NEUPANE v Minister for Immigration

[2016] FCCA 2150

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEUPANE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2150

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the Tribunal failed to take relevant considerations into account – whether the Tribunal’s decision was illogical or irrational – whether certain evidence was before the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360(2), 476

Migration Regulations 1994, Schedule 2, cl.580.111, 580.226(3)

Applicant: NIRMALA NEUPANE

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3045 of 2014

Judgment of: Judge Street

Hearing date: 19 August 2016

Date of Last Submission: 19 August 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Counsel for the First Respondent: Mr M Smith

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3045 of 2014

NIRMALA NEUPANE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 September 2014, affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) Student Guardian visa.

2. The applicant, at the time of the application for the visa, was the mother and guardian of her son, for whom an application had been made for the grant of a student visa. The applicant and her son are citizens of Nepal.

3. On 4 October 2013, the department wrote to the applicant, requesting further information from the applicant (“the Letter”). Attached to the Letter was a document titled ‘Request Checklist and Details’, setting out the details of information the applicant was required to provide. Relevantly, the applicant was required to provide evidence of an assessment level 4 financial capacity. That section of the Letter relevantly stated:

   AL4 – Financial Capacity

   Please provide evidence funds to support yourself and all family unit members including those who are not joining you in Australia during the first 24 months of your proposed study and stay in Australia.

4. Underneath that was the following:

   You need to show that you have access to $54,163.69.

   You must show the money has been in an account for more than three months.

   Bank statements should be current.

   (Emphasis in the original).

5. The Letter continued:

   If the money is not in your name, you will also need to provide evidence of the relationship between yourself and the person who holds the account (e.g. birth certificate, family register).

   You also need a letter from that person, stating that the money is released to you to spend on your studies.

   If you supply deposit slips or loans from eligible family members overseas, you need to show how you can access this money from Australia.

6. Relevantly, the Letter then stated the following:

   NB: Financial support can only be provided by eligible family members. These include:

   the applicant,

   the applicant’s partner,

   the applicant’s parents,

   the applicant’s grandparents,

   an applicant’s brothers and sisters

   an uncle or aunt of the applicant who is:

   an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and usually a resident in Australia.

   (Emphasis in the original).

The Delegate’s Decision

1. Before the delegate, two Student Visa Financial Support Statements dated 6 November 2013 were provided by a person purportedly named Reeta Singh. Together with those statements, was a bank statement dated 7 July 2013, purportedly in the name of Reeta Singh, which showed a closing balance as at 7 July 2013.

2. The bank statement provided by the applicant was not in accordance with the instruction given in the Letter. The bank statement was approximately five months out of date, and therefore, was not a current bank statement.

3. Further, the person who provided the Student Visa Financial Support Statements was an ‘eligible family member’ as identified in the Letter. In those statements, the person was described as “family friend”.  There was no letter from the person stating that the money was released to the applicant. There was no other material to verify or identify who Reeta Singh was and the circumstances in which the Student Visa Financial Support Statements were provided.

4. On 28 November 2013, the delegate refused to grant the applicant the student guardian visa. The delegate noted that since the applicant’s son had been refused a student visa, the applicant failed to satisfy reg.580.111 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate found that the applicant did not satisfy the primary and secondary criteria for the grant of any subclass of the Student (Temporary) (Class TU) visa. Accordingly, the delegate refused to grant the applicant a student visa.

5. Attached to the delegate’s decision were relevant provisions of the Regulations, which included relevantly:

   “580.111

   In this Part:

   acceptable individual means one or more of the following:

   (a) the applicant;

   (b) the applicant’s spouse or de facto partner;

   (c) the nominating student;

   (d) the nominating student’s spouse or de facto partner;

   (e) a parent of the nominating student;

   (f) a grandparent of the nominating student;

   (g) a brother or sister of the nominating student;

   (h) an aunt or uncle of the nominating student, if the aunt or uncle is usually resident in Australia and is:

   (i) an Australian citizen; or

   (ii) an Australian permanent resident; or

   (iii) an eligible New Zealand citizen.

   acceptable non-profit organisation means an organisation that:

   (a) operates on a non‑profit basis; and

   (b) is actively and lawfully operating in Australia or overseas; and

   (c) has funds that are, or an income that is, sufficient to provide the financial support that it proposes to provide.

   family applicant, for an applicant, means a member of the applicant’s family unit who is a visa applicant seeking to satisfy secondary criteria in relation to the applicant.

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

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

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

   …

   580.226(3)

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student guardian 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)  any other relevant matter; and

   (b) the applicant meets the requirements of subclause (1A).

   (1A) An applicant meets the requirements of this subclause if:

   (b) the applicant gives to the Minister evidence relating to the applicant’s financial capacity in accordance with subclause (2),(3), (4), (5) or (6); and

   …

   …

   (3)  If the nominating student was, at the time his or her visa was granted, subject to assessment level 4, the evidence for paragraph (1A)(b) is:

   (a) evidence that the applicant has funds from an acceptable source that are sufficient to meet living costs for 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; and

   (d) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet living costs for the remainder of the full period.”

The Tribunal’s Decision

1. On 18 December 2013, the applicant lodged an application for review the delegate’s decision by the Tribunal. By letter dated 29 August 2014, the applicant was invited to attend a hearing before the Tribunal on 30 September 2014 to give evidence and present argument.

2. That letter also invited the applicant to provide documents demonstrating that the applicant had sufficient funds, or access to funds, to support herself for the total of the stay in Australia. The evidence the applicant was required to provide is as follows:

   ·evidence of funds from an acceptable source

   oif you seek to rely on a money deposit, you may need to show how long the deposit has been held immediately before the date of your visa application

   oif you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

   ·evidence of the regular income of any person who is providing funds to you (including yourself) and their relationship to you.

   ·evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given

3. No such documents were provided by the applicant to the Tribunal and the Tribunal made efforts to contact the applicant in relation to the provision of these documents.

4. By fax dated 29 September 2014, the applicant’s migration representative expressly noted that the applicant waived her right to attend the Tribunal hearing and that she would not appear at the Tribunal hearing. That communication amounted to the applicant consenting to the Tribunal to decide the review without the applicant appearing before it, within the meaning of s.360(2) of the Act.

5. That communication also contained a request by the applicant for more time to provide submissions to the Tribunal, which was refused. No further step was taken by the applicant or the applicant’s migration representative to provide any further material.

6. The Tribunal identified the history of the matter and the attempt it had made to invite the applicant to attend the Tribunal hearing. The Tribunal noted the applicant’s communication waiving of the right to appear at the hearing. The Tribunal noted its refusal to give the applicant’s migration representative more time to provide further submissions. The Tribunal also noted that it had informed the applicant’s migration representative that it would proceed to a decision. The Tribunal further noted the attempts it had made at the hearing to contact the applicant.

7. The Tribunal’s decision to proceed to determine the matter cannot be said to lack an evident and intelligible justification, in the circumstances where the applicant had waived her right to appear at the hearing.

8. The Tribunal identified that the relevant issue was whether the applicant could satisfy the financial capacity requirements for the grant of a visa. The Tribunal noted that it wrote to the applicant, requesting the applicant to provide documents in that regard. The Tribunal further noted that the applicant was given an opportunity to attend the Tribunal hearing to discuss that matter. The Tribunal noted that no documents had been provided in accordance with the request by the Tribunal.

9. The Tribunal found that it had no information on which it could be satisfied that the applicant could meet the financial capacity requirements in cl.580.226(3) of the Regulations for the grant of the visa. Accordingly, the Tribunal was not satisfied that the applicant met the requirements of cl.580.226(3) of the Regulations and affirmed the decision under review.

Proceedings Before this Court

1. The ground of the applicant’s application for judicial review is as follows:

   The applicant sought a review of the decision to refuse a grant of student Student (Temporary) (Class TU) 572 visa at the Migration Review Tribunal but the Tribunal decided that the Tribunal had no evidence that she satisfied the financial criteria but in making that finding it overlooked that it had in its possession a Student Visa Financial Support Statement of 6.11.2013. In making the erroneous finding it ran foul of the strictures laid down in the High Court decision of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105 (31 May 2001) see Joint judgment of McHugh, Gummow & Hayne JJs:

   ‘As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

   “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

   (Errors in original).

2. Before the Court, there was an evidentiary dispute as to whether or not the department’s records relating to the Student Visa Financial Support Statements and the bank statement had been before the Tribunal.

3. The evidence adduced on behalf of the first respondent does not establish that those statements were not before the Tribunal. Hearsay evidence on a final hearing is not admissible.

4. Nevertheless, those statements were provided by an unidentified and unverified person in November 2013, in respect of a bank statement five months earlier. Moreover, being described as a family friend, that person did not meet the definition of an ‘acceptable individual’ under cl.580.111 of the Regulations. In the circumstances, even if those statements were before the Tribunal at the time of its decision, they adequately provided a basis upon which the Tribunal could properly express the view that

   “there was no information on which it could be satisfied that the applicant can meet the financial capacity requirements in cl.580.226(3) for the grant of the visa”.

5. This is not a case where the Tribunal made any erroneous finding. Nor could it be said that the Tribunal’s adverse finding as to financial capacity was not open to it on the evidence before it. The Tribunal’s finding cannot be said to lack an evident and intelligible justification.

6. Nor can the Tribunal’s reasons in that regard be read as “no information in respect of financial capacity”. That is not what the Tribunal had said. It is well established that the Tribunal’s decision is not to be read with an eye keenly attuned to error. There was no error of the kind alleged in the application. 

7. The application fails to make out any jurisdictional error. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  28 October 2016