclass of student visa that the Minister has specified in a legislative instrument made under r.1.40A.

    For the reasons explained below, the highest assessment level for the applicant in the present case is Assessment Level 4.

    Schedule 5A requirements for Assessment Level 4

    Division 2 of Part 4 of Schedule 5A to the Regulations specifies the requirements for Assessment Level 4 for Subclass 572. Relevantly, it provides:

    Clause 5A405. Financial capacity

    (1)The applicant must give, in accordance with this clause:

    (a)Evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:

    (i)course fees;

    (ii)living costs;

    (iii)school costs; and

    (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 36 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 along, 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:

    acceptable individual means one or more of the following:

    (a)the applicant;

    (b)the applicant’s spouse;

    (c)the applicant’s parents;

    (d)the applicant’s grandparents;

    (e)the applicant’s brothers and sisters;

    (f)an uncle of 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.

    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;

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

    (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 a Gazette Notice 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.

11. The Tribunal found at CB p.175 [16] as follows::

    ·“On 24 January 2012 a delegate again decided to refuse the visa, not being satisfied that the applicant met the requirements of section 572.223.”

    ·“The delegate noted that at the time of decision, no new financial documents had been provided to the department and was not satisfied that that the applicant had access to sufficient finances to support himself while in Australia. The delegate found the applicant did not meet the requirements set out in cl.572.223.”

12. The Tribunal wrote to the applicant on 5 July 2012 and included a copy of the relevant regulations including 5A405 which provides that the funds must be held in a “money deposit” (CB p.126).

13. At the review the Tribunal advised the applicant that:

    “… he was required to show evidence of funds from an acceptable course (sic “source”) to meet his course fees, living expenses and travel expenses, which the Tribunal had calculated to be $7,100 for course fees, $13,000 for living expenses (being $1,000 per month during the period October 2012 to October 2013) and $1,000 for travel costs. The applicant agreed with the Tribunal’s figures except for the court fee of $7,100, which he said should be reduced by a further $200 to take account of the other pre-paid amount shown on the CoE and the Tribunal agreed that it should be reduced by that amount.” (CB p.177.2).

14. The Tribunal asked the applicant if the documents:

    “relating to his mother’s bank account related to a money deposit and the applicant agreed that they did.” (CB p.177.3)

15. The Tribunal stated that:

    “… the regulation required that funds held by money deposit be held by an acceptable individual for at least six months prior to the date of application, in this case being 22 September 2008 to 21 March 2009 and it remained concerned that the information currently before the Tribunal was not sufficient to meet this requirement.” (CB p.177.4)

16. The Tribunal advised the applicant that:

    “… the regulations required him to show evidence that the regular income of his sponsors was sufficient to accumulate the level of funding being provided by those persons.” (CB p.177.4)

17. The Tribunal referred the applicant to the Regulations sent with its letter of 9 (sic “5”) July 2012 and stated that:

    “… it would allow him further time to provide additional evidence of his ability to meet the financial capacity requirements.” (CB p.177.5)

18. The Tribunal adjourned the hearing until 28 September 2012 to enable the applicant to present further financial documents and that:

    “… it would then proceed to make a decision on the papers in front of it without convening a further hearing.” (CB p.177.8)

19. On 24 September 2012, the applicant produced documents (at CBpp.177-178) being:

    ·A bank statement from United Bank Ltd in relation to an account held by the applicant’s mother, Mrs Zia Khanum, showing transactions and the balance of that account between 1 September 2008 and 31 March 2009. The lowest balance during that period is 1,105,289.88 Pakistani rupees (on 23 February 2009) and the highest balance of 1,432,289.98 Pakistani rupees (on 1 November 2008);

    ·A letter from United Bank Limited dated 5 September 2012 confirming that the applicant’s mother holds such an account and that the dealings are satisfactory;

    ·A statement of income made by the applicant’s mother Mrs Zia Khanum on 7 September 2012 in which she states in summary that she is the sole owner of land in Sialkot purchased in 1996, that the land has been partitioned and that she receives rent from three houses constructed on that land, being Rs 14,000, Rs 18,000 and Rs 20,000 respectively;

    ·Three rent receipts for the properties referred to above, each relating to the period July to August 2009.

20. The Tribunal found that the “principle course” in which the applicant is enrolled in is a Diploma of Automotive Technology, and that therefore the relevant subclass of visa for the review is subclass 572. Those findings were open to the Tribunal as reg.1.40(3) provided at the time:

    “… that if an applicant for a student visa proposes to undertake two or more courses of study that are registered courses and one of those courses is a prerequisite to the other or one of the course may only be taken after the completion of another, the latter course, not the former, is the principle course.” (CB p.178 [29])

21. According to the Gazette Notice in force at the time of application, IMMI 08/051 made 28 July 2008, the Assessment Level for Subclass 572 of a person with a Pakistani passport is Assessment Level 4 (CB p.178 [30]). This has not been shown to be incorrect.

22. The Tribunal found that as at the time of writing its decision the applicant was required to demonstrate that he had funds to support himself of:

    “… around $20,900, comprising course costs of $6,900, living costs of $13,000 and travel costs of $1,000.” (CB p.178.9)

23. The Tribunal found that:

    “Funds held by way of money deposit are required to be held by an acceptable individual for at least six months immediately before the date of application.” (CB p.178.8)

24. The applicant gave:

    “… evidence of a money deposit held by his mother between 1 September 2008 and 31 March 2009, the lowest balance during the period being 1,105,289.88 Pakistani rupees and the highest balance being 1,432,289.98 Pakistani rupees, neither amount being sufficient to meet the requirement of Schedule 5A financial capacity requirement for the applicant’s assessment level.” (CB p.178.10).

25. On that basis the Tribunal found that:

    “…the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4… in relation to the necessary financial capacity.” (CB p.179).

26. The Court finds no error of law in the above.

27. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

1. The Court refers to the following decisions:

   ·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:

   “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

   The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact par excellence: see W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and Durairajasingham (supra) at [67].

   ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.

   ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

   ·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

   “… there is no error of law… in making a wrong finding of fact…”.

2. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]:

   “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

   And at [29]:

   “While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:

   ·     the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, and

   ·     if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.”

3. A wrong finding of fact is not a jurisdictional error: see Attorney –General for the State of New South Wales v Quin (1990) 170 CLR 1 at pp.35 to 36 per Brennan J.

4. The Court refers to the following passages in Quin (supra) at pp.35 to 36:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

   The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

   There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”

5. The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.

6. A faulty inference of fact does not show an error of law: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].

7. It was held in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83] that:

   “A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.”

8. It has not been established that the Tribunal erred in law in deciding the requisite quantum of funds that the applicant had to provide evidence of.

9. Ground one is dismissed.

10. Ground two alleges that the Tribunal failed to take his mother’s future rental income into account.

11. The applicable Regulation provides that the funds must be a “money deposit that an acceptable individual has held for at least six months immediately before the date of the application…”. Future rental income cannot come within that description.

12. Ground two is dismissed.

13. Ground three is that the Tribunal failed to apply the correct exchange rate when converting Pakistani rupees to Australian dollars.

14. The Court does not have the jurisdiction to check and review calculations of the funds required or the applicable exchange rate. Such activities would be to review the merits and is not within jurisdiction, unless Wednesbury unreasonableness (post) is established.

15. As stated in Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at p.374:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234).”

    The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.

16. The Court refers again to the passages in Quin (supra) at pp.35 to 36.

The Calculations

1. Division 2 of Part 4 of Schedule 5A to the Regulations imposed requirements for assessment level 4 including in relation to financial capacity (5A405) as set out (supra).

2. The Court accepts the following submissions for the first respondent:

   “In relation to the applicant, “course fees” meant “the fees for each course proposed to be undertaken by the applicant in the period, as indicated by the proposed education providers in a letter or other document” (5A101); “living costs” meant $12,000 per year (5A101, 5A104(1) and table); and “travel costs meant the costs of returning to Pakistan at the end of his stay (5A101).

   In relation to the applicant, the “first 36 months” meant the period commencing on the day that the student visa is expected to be granted and ending on the earlier of the following: (a) the day 36 months after the beginning of the period; and (b) the last day of the applicant’s proposed stay in Australia: cl.5A101.

   The term “money deposit” meant a “money deposit with a financial institution”. The term “financial institution” meant 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 county in which it operates, that the Tribunal is satisfied provides effective prudential assurance.”

Findings of the Court

Course Fees

1. The Tribunal calculated that the applicant owed $6,900.00 course fees, being $2,100.00 for Certificate IV in Automatic Technology and $4,800.00 for a Diploma of Automatic Technology (CB pp.139-140). That finding of fact was open to the Tribunal on the material before it.

Living Costs

1. The Table in 5A104(1) specified the living costs as $12,000.00 per year. The Tribunal’s calculation is based on 12 months plus one or more days to the course end date of 1 October 2013 (CB p.140.5).

Travel Costs

1. The Tribunal put the figure of $1,000.00 to the applicant at the hearing and he did not disagree (CB p.177.2).

2. The Tribunal found the total funds required at CB p.178 [32] as:

Course Fees	$6,900.00
Living Costs	$13,000.00
Travel Costs	$1,000.00

1. Those calculations were reasonably open to be made and were not an abuse of power.

2. The Court accepts the submissions for the first respondent that:

   “For the period 1 September 2008 to 31 March 2009: (a) the lowest amount held in the (his mother’s) Account was 1,105,289.88 Pakistani rupees (held during the periods of 21 to 23 January 2009 and 23 February to 31 March 2009, respectively); and the highest amount held in the Account was 1,432,289.98 Pakistani rupees (held during the period 1 to 21 November 2008).” (CB p.167)

   “The Tribunal also held that the relevant assessment level was level 4 and that, accordingly, the applicant was required to give evidence of funds from an acceptable source totalling $20,900 – comprising course fees of $6,900, living costs of $13,000 and travel costs of $1,000 (CB p.178 [32]). The Tribunal concluded that, on that basis, the applicant had not given the requisite evidence and did not satisfy the criterion for a Student Visa prescribed by cl 572.223(2)(a)(i) of Schedule 2.” (CB p.179 [33])

3. That conclusion requires an examination of the exchange rate. The applicant contends that the Tribunal applied the incorrect exchange rate. The Tribunal does not specify the exchange rate it used. The Court accepts the submission for the first respondent that it ought to be inferred that the Tribunal applied the Department’s Procedure and Advice Manual (“PAM3”).

4. The Tribunal may apply relevant Government policy in the absence of cogent reasons for departing from it. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, Bowen CJ and Deane J stated at p.68:

   “… it is not ordinarily part of the function of a court… to adjudicate upon the… propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.”

   Their Honours continued at p.69:

   “Ordinarily, however, an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations (in the legislation) to take into account government policy.”

5. In para.4 of the Affidavit of Sarah Ainslie Thompson sworn 8 April 2013, she refers to an extract from the PAM3 in force on 22 March 2009 (see Annexure “SAT-3”). Clause 57.5 provides that:

   “… the exchange rate used to determine financial capacity should be the rate applicable at the time of application.”

   The application was made on 19 October 2012. Annexure “SAT-4” is an extract of the exchange rates applicable on 1 October 2012, which were not amended as at the date of application (Affidavit of Ms Thompson (supra) at [5]).

6. The evidence before the Tribunal was that when it made its decision on 1 October 2012, the exchange rate was approximately 98,496 Pakistani rupees to $1.00AUD. (Ibid Annexure “SAT-2”). Applying that exchange rate:

1,105,289.88 Pakistani rupees were $11,221.67AUD

1,432,289.98 Pakistani rupees were $14,541.60AUD

1. It has not been shown that the Tribunal erred in its calculations or conclusion that the applicant had not provided evidence of financial capacity “sufficient to meet the requirement of Schedule 5A financial capacity requirement for the applicant’s assessment level” (CB p.178.10), and he therefore did “not satisfy the requirements of cl.572.223(2)(a)(i)” (CB p.179.2).

2. The Court does not find the calculations to be so unreasonable that no repository of the power could have made them. An abuse of power has not been established.

3. The applicant complains that the Tribunal did not warn him that the Tribunal may exclude the applicant mother’s rental income from the financial support available to him; and therefore deprived him of the opportunity to respond to the exclusion.

4. The Tribunal told the applicant that the Regulations required that the funds had to be held in a money deposit for at least six months prior to the date of application (CB p.177.3). Obviously, this excluded future rental income.

5. Section 359A of the Migration Act 1958 (the “Act”) applies to the Tribunal. It provides:

   (1)Subject to subsections (2) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (2)The information and invitation must be given to the applicant:

   (a)except where paragraph (b) applies--by one of the methods specified in section 379A; or

   (b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

   (4)This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)that is non-disclosable information.

6. Section 359A(4)(b) exempts information that the applicant gave for the purpose of the application for review. The applicant’s migration agent gave the information to the Tribunal about the applicant’s mother’s rental income for the purpose of the application for review (CB p.161 – p.165). The provisions of s.359A(1) were therefore not applicable.

7. The Tribunal was not required to give the applicant clear particulars of the information about the rental income and ensure that the applicant understood why the information would be the reason or part of the reason for affirming the decision that was under review.

8. Section 357A provides that Division 5 is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters under that division. A written invitation to appear was sent to the applicant (CB p.119) and to his migration agent (CB p.118), and they appeared. A breach of Division 5 has not been established.

9. The relevant provision in Schedule 5A to the Regulations is 5A403 which provides that:

   “the funds must be in a money deposit that an acceptable individual has held for at least six months immediately before the date of the application”.

   The application for visa was made on 22 March 2009 (CB p.33.5) which means that the funds had to have been so held between 22 September 2008 and 31 March 2009 (CB p.167). The bank statement therefore covers the relevant period.

10. The Court finds that the Tribunals calculations were reasonable and open to it. Wednesbury unreasonableness has not been established.

11. All grounds in the application are dismissed.

12. The Court find’s that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 the Act, there is no jurisdiction for this Court to interfere.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Date:  17 May 2013