Pandher v Minister for Immigration

[2016] FCCA 3281

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDHER v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3281

Catchwords:
MIGRATION – Application for Student (Temporary) (class TU)(subclass 573) visa – financial capacity requirements – whether funds from an acceptable source – where no funds from an acceptable source – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001, sch. 3

Migration Regulations 1994, cls.573.223, 5A101, 5A508

Applicant: KIRANJIT KAUR PANDHER

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 698 of 2016

Judgment of: Judge Jarrett

Hearing date: 2 December 2016

Date of Last Submission: 2 December 2016

Delivered at: Brisbane

Delivered on: 2 December 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entering a submitting appearance

ORDERS

1. The application filed on 1 August, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 698 of 2016

KIRANJIT KAUR PANDHER

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Administrative Appeals Tribunal that was given on 6 July, 2016.  That decision affirmed a decision of a delegate of the first respondent which was made on 1 November, 2015 to refuse to grant to the applicant a student (Temporary) (Class TU) subclass 573 visa. 

2. The applicant before me applied for the visa on 12 March, 2015. As is always the case, an applicant for a visa needs to comply with the criteria that are prescribed for the granting of such a visa. In this case one of the criterion was prescribed by cl.573.223 of sch 2 to the Migration Regulations 1994. 

3. There are a number of requirements that need to be present before that criterion is met.  One of those requirements relates to financial resources.  Another requirement of that criterion relates to confirmation of enrolment and the like. 

4. As the first respondent points out in written submissions in support of this application, in this case cl.573.223(1A) required the applicant to demonstrate that she had confirmation of enrolment for a course that she proposed to study at the time of her visa application. She did not obtain a confirmation for enrolment until after the visa application was made. She therefore needed to meet the requirements of cl.573.223(2) of the Regulations. This is the gravamen of the tribunal’s decision – the applicant did not satisfy that requirement.

5. Subclause 573.223(2) required the applicant to give the first respondent evidence in accordance with the requirements mentioned in sch 5A of the Regulations for the highest assessment level for the applicant.  The financial capacity the applicant needed to demonstrate was prescribed by cl.5A508 in sch 5A of the Regulations.  Clause 5A101 provided certain matters in respect of which the applicant needed to demonstrate that she had sufficient funds.  There were requirements about the source of the funds.  The applicant needed to demonstrate that she had sufficient funds from an acceptable source.  Subclause 5A508(2) defined the term funds from an acceptable source and provided five distinct possibilities.  Of those, three required the funds to be held by an acceptable individual. 

6. The applicant sought to satisfy the financial capacity criteria by:

   a)asserting that she met the financial capacity criteria based on:

   i)funds she had in her bank account; however, the funds in her bank account were well under the amount required by sch 5A; and

   ii)financial support being provided by a person who was described (both by himself and the applicant’s migration agent) as the applicant’s “brother-in-law”, but who, in fact, was the applicant’s husband’s cousin;

   b)after being informed by the first respondent’s Department that the proposed financial sponsorship from her husband’s cousin was not sufficient, as he was not an acceptable individual, the applicant sought to change her financial sponsor to her father; and

   c)after being informed by the Department of the problems with the evidence of her father’s funds, the applicant sought to change her financial sponsor to her cousin.

7. Acceptable individual is defined in cl.5A101 of the Regulations and it means a person who is the applicant, the applicant’s spouse or de facto partner, a parent of the applicant, a grandparent of the applicant, a brother or sister of the applicant or an uncle or aunt of the applicant who is an Australian citizen and who is usually resident in Australia.  Before the tribunal the applicant was only able to show that funding was available to her from her cousin.  Her cousin was not within the definition of acceptable individual. 

8. That being so, the applicant could not satisfy a relevant criterion for the grant of the visa.  The tribunal for that reason determined to affirm the decision under review.  

9. Before this Court the applicant says in her application for review that she is not happy with the decision made by the tribunal nor is she satisfied with the decision made by the tribunal.  I understand both of those claims by her.  It is entirely understandable that she would not be happy with the decision. 

10. But the difficulty for her in this Court is that this Court is unable to review the decision of the AAT except in circumstances where it is demonstrated that the tribunal has made a jurisdictional error.  Being unhappy with the decision or dissatisfied with it does not amount to demonstrating that the tribunal has committed a jurisdictional error sufficient to enliven the jurisdiction of this Court to interfere with the tribunal’s decision. 

11. There is another ground set out in the application for review and that is that the applicant was misled by her agent about providing funds and changing visa subclasses during “my visa extension before student visa was in progress.” 

12. As the first respondent quite properly points out, first of all that is a ground which can probably only succeed if I was able to make the relevant findings of fact and no evidence has been adduced to support the arguments made by the applicant.  But in any event, again as the first respondent points out, even if there was some evidence to demonstrate that the applicant had been misled by her migration agent that would be unlikely to lead the Court to conclude that the tribunal’s decision was infected by jurisdictional error.   There was no suggestion here by the applicant of any fraud committed on the tribunal. 

13. Having regard to those matters it seems to me that it is inevitable that the application for review has to be dismissed.  No grounds of jurisdictional error are demonstrated and the tribunal’s decision cannot be interfered with.  In those circumstances the application filed in this matter on 1 August, 2016 will be dismissed. 

RECORDED: NOT TRANSCRIBED

1. Costs in this jurisdiction follow the event unless there are special circumstances not to order costs. There are no special circumstances, unfortunately. The applicant must pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206 as prescribed by sch 3 of the Federal Circuit Court Rules 2001.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 December, 2016.

Date: 16 December 2016