Ruby v Minister for Immigration & Border Protection

[2015] FCCA 1866

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUBY & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1866

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the ‘eligible higher degree student’ requirements pursuant to cl.573.111 of Schedule 2 to the Migration Regulations 1994 (Cth) satisfied – whether the financial capacity requirements in cl.5A 508 of Schedule 5A to the Migration Regulations 1994 (Cth) satisfied – whether the applicant provided evidence of funds from an acceptable source sufficient to meet specified expenses – whether the applicant provided evidence that the regular income of any individual providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual – whether the applicant provided evidence of access to the funds – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 338, 474
Migration Regulations 1994 (Cth) reg.2.01, Schedule 2 – cls.573.111, 573.22, 573.223, Schedule 5A – cl.5A 508

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

First Applicant: RUBY

Second Applicant: MUNISH KUMAR

Third Applicant: TAVISH MAHAJAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1491 of 2014

Judgment of: Judge Emmett

Hearing date: 7 July 2015

Date of Last Submission: 7 July 2015

Delivered at: Sydney

Delivered on: 7 July 2015

REPRESENTATION

The applicants appeared in person with the assistance of a Hindi interpreter.

Counsel for the Respondents: Mr Hamish Bevan

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1491 of 2014

RUBY

First Applicant

MUNISH KUMAR

Second Applicant

TAVISH MAHAJAN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal, dated 16 May 2014 and handed down on 19 May 2014 (“the MRT”).

2. The second named applicant is the husband of the first applicant. The third named applicant is the son of the first and second applicants. The claims of the second and third applicants are wholly dependent on those of the first applicant (“the Applicant”).

3. The ultimate issue before the Court was whether the Applicant had the relevant financial capacity to support her in the course in which she had been enrolled.

Background

1. On 14 May 2013, the applicant lodged an application for a Student (Temporary) (Class TU) visa with the Department of Immigration and Citizenship (“the Department”).

2. On 19 June 2013, the Delegate refused the Applicant’s application for a student visa.

3. On 2 July 2013, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

4. On 19 May 2014, the MRT affirmed the decision of the Delegate not to grant a student visa.

5. On 2 June 2014, the Applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative Framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Student (Temporary) (Class TU) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Under s.338 of the Act, a decision to refuse to grant a student visa is a decision which may be reviewed by the second respondent.

3. At the time that the Applicant lodged her application for a student visa, she was required to satisfy cl.572.223 of Schedule 2 to the Regulations, and in particular, cl.573.223(2)(a) and cl.573.223(2)(c), which provides as follows:

   “573.223

   …

   2)  If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   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 the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.”

   (Emphasis added.)

4. Relevantly, cl.5A 508 of Schedule 5A to the Regulations is as follows:

   “Clause 5A508. 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 18 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 18 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:

   …

   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 the applicant or an individual who is providing support to the applicant;

   (b) if paragraph (a) does not apply - a money deposit that the applicant, or an individual who is providing support to the applicant, has held for at least the 3 months immediately before the date of the application;

   (c) a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant;”

   (Emphasis added.)

5. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

6. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 14 May 2013, the Applicant lodged her application for a student visa with the Department.

2. Prior to reaching its decision, the Department spoke via telephone to both the Applicant and the Applicant’s migration agent seeking further information about the ability of the Applicant to satisfy the financial requirements for the grant of her student visa.

3. On 19 June 2013, the Delegate refused the Applicant’s application for a student visa on the basis that the Applicant did not have the requisite financial capacity to cover her living expenses if she was to remain in Australia. Further, the Delegate concluded that the Applicant did not have access to additional funds sufficient to cover those expenses.

The MRT’s review and decision

1. On 2 July 2013, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

2. The Applicant provided to the MRT further documents in support of her review application, including various documents purporting to show the Applicant’s enrolment in a course of study and ability to meet the financial requirements necessary for her visa.

3. On 12 October 2013, the MRT wrote to the Applicant informing her that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 18 November 2013 to give oral evidence and present arguments.

4. On 18 November 2013, the Applicant attended the MRT hearing and gave evidence.

5. The MRT’s decision is accurately summarised in the written submissions of counsel for the respondents, Mr Hamish Bevan, as follows:

   “7. On 15 October 2013, the Tribunal invited the Applicants to appear before it: CB 63-66. The invitation also requested information, including in relation to enrolments and studies (see CB 64-65 at paras 1-3) and finances (see CB 65 at para 5).

   8.   The Applicant accepted the Tribunal’s invitation: CB 71-72. Further, the Applicant provided some information to the Tribunal: CB 73-148.

   9.   The hearing took place on 18 November 2013, which was attended by the Applicant and her representative: CB 149-151.

   10.    On 2 December 2013, the Applicant provided further information to the Tribunal, primarily financially related: CB 168-192.

   11.    On 31 March 2014, a person from the Tribunal contacted the Applicant’s representative: CB 194. The representative was advised that:

   a)   in respect of a Mr Gaurav Narang who had provided “evidence of funds” and a “statement in support”, there was “no information about why Mr Narang may be willing to provide support, any support he may have previously provided, or information about his everyday income”;

   b)   in respect of a Mr Vishal Bhakhan who had also provided some financial evidence, there was “no evidence … showing that Mr Bhakhan’s deposits were held for the 3 months prior to the visa application having been made”.

   A period of 2 weeks was allowed to provide further information, which the representative “agreed that this would be ample time”.

   12.    On 4 April 2014, further information was submitted relating to Mr Bhakhan and Mr Narang: CB 195-209. (The material at CB 210-234 and at CB 235-311 are duplicates, with marginally better copies, of documents previously submitted by the Applicant.)

   13.    On 19 May 2014, the Tribunal affirmed the delegate’s decision: CB 315-327.

   Tribunal’s decision

   14.    The Tribunal annexed relevant extracts from the Migration Regulations to its decision: CB 328-332.

   15.    The Tribunal:

   a)   accepted that the Applicant had demonstrated English language proficiency and therefore satisfied cl 5A 507(1)(d)(iii) – see CB 317 [12];

   b)   was satisfied that the Applicant had provided evidence of funds from an acceptable source that are sufficient to meet her expenses for course fees, living costs and travel costs for the first 18 months and therefore met cl 5A 508(1)(a) and (b) – see the calculation of the funds required at CB 318 [14], the consideration of the evidence at CB 320 [24]-[35] and the conclusion at CB 324 [36];

   c)   was not satisfied, however, on the evidence that Mr Narang’s regular income was sufficient to accumulate the level of funding provided by him and the Tribunal was therefore not satisfied that the Applicant satisfied cl 5A 508(1)(c) – see CB 324 [41]-[44];

   d)   was also not satisfied on the evidence that Mr Narang’s funds will be available to the Applicant during the visa period and the Tribunal was therefore not satisfied that the Applicant satisfied cl 573.223(2)(a)(iii) [sic, clause 573.223(2)(c)] – see CB 326 [46]-[50].

   16.    The Tribunal was therefore not satisfied that the Applicant met the requirements of cl 572.223 and affirmed the delegate’s decision: see CB 327 [51]-[53].”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Hindi interpreter.

2. On 24 June 2014, the Applicant attended a directions hearing before me. On that occasion, the first applicant was appointed as litigation guardian of her son, the third applicant. I explained to the Applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT.

3. At the directions hearing, the Applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that would flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicants’ ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The Applicant confirmed that she wished to continue with the application for judicial review. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support of her application, by 22 July 2014.

5. At the directions hearing, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

6. The Applicant filed four affidavits, sworn/affirmed on 22 July 2014, 15 October 2014, 5 February 2015 and 9 February 2015, annexing various documents that the Applicant confirmed either post-dated the MRT’s hearing or were documents that she did not give to the MRT at its hearing.

7. Counsel for the respondents, Mr Bevan, objected to those affidavits on the ground of relevance and they were rejected on that basis, save for an assertion in a document annexed to the affidavit filed and sworn by the Applicant on 22 July 2014 that the Applicant “did not get a single call from her representative for providing documents.”

8. The Applicant confirmed that she relied on the grounds contained in her originating application, filed on 2 June 2014, as follows:

   “1. The MRT made a jurisdictional error in denying the applicant’s application for a student (Temporary) (Class TU) visa in failing to consider all the facts and the law related to the applicant’s application particularly:

   Particulars:

   (a) The Migration Review Tribunal did not consider that the Applicant is an 'eligible higher degree student or eligible university exchange student. Whether the applicant has the support of the relevant Minister or whether the applicant has applied on the basis a Student Guardian.

   (b) The applicant did not provide the evidence required to demonstrate they were a genuine student. In relation to financial capacity and the delegate was not satisfied that the applicant would have genuine access to the funds which had been demonstrated.

   2. The reasons given by the MRT reveals that an error in the interpretation of the applicable did not provide evidence which the MRT could be satisfied that the applicant meets the criteria for any of other student.

   3. The MRT did not consider that the applicant must give evidence of funds from an ‘acceptable source’ to meet specific expenses for the ‘first 18 months’. The MRT consider that the ‘first 18 months’ is in fact a period of 18 months as the course the applicant is undertaking does not finish until March 2016, more than 18 months from when applicant is likely to be granted a visa.

   4. The MRT failed to take into account that the applicant was a genuine applicant in the present case.”

   (Errors in original.)

9. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to say whatever she wished in support of each of the grounds and in support of the application generally.

10. Whilst the Applicant did not make submissions directly, either in writing or orally, in support of those grounds, I understand the Applicant’s complaint to be that the MRT did not properly apply the legislative scheme to her situation and circumstances, and made findings with which she did not agree.

11. In particular, the grounds of the application assert that the MRT did not consider the Applicant was an eligible higher degree student or eligible university exchange student. Further, the applicant asserted that the MRT did not consider that the Applicant must give evidence of funds from an acceptable source to meet specific expenses for the first 18 months. A fair reading of the MRT’s decision record does not support these assertions.

12. The MRT considered the Applicant’s claims in the light of her application on 14 May 2013 for a Student (Temporary) (Class TU) visa.

13. The MRT correctly identified the subclass requirements that the applicant must meet. The MRT noted, in particular, that the Applicant was currently enrolled in a Bachelor of Business degree at the Australian Institute of Business and Management Pty Ltd as her principal course. Accordingly, the relevant subclass that may be granted is a subclass 573 visa.

14. The applicant is required to meet cl.573.223 of Schedule 2 to the Regulations and, in particular, cl.573.223(2)(a) and cl.573.223(2)(c), which refer to Schedule 5A, relevantly cls.5A 508(1)(a),(b),(c) and (1A).

15. The MRT noted that the requirements of cl.573.223 of Schedule 2 to the Regulations differ depending on whether or not the Applicant is an ‘eligible higher degree student’ who has a confirmation of enrolment in a course of study. Eligible higher degree student is defined in cl.573.111 of Schedule 2 to the Regulations to mean an applicant for a subclass 573 visa who is enrolled in a Bachelor’s degree or a Master’s degree with an eligible education provider. Eligible education providers are specified by the Minister in an instrument.

16. The relevant time is specified in cl.573.22 of Schedule 2 to the Regulations and is applicable at the time of decision. A copy of the legislative instrument was provided to the Court by Mr Bevan. That legislative instrument, identified as “IMMI 14/007 – Eligible Education Providers and Educational Business Partners” (“IMMI 14/007”), commenced on 22 March 2014. That date of commencement pre-dates the decision of the MRT.

17. IMMI 14/007 specifies those education providers that satisfy the requirement to be an ‘eligible education provider’. The education provider to the Applicant, being the Australian Institute of Business and Management Pty Ltd (trading as King’s Own Institute), is not specified in IMMI 14/007 and therefore is not an eligible education provider. In the circumstances, the MRT found that the Applicant is not an eligible higher degree student with a corresponding confirmation of enrolment.

1. The MRT’s finding that the Applicant is not an eligible higher degree student because the education provider that she attended was not an eligible education provider was open to the MRT on the evidence and material before it and for the reasons it gave.

2. Clause 577.223 of Schedule 2 to the Regulations provides that if an applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student, the applicant must meet the requirements in Schedule 5A of the Regulations. These requirements include satisfying the relevant decision-maker that the applicant will have access to demonstrated funds in accordance with the requirements in Schedule 5A of the Regulations relating to the applicant’s financial capacity.

3. Clause 5A 508(1) of Schedule 5A to the Regulations provides that an applicant must give evidence that the applicant has funds from an acceptable source that are sufficient to meet specified expenses for the first 18 months and that the regular income of any individual providing funds is sufficient to accumulate the level of funding being provided by that individual.

4. Pursuant to cl.5A 508(1A) of Schedule 5A to the Regulations, the Applicant must satisfy the relevant decision-maker that the Applicant has access to funds that are sufficient to support the Applicant and members of her family unit.

5. The MRT correctly identified that requirement as an obligation on the Applicant to meet the financial capacity requirements in cls.5A 508(1)(a) and 5A 508(1)(b) of Schedule 5A to the Regulations, and give evidence of funds from an acceptable source to meet specific expenses for the first 18 months.

6. The MRT found that the total cost required for the Applicant to meet cl.5A 508 of the Regulations for the relevant period of 18 months was $58,366AUD. In those circumstances, it was for the Applicant to provide evidence demonstrating her ability to access funds from an acceptable source sufficient to meet those costs.

7. As stated above, ultimately the MRT accepted that the Applicant had sufficient funds from an acceptable source. However, the MRT raised with the Applicant, both in writing and at the hearing, that the Applicant was required to provide evidence that the regular income of any individual providing funds to the Applicant was sufficient to accumulate the level of funding being provided. The Applicant identified two particular sources of funds; being her father and a friend, Mr Gaurav Narang.

8. The MRT raised various other concerns it had about the absence of relevant evidence to enable it to make the relevant findings. Those concerns were raised with the Applicant both in writing prior to the hearing and again at the hearing itself. The Applicant provided post-hearing material, which was considered by the MRT.

9. Ultimately, the MRT found that the Applicant met cls.5A 508(1)(a) and (b) of Schedule 5A to the Regulations. The Applicant was then required to satisfy the MRT that she also met cl.5A 508(1)(c) of Schedule 5A to the Regulations that she had access to those funds.

10. The MRT found that the Applicant’s father was able to provide her with $15,900AUD and was further satisfied that the provision of that sum met the further requirements in cl.5A 508(1)(c) of Schedule 5A to the Regulations. However, regarding the remaining funds that Mr Narang was to provide to the Applicant, as referred to above, the MRT found that the provision of those funds would not satisfy the requirements in cl.5A 508(1)(c) of Schedule 5A to the Regulations.

11. The MRT found that the only evidence of the funds from Mr Narang provided by the Applicant was in relation to a home loan bank account and a pro forma student visa financial support statement. The statement asserted that Mr Narang’s regular income was sufficient to accumulate the level of funding being provided to the Applicant. However, the MRT found that no information was provided about the source or sources of income of Mr Narang, and none was evident in the few documents provided by the Applicant in order to satisfy the MRT that Mr Narang’s funds were indeed able to accumulate to the requisite level of funding.

12. The MRT noted that it had made several requests and provided several opportunities to the Applicant to provide that information. The MRT further noted that it had identified with specificity the concerns it had in relation to the funds of Mr Narang and the requirements that the Applicant must meet to assuage those concerns. However, nothing further was provided by the Applicant to the MRT in respect of Mr Narang’s financial support.

13. In the absence of any further supporting information or documentation, the MRT was not satisfied that the financial statement of Mr Narang was sufficient evidence to meet the requirements of cl.5A 508(1)(c) of Schedule 5A to the Regulations in respect of his financial support of the Applicant. Accordingly, the MRT found that cl.5A 508 of Schedule 5A to the Regulations was not met in that the Applicant was unable to demonstrate sufficient funds for the purpose of cl.5A 508(1)(c) of Schedule 5A to the Regulations.

14. The MRT went on to consider whether the Applicant would in fact have access to the funds of Mr Narang and, ultimately, was not satisfied that those funds would be available to the Applicant during the visa period. The MRT noted that Mr Narang was a “friend” of the Applicant but also noted that there was no other information provided about why Mr Narang may be willing to put his excess home loan funds at the disposal of the Applicant or any further information about their relationship. The MRT was not satisfied that Mr Narang’s funds would be available to the Applicant, or that the Applicant would have access to the demonstrated funds.

15. The MRT concluded that the Applicant did not meet an essential requirement of cl.573.223 of Schedule 2 to the Regulations, namely evidence of funds from an acceptable source. The MRT stated as follows:

    “Deposits held by the applicant in Australia

    32. I have considered the evidence provided of funds held by the applicant in Australia. The applicant has provided copies of bank account statements for an account held with the St George Bank, but the statements to do cover [sic] the period of 3 months prior to the application having been made and consequently do not provide any evidence of funds from an acceptable source according to the regulations.”

16. The MRT then affirmed the decision under review.

17. It was necessary for the Applicant to meet all the requirements of her visa as set out in the Regulations, as they were mandatory to her visa. The MRT’s findings and conclusions were open to it on the evidence and material before it, and for the detailed and comprehensive reasons that it gave.

18. As referred to above, on 15 October 2013, the MRT identified in writing to the Applicant the concerns that it had about aspects of her evidence and gave her particulars of the evidence that it would require in order to be satisfied that the Applicant had the necessary funds. The MRT again identified its concerns and the evidence it would require during the course of the hearing, and identified the information with which it was not satisfied. In the circumstances, the MRT plainly gave the Applicant an opportunity to provide further information to satisfy its concerns. The Applicant did not do so.

19. Regarding the Applicant’s complaints this morning about her migration agent not asking her for any further documents, even if I was to accept that statement at face value, such a complaint of bad or negligent advice or mistake is not sufficient to demonstrate jurisdictional error on the part of the MRT. It does not constitute a fraudulent dealing in the nature of that identified by the High Court of Australia in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, in which the whole of the High Court of Australia, as it was then constituted, stated at [53]:

    “53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div.4 of Pt.7 of the Act [Migration Act 1958 (Cth)] for the conduct by the Tribunal of reviews and the place therein of the ss.425 and 426A of the Act. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.”

    (Emphasis added.)

20. At worst, it would appear that the conduct of the Applicant’s migration agent, if it occurred as asserted, was no more than negligence, bad advice or a mistake.

21. Otherwise, the Applicant’s complaints do not identify any jurisdictional error on the part of the MRT and appear more to be a disagreement with the findings and conclusions of the MRT. The Applicant’s complaints, such as they are, invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

22. In the circumstances, the complaints in the grounds of the Applicant’s application, filed on 2 June 2014, are not made out.

Conclusion

1. A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the Applicant, explored those claims with the Applicant at a hearing and had regard to all material provided in support. The MRT put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses.

2. The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. To the extent that the MRT’s decision referred to cl.573.223(2)(a)(iii) of Schedule 2 to the Regulations in considering the Applicant’s access to funds, it is clear that such reference was intended to refer to cl.573.223(2)(c) of Schedule 2 to the Regulations. There is no clause 573.2232(a)(iii) of Schedule 2 to the Regulations and the MRT’s detailed consideration of the Applicant’s access to funds is clearly in the context of clause 573.223(2)(c) of Schedule 2 to the Regulations.

4. In the circumstances, the MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court, commenced be way of application filed on 2 June 2014, should be dismissed with costs.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:     18 September 2015