Raju v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1200
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raju v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1200
File number: PEG 140 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 14 December 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal overlooked relevant materials – whether the Tribunal erred in finding that funds from the applicant’s grandparents were not evidence of financial capacity – whether the Tribunal’s finding that the applicant did not have genuine access to those funds was illogical or unreasonable – whether the conduct of the applicant’s migration agent amounted to fraud on the Tribunal – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), reg 1.03 and cll 500.211, 500.212, 500.213, 500.214, 500.215, 500.216, 500.217 & 500.218 in Schedule 2
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of hearing: 6 November 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 140 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BENJAMIN MATHAI RAJU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 2-4). He first arrived in Australia in February 2016 as the holder of a student visa (CB 9).
The applicant completed a Diploma of Science (Engineering) and a Certificate IV and a Diploma in Nursing (CB 9-10).
On 6 July 2020, the applicant applied for the Student (Class TU) (Subclass 500) visa (the “visa”) the subject of this review application (CB 1-19). The purpose of that visa application was to complete a Certificate IV in Christian Ministry. With his visa application, the applicant provided a “Sponsorship Letter” dated 17 June 2020 from a third party sponsor, together with a payslip for that third party sponsor indicating that they are paid an annual salary of $185,000 (CB 21-22).
The Sponsorship Letter relevantly provided (CB 21):
I, [sponsor’s name] living in [sponsor’s address] is writing this letter to verify that I can support financially Benjamin Mathai Raju holder of Indian Passport for studying theology in Victory Life International Bible Training Centre for one year. I am capable of financially supporting Benjamin Mathai Raju during their entire course completion. I have adequate funds to support him in pursuing the course without any hindrance.
In case you have any queries or concerns related to the document or my relation with the applicant, please feel free to contact me at any time on below given contact details.
On 21 August 2020, the Department of Home Affairs (the “Department”) asked the applicant to provide more information in relation to his financial capacity (CB 25-31). In particular, the Department asked that the following information be provided (CB 31):
Financial capacity
Provide evidence of funds to support yourself and all family unit members during the first 12 months of your proposed study and stay in Australia, or during your entire proposed study and stay in Australia if it is less than 12 months.
In order to meet expenses for course fees, living costs, school costs and travel costs, you need to demonstrate that you have access to AUD $21,401.62.
Evidence of financial capacity includes:
•money deposit with a financial institution
•loan with a financial institution
•government loan
•scholarship or financial support.
Evidence of annual income of the primary applicant’s spouse or parents can also be used to show financial capacity. The evidence of annual income must be provided in the form of official government documentation, such as a tax assessment and must have been issued in the 12 months immediately before the application is made.
•For an individual applicant, evidence of annual income of $62,222
•For an application that includes family members, evidence of annual income of $72,592
The funds shown in the visa application must be available for use to financially support you and any accompanying family members during your stay in Australia. If the funds are held in an account owned by another person, you should provide a signed letter from that person stating that the money is released to you to spend on your studies. You should also provide a copy of identification for that person showing their full name and signature, such as a passport or national identity card.
On 15 September 2020, the Department sent a further request for evidence of the applicant’s financial capacity and his “relationship to the source of funds” (CB 32-37). In addition to the information requested on 21 August 2020 (set out above), the Department also asked that the applicant provide the following information (CB 37):
Relationship to the source of funds
Provide evidence of the relationship between yourself and the person who is providing you with financial support.
Only certain people are acceptable in terms of providing you with financial support. Refer to the Application Document Checklist available at immi.homeaffairs.gov.au/visas/web-evidentiary-tool
The applicant provided a further letter from the third party sponsor (dated 28 September 2020) explaining their relationship with the applicant (CB 38). That letter relevantly provided:
Benjamin Mathai Raju has been a member of our church ([name of church omitted]) since he came to Perth, Australia for his studies and is also from one of my close spiritual families in India. When he expressed his intentions to study Theology, being a pastor of [the church], I took the interest to support him financially to accomplish his studies in Theology.
Currently, I am employed with [sponsor’s employer] as a QA/QC Manager with an annual income of AU$185,000/-and I am personally capable of supporting his course fee and other associated expenses as required.
I have provided a copy of my weekly salary certificate for your record.
On 20 August 2021, the applicant notified the Department of a change in his circumstances (CB 39). Relevantly, the applicant advised that he had completed a Certificate IV in Christian Ministry and was (at that time) studying a Diploma of Christian Leadership. He also provided a further letter from the third party sponsor (dated 18 August 2021) which confirmed that they were able to continue supporting the applicant for a further year of study (thus allowing the applicant to complete the Diploma of Christian Leadership) (CB 40).
On 25 January 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 46-49). The delegate determined that the applicant did not meet the requirements set out in cl 500.214 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). The delegate acknowledged that the applicant had provided correspondence and a payslip from a third party sponsor showing an annual salary of $185,000. Nonetheless, the delegate was not satisfied that the applicant would “have genuine access to the funds”. Having considered the applicant’s circumstances as a whole, the delegate was “not satisfied that the applicant ha[d] provided sufficient evidence of financial capacity” as required by the relevant legislative instrument and therefore did not meet the criteria for the grant of the visa (CB 48-49).
On 14 February 2022, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 50-56). That review application indicated that the applicant was assisted by a registered migration agent (the “representative”) (CB 54).
On 5 January 2023, the Tribunal invited the applicant (through his representative) to appear at a hearing before it (by telephone) scheduled to take place on 24 January 2023 (CB 61-65).
On 11 January 2023, the applicant’s representative requested (and was granted) a postponement of that hearing on the basis that the representative would be out of the country at the scheduled time (CB 66-69).
On 23 January 2023, the Tribunal again invited the applicant (through his representative) to appear at a hearing before it (by telephone) scheduled to take place on 6 February 2023 (CB 70-74).
On 30 January 2023, the applicant’s representative provided the Tribunal with written submissions, supporting documents and a completed hearing invitation form (via email) (CB 78-89).
On 6 February 2023, the applicant appeared at the Tribunal hearing to give evidence and present arguments. He was assisted at that hearing by his representative (CB 90-92).
On 20 February 2023, the applicant’s representative provided “post-hearing” submissions and additional supporting documents to the Tribunal (via email) (CB 94-125). In those submissions, it was explained that the applicant had received an offer to study a Diploma of Christian Leadership (which the applicant had accepted) and that the applicant had access to funds from his own employment in Australia, as well as financial support from his grandparents (of approximately $89,000 deposited in their accounts in India) (CB 96 & 99). The supporting documents provided comprised of a “letter of offer and acceptance” in relation to a Diploma of Christian Leadership and Ministry dated 6 February 2023 (signed by the applicant on 7 February 2023) (CB 101-106), a statutory declaration from the applicant’s grandparents (regarding their financial support), certificates of investment in relation to the applicant’s grandparents’ funds (CB 107-109), an employment contract together with amendments to that contract (related to the applicant’s employment) and related payslips (CB 110-125).
On 13 June 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 130-135).
On 14 July 2023, the applicant sought judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). The applicant also filed an affidavit (sworn by him on 13 July 2023 and annexing a copy of the Tribunal’s decision) in support of his judicial review application.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is six pages long and spans 22 paragraphs. The final two pages include extracts from Legislative Instrument 19/198 (“LIN 19/198”).
The Tribunal began by explaining that the applicant had applied for the visa on 6 July 2020. The Tribunal noted that a delegate of the Minister had refused to grant the applicant that visa on 25 January 2022 because they were not satisfied that the applicant had demonstrated genuine access to funds as required to meet the financial capacity requirements set out in cl 500.214 in Schedule 2 of the Regulations (at [1]-[3]).
The Tribunal confirmed that the applicant had appeared at a hearing before it on 6 February 2023 to give evidence and present arguments. The Tribunal further confirmed that the applicant’s representative had also attended that hearing (at [4]-[5]).
The Tribunal then outlined the legislative framework that the applicant was required to satisfy to be granted the visa (as set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations). The Tribunal also identified that, in this matter, the applicant was required to give evidence of financial capacity in accordance with cl 500.214(3) in Schedule 2 of the Regulations (at [7]-[8]).
The Tribunal then considered whether the applicant had provided evidence of financial capacity in accordance with LIN 19/198 (noting that extracts of that instrument were attached to the Tribunal’s reasons). The Tribunal explained that LIN 19/198 sets out the types of evidence an applicant can provide to satisfy the financial requirements, including money deposits or loans with a financial institution, government loans, scholarships or financial support (at [9]-[11]).
The Tribunal confirmed that the applicant had “submitted documents said to be term deposits held by his grandparents” in an Indian investment company. The Tribunal had regard to information on the company website and found that there was no evidence before it to demonstrate that the company (named in the documents provided by the applicant) met the criteria of an acceptable financial institution (at [12]-[13]).
The Tribunal continued:
14.Financial institution is defined in regulation 1.03. Only financial institutions that meet this definition are able to be accepted. The definition provides that a financial institution is a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money under a regulatory regime; and is governed by the central bank (or its equivalent) of the country in which the body corporate operates. Mini Muthooltu Nidhi (K) Ltd is not a financial institution regulated by India’s central bank, the Reserve Bank of India.
15.The Tribunal is not satisfied the certificates of investment said to be evidence of funds in the names of the applicant’s grandparents is evidence of financial capacity in accordance with the instrument.
On the basis of the information above, the Tribunal was not satisfied that the applicant met cl 500.214(3) in Schedule 2 of the Regulations (at [16]).
The Tribunal explained that it needed to be satisfied that the applicant would have genuine access to funds in order for him to meet cl 500.214(1) in Schedule 2 of the Regulations. The Tribunal was not satisfied that the applicant had genuine access to funds because “all but two of the 19 deposits” referenced in the certificates provided had maturity dates in the future and were therefore not available to the applicant when required. The Tribunal was thus not satisfied that the applicant met cl 500.214(1) in Schedule 2 of the Regulations (at [17]-[19]).
On the basis of the information above, the Tribunal was not satisfied that the applicant met criteria for the grant of the visa (and, in particular, cl 500.214 in Schedule 2 of the Regulations). The Tribunal affirmed the decision refusing to grant the applicant the visa (at [20]-[22]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 14 July 2023) contains four grounds of review which provide as follows (without alteration):
1.The Tribunal made a jurisdictional error by not adopting a fair process in making the decision;
2.The Tribunal ignores materials they were required to look at;
3.The Tribunal reaches a decision that is unreasonable in the legal sense;
4.The Tribunal decision is so unreasonable Tribunal has reached that decision.
On 30 August 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 14 July 2023, a Court Book numbering 135 pages (marked as Exhibit 1), written submissions filed by the Minister on 25 October 2023 and an affidavit of the applicant sworn and filed on 3 October 2023 (attaching written submissions and supporting materials and taken as read and in evidence at the hearing before this Court).
On 6 November 2023, the applicant appeared before this Court without legal representation. The Court confirmed that he had received copies of the Court Book and Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard practice of this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”).
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that he was required to provide confirmation that he was enrolled in a course of study to the Tribunal and had provided a letter of offer. The applicant also explained that he also needed to provide confirmation of financial capacity but “it was not until after the Tribunal had made its decision” that he became aware that the funds from his grandparents were not in a financial institution that the Tribunal could accept.
The applicant also raised concerns about the conduct of his migration agent. In particular, he stressed his representative did not bring the fact that that the funds from his grandparents were not in a financial institution that the Tribunal could accept to his attention and did not advise him to move the funds to an “acceptable” financial institution so that the funds could be accepted.
The applicant also disagreed with the statement made by the Tribunal at [18] in its reasons (wherein the Tribunal states that it is “not satisfied” that the applicant could genuinely access the funds). In this regard, the applicant told the Court that his grandparents could withdraw those funds at any point and send the funds to the applicant (if and when he required assistance).
The applicant’s oral submissions largely echo concerns raised by him in his affidavit (sworn and filed on 3 November 2023) and will be considered below.
RELEVANT LEGISLATIVE PROVISIONS
As outlined above, the Tribunal’s decision in this matter centred around whether the applicant satisfied the requirements set out in cl 500.214(1) in Schedule 2 of the Regulations. Those provisions relevantly provide as follows:
500.214
(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2)While the applicant holds the visa, sufficient funds will be available to meet:
(a)the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b)the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.
(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
The legislative instrument relevant to this matter (as referenced in cll 500.214(4) and (4) above) is LIN 19/198. That instrument sets out the requirements for applicant seeking to satisfy the “financial capacity” criterion for the grant of a Subclass 500 visa and, relevantly, provides as follows:
6 Subclass 500 (Student) visa—primary applicants
(1)For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5) or (6).
Note: For primary applicant, see section 4 of Part 1 to this instrument.
(2) The evidence of financial capacity:
(a) is in the form specified in section 10; and
(b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
(i) travel expenses; and
(ii) the following living costs and expenses:
(A)if the primary applicant intends to stay in Australia for a period of 12 months or more—AUD24,505 (primary applicant annual living costs); and
(B)if the primary applicant intends to stay in Australia for a period of less than 12 months—the pro rata equivalent of primary applicant annual living costs, calculated as specified in section 11; and
(iii)the following course fees, minus any amount already paid:
(A)if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months—the fees for the course of study or the remaining components of the course of study; or
(B)if the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months—course fees for the first 12 months of the period study in Australia; and
Note:The period of study is the period beginning on one of the following days and ending on the final day of the applicant’s final course of study:
(a)if the applicant’s first course of study commenced after the date of application—the first day of the first course of study; or
(b)if the applicant’s first course of study commenced before the date of application—the date of application.
(c)…
(3) The evidence of financial capacity:
(a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and
(b)demonstrates that the primary applicant’s parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:
(i)if there is no secondary applicant– at least AUD72,465; or
(ii)if there is a secondary applicant – at least AUD84,543.
(4)The evidence of financial capacity is the primary applicant’s completed AASES form.
Note:AASES form is defined in regulation 1.03 of the Regulations to mean for a secondary exchange student, an Acceptance Advice of Secondary Exchange Student form from the relevant State or Territory education authority, containing the following declarations:
(a)a declaration made by the student’s exchange organisation, accepting the student;
(b)a declaration made by the student’s parent, or the person or persons having custody of the student, agreeing to the exchange.
(5)If the primary applicant is a Foreign Affairs student – the evidence of financial capacity is a letter of support from the Department of Foreign Affairs and Trade.
(6)If the primary applicant is a Defence student – the evidence of financial capacity is a letter of support from the Department of Defence.
…
10 Evidence of financial capacity
The following forms of evidence of financial capacity are specified:
(a) money deposit with a financial institution;
(b) loan with a financial institution;
(c) government loans;
(d) scholarship or financial support.
11 Pro rata equivalent
In this Part, the pro rata equivalent of annual costs is calculated by:
(a) dividing the annual amount by 365; and
(b)multiplying the resulting number by the number of days the applicant is intending to stay in Australia.
Regulation 1.03 of the Regulations also defines what is considered a “financial institution” for the purpose of the evidence referenced in s 11 of LIN 19/198 above, as follows:
financial institution means a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money:
(a) under a regulatory regime:
(i)governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
(ii)that the Minister is satisfied provides effective prudential assurance; and
(b)in a way that the Minister is satisfied complies with effective prudential assurance requirements.
CONSIDERATION
As set out above, the grounds of review included in the applicant’s judicial review application provide as follows (without alteration):
1.The Tribunal made a jurisdictional error by not adopting a fair process in making the decision;
2.The Tribunal ignores materials they were required to look at;
3.The Tribunal reaches a decision that is unreasonable in the legal sense;
4.The Tribunal decision is so unreasonable Tribunal has reached that decision.
The applicant also filed an affidavit in this Court on 3 November 2023 (sworn on 3 November 2023 and taken as read and in evidence at the hearing of this matter). That affidavit annexed the applicant’s written submissions and a number of supporting documents.
The applicant’s submissions included some factual and procedural background information and raised a number of concerns. The Court notes that the submissions reference concerns with the conduct of the “first respondent”. It is unclear whether those concerns are directed at the delegate or the Tribunal or both. Given that the Court’s jurisdiction is limited to a review of the Tribunal’s decision, the Court has interpreted the concerns to be raised with the Tribunal’s conduct.
Those concerns relevantly provided as follows:
(a)relevant materials were “dismissed” or overlooked, including:
(i)a sponsorship letter from the third party sponsor included with the visa application as well as further documents from that third party sponsor which were submitted on 28 September 2020; and
(ii)a work contract showing that he would earn $69,304.98 per annum (pro rata on a part time basis); and
(b)the Tribunal asked for evidence that the applicant was studying or enrolled in a course of study and the applicant submitted a letter of offer on 20 February 2023, together with financial documents from the applicant’s grandparents. The applicant was not aware that the funds needed to be in a “proper bank account” and, had he been aware, he could have arranged for the funds to be transferred. Further, the declaration provided by the applicant’s grandparents shows that the funds were available and “would have been transferred when necessary for the applicant” to use.
Annexed to the affidavit were the following documents:
(a)extracts of bank statements for the applicant showing credits from the third party sponsor;
(b)extract from the applicant’s PRISMS records indicating that he was enrolled in a Diploma of Christian Leadership (scheduled to run from 3 August 2021 to 17 June 2022) but withdrew from his studies on 26 November 2021 because “his visa was refused” and he was not able to continue his studies;
(c)a statutory declaration from the applicant’s grandparents dated 14 February 2023 (also appearing at CB 107), together with identity documents for the applicant’s grandparents;
(d)a fixed term contract of employment from the applicant’s employer dated 23 August 2023 (commencing on 9 August 2023 and ceasing on 9 November 2023 “due to visa restrictions”);
(e)Notices of Assessment for the applicant from the Australian Taxation Office for the years ending 30 June 2021 and 30 June 2022;
(f)five Overseas Student Confirmation-of-Enrolment (“COE”) documents; and
(g)documents from the IPC Theological Seminary Kottayam regarding the applicant’s study towards and completion of a Master of Divinity degree.
An application for judicial review is, ordinarily, confined to the material that was before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. Further, any new evidence from an applicant should not be permitted for the purpose of showing a finding of fact was wrong or to better support an applicant’s claims and evidence.
As the Minister correctly submitted (at the hearing of this matter), with the exception of the statutory declaration from the applicant’s grandparents and one of the COE documents, the materials annexed to the affidavit were not provided to the Tribunal and, as such, could not have been considered.
On that basis, the Court does not place any weight on the material annexed to the affidavit (which was not otherwise in the Court Book or before the Tribunal). The Court will, however, consider the concerns raised by the applicant in the submissions annexed to the affidavit.
Having considered all of the materials before it (including the applicant’s grounds of review, the information included in the applicant’s written submissions annexed to his affidavit and his oral submissions to this Court) and noting that the applicant was unrepresented before this Court, the Court has interpreted the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicant to raise the following concerns:
(1)whether the Tribunal overlooked relevant materials;
(2)whether the Tribunal erred in finding that the funds from the applicant’s grandparents were not evidence of financial capacity;
(3)whether the Tribunal’s finding that the applicant did not have genuine access to those funds was illogical or unreasonable; and
(4)whether the conduct of the applicant’s migration agent amounted to fraud on the Tribunal.
Those concerns will be addressed in turn below.
Whether the Tribunal overlooked relevant materials
As outlined above, the applicant raised concerns that the Tribunal overlooked relevant materials.
To the extent that the applicant claims that the Tribunal erred by overlooking or dismissing a sponsorship letter from the third party sponsor included with the visa application, as well as further documents from that third party sponsor which were submitted on 28 September 2020, the Court disagrees.
As outlined above, the applicant did provide a sponsorship letter from the third party sponsor with his visa application (CB 21). That sponsorship letter was dated 17 June 2020 and indicated that the sponsor was able to financially support the applicant whilst he was “studying theology … for one year”. A payslip from that third party was also provided at that time (CB 22).
A further letter from the third party sponsor dated 29 September 2020 was also provided by the applicant to the Department (CB 38) in response to a request for additional information from the Department made on 15 September 2020 (requesting evidence of the applicant’s financial capacity and the applicant’s “relationship to the source of funds”) (CB 32-37). The letter from the third party sponsor detailed the applicant’s relationship with the third party sponsor – noting that he was a member of the sponsor’s church and was “from one of [the sponsor’s] close spiritual families in India”.
The Court notes that a third sponsorship letter was also provided by the same third party sponsor (dated 18 August 2021) (CB 40). That letter again confirmed the third party sponsor’s willingness to support the applicant “to complete his study in [the] Diploma of Christian Leadership … for one year”.
The Court also notes that, in submissions provided to the Tribunal prior to the Tribunal hearing (at CB 80-83), the applicant’s representative referenced the third party sponsor as having provided financial assistance to the applicant whilst he was studying and completed the Certificate IV in Christian Ministry (CB 82). However, after the Tribunal hearing, in the further “post-hearing submissions” provided by the applicant’s representative (CB 96-100), the source of funds available to the applicant appears to have changed.
Relevantly, the Court notes that the submissions provide as follows (CB 99):
The applicant has access to the following funds to meet the above total expenses:
1)The applicant has secured an employment in Australia. He informs that he will be able to continue his employment in compliance with the student visa conditions while studying. The applicant has provided his latest payslips and employment letter for your reference.
2)The applicant’s grandparents have made a declaration that they will financially support the applicant when necessary. They have an investment worth AUD$89,000 in their accounts in India.
This evidence appears to have “superseded” the previous evidence of financial capacity that was provided by the third party sponsor. That is, based on the submissions from the applicant’s representative, the applicant had previously had the financial assistance of the third party sponsor, he was then (at the time of or immediately following the Tribunal hearing) working and would otherwise be financially supported by his grandparents.
In this regard, the Court also notes that the most recent letter of support from the third party sponsor was dated 18 August 2021 and there was no suggestion of any further or ongoing support when the matter came before the Tribunal. In particular, there were no further support letters provided to the Tribunal (either on 11 January 2023 with the pre-hearing submissions, at the Tribunal hearing on 6 February 2023 or with the post-hearing submissions on 20 February 2023).
On the basis of the information above, the Tribunal did not err by considering only the applicant’s most recent circumstances.
Insofar as the applicant raises concerns about the Tribunal’s failure to consider the applicant’s employment contract, the Court notes that in order for any evidence to constitute “evidence of financial capacity”, it must be in the form specified in s 10 of LIN 19/198. As set out above, that section relevantly provides as follows:
10 Evidence of financial capacity
The following forms of evidence of financial capacity are specified:
(a) money deposit with a financial institution;
(b) loan with a financial institution;
(c) government loans;
(d) scholarship or financial support.
Alternatively, evidence of annual income of the applicant’s spouse or parents could also be used to show financial capacity: s 6(3)(b) in LIN 19/198. Any evidence in that regard must be government documentation (for example, an income tax assessment or something similar) that has been issued in the 12 months immediately before the visa application is made. This does not, unfortunately, include any annual income of the applicant, any annual income from an employment contract which commenced on 8 August 2022 (being after the visa application had been made on 6 July 2020) or any subsequent contract extensions.
It is well settled law that the Tribunal is not required to reference each piece of evidence provided to it or to make findings regarding each piece of evidence before it. Further, as correctly submitted by the Minister (at [31] in written submissions filed on 25 October 2023), the Tribunal was only required to refer to the pieces of evidence that it found germane to its reasoning: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [67]-[68], [73]-[74], [77], [89] and [91].
The Court is satisfied that no error arises in this regard.
Whether the Tribunal erred in finding that the funds from the applicant’s grandparents were not evidence of financial capacity
The applicant also takes issue with the Tribunal’s findings that the funds from his grandparents were not evidence of financial capacity and that the applicant did not have genuine access to those funds.
As outlined above, s 10 in LIN 98/198 provides that financial capacity can be evidenced by money deposited with a financial institution.
A financial institution is defined in reg 1.03 of the Regulations as follows:
financial institution means a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money:
(a) under a regulatory regime:
(i)governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
(ii)that the Minister is satisfied provides effective prudential assurance; and
(b)in a way that the Minister is satisfied complies with effective prudential assurance requirements.
The Tribunal acknowledged that the applicant had submitted documents which purported to be evidence of term deposits held by the applicant’s grandparents. However, having considered the information about the financial institution available on the company’s website and having reviewed the requirements under reg 1.03 of the Regulations (as set out above), the Tribunal was not satisfied that the company met the definition of “financial institution” as provided by the Regulations.
Specifically, the Tribunal found as follows (footnotes omitted):
12.The applicant submitted documents said to be evidence of term deposits held by his grandparents, [grandparents’ names omitted] in an Indian investment company, Mini Muthoottu Nidhi (K) Ltd. According to the company website: Of the many Companies under the M Mulhoottu Group, Mini Muthoottu Nidhi Kerala Ltd. which is incorporated under the Ministry of Corporate Affairs and governed by Nidhi Rules, 2014 is pioneer in establishing a Nidhi Company in Kerala. The rules under which the investment company Mini Muthoottu Nidhi (K) Ltd is regulated are rules made pursuant to the Companies Act in lndia.
13.There is no evidence before the Tribunal to demonstrate the company named in the documents meets the criteria of an acceptable financial institution.
14.Financial institution is defined in regulation 1.03. Only financial institutions that meet this definition are able to be accepted. The definition provides that a financial institution is a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money under a regulatory regime; and is governed by the central bank (or its equivalent) of the country in which the body corporate operates. Mini Muthooltu Nidhi (K) Ltd is not a financial institution regulated by India’s central bank, the Reserve Bank of India.
15.The Tribunal is not satisfied the certificates of investment said to be evidence of funds in the names of the applicant’s grandparents is evidence of financial capacity in accordance with the instrument.
16.On the basis of the above, the Tribunal is not satisfied that the applicant meets cl 500,214(3).
As set out above, there are strict requirements for a financial institution to meet the definition of financial institution for the purpose of the Regulations. Having considered the relevant requirements, the Tribunal was not satisfied that the funds belonging to the applicant’s grandparents were deposited with a valid “financial institution” for the purpose of the Regulations.
The Court is satisfied that, having regard to the legislative requirements and the Tribunal’s decision, that the Tribunal’s reasoning in this regard was sound and the Tribunal did not err in finding that the funds from the applicant’s grandparents were not evidence of financial capacity in accordance with LIN 98/198 and the Regulations.
Whether the Tribunal’s finding that the applicant did not have genuine access to those funds was illogical or unreasonable
Having found that the funds belonging to the applicant’s grandparents were not evidence of financial capacity because the funds were not deposited in a valid “financial institution” as prescribed by LIN 98/198 and the Regulations, it is not strictly necessary for the Court to consider whether the Tribunal’s findings about the applicant’s access to those funds were unreasonable. However, for completeness, the Court will do so.
The Court notes that the Tribunal was given two Certificate of Investment documents relating to funds held by the applicant’s grandparents (dated 30 March 2022 and 1 April 2022) (CB 108-109).
The certificate dated 30 March 2022 included the following information (CB 108):
SI.No: Invested Date: Fixed Deposit No: Invested Amount: Rate of Interest: Scheme: Maturity Date: 1 05/07/2020 [omitted] 200000 9.75% Monthly 05/07/2023 2 13/07/2020 [omitted] 100000 9.75% Monthly 13/07/2023 3 03/12/2021 [omitted] 500000 9.75% Monthly 03/12/2024 4 23/03/2022 [omitted] 700000 9.75% Monthly 23/03/2025 5 28/08/2021 [omitted] 500000 9.75% Monthly 28/08/2024
The certificate dated 1 April 2022 included the following information (CB 109):
SI.No: Invested Date: Fixed Deposit No: Invested Amount: Rate of Interest: Scheme: Maturity Date: 1 15/03/2022 [omitted] 400000 9.75% Monthly 15/03/2025 2 11/08/2021 [omitted] 200000 10.00% Monthly 11/08/2024 3 17/04/2021 [omitted] 100000 10.25% Monthly 17/04/2024 4 25/01/2022 [omitted] 300000 9.75% Monthly 25/01/2025 5 23/04/2021 [omitted] 100000 10.25% Monthly 23/04/2024 6 30/10/2020 [omitted] 200000 10.25% Monthly 30/10/2023 7 03/12/2021 [omitted] 200000 9.75% Monthly 03/12/2024 8 05/07/2020 [omitted] 200000 9.75% Monthly 05/07/2023 9 19/04/2021 [omitted] 100000 10.25% Monthly 19/04/2024 10 23/04/2021 [omitted] 100000 10.25% Monthly 23/04/2024 11 25/01/2022 [omitted] 500000 9.75% Monthly 25/01/2025 12 11/08/2021 [omitted] 100000 10% Monthly 11/08/2022 13 06/05/2020 [omitted] 100000 11% Monthly 06/05/2023 14 07/03/2022 [omitted] 200000 9.75% Monthly 07/03/2025
Having considered the information provided in those certificates (as set out above and, in particular, the maturity dates), the Tribunal was not satisfied that the applicant could genuinely access the funds. In this regard, the tribunal determined as follows:
18.The Tribunal is not satisfied the applicant will have genuine access to funds held by his grandparents on term deposit with Mini Muthoottu Nidhi (K) Ltd. This is because all but two of the 19 deposits listed on the certificates of investment have a maturity date in the future and are therefore not available to him as and when required.
The Court notes that the Tribunal made its decision in this matter on 13 June 2023. In this regard, the Court assumes that the Tribunal was referencing deposits 12 and 13 in the certificate dated 1 April 2022 (set out above) as being the two deposits which did not have a maturity date in the future. At the time of the Tribunal’s decision, the remaining 17 deposits across both certificates had maturity dates which post-dated the Tribunal’s decision.
In SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131.The test for illogicality or irrationality must be to ask whether logical or irrational or reasonable lines might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical, rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
135.A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
SZMDS sets a very high threshold for findings of irrationality or illogicality.
Here, it cannot be said that the Tribunal’s finding (that the deposits with maturity dates after the date of the Tribunal’s decision may not genuinely be available to the applicant) was not open to it on the evidence before it.
While the applicant may disagree with the Tribunal’s finding, and while this Court may have decided differently, that is not the test upon review. The Tribunal’s finding was legally sound.
Further, in the event that the Court has erred in its consideration above, a finding that the funds were genuinely accessible to the applicant could not have changed the fact that the organisation holding the funds did not meet the definition of “financial institution” (as discussed above).
Whether the conduct of the applicant’s migration agent amounted to fraud on the Tribunal
As noted above, the applicant has raised concerns that his registered migration agent had not told him that his grandparents’ funds needed to be in a valid “financial institution” to be accepted by the Tribunal.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
It cannot be said on the material here that the applicant’s migration agent conducted a “fraud” on the Tribunal. What the applicant describe here is, at its highest, negligence, incompetence or bad advice. The Court makes no findings about the applicant’s representative in this regard.
In this context, the appropriate course of action would be for the applicant to raise his concerns with the appropriate regulatory authority – that being the Office of the Migration Agents Registration Authority.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 14 July 2023), the applicant’s affidavit (sworn and filed on 3 November 2023) and the applicant’s oral submissions have failed to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 14 December 2023
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