Patel v Minister for Immigration
[2012] FMCA 870
•24 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 870 |
| MIGRATION – Judicial review of Migration Review Tribunal decision –Student (Class TU) Subclass 572 visa – financial capacity requirement – no jurisdictional error – application dismissed. |
| Migration Regulations1994 (Cth), reg.2.07AO, cl.572.223 of Schedule 2, cls.5A404, 5A405, 5A406 of Schedule 5A |
| SIDHU v Minister for Immigration & Anor [2011] FMCA 890 |
| First Applicant: | SUNILKUMAR NARSINHBHAI PATEL |
| Second Applicant: | HASUMATI SUNILKUMAR PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 530 of 2012 |
| Judgment of: | Hartnett FM |
| Hearing date: | 6 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 September 2012 |
REPRESENTATION
| The First Applicant: | In person |
| Counsel for the First Respondent: | Ms Gangemi |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT ORDERS THAT:
The application filed 7 May 2012 is dismissed.
The first applicant pay the first respondent’s costs fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 530 of 2012
| SUNILKUMAR NARSINHBHAI PATEL |
First Applicant
| HASUMATI SUNILKUMAR PATEL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 17 April 2012, in which the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant the first applicant a Student (Temporary) (Class TU) visa.
The application was filed on 7 May 2012. The grounds of the application are as follows:
“1. I applied for student visa subclass 572 then on [March] 2011.
2. Then I [applied] to MRT for review of that decision, on 02/05/2011.
3. I think MRT Tribunal and department of immigration did not look [at] my situation.”
The first applicant (hereinafter ‘the applicant’) filed an affidavit in support of his application sworn by him on 7 May 2012. In that affidavit, he said, in effect, no more than:
“[I come] in Australia on student visa. [Then] My visa was refused by department of immigration and citizenship. [I] have also [applied] to MRT. I am not happy with these decision”
A court book was filed by the first respondent which contained the decision record of the Tribunal, amongst other documents.
The applicant is a male citizen of India. His wife, the second applicant, was included as a dependent family member in the application for visas which was lodged onshore on 9 March 2011. On 19 April 2011, a delegate refused the visa application and on 2 May 2011, the applicants applied to the Tribunal for a review of the delegate’s decision.
Legislative context
The Tribunal affirmed the decision not to grant the applicants Student (Temporary) (Class TU) visas because the Tribunal was not satisfied that the applicant met an essential requirement of Clause 572.223 of Schedule 2 of the Migration Regulations1994 (Cth) (‘the Regulations’).
The Tribunal commenced its assessment of the applicant’s eligibility for the visa by considering the applicant’s enrolment. That enrolment was in a Diploma of Management course, and as a consequence, the Tribunal identified that the relevant subclass to consider in the matter was subclass 572, Vocational Education and Training.
The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. The issue for the Tribunal was whether the applicant met the criteria in Clause 572.223. That criterion required, at the time of the decision, that the Minister of Immigration and Citizenship (‘the Minister’) be satisfied that the applicant was a genuine applicant for entry and stay as a student because the applicant met the requirements of subclause (2). Clause 572.223 is as follows:
“(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor -- the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.”
The Tribunal hearing
In the present case, the applicant proposed to undertake a single course of study in a course specified for Subclass 572. The Gazette Notice in force at the time of application was IMMI 10/003, 16 March 2010. In relation to Subclass 572 and a passport of India, it specified Assessment Level 4. Thus, the relevant assessment level for an applicant who at the relevant time sought to satisfy the primary criteria for a Subclass 572 visa and who held an eligible passport of India was Assessment Level 4.
Division 2 of Part 4 of Schedule 5A to the Regulations specifies the evidentiary requirements for Assessment Level 4 for Subclass 572 visas. It provides:
“5A404 English language proficiency
The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b) the applicant:
(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 20 weeks duration;
(d) the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(iii) as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;
(f) the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:
(A) Australia;
(B) Canada;
(C) New Zealand;
(D) South Africa;
(E) the Republic of Ireland;
(F) the United Kingdom;
(G) the United States of America.
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 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:
acceptable individual means one or more of the following:
(a) the applicant;
(b) the applicant’s spouse or de facto partner;
(c) the applicant’s parents;
(d) the applicant’s grandparents;
(e) the applicant’s brothers and sisters;
(f) an uncle or aunt of the applicant who is:
(i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) usually resident in Australia.
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 3 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 an instrument in writing 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.
5A406 Other requirements
(1) The applicant must give evidence:
(a) that he or she has successfully completed secondary schooling to the year 12 level (or its equivalent); and
(b) that:
(i) he or she is enrolled in a vocational education and training course; or
(ii) he or she is enrolled in a course that is a pre‑requisite to a vocational education and training course and a vocational education and training course; or
(iii) he or she is enrolled in a course that is a pre‑requisite to a vocational education and training course and has an offer of a place in a vocational education and training course.
(2) In this clause, vocational education and training course means a vocational education and training course that:
(a) leads to the award of a qualification from the Australian Qualification Framework at the diploma level; or
(b) leads to the award of a qualification from the Australian Qualification Framework at the advanced diploma level; or
(c) is a course of at least 1 year’s duration that leads to the award of a qualification from the Australian Qualification Framework at the Certificate IV level.”
On 16 April 2012 and prior to the hearing, the Tribunal received documentary evidence from the applicant including evidence of enrolment in an approved course of study from July 2012 to July 2013; evidence of health insurance for himself and his spouse for the duration of their intended stay, and financial documents. The applicant appeared before the Tribunal on 17 April 2012 to give evidence and present arguments. He was represented in relation to the review by a registered migration agent.
The Tribunal found the applicant was not a designated person under Regulation 2.07AO of the Regulations and determined that the applicant would need to provide evidence of financial capacity as required by Clause 5A405. Clause 5A405 required the applicant to give evidence of funds from an acceptable source that were sufficient to meet the course fees, living costs and school costs for the first 36 months of the applicant’s course. Funds from an acceptable source included a loan from a financial institution that was made to and held in the name of an acceptable individual which included the applicant’s brothers and sisters.
The Tribunal discussed the requirements of Schedule 5A with the applicant explaining that Clause 5A405 required that the applicant have the sum of $31,800 to cover his outstanding college fees and his and his wife’s living and travel costs for 12 months. The applicant agreed with that calculation and that finding is not challenged. I note that Clause 572.223 also required that the applicant demonstrate that he would have access to funds as required in Schedule 5A relating to the applicant’s financial capacity for the full duration of the visa sought and which exceeded this sum. Clause 5A404 required the applicant to demonstrate English language proficiency by one of a number of alternative means and Clause 5A406 required among other things that the applicant demonstrate that he had successfully completed year 12 or equivalent secondary schooling. The Tribunal, having discussed these matters with the applicant, pointed out to him that there was no evidence on either the Tribunal or the Department of Immigration and Citizenship’s file pertaining to the latter two Schedule 5A requirements. The applicant responded that he did satisfy such requirements and required further time to put the necessary evidence before the Tribunal.
The Tribunal asked the applicant to take it through the financial documents. In order to satisfy Clause 5A405, the applicant had provided to the Tribunal evidence of a loan by Allahabad Bank to the applicant’s brother in the sum of INR2,000,000 noting that some of those funds were debited from the account in favour of Thomas Cook India Ltd for the remittance of AUD500 dollars to the Commonwealth Bank of Australia account of the applicant. The applicant agreed with the Tribunal’s observation that the INR2,000,000 loan by the Allahabad Bank to his sponsor was in fact an overdraft or line of credit. The Tribunal said as to this at paragraph 27 of its decision:
“… whilst aspects of the wording of the loan sanction letter dated 14 March 2012 may suggest that the document authorises a “term loan”, closer examination makes it clear that what has been arranged and approved is an overdraft or line of credit. There are no clear repayment arrangements, no time limit on the arrangement, and it refers tellingly to a “limit” to the funds that can be drawn down by the “borrower”. Consistent with this understanding of the real nature of the arrangement is a statement in the letter dated 30 March 2012 on the same bank’s letterhead, stating that only AUD$500 has been drawn down and remitted to the review applicant in Australia. The applicant concurred with the Tribunal’s interpretation. There is, moreover, no evidence that the full amount that the applicant is required to demonstrate under Clause 5A405 has been borrowed, and is in the possession of the borrower. The Tribunal is mindful of a recent decision of Burchardt FM (SIDHU v Minister for Immigration & Anor [2011] FMCA 890), in which His Honour opined that overdrafts were not loans in ordinary parlance or within the meaning of the Regulations, an obiter with which the Tribunal agrees. An overdraft is, at best, a facility for borrowing money to a predetermined limit. It need never be used by the “borrower” and can be withdrawn in an instant by the “lender”, a common occurrence during a credit squeeze or liquidity crisis in the banking system, events falling outside the control of individual customers, which may imperil their solvency even when they have fully honoured their obligations under the credit arrangement. Withdrawal of credit is also the obvious weapon of choice where a financial institution forms the view that an overdraft or other credit facility may become non-performing. The Tribunal is of the view that until and unless funds are actually disbursed to a borrower, that is, transferred to his or her custody, underwritten by a loan contract setting out the relevant terms and conditions, including a repayment schedule, the arrangement cannot reasonably be characterised as a loan. Quite apart from questions of migration law, commercial practice and nomenclature, the central policy objective underlying the requirement is to ensure that student visa holders will actually have funds to support themselves and meet their other commitments while holding the visa. The achievement of that objective is jeopardised where applicants seek to rely instead on such tenuous, contingent and often ephemeral arrangements as lines of credit and overdrafts, which amount, at best, to an offer by a financial institution to a client, revocable at will by either party, to make funds available to the latter should they be required.”
The Tribunal concluded that it was not satisfied that the applicant satisfied the requirements of Clause 572.223(2)(a)(i) nor the requirements of Clause 572.223(2)(a)(iii), notwithstanding his sponsor’s claim that he was willing to provide the necessary funds to the applicant. The Tribunal found that the sponsor could not guarantee such ongoing support given it was an overdraft arrangement on which he relied.
Consideration
The applicant urged the Court to find that jurisdictional error attends the Tribunal decision because the Tribunal erred in deciding that the applicant did not have sufficient available funds within the meaning of the applicable Regulations. The first respondent has filed contentions of fact and law and submits that no jurisdictional error has been made by the Tribunal. The first respondent seeks the application be dismissed with costs and I propose to accede to that application.
The documents before the Tribunal indicated that an overdraft had been provided to the applicant’s brother who then advanced a sum of $500 to the applicant. Nowhere was there evidence before the Tribunal that the applicant had the necessary financial capacity in the sum as calculated by the Tribunal and agreed to by the applicant, or in any sum that would satisfy the requirements set out in Schedule 5A. In respect of the overdraft documents, I note the comments of Burchardt FM in SIDHU v Minister for Immigration & Anor [2011] FMCA 890 at paragraph 24:
“A loan in my view is a distinguishable thing from an overdraft facility. A loan is of its nature usually a sum of money actually advanced, mostly commonly against interest and with a repayment date.”
And at paragraph 25:
“As a matter of ordinary English I do not think that the overdraft facility made available to the applicant's mother would be understood to be a loan.”
No conclusive evidence was placed before the Tribunal as to the applicant’s ability to access the funds in the overdraft account at will and without disruption or in sufficient sum to satisfy the financial capacity requirements. No evidence was given as to any security provided for the overdraft. The Tribunal was not persuaded that the applicant satisfied the requisite test. It is not for this Court to substitute any factual findings of the Tribunal. There is no jurisdictional error in the Tribunal’s decision.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Hartnett FM.
Date: 24 September 2012
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