Sasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1969

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1969

File number:

ADG 152 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

10 August 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Minister’s delegate to refuse to grant a Student (Temporary) (Class 2U) visa – whether the application satisfied the mandatory criteria – whether the Tribunal applied the correct legislative instrument – whether the applicant was denied procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act1958 (Cth) ss 65, 359AA

Migration Regulations 1994 (Cth) sch 2 cl 500.2

Migration (IMMI 17/012 – Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2017

Migration (IMMI 18/010: Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2018 cl 6

Number of paragraphs:

19

Date of hearing:

10 August 2021

Place:

Darwin

The Applicant:

Appearing on his own behalf

Solicitor for the First Respondent:

Mr Chan of Sparke Helmore

ORDERS

ADG 152 of 2018

BETWEEN:

AMANDEEP SINGH SASAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	10 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application filed on 23 April 2018 is dismissed.

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $5,000.00.

3.The First Respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 21 March 2018 affirming the decision of the Minister’s delegate (the Delegate) made on 28 October 2017 to refuse the applicant a Student (Temporary) (Class 2U) visa pursuant to section 65 of the Migration Act1958 (Cth) (the Act).  The particular visa relevant to the application is a Subclass 500 visa. 

2. Neither the Delegate nor the Tribunal was satisfied that the applicant met the mandatory criteria in clause 500.214 of schedule 2 of the Migration Regulations1994 (Cth) (the Regulations) in relation to providing evidence of necessary funds to support the applicant while he undertook his course of study in Australia.  In the case of this particular applicant, at the time of his visa application, he was, in fact, seeking a further visa to complete the last six months of a degree in engineering.

3. It is significant, for the grounds of review advanced by the applicant, to understand that the Migration Instrument governing the evidence of financial capacity changed as between the Delegate’s decision in October 2017 and the Tribunal’s decision in 2018.  At the time of the Delegate’s decision, the applicable instrument was the Migration (IMMI 17/012 – Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2017 (IMMI 17/012).

4. The applicant submitted he was unaware at the time he went before the Tribunal that IMMI 17/012 had been repealed and replaced by Migration (IMMI 18/010: Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2018 (IMMI 18/010). Each of the instruments, in substance, are very similar and provide for two pathways to showing that the applicant had the necessary financial means. In broad terms, the applicant needed to satisfy the criteria by showing that he had sufficient funds to undertake his course of study, including funds related to travel expenses, living costs, course fees and the like. This could be satisfied by providing evidence of a:

   (a)money deposit with a financial institution;

   (b)a loan with a financial institution;

   (c)government loans;

   (d)scholarship or other financial support.

   Alternatively, the applicant can satisfy the necessary evidence of financial capacity by providing evidence that a parent, spouse or de facto partner has a personal annual income, in the twelve months immediately preceding the application, of at least AUD$60,000 or the equivalent.

5. The Delegate’s reasons show that the applicant did not advance evidence directed to either of the pathways mentioned above and his application, therefore, inexorably failed.  In my view, if the applicant read the Delegate’s reasons, there can be little reason to suggest that he did not know that those two pathways were available to him. That view is reinforced because on 26 February 2018, the Tribunal wrote to the applicant and asked him to provide information of either:

   Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia…

   I interpolate that there were no relevant members of a family unit in this case, as I understand it.

   …to pay course fees, living costs, school costs (where relevant) and travel costs over the relevant period.  You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.

   Relevantly, that would have been evidence of a money deposit with a financial institution or the like, as previously mentioned.  The letter stated that there was an alternative pathway, consistent with what I previously said. This was:

   Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

6. In light of this evidence, in my view, there is little explanation why the applicant would not have been aware of the substantial issues that were facing him once he appeared before the Tribunal. 

7. As is clear from the Tribunal’s reasons, there is no evidence that the applicant attempted to put forward the evidence required to show that he satisfied the criteria of the first pathway.  The applicant appears to have attempted to satisfy the criteria of the second pathway, that is the income of his parents. 

8. It is not necessary to address the reasoning of the Tribunal in any detail. Evidence was put forward by the applicant, and there may have been some technical deficiencies in the way it was put forward, however, the Tribunal took a broad brush approach to it. The Tribunal was satisfied, taking into account the evidence of the income of the applicant’s parents and the income of what appears to have been a related entity to the applicant’s parents, that the combined income from those sources was no more than $44,000.  The precise figure was $43,512.66 as at the applicable exchange rate at the time of the decision between Indian Rupees and Australian Dollars.  The applicant, therefore, fell short of providing evidence to satisfy the criterion he had chosen to address. As such, the application was refused. 

9. In his application for review to this Court, the applicant relied on eight grounds of review. He asked me to treat his most recent submissions that were filed on 26 July 2021 as, in effect, his amended grounds of review. There was no objection to that from the respondent. I will address each of the grounds. 

10. Ground 1 alleges that the Tribunal committed jurisdictional error by applying IMMI 18/010. That ground is without merit. It is clear from clause 500.2 of the Regulations that these criteria are relevant to the time of the decision. Therefore, the Tribunal was required to apply the criteria that were in force at the time of decision. This was unquestionably IMMI 18/010. 

11. Ground 2 makes a similar argument and must be rejected for the same reasons. 

12. Ground 3 alleges that, pursuant to section 359AA of the Act, the Tribunal fell into jurisdictional error by failing to provide particulars and information that might be a basis or the reason for the Tribunal affirming the delegate’s decision. The applicant alleged that the Tribunal was obliged to inform him that IMMI 18/010 applied and failed to do so. There are at least two difficulties with that submission.  First, the fact that particular instrument applies is not information.  Secondly, in my view, there was no material difference between the two instruments – IMMI 17/012 and IMMI 18/010. In respect of the matters raised by this, the applicant was not, in any sense, disadvantaged.  Further, I would find that the applicant was well aware, or ought to have been aware, of what he needed to demonstrate from both the reasons of the Delegate and the letter dated 26 February 2018.

13. Ground 4 alleges that the Tribunal mistakenly observed in its reasons that the applicant was represented by a migration agent.  The Minister concedes that that is an error. The applicant was not represented by a migration agent.  However, while I agree with the applicant that that was clearly an error by the Tribunal, it does not appear to have had any consequence.  The applicant asserts that it may indicate that the Tribunal was thinking of a case other than his.  On the contrary, it is clear from the reasons of the Tribunal that the member was entirely aware of the arguments being advanced by the applicant.  Apart from that error, the reasons are entirely responsive to the case put forward by the applicant. Whether that error was a clerical error or some other kind of error, I do not know.  It is entirely speculative.  However, it is an error and it is unexplained.  However, in my view, it is an error without consequence, and therefore is not jurisdictional in nature. 

14. Ground 5 is an allegation that the applicant was not informed by the Tribunal that IMMI 18/010 applied. The applicant said that that constituted a denial of procedural fairness.  In my view, that is not a matter that the Tribunal was required to advise the applicant about.  It is simply the legislative provisions that apply to his particular case. It is most regrettable, perhaps, that the applicant was unrepresented and unfamiliar with the relevant legislative provisions, however, the fact that he was ignorant of the relevant legislative provisions does not constitute procedural unfairness.  Further, even if there was such an obligation, in my view, there has been no disadvantage. The applicant was aware or ought to have been aware of the matters he needed to address which were going to be foremost in the mind of the member when considering the application – that is the evidence of financial capacity and the relevant components set out in the Delegate’s reasons and in the letter dated 26 February 2018.

15. Ground 6 repeats the assertion about IMMI 18/010. I do not propose to repeat the reasons for dismissing that ground. 

16. Ground 7 is an allegation that purports to rely on the Explanatory Statement attached to IMMI 18/010 which repealed IMMI 17/012. Ground 7 is difficult to follow but appears to be related to ground 8 which seems to raise much the same complaint. The applicant states that the relevant instrument, IMMI 18/010, at clause 6(2), indicates that in the applicant’s case, as the remainder of his study was for a period of less than 12 months, all he needed to show to satisfy the criteria was that he had paid his course fee. The applicant says, and this is not in dispute, that he had paid $4,000, being the remainder of his course fee and therefore had no amounts outstanding.  It appears to me that this submission overlooks the clear terms of clause 6(2) which states the evidence of financial capacity is evidenced in the form referred to in clause 10. It also requires demonstration of sufficient funds to meet travel expenses, living costs, course fees and the like. Course fees are only one component of satisfying the criteria in clause 6(2).  It may well be that had that been addressed, the applicant could have easily shown he paid his course fees, however, he still had to provide some evidence that he was able to pay his living costs and travel expenses.  It may be that he could have done that easily, I do not know.  He did not, however, raise it before the Delegate which raises some questions about the reason why. I acknowledge that there can be some degree of inquiry required of an expert Tribunal of this nature if there is material that merits further inquiry.  It may be regrettable that the Tribunal did not make such an inquiry about whether the applicant could satisfy the pathway set out in clause 6(2). 

17. The applicant, some days after the decision, put some further material before the Tribunal.  I have examined that material; it is included in the Court Book.  I am far from satisfied that it would have fulfilled the evidentiary requirements of clause 6(2).  One would have thought that that pathway could have been satisfied by the applicant showing that his course fees had been paid in their entirety and showing a relatively small amount of money in his bank.  There is, even at this stage, no evidence that the applicant had any money in his own bank account.  That was not material that the applicant put forward.  The applicant put forward material that appears to show money in bank accounts or deposits of his parents and perhaps other peoples bank accounts.  The question arises, if the Tribunal had made an inquiry, what would have been the response?  My view is that the likely response of the applicant would not have been to show that he had any money in a bank account, certainly not an Australian bank account because there is no evidence of that. Rather, the applicant would have attempted to demonstrate that other people, in India, had money in their bank accounts.  I am not satisfied, even if a duty of inquiry arose in the circumstances, that the inquiry would have been one that was easily pursued or that there was an easy answer to hand. 

18. The absence of any evidence of even a modest amount of money in a bank account held by the applicant himself after he had been in Australia for a considerable period is perplexing. The decision of the Delegate made it clear that there were two pathways, including showing what, in all probability, would only need to be a modest amount of money held by the applicant available for his support.  The letter dated 26 February 2018 made it entirely clear that he had a choice between the two pathways. 

19. In those circumstances, I am not satisfied that the Tribunal had an obligation to make further inquiries in relation to information that was easily ascertainable or that there was some path of inquiry that would have clearly led to a favourable decision and the Tribunal failed to take it.  I consider that while the outcome may be regrettable, it is very much a reflection of the course that the applicant chose to take, in circumstance where the options that confronted him were clear enough.  For those reasons the application is dismissed. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       24 August 2021