Sebastian v Minister for Immigration

[2014] FCCA 2077

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEBASTIAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2077

Catchwords:
MIGRATION – Application for judicial review – Student (Temporary) (Class TU) visa – where tribunal determined that the applicant did not satisfy the financial capacity requirements – whether the applicant satisfied the financial capacity requirements – no error revealed in the tribunal’s reasons.

Legislation:
Migration Act 1958, s.359A

Migration Regulations 1994, Schedule 5A, r.2.07AO

Applicant: BRITE SEBASTIAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 386 of 2013

Judgment of: Judge Jarrett

Hearing date: 18 December 2013

Date of Last Submission: 18 December 2013

Delivered at: Brisbane

Delivered on: 11 September 2014

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application for review filed on 5 September, 2013 is dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 386 of 2013

BRITE SEBASTIAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 16 May, 2013 the applicant applied for judicial review of a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

2. The application sought “A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application”.  Further, the application did not reveal any proper grounds of review of the tribunal’s decision.  Accordingly, the applicant was ordered to file an amended application.

3. On 5 September, 2013 the applicant filed an amended application.  In it, he seeks no relief by way of final orders.  His grounds of review remain the same.  They are:

   1.  The funds are correct and true

   2.  my old subjects credited to new course

   3.  If I have certificate IV I don’t want(?) submit IELTS

4. The first respondent opposes the application.  In accordance with directions made to prepare this application for hearing, the first respondent has filed written submissions in support of his opposition.  Despite a direction to do so, the applicant has not filed written submissions in support of his application.

Factual background

1. The applicant, a citizen of India, lodged an application for a Student (Temporary) (Class TU) visa on 15 March, 2011. On 20 June, 2011 a delegate of the first respondent refused to grant the visa to the applicant.

2. On 12 July, 2011 the applicant lodged an application for review by a migration review tribunal. On 18 December, 2012 the tribunal wrote to the applicant, pursuant to s.359A of the Migration Act1958, inviting him to comment on or respond to information that the tribunal considered would be the reason, or part of the reason, for affirming the decision under review.  The letter was returned to the tribunal and reissued to the applicant at the applicant's new address on 16 January, 2013.  The applicant responded to the invitation by letter received on 24 January, 2013.

3. On 1 February, 2013 the tribunal wrote to the applicant inviting him to provide evidence in relation to the English language, financial capacity and other requirements for his visa, as well as attend a hearing on 7 March, 2013.

4. By emails on 23 February and 6 March, 2013 the applicant provided further documents in relation to his previous studies and financial status.

5. At the hearing held on 7 March, 2013 the tribunal advised the applicant that it “remained concerned” that he did not meet the financial capacity and language requirements and gave him 14 days to provide a post-hearing submission dealing with those concerns.

6. On 15 March, 2013 a tribunal officer explained to the applicant by telephone that he did not have a further hearing scheduled but was required to submit documents by 21 March, 2013. The applicant provided further income certificates to the tribunal by email on 21 March, 2013.

The tribunal’s decision

1. The tribunal summarised the statutory regime that governed the grant of student visas generally, and the particular visa applied for by the applicant in this case.  Various subclasses of student visas are available.

2. The tribunal found that the applicant was enrolled in a Certificate IV in Hospitality (Commercial Cookery) commencing on 4 February, 2013 and finishing on 18 March, 2013. It found that he had a current offer of enrolment in a Diploma of Hospitality commencing on 15 May, 2013 and finishing on 15 November, 2013. Each of those courses was specified for subclass 572 by the first respondent. The tribunal determined that the relevant subclass for its purposes was subclass 572.

3. The tribunal set out the visa criteria for a subclass 572 visa.

4. It recorded that the applicant must provide evidence of various matters in accordance with the requirements set out in Schedule 5A to the Migration Regulations1994. It noted that the relevant clause in Schedule 5A was determined by the “assessment level” to which the applicant was subject. The tribunal set about determining the appropriate “assessment level” for the applicant.

5. Given that the applicant was not a person designated under r.2.07AO of the Regulations and that he held an eligible passport of India, the assessment level for the applicant’s subclass and passport was Assessment Level 4.  The tribunal determined, correctly, that the applicant was subject to Assessment Level 4.

6. Next, the tribunal determined that the issue before it was whether the applicant had given evidence that he satisfied the requirements set out in Schedule 5A for Assessment Level 4.

7. In respect of the financial capacity requirements, the tribunal had regard to the enrolment details provided by the applicant.  It determined that the funds the applicant was required to demonstrate at the time of the tribunal’s decision was $18,250, comprising his course fees of $3,750, his living costs of $1500 per month (for the remaining nine month period he requires to complete his course) and return travel costs of $1000. 

8. The applicant needed to demonstrate that he had access to those funds and that those funds were from an “acceptable source”.  The definition of “funds from an acceptable source” for the purposes of the relevant regulation provided, in the applicant’s circumstances, that a money deposit, held by an acceptable individual constituted funds from an acceptable source.  The tribunal found that the applicant’s parents were acceptable individuals for the purposes of determining if the applicant had funds from an acceptable source.

9. The tribunal recorded that:

   41.    At the time of application, the applicant sought to rely on loan funds held by his parents.  The first set of financial documents submitted by the applicant were found not to be genuine and the applicant confirmed to the tribunal that the second set of loan documents he produced to the department have since lapsed. 

   42.    At the tribunal hearing and in the period following, the applicant gave evidence of seven fixed deposits held by his parents which together total holdings of 12,00,000 rupees, being:

   ·Two fixed deposit receipts for one lakh dated 10 October 2011, each made out to Sebastian Thomas, stating that the fixed deposit is repayable after twelve months and showing a due date of  10 October 2012;

   ·Two fixed deposit receipts for one lakh dated 10 October 2011, each made out to Anice Sebastian, stating that the fixed deposit is repayable after twelve months and showing a due date of  10 October 2012;

   ·Three fixed deposit receipts for one lakh dated 1, 3 and 10 October 2011 respectively, each made out to Sebastian Thomas, stating that the fixed deposit is repayable after twelve months and showing due dates of  3 and 10 October 2013 respectively;

   ·A fixed deposit receipt for five lakhs dated 1 March 2013, made out to Sebastian Thomann, stating that the fixed deposit is repayable after twelve months and showing a due date of  21 March 2014.

10. The tribunal then concluded:

    43.    The tribunal has concerns about the genuineness of those documents, noting that the applicant has previously submitted to the department documents which were later found to be false.  However even if those term deposit receipts are accepted as genuine, the tribunal notes that four of those certificates were issued on 10 October 2011 and state that the fixed deposit is repayable twelve months later.  Each of those four deposit receipts is for the sum of 1,00,000 rupees and the tribunal is not satisfied that the applicant’s parents continue to hold those funds on deposit, noting that the applicant has not submitted any evidence that demonstrates the money held in those deposits remains available to him or his family.  The other fixed deposit receipts provided by the applicant show total funds of 8,00,000 rupees, which converts to about AU $13,975.  As this is less than the amount of funds required to be demonstrated by the applicant, the tribunal is not satisfied that the applicant has given evidence that he has access to sufficient funds to meet his course fees, living costs and travel costs as required by Cl.5A405.   

    44.    On the basis of the above, the tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which he is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).

11. The decision under review was affirmed.

Grounds of review

1. In support of his grounds of review, the applicant attempted to rely upon some affidavit material that was not before the tribunal when it made its decision.  In those affidavits (there are three of them – two filed on 27 November, 2013 and one filed on 17 December, 2013), he purports to give evidence about matters that occurred after the tribunal hearing.  He also attempts to place before the Court material that was not before the tribunal, but which could have been placed before the tribunal.  I have paid no regard to the material in the latter category.  I am bound to determine this application by reference to the information and evidence that was before the tribunal.

2. As to the applicant’s evidence that falls into the former category, it is relevant to record that the applicant alleges that at the conclusion of the tribunal’s hearing on 7 March, 2013 (conducted by video conference), he was told that there would be a further tribunal hearing on “the 21^st of the month”. However, he was never invited to a second hearing. But that, in my view, was of no consequence. As I have already recorded, on 15 March, 2013 a tribunal officer explained to the applicant by telephone that he did not have a further hearing scheduled but was required to submit documents by 21 March, 2013. The applicant took the opportunity to provide further documents to the tribunal by email on 21 March, 2013.

3. I accept the first respondent’s submissions that the tribunal gave careful consideration to the applicant's evidence.  I accept that the tribunal made plain its concerns with the financial documents that the applicant had submitted and it provided the applicant with an appropriate opportunity to submit sufficient documentation.

4. On the basis of the material that was before the tribunal, it could come to no other conclusion than that which it did.  The applicant’s complaint is with the findings made by the tribunal based upon the material before it.  However, those findings were clearly open to it.

Conclusion

1. The applicant has failed to demonstrate that the tribunal's decision was affected by jurisdictional error.

2. The amended application for review filed on 5 September, 2013 must be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 September 2014

Associate:

Date 11 September 2014