PRAJAPAT v Minister for Immigration
[2014] FCCA 1090
•30 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRAJAPAT v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1090 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – Application for a Student (Temporary) (Class TU) Subclass 572 visa – financial capacity – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg.1.4; Sch 2, Part 572, cl.572.223; 572.223(1), 572.223(2), 572.223(2)(a)(i); Sch 5A, 5A103, 5A104, 5A405, 5A406(2) |
| Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 |
| Applicant: | KEWAL RAM PRAJAPAT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 887 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 26 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr McDermott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 20 June 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 887 of 2013
| KEWAL RAM PRAJAPAT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced on 20 June 2013 when the Applicant filed an Application seeking a judicial review of a decision of the Second Respondent made 24 May 2013. The grounds of the Application are as follows:-
“The Migration Review Tribunal made an error in deciding my case. The decision of the Migration Review Tribunal was affected by jurisdictional error because of the following reasons;
(1) The Tribunal wrongly included my wife in calculating my living costs in Australia. My wife is in India with our two children. She does not have any plans of coming to Australia at this stage. No application has been made by my wife to come to Australia. My wife and our children are not financially dependent on me. I do not send them any monies. My wife and our children are living in India with my parents and my two brothers in a joint family, who are in fact also supporting me financially and otherwise with my education in Australia and some of my living costs in Australia.
(2) The Tribunal was wrong in refusing my application because of financial capacity.
(3) The Tribunal wrongly took into consideration my next course that I was proposing to do after the completion of my current course finishing on 8 December 2013. I had more than adequate funds to finish this course. I could have been granted visa at least to enable me to finish this course.”
The First Respondent filed a Response to the application on 11 July 2013 seeking that it be dismissed and that the Applicant pay the First Respondent’s costs of the proceeding. The First Respondent asserted that the decision under review was not affected by jurisdictional error.
The Applicant filed Submissions on 16 January 2014 and Further Submissions on the day of hearing, with such Further Submissions being dated 10 April 2014 and containing only one paragraph. The First Respondent filed Contentions of Fact and Law on 28 February 2014 and Additional Written Submissions on 12 May 2014. The contents of the Court Book filed 26 September 2013 by the First Respondent are in evidence before the Court in the proceeding.
History
The Applicant is a citizen of India and first arrived in Australia as the holder of a student visa on 2 October 2008. On 21 March 2011, the Applicant applied, and whilst in Australia, for a further visa being a Student (Temporary) (Class TU) Subclass 572 visa. On 8 June 2011, a delegate of the Minister for Immigration and Citizenship (as he then was) (‘the Minister’) refused the grant of that visa application. The delegate of the Minister was not satisfied, on assessing the evidence provided by the Applicant against cl.572.223(2)(a)(i) of the Migration Regulations 1994 (Cth) (‘the Migration Regulations’), that he met the requirements of Schedule 5A to the Migration Regulations with respect to the financial capacity criterion. The delegate of the Minister found an initial financial document provided by the Applicant to be fraudulent and gave little weight to new financial documents.
On 23 June 2011, the Applicant applied to the Migration Review Tribunal (‘the Tribunal’) for a review of the Minister’s delegate’s decision. On 19 April 2013, the Tribunal invited the Applicant to appear at a hearing before the Tribunal scheduled for 15 May 2013. The Tribunal also invited the Applicant to provide evidence in support of his visa application. Amongst the material which the Tribunal invited the Applicant to provide to it, was current evidence that the Applicant satisfied English language proficiency, financial capacity and “other” requirements in any of the alternative ways applicable for his assessment level as set out in Schedule 5A[1] and for the purposes of cl.572.223(2)(a)(i) of Schedule 2 of the Migration Regulations.
[1] Migration Regulations 1994 (Cth), cls. 5A404, 5A405 and 5A406.
By letter dated 19 April 2013, the Tribunal noted to the Applicant, amongst other things, the following:-
“The Tribunal will assess you against the applicable Schedule 5A criteria, based upon your enrolment at the time the Tribunal makes its decision, taking into account any changes to your enrolment which have occurred since you lodged your visa application. For example, the amount of funds you must demonstrate to satisfy Schedule 5A financial criteria may have changed, reflecting changes in the length of your course and the amount of course fees outstanding. If you have enrolled in a new course, depending on the type of evidence of funds you provide, you may be required to show a savings history for 6 months prior to the date of your visa application. Furthermore, if your principal course has changed, you may be assessed against a different visa subclass, in which case different Schedule 5A criteria would apply.”
On 14 May 2013, the Applicant’s authorised representative submitted a written submission to the Tribunal attaching various supporting documents to evidence the visa requirements. On 15 May 2013, the Applicant appeared at a hearing before the Tribunal, assisted by his authorised representative. He did not, at that time, require the assistance of an interpreter. For the purposes of the judicial review hearing before the Court, the Applicant did require the assistance of an interpreter in the Hindi language.
On 21 May 2013, and following the hearing before the Tribunal, the Applicant’s authorised representative submitted an additional written submission to the Tribunal, attaching various supporting documents to evidence the visa requirements. This occurred as a result of a discussion occurring at the Tribunal hearing between the Applicant’s representative and the Tribunal member as to further information required.
The Tribunal noted in its Decision Record dated 24 May 2013 (‘the Decision Record’) at paragraph 25 that it had sought to make clear in its invitation letter to the Applicant “that the Tribunal invited current evidence of funds for enrolment at the time of its decision.” In that regard, historical events or evidence, the Tribunal noted, were immaterial to it (in particular, the allegation that a prior loan document was fake) if acceptable evidence was provided to the Tribunal at the time of its decision. The Applicant requested additional time following the hearing to submit further evidence.
The Tribunal granted until 21 May 2013 for such additional further evidence to be submitted and told the Applicant that it would make a decision on the basis of all the material he had submitted and any additional material he submitted in the time granted after the hearing. In that way, the Tribunal afforded the Applicant procedural fairness. On 24 May 2013, the Tribunal affirmed the delegate of the Minister’s decision not to grant the Applicant the visa.
Legislative Framework
The criteria for the visa are contained in Part 572 of Schedule 2 to the Migration Regulations. Relevantly, the issue for the Tribunal was whether the Applicant met the time of decision criterion contained in cl.572.223 of Schedule 2 of the Migration Regulations. Clause 572.223(1) requires the Minister to be satisfied that the Applicant is a genuine Applicant for entry and stay as a student because the Applicant meets the requirements of cl.572.223(2) of the Migration Regulations. The Tribunal found the Applicant did not meet cl.572.223(2)(a)(i) of Schedule 2 of the Migration Regulations. Clause 572.223 of the Migration Regulations relevantly states:-
“(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.”
“Assessment level”, for a student visa, means the level of assessment specified for a kind of eligible passport for the student visa under regulation 1.4.[2] The Applicant’s assessment level for the visa was the highest assessment level at the time of application for the relevant course of study for the subclass of student visa. Having regard to the operation of the Migration Regulations, the Tribunal determined that the relevant assessment level in this case was assessment level 4, the Applicant being from India.[3]
[3] Legislative Instrument IMMI10/003 dated 16 March 2010.)
Schedule 5A to the Migration Regulations specifies the requirements for assessment level 4 for subclass 572, the vocational education and training sector. Relevantly, cls.5A404, 5A405 and 5A406 of the Migration Regulations sets out what evidence the Applicant was required to provide with respect to financial capacity and other requirements. The requirements are as follows:-
“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 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 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 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 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.”
In its Decision Record, the Tribunal noted that it had regard to the submission and supporting documents of the Applicant received by it on 14 May 2013. The Tribunal noted that the Applicant was enrolled in a Certificate IV in Hospitality which was to commence on 27 May 2013 and end on 8 December 2013. This was of less than one year’s duration.
The Tribunal as set out in paragraph 23 of its Decision Record:-
“… proceeded to discuss the requirements of Schedule 5A and noted that evidence of past academic achievement in Australia met the English language proficiency requirement. The Tribunal noted that the Certificate IV course the applicant proposes to undertake would not meet the Schedule 5A ‘Other requirements’ but proceeded to calculate the funds required on the basis of the information contained in the CoE [Certificate of Enrolment] the applicant submitted to the Tribunal. In calculating the living costs, the applicant stated that his wife and family reside in India; the Tribunal noted the relevance of the duration of the course currently proposed not requiring attributing living costs to the applicant’s wife and other dependents (cl.5A104). The total cost required to be demonstrated on the basis of the CoE for the Certificate IV course was calculated to be $12,500.”
The Tribunal noted that the Applicant claimed to have evidence of funds equivalent to $22,716. However, as the Tribunal explained to the Applicant, that evidence of funds was not in accordance with the applicable Schedule 5A of the Migration Regulations requirement (he had not completed at least 75 per cent of his course) because the funds had not been held by the acceptable individual providing the funds for at least the six months immediately before the date of the visa application on 21 March 2011.
The Tribunal permitted the Applicant additional time to submit further evidence and then had regard to that further evidence, it being a post-hearing submission of the Applicant of 21 May 2013. Further evidence provided by the Applicant also included that the Applicant was enrolled in both the Certificate IV in Hospitality course commencing on 27 May 2013 and ending on 8 December 2013, and a Diploma of Hospitality course commencing on 9 December 2013 and ending on 8 June 2014. That course of study covered a period in excess of 12 months duration. In addition, documents were provided as evidencing the Applicant’s financial capacity which the Tribunal had regard to.
The Tribunal found the Applicant’s principal course was the Diploma of Hospitality concluding on 8 June 2014 and that the relevant assessment level remained assessment level 4. The Tribunal stated in its Decision Record under the heading Findings and Reasons:-
“31. As noted in the discussion of evidence above, the issue in question relates to the financial capacity requirement. At the Tribunal hearing, the applicant submitted evidence of enrolment in a Certificate IV level course of less than one year’s duration which was discussed as not being in accordance with Schedule 5A (cl.5A406(2)). The less than 12 months duration however also meant that Schedule 5A did not require including the spouse of the applicant in the calculation of living costs unless she is a ‘family applicant’; she is not a ‘family applicant’. This too was noted during the hearing.
32. The applicant has since submitted a further CoE in a diploma course to that in a Certificate IV submitted at the time of the hearing. This now satisfies cl.5A406(2). But as the courses now proposed are together of a duration of 12 months or more, Schedule 5A, cl.5A104 requires that the applicant’s spouse and any dependent children are included in the calculation of living costs at the prescribed rate. The applicant at the hearing stated that “his wife and family” live in India. As it was not clear whether “family” referred to dependent children, the Tribunal will include only the applicant’s spouse in the calculation of living costs.
33. The required funds on the basis of the post-hearing CoEs therefore is as follows:
$
Course fees two x 2,500 = 5,000
Living costs, review applicant = 18,000
Living costs, spouse = 6,300
Travel cost, review applicant = 1,000
TOTAL = 30,300”
The Court notes that the above was a finding of fact made by the Tribunal and open to the Tribunal on the material before it. The inclusion of the living costs of the spouse was calculated as 35 per cent of the basic rate specified as was required pursuant to Schedule 5A, cl.5A104 of the Migration Regulations. The Tribunal, in its correspondence with the Applicant and during the course of the proceeding, had discussed the linkage between living costs and the duration of the course. The Tribunal had granted the Applicant an adjournment to provide further evidence which might satisfy the requirements of the visa. That further evidence did satisfy cl.5A406(2) of the Migration Regulations, but did not satisfy Schedule 5A cl.5A104 of the Migration Regulations given that the courses proposed were then together of a duration of 12 months or more. Schedule 5A, cl.5A104 of the Migration Regulations is as follows:-
5A104 Meaning of living costs and school costs
(1) An applicant’s living costs for a period are taken to accrue at the sum of the rates set out in the following table:
| Item | Description of applicant | Rate |
| 1 | Applicant who is subject to assessment level 2, 3 or 4, and who is: (a) fully funded; or (b) 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 clause; or (c) the holder of an International Postgraduate Research Scholarship funded by the Commonwealth Government | (a) an amount specified by the Minister in an instrument in writing for this clause (the basic rate); and (b) if the applicant has a spouse or de facto partner who is a family applicant — 35% of the basic rate; and |
| 2 | Applicant: (a) who is subject to assessment level 3 or 4; and (b) who is not funded, wholly or partly, by: (i) the Commonwealth Government, or the government of a State or Territory; or (ii) the government of a foreign country; or (iii) a multilateral agency; and (c) 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 | (a) an amount specified by the Minister in an instrument in writing for this clause (the basic rate); and (b) if the applicant has a spouse or de facto partner who is a family applicant — 35% of the basic rate; and |
| (d) 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 | (d) if the applicant has any further dependent children who are family applicants — 15% of the basic rate for each such child | |
| 3 | Applicant who: (a) is subject to assessment level 2; and (b) has the support of the AusAID Minister or the Defence Minister | (a) an amount specified by the Minister in an instrument in writing for this clause (the basic rate); and (b) if the applicant has a spouse or de facto partner who is a family applicant — 35% of the basic rate; and |
| (c) if the applicant has a dependent child who is a family applicant — 20% of the basic rate; and | ||
| (d) if the applicant has any further dependent children who are family applicants — 15% of the basic rate for each such child | ||
| 4 | Applicant to whom items 1, 2 and 3 do not apply | (a) an amount specified by the Minister in an instrument in writing for this clause (the basic rate); and (b) if the applicant has a spouse or de facto partner — 35% of the basic rate; and |
| (c) if the applicant has a dependent child — 20% of the basic rate; and (d) if the applicant has any further dependent children — 15% of the basic rate for each such child |
(2) An applicant’s school costs are taken to accrue at the sum of the rates set out in the following table:
| Item | Description of applicant | Rate |
| 1 | Applicant who is subject to assessment level 2, 3 or 4, and who is: (a) fully funded; or (b) 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 clause; or (c) the holder of an International Postgraduate Research Scholarship funded by the Commonwealth Government | $8 000 per year for each child who is: (a) a school‑age dependant at the time; and (b) a family applicant |
| 2 | Applicant: (a) who is subject to assessment level 3 or 4; and (b) who is not funded, wholly or partly, by: (i) the Commonwealth Government, or the government of a State or Territory; or (ii) the government of a foreign country; or (iii) a multilateral agency; and (c) 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 | $8 000 per year for each child who is: (a) a school‑age dependant at the time; and (b) a family applicant |
| (d) 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 | ||
| 3 | Applicant who: (a) is subject to assessment level 2; and (b) has the support of the AusAID Minister or the Defence Minister | $8 000 per year for each child who is: (a) a school‑age dependant at the time; and (b) a family applicant |
| 4 | Applicant to whom items 1, 2 and 3 do not apply | $8 000 per year for each child who is a school‑age dependant at the time (whether or not the child is a family applicant) |
The Tribunal found that the evidence provided by the Applicant of a fixed deposit amount of INR1,204,000 was not in accordance with Schedule 5A of the Migration Regulations requirements as it did not show the funds were held for at least six months immediately before the date of the visa application. This had been indicated to the Applicant at the hearing. A further loan was provided to the Applicant after the hearing in accordance with Schedule 5A of the Migration Regulations and that together with the evidence of further amounts shown by the Applicant led the Tribunal to conclude that the amount of funds available to the Applicant was equivalent to $28,454. Such amount was insufficient to meet the expenses prescribed in Schedule 5A of the Migration Regulations and as found by the Tribunal. On that basis, the Tribunal found the Applicant had not given evidence in accordance with the requirements in Schedule 5A of the Migration Regulations for subclass 572 in the assessment level to which he was subject in relation to the necessary financial capacity. Accordingly, the Applicant did not satisfy the requirements of cl.572.223(2)(a)(i) of the Migration Regulations. It became unnecessary to consider the other criteria.
Consideration
In respect of the arguments raised by the Applicant in these proceedings, none of them can succeed. The Tribunal made it clear in its Decision Record that it would only include the Applicant’s spouse in the calculation of living costs and not his children. The Applicant’s complaint in his application for judicial review about inclusion of his children in the living costs calculation is misconceived, as is his allegation in his Further Written Submission of 10 April 2014.
Despite the complaint of the Applicant that the Tribunal did not mention anything about his wife and children’s living costs during the hearing, an examination of the Decision Record shows that to be simply not the case. The matter of living costs and his wife and children were clearly canvassed.
The Applicant was represented throughout by a migration agent. The Tribunal canvassed relevant and pertinent matters with the Applicant at the hearing and gave the Applicant an opportunity to submit further evidence. The Tribunal received post-hearing submissions and documents and made its decision on the basis of the totality of the evidence. It is not for the Tribunal to make out the case for the Applicant.
The Tribunal’s findings of fact were open to it on the evidence before it and were not unreasonable, illogical or irrational.[4] The Tribunal applied the correct law and fulfilled its statutory obligation under Part 5, Division 5 of the Migration Act 1958 (Cth) in the conduct of the review. As submitted by Counsel for the First Respondent, the Tribunal is required by cls.5A405(1) and 5A104(1), Item 4 of Schedule 5A to determine the Applicant had access to funds sufficient to meet his course fees, living costs and travel costs.
[4] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.
The Tribunal’s calculations were in accordance with the specified amounts under Schedule 5A of the Migration Regulations. The figures used by the Tribunal are grounded in the relevant Legislative Instrument (IMMI09/0138) for living costs with AUD$18,000 being the basic rate. The figure of $6,300 referred to by the Tribunal in respect of the spouse living costs is 35 per cent of such basic rate.
The Applicant’s argument is further that had the Tribunal told him he was required to provide further funds, he could have done so. The Tribunal acted fairly and informatively at the Tribunal hearing and granted the Applicant an adjournment to obtain further funds and to consider and put his case in accordance with the Migration Regulations. He was treated fairly by the Tribunal but failed to quantify correctly the living costs required under the legislation. Thus his application before the Tribunal could not succeed. Nor can it on this judicial review application as no jurisdictional error is apparent in the decision. Costs will follow the event.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 30 May 2014
[2] Migration Regulations 1994 (Cth) , reg,1.03.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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