Shrestha v Minister for Immigration
[2008] FMCA 842
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHRESTHA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 842 |
| MIGRATION – Review of decision of Migration Review Tribunal – Student (Temporary) (Class TU) Visa – financial capacity requirement for a Subclass 572 visa – whether evidence before the Tribunal that applicant had met the financial capacity requirements – time of “decision” for the purposes of cl.572 is the time of Tribunal’s decision – finding that father-in-law not “acceptable individual” – no denial of procedural fairness – no error of law – application dismissed. |
| Migration Act 1958, ss.30, 476, 359, 357A, 425, 360, 368, 318, Division 5 of Part 5 Migration Regulations 1994, regulations 1.41, 1.42(2) and 1.42(6), cls.5A405 of Schedule 5A and 572.223 of Schedule 2. |
| MZXOT v Minister for Immigration & Citizenship [2008] HCA 28 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Attorney General of New South Wales v Quinn (1990) 170 CLR 1 |
| Applicants: | HEMANTA SHRESTHA, BINITA SHRESTHA & ALVEENA SHRESTHA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1110 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 February 2008 |
| Date of Last Submission: | 7 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 4 April 2007, and amended on 21 June 2007, is dismissed.
The matter of the Minister’s application for costs be set down for direction or determination at 9.30am on 9 July 2008 before Federal Magistrate Nicholls.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1110 of 2007
| HEMANTA SHRESTHA, BINITA SHRESTHA & ALVEENA SHRESTHA |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 4 April 2007 and amended on 21 June 2007 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), signed on 20 February 2007, and handed down on 9 March 2007, which affirmed the decision of a delegate of the respondent Minster to refuse Student (Temporary) (Class TU 572) visas to the applicants.
Background
The Minister has put before the Court a bundle of documents which I will refer to as the Court Book (“CB”) from which the following background can be discerned.
The principal applicant, Mr Shrestha (“the applicant”), is a national of Nepal who applied for a Student (Temporary) (Class TU) visa on 22 March 2005 (reproduced at CB 1 to CB 56, with annexures). The second and third applicants before the Court are his wife and daughter.
On 27 June 2005, a delegate of the respondent Minister refused to grant visas to the applicants on the basis that the applicant failed to provide evidence of relevant financial capacity in accordance with cl.5A405 of Schedule 5A, and cl.572.223 of Schedule 2, to the Migration Regulations 1994 (Cth) (“the Regulations”). On 18 July 2005, the applicant applied to the Tribunal for review of the delegate’s decision. On 20 February 2007, the Tribunal affirmed that decision. At the time of the Tribunal’s decision, the applicant had enrolled for further study (see CB 90, CB 92 to CB 93).
The Tribunal
The central issue for the Tribunal was ultimately whether the applicant met the requirements of visa class cl.572.223 of Schedule 2 to the Regulations which, amongst other things required the applicant to give evidence of his financial capacity to undertake the course of study without needing to work in Australia (a condition of the visa).
Relevantly, the Tribunal found that the applicant did not satisfy cl.572.223(2)(a) of Schedule 2 to the Regulations, because he failed to provide evidence in accordance with cl.5A405 of Schedule 5A to the Regulations in relation to financial capacity. In particular, the Tribunal found that the applicant had failed to provide evidence of “funds from an acceptable source”, meaning that the applicant had failed to provide evidence of a “money deposit” that an “acceptable individual” has held for at least six months immediately before the date of the application for a visa.
The Relevant Regulatory Scheme
The relevant regulatory scheme, and issues, are as set out below.
The applicant applied for a student (temporary) (class TU572) visa. The prescribed criteria for this visa are set out in Schedule 2 to the Regulations, at that part of the Regulations dealing with “Subclass of 572 - Vocational Education and Training Sector”. Included in the criteria to be satisfied at the time of decision, in relation to the disposition of an application for this class of visa, are those matters set out at cl.572.223.
This clause was, at the relevant time, as follows:
“572.22 Criteria to be satisfied at time of decision
…
572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and
(B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and
(C) other requirements under Schedule 5A; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; or
…”
For the purposes of what is set out above, the relevant parts of Schedule 5A to the Regulations are as follows:
“Schedule 5A Evidentiary requirements for student visas
…
Part 4 Subclass 572 (Vocational Education and Training Sector)
…
Division 2 Requirements for assessment level 4
…
5A405 Financial capacity
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 36 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
(1A) If the applicant is:
(a) fully funded; or
(b) an applicant:
(i) who is not funded, wholly or partly, by:
(A) the Commonwealth Government, or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency; and
(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and
(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or
(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:
(i) a provincial or state government in a foreign country, with the written support of the government of that country; or
(ii) an organisation specified by the Minister in a Gazette Notice for this paragraph;
the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.
(2) In this clause:
acceptable individual means one or more of the following:
(a) the applicant;
(b) the applicant’s spouse;
(c) the applicant’s parents;
(d) the applicant’s grandparents;
(e) the applicant’s brothers and sisters;
(f) an uncle or aunt of the applicant who is:
(i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) usually resident in Australia.
financial support, from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full‑time;
the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.
funds from an acceptable source means one or more of the following:
(a) if the applicant:
(i) has successfully completed at least 75% of the requirements for his or her principal course; and
(ii) has applied for the visa in order to complete the course; and
(iii) does not propose to undertake any further course;
a money deposit held by an acceptable individual;
(aa) if paragraph (a) does not apply – a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application;
(b) financial support from:
(i) the applicant’s proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or
(v) a multilateral agency; or
(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or
(vii) an organisation specified by the Minister in a Gazette Notice for this subparagraph; or
(viii) an acceptable non‑profit organisation;
(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;
(d) a loan from the government of the applicant’s home country.”
Before the Delegate
The applicant provided the following evidence/material to the first Respondent’s Department in support of his application and particularly, in relation to the question of financial capacity (for better understanding, also note relevant correspondence as follows):
1)Date of application for the visa: 2 June 2005 (see CB 18);
2)An account statement from the Commonwealth Bank of Australia in the applicant’s name disclosing a closing balance of $1.61 as at 7 April 2005 (CB 26 to CB 28);
3)A document that is unreadable (CB 29 and CB 30);
4)A letter from the applicant’s father-in-law dated 13 May 2005 stating that he is a “sponsor” for his daughter, son-in-law and granddaughter and undertakes to bear all their relevant expenses while in Australia (CB 33);
5)A letter from the applicant’s father-in-law dated 13 May 2005 stating that he has an “annual income of Rs. 40 Iacs” (CB 34);
6)Bank statements in the father-in-law’s name (CB 37 to CB 47);
7)The applicant’s academic records (CB 49 to CB 52).
By an undated letter (given the date of other documents in the Court Book and, in context, the date would be sometime in April 2005 – CB 57 to CB 58), the applicant was asked to provide certain evidence in relation to his application. Relevantly, the letter also notifies as follows:
“Your application has been further assessed today. In order for a decision to be [made] on your application, you are invited to provide the following documentation:
…
Evidence that you have sufficient funds to support yourself and all family unit members during your proposed stay in Australia. Evidence that funds have been held in account for more than 6 months prior to lodging a new student visa application. Please note that statements or letters need to be dated no more than 4 weeks old.
The faxed financial statements you have already provided are not acceptable as evidence of your ability to pay for your family’s expenses while you are studying in Australia, as they are unreadable for the most part. The Commonwealth Bank statement you have supplied is also unacceptable as it does not show a six-month savings history for the amount required to enable your visa to be granted.
Specifically, you are required to show that you have held $29,800 for a six-month period. If you can produce evidence of having outstanding fees amounting to $6000, this figure will reduce to $19,850.
…
The outstanding documentation must be submitted at interview by 21 June 2005. Should you fail to comply with this request, I will make a decision on your application based on the information and documentation you provided up to that date. No further delays in supplying all required documentation will be acceptable.”
[Emphasis in the Original]
A further letter was sent by the Minister’s delegate dated 2 May 2005 (CB 59 to CB 60) and headed: “SECOND AND FINAL REQUEST.” This notice reminded the applicant of the need to submit the documentation previously sought and, in addition, it relevantly and specifically advised:
“Specifically, you are required to show that you have held $34,500. If you can produce evidence of having only $6000 in fees outstanding, this figure will reduce to $25,000.
…
The bank statements you provided do not show a savings history of $34,500 over the last 6 months and are unacceptable …”
On 27 June 2005 the delegate made the decision on the application on what had been put before him (CB 61 to CB 67).
Relevantly, the delegate noted (CB 63.4):
“CASE BACKGROUND
On 22 March 2005, Mr Shrestha lodged an application for a Student Temporary (Class TU 572) visa at the Sydney CBD office. At the time of his interview, Mr Shrestha’s application was incomplete. He was given a letter requesting that he provide the following:
· Evidence of sufficient funds to support himself, and any family members included in his application, during his proposed stay in Australia. Evidence that funds had been held in account for more than 6 months prior to lodging the application. Statements or letters needed to be dated no more than 4 weeks old. Specifically, he was required to show that he had held $34,500. If he was able to produce evidence of having $6000 in fees outstanding, this figure would reduce to $25,000.
Mr Shrestha was granted a time period of one month to complete the above requirement. When there was no response from him after this time had passed, a second request was sent on 02 May 2005, allowing him an extension of time until 17 May 2005. No response was received from him by that date and a third and final request extending the deadline until 21 June 2005 was issued 07 June 2005.”
The delegate decided to refuse the application. The reason is set out in the decision record (CB 66.5):
“REASONS …
After considering the application I find that the applicant does not satisfy criterion 572.223. In support of his application, and following three request, Mr Shrestha submitted bank statements from two Nepalese banks in his father-in-law’s name. Nepalese citizens are assessed against requirements for Assessment Level 4 when applying for visas of Subclass 572. Fathers-in-law do not constitute an acceptable source of funding at this assessment level.”
The decision itself, therefore, was expressed as follows (at CB 66.9):
“In view of the findings of fact and the assessment above, I find that the applicant does not satisfy all of the prescribed criteria for any of the subclasses of visa [indecipherable] … the Student (Temporary) Visa. I therefore refuse the grant of a Student [indecipherable] … (Class TU 572) Visa to the primary applicant, Mr Hemanta Shrestha.”
In relation to the second and third named applicants before the Court (the applicant’s wife and daughter) the delegate found as follows (CB 67.1):
“5.1 SECONDARY APPLICANT/S
I find that no member of the family unit satisfies the primary criteria for grant of a Student Temporary (Class TU 572) Visa. I find, therefore, that Ms Binita Shrestha and Ms Alveena Shrestha are not members of the family unit of a person who has satisfied the primary criteria. I find that none of the applicants meets the secondary criteria of Part 572 of Schedule 2 of the Regulations.
I refuse the grant of Student Temporary (Class TU 572) Visas to the secondary applicants listed above.”
Before the Tribunal
On 18 July 2005 the applicant (see CB 68 and CB 74) sought review of the delegate’s decision by the Tribunal. The applicant’s wife and daughter were included in this application for review (CB 70.5)
The following documentation and chronology of events is relevant to the review:
1)By letter dated 1 August 2005 the Tribunal acknowledged the application for review (CB 75).
2)By letter dated 14 December 2005 the Tribunal (acting pursuant to s.359A of the Act) invited the applicant to comment on certain information (CB 77):
“In order to meet the requirements for the grant of a Subclass 572 (Student) visa the Tribunal to be satisfied that you are a genuine student for entry and stay in Australia and that you have the financial capacity to undertake your courses of study without contravening any condition of the visa relating to work. Evidence of the requisite funds must be provided, and these funds must be from an ‘acceptable individual’. The term ‘acceptable individual’ is defined in subclause 5A405(2) of the Regulations, and includes one of the following:
a) you;
b) your spouse;
c) your parents;
d) your grandparents;
e) your brothers and sisters;
f) an uncle or aunt of you who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and is usually resident in Australia.
· Evidence has been submitted to the Department indicating that your father-in-law, Mr Ram Chandra Shrestha, is providing you with financial support. This evidence includes letters from your father-in-law and copies of his bank statements.
This information is relevant to the review because a father-in-law is not considered to be an ‘acceptable individual’. As you have not submitted any evidence that the financial support is to provided by another ‘acceptable individual’, including yourself, the Tribunal may find that you do not have the financial capacity to undertake your course of study without contravening any condition of the visa relating to work. The Tribunal may therefore find that you are not a genuine student for entry and stay in Australia. If the Tribunal makes such a finding it will have no option but to find that you do not satisfy the criteria for the grant of a Subclass 572 (Student) visa.”
3)In the same letter, the Tribunal invited the applicant to provide information pursuant to section 359(2) (CB 78.6) relevant to the review. Specifically, the Tribunal invited the applicant to provide the following information:
“
· Evidence that the funds required are to be provided by an ‘acceptable individual’ as that term is defined in subclause 5A405 of the Regulations (see above);
· Evidence of fees paid to date;
· A letter from your education provider setting out the total amount of fees owing.”
4)A response from the applicant dated 10 January 2006 (CB 82 to CB 81).
5)An account statement from the Machhapuchchhre Bank in Nepal in the applicant’s father’s name dated 4 January 2006 stating that as at 2 January 2006 the account had a deposit of 102,500 Rupees (CB 82).
6)A letter from the Agricultural Development Bank (Nepal) dated 19 March 2006 certifying that the applicant’s mother held an account with that Bank in the sum of US$41,933.69 (CB 83).
7)A letter from Krishna Kumar Shrestha dated 9 January 2006 stating that he is the applicant’s father and that he is sponsoring his son while he is studying in Australia (CB 85).
8)Letters from the relevant educational providers (CB 88 to CB 89).
9)An enquiry from the Tribunal dated 13 January 2006 relevant to whether the applicant intended to enrol in another course (CB 90).
10)The applicant’s response, recorded in a file note of telephone conversation dated 13 January 2006 (CB 91).
11)A letter from Yamuna Shrestha dated 25 June 2006 stating that she is the applicant’s mother and that she is sponsoring her son while he is studying in Australia (CB 116);
12)A letter from the Chief and Executive Officer of Lalitpur Sub-Metropolitan City Office dated 3 August 2006 stating that the applicant is the son of Mr Krishna Kumar Shrestha and Mrs Yamuna Shrestha (CB 129); and
13)Letter from Machhapuchchhre Bank dated 15 November 2006 stating that Mr Krishna Kumar Shrestha had AU$18,054 in his account with the bank as at the date of the letter (CB 132).
The applicant appeared at a hearing before the Tribunal on 5 June 2006 (CB 105). The only account of what relevantly occurred at the hearing is that contained in the Tribunal’s account (The applicant has not put evidence before the Court to challenge the Tribunal’s relevant report).
The Tribunal indicated to the applicant that the evidence presently available to the Tribunal did not establish that the [required] sum of monies were on deposit in the six months prior to the date of application, which was 22 March 2005 (CB 145.3).
The Tribunal subsequently wrote to the applicant on 6 June 2006 pursuant to s.395(2) and invited him to provide information that an “acceptable individual had access to approximately $40,000 in the
6 months between 22 September 2004 and 22 March 2005.” (That is, for the six months prior to the date of the application for the visa – CB 107 to CB 108). I note that the two related matters of evidence of monies from an “acceptable individual”, and from an “acceptable source”, had been put to the applicant in a letter dated 6 March 2006, sent prior to the hearing before the Tribunal (CB 96 to CB 98). [This, again, is the relevant period of six months prior to the application for the visa.]
The Tribunal sent two subsequent letters effectively requesting this same information on 21 June 2006 (CB 112 to CB 113), and on 19 July 2006 (CB 121 to CB 122). On 23 August 2006 it extended the time within which the applicant could respond (CB 124). A further extension was granted on 10 October 2006 (CB 127).
The applicants’ responses are at CB 110 to CB 111, CB 114 to CB 120, and CB 123 and CB 128 to CB 135.
The Tribunal’s decision record is reproduced at CB 139 to CB 149. The Tribunal found that the applicant had applied for a Student Class TU visa, which contained a number of subclasses, and that the applicant had made claims in relation to subclass 572, and there was no evidence to suggest that he met key criteria for the other subclasses (CB 146.1).
With reference to regulations 1.41, 1.42(2) and 1.42(6) the Tribunal found that the primary criteria to be satisfied were those at “assessment level 4” (CB 146.5).
The Tribunal calculated that the sum of $30,162 was the amount in respect of which the applicant was required to give evidence of funds from an acceptable source for the full period of his intended stay in Australia (CB 146.6 to CB 147.9).
With reference to documents subsequently submitted by the applicant from his parents (see items 11, 12, 13 at [20] above) in relation to the relevant financial requirements, the Tribunal found that the applicant’s parents were “acceptable individuals” for the purposes of sub-cl.5A405(2) (at CB 148.1).
However, the Tribunal found that, given that the relevant definition of “acceptable source” (with reference to sub-cl.5A405(2)) required that funds be held for at least six months immediately before the date of application by the acceptable individual, and the applicant had not provided evidence of this, or an explanation, it could not be satisfied that the requisite funds were available from an acceptable source and the applicant therefore did not meet the relevant regulatory requirement (cl.5A405)
In these circumstances, the Tribunal found the applicant did not satisfy the requirements of sub-cl.572.223(2) of Schedule 2 to the Regulations and was therefore not entitled to the grant of the visa for which he had applied.
In relation to the applicant’s wife and daughter, the Tribunal found that they also were not entitled to the grant of a subclass 572 visa as they were not members of the family unit of a person entitled to the grant of such a visa. On this basis, the Tribunal affirmed the delegate’s decision to refuse visas to all three applicants.
The amended application before the Court, particularly when read in the light of the applicant’s written submissions, raises the following grounds:
1)Error of law;
2)Denial of procedural fairness;
3)Failure to provide detailed reasons;
4)Error on the part of the delegate;
5)The Tribunal failed to exercise its discretion.
At the hearing before the Court, the applicants appeared in person. Mr J Smith of Counsel appeared for the first respondent.
The applicant submitted that he had tried to provide the relevant evidence as best he could, and that he had provided various bank statements, but the Tribunal was: “not happy with the bank statement provided by his father-in-law.” I understood the applicant to argue that in the context of his relevant culture, support from a father-in-law should have been acceptable.
Consideration: Error of Law
The applicant’s first ground asserts error of law on the part of the Tribunal. To the extent that the particulars make reference to a failure on the part of the Tribunal to provide an opportunity to the applicant to explain information he had previously provided, the reference to the Tribunal’s failure to provide clear reasons (particulars (d) and (g)) are addressed separately below.
By way of submissions one particular to this ground appears to explain that the error of law is that the Tribunal failed to assess the application at the time of the delegate’s decision (“The Applicant wrote in his amended Application that [the] Tribunal did not make the finding on the basis of information at the time of [the] Delegate’s decision that is whether he met the requirement for the course applied”).
Mr Smith submitted that the relevant time of the decision, once an application has been made to the Tribunal for the review of the delegate’s decision, is the time of the Tribunal’s decision.
I note that the Act provides that there are to be “prescribed classes of visas” (s.31(1)) and that the Regulations may prescribe criteria for the grant of visas “of a specified class” (s.31(3)) Regulation 2.03 provides that, for the purposes of sub-s.31(3) of the Act, the prescribed criteria in the relevant parts of Schedule 2 are prescribed for each corresponding subclass of visa. In this regard, the relevant criteria for the subclass of visa applied for by the applicant (subclass 572), are those set out in cl.572 of Schedule 2 to the Regulations.
The primary criteria set out at subclass 572, “Vocational Education and Training Sector” of Schedule 2, must be satisfied by at least one member of a family unit. (In this case, it was the applicant who sought to satisfy the relevant primary criteria. The applicant’s wife and daughter were only required to satisfy the relevant secondary criteria, in effect, and relevantly, that they were members of the family unit of the person who had been granted a 572 subclass visa).
The primary criteria are divided into those that are to be satisfied at the time of application (cl.572.21), and those that must be satisfied at the time of decision (cl.572.22).
I agree with Mr Smith that within this scheme, the Tribunal is required to determine whether it is satisfied in relation to the relevant criteria as to the grant of the visa. The relevant time, therefore, in relation to the term “decision” for the purposes of cl.572 is at the time of the Tribunal’s decision, and not at the time of the delegate’s decision. I can see no error, therefore, in the Tribunal proceeding to make an assessment on the basis of the material available to it including the additional material provided to it and not before the delegate.
It is difficult to see, in any event, what advantage the applicant hopes to gain by asserting that the Tribunal should have made its assessment on the basis of information “at the time of the delegate’s decision.” At the time of the delegate’s decision the applicant had not provided evidence in support of his application (despite three requests) that he had funds from an acceptable source, such source being “an acceptable individual” for the purposes of sub-cl.5A405(2) of Schedule 5A to the Regulations.
The delegate correctly reasoned that a father-in-law did not fall within the meaning of “acceptable individual” for the purposes of sub-cl.5A405(2) (as harsh as this may appear to be – see further below). Had the Tribunal, therefore, made its finding “on the basis of information at the time of the delegates decision” the applicant plainly would not have been able to succeed. As it was required to make its decision on the material available to it at the time of its decision, the Tribunal properly provided the applicant with the opportunity (see further below in terms of procedural fairness) to provide relevant evidence to satisfy those aspects of the necessary primary criteria relating to financial support, and in relation to the applicant’s financial capacity, that the applicant was required to satisfy.
The various courses undertaken by the applicant in Australia are summarised in the Tribunal’s decision record at paragraphs [12], [13], [14] and [15] of its decision record (see CB 143.8 to CB 144.3). For the grant of the visa for which he had applied, the applicant was required to satisfy certain criteria at the time of the Tribunal’s decision (with reference to cl.572.223 of Schedule 2 to the Regulations). Given that the applicant had completed a previous course of study on 2 December 2005 (by which time the Tribunal had not made its decision – see paragraph [15] at CB 144.3 of the Tribunal’s decision record), the Tribunal understandably wrote to the applicant in January and February 2006 requesting evidence that the applicant was “currently enrolled in a registered course of study and evidence of fees payable for any course untaken and those fees which have already been paid” (see paragraph [16] of the Tribunal’s decision record at CB 144.3).
Bearing in mind the provisions of the cl.5A405 of Schedule 5A, the Tribunal’s request was plainly focused on whether the applicant was enrolled in a registered course, and that he had funds from “an acceptable source” relevant to that course, and relevant to the period set out at cl.5A405(1).
“Funds from an acceptable source” is explained at cl.5A405(2). The Tribunal found that the applicant had provided evidence of funds from “acceptable individuals”. By that time, the applicant had provided evidence from his parents (see “acceptable individual” at (c)).
But, as it is plain from the applicant’s circumstances, in relation to the provision of “funds from an acceptable source” (at cl.5A405(2)(a)), the applicant had not provided evidence that he met sub-cl.(a)(i) of the requirements set out in the meaning of that term. Given that the course was scheduled to commence on 6 February 2006, and to end on 6 February 2008 (paragraph [17] of the Tribunal’s decision record) the applicant could not be said to have, at the time of the Tribunal’s decision (that is, March 2007), “successfully completed at least 75% of the requirements for his … principle course.”
In this regard, therefore, the applicant was required to meet what is set out at sub-cl.(aa) regarding the meaning of “funds from an acceptable source” in cl.5A405(2). It was for this reason (given that paragraph (a) did not apply) that the Tribunal said: “in this case the definition of acceptable source provides the funds must be held for at least 6 months immediately before the date of application by the acceptable individual” (CB 148.4). [Emphasis in the original].
A clear understanding needs to be drawn between the criteria that an applicant must satisfy (in this case, as at the time of the Tribunal’s decision), in relation to the course in which the applicant is “currently enrolled” (as at the time of the Tribunal’s decision), and whether the applicant was able to provide evidence that he had access to funds from an “acceptable source”, and that such funds (in the applicant’s circumstances) must be held by the “acceptable individual” for at least six months before the date of the application for the visa made by the applicant. (This being for the purposes of 5A405(2)(aa): “funds from an acceptable source”). In context, therefore, this was for the period of six months prior to 22 March 2005.
I cannot see error in the Tribunal’s reasoning in this regard. The applicant was required to satisfy the requirement that he had funds from an “acceptable source”, relevant to the time of his course. Given that the provisions of “funds from an acceptable source” (that is, (a)) had not been satisfied, the applicant was required to satisfy the provisions of “funds from an acceptable source” (that is, (aa)). In the circumstances, it was plainly open to the Tribunal to find that the financial statements provided by the applicant and, in particular, his statement of 21 June 2006, were not adequate for these purposes. I cannot see error in how the Tribunal has approached the disposition of the application for review in this regard.
Consideration: Error on the Part of the Delegate
In written submissions, the applicant also states:
“The Delegate did not accept the Applicant’s father-in law as a reasonable and responsible person. The applicant claims that the Delegate … breached the natural justice when they declined father-in law of the Applicant as an acceptable source of funding at the Applicant’s assessment level. His father-in law [is] a Responsible Gazetted Officer in the Nepalese Government.”
To the extent that the applicant may be understood to be complaining about the delegate’s decision, then this Court does not (with reference to s.476 of the Act) have jurisdiction in relation to the delegate’s decision, which is plainly a “primary decision” (s.476(2)) that is reviewable (and, indeed, was reviewed) under Part 5 of the Act (s.476(4) – see also, in this regard, MZXOT v Minister for Immigration & Citizenship [2008] HCA 28, at “Question 1” in the case stated – the effect of, relevantly, s.476 is that the only Court that can hear and determine an application in respect of a “primary decision” as defined in s.476(4) is the High Court of Australia and, clearly, not this Court)
Consideration: Error of Law
To the extent, however, that the applicant complains that the Tribunal should have recognized the applicant’s father-in-law as an “acceptable source of funding”, then (as harsh as this may appear to be) the “father-in-law” is not “an acceptable individual” for the purposes of sub-cl.5A405(2), such as to be capable of satisfying the requirements of “funds from an acceptable source” as set out in sub-cl.5A405(2)(aa).
That the applicant’s father-in-law may have been a: “Responsible Gazetted Officer in the Nepalese Government”, and even if he had provided evidence of funds (although it is clear that the applicant did not satisfy the Tribunal in terms of giving a clear explanation in this regard – see the Tribunal’s letter of 21 June 2006 (CB 112), the issue ultimately is that the Tribunal was not in error in finding that it could not be satisfied that the relevant funds were available from an acceptable source as that term was understood by the relevant part of the regulatory scheme. I cannot discern error on the part of the Tribunal in this regard.
Consideration: Procedural Fairness
The applicant also complains there was a denial of procedural fairness. With reference to the various particulars and submissions, I understood the applicant’s complaint, at least in part, to be that the applicants were not given the opportunity to comment on information “forming the basis of the Tribunal’s decision” (see particular (a) of Ground 3 of the amended application), that the applicants were not given a proper opportunity to present their case (with reference to particular (c) of Ground 3 in the amended application), that the Tribunal proceeded to make the decision “without further relevant information” (see particular (d) of Ground 3 of the amended application), and that it failed to provide an appropriate opportunity to explain information provided by the applicant (with reference to (d) of Ground 1 of the amended application).
The application for the review was made in July 2005. As such, this is a case to which the provisions of s.357A of the Act apply to make the matters set out in Division 5 of Part 5 of the Act, the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61, SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62).
But even if the principles of procedural fairness at general law were to apply, I cannot see, in either context, that the applicant’s complaint is made out.
The Tribunal wrote to the applicant pursuant to s.359A on 14 December 2005 (CB 77) and 6 March 2006 (CB 96). It provided him with the opportunity to comment on information, which would be the reason, or part of the reason, for affirming the decision under review. The Tribunal specifically drew the applicant’s attention to the requirements of subclass 572, the need for the applicant to have the financial capacity to undertake his course of study, the evidence required in relation to the funds, the requirement that these must be from “an acceptable individual”, and that in relation to the evidence submitted indicating that his father-in-law would be providing financial support, that such a person did not fall within the meaning of “acceptable individual”.
Further, although not required to do so, the Tribunal did exercise its discretion pursuant to s.359 and sought additional information from the applicant in relation to the review. In this regard, the Tribunal wrote to the applicant on 14 December 2005 (CB 78), 8 February 2006 (CB 92), 6 March 2006 (CB 97) and 6 June 2006 (CB 107).
The information, amongst other things, related to the requirements in regard to financial capacity and the reference to “acceptable individual” (see, in particular, CB 77). I cannot see from the Tribunal’s decision record that the Tribunal failed to have regard to the information provided by the applicant in response.
Further, s.360 of the Act provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In this regard, the applicant was invited to a hearing, and did attend, and gave evidence at that hearing (see CB 105 and CB 145.3, at paragraph [21] of the Tribunal’s decision record).
The determinative issue in the delegate’s decision (that is, the issue on which the delegate’s decision to refuse the application for the visa turned) was that the applicant did not satisfy the relevant criterion in cl.572.223, in that the financial statements presented by the applicant in support of his application relating to his father-in-law did not meet the requirement for, or meaning of, financial support from an “acceptable individual” because the father-in-law was not one of those category of persons appearing in the meaning of “acceptable individual” as set out in cl.5A405(2) (see CB 66.5).
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) the High Court set out what it said were the procedural fairness obligations in relation to s.425 of the Act (this is with reference to the Refugee Review Tribunal). By analogy, what was said by the High Court in SZBEL applies to s.360 of the Act.
Following the delegate’s decision the applicant clearly would have been on notice that the dispositive or determinative issue was the need to provide evidence of relevant financial capacity in relation to undertaking a course of study in Australia. In particular, in this regard, in circumstances where the applicant was unable to provide evidence of his own relevant financial capacity, that funds from an otherwise acceptable source required that it be from a source meeting the definition of “acceptable individual”, and that such funds were held, and would also require evidence that such funds were held in the six month period before the application for a visa.
For the purposes of the Tribunal’s consideration it is, as the High Court said (SZBEL at [35]), not confined to whatever may have been the issues that the delegate considered, but the Tribunal is required to identify what those other issues are, if it considers such issues to be dispositive of the review.
In this case, however, the dispositive issue before the Tribunal (see CB 148.4, at paragraph [46] of the decision record) was the same issue as that considered dispositive before the delegate.
In any event, the Tribunal specifically put the applicant on notice as to the importance of this issue by way of its letter of 14 December 2005 (see CB 77 to CB 79) and its letter of 6 March 2006 (see CB 96 to CB 98). In all, therefore, the Tribunal did provide the applicant with an opportunity for a hearing, and on the material before the Court, the applicant was plainly on notice as to the issue which was determinative of his application and was given the opportunity to address that issue.
The applicant also complains that the Tribunal failed to provide him with an opportunity “to clarify or provide further information.” Given what has already been set out above, this complaint plainly does not succeed.
The applicant further complains that the Tribunal failed to provide him with an appropriate opportunity to explain information which he had provided. Apart from the communications from the Tribunal referred to above, I note specifically that the Tribunal’s letter (CB 112) of 21 June 2006 makes specific reference to material provided by the applicant previously to the Tribunal, and requests “an explanation as to what the material shows”. The applicant does not now provide any particularity in relation to what information the Tribunal should have given him the opportunity to explain, and no such failure is otherwise evident in the material before the Court. This complaint also does not succeed.
Consideration: the Tribunal’s Reasons
The applicant also complains that the Tribunal failed to provide “clear reasons for its decision” (see particular (g) of Ground 1 in the amended application), and that it failed to provide detailed reasons for its decision (see particular (f) of Ground 3 in the amended application).
In terms of “clear reasons”, I can only agree with Mr Smith that the Tribunal’s reasons are clear in meaning. The applicant was relevantly on notice that funds equivalent to $30,182 were required to be available from an acceptable source (the Tribunal’s reference to “course” at paragraph [46] of its decision record, in context, is plainly a reference to “source”) and that such funds in the applicant’s circumstances were required to be held by an acceptable individual “for at least 6 months immediately before the date of the application.” The applicant did not succeed because he was unable to provide evidence that he met this requirement. I cannot see that the Tribunal’s explanation for its finding was not clear in this regard.
As to the allegation that the Tribunal failed to provide “detailed reasons”, the applicant does not explain what is meant by this. Section 368 of the Act requires the Tribunal to record its decision and to prepare a written statement that variously sets out the decision on the review, the reasons for the decision, the findings on any material questions of fact, and to refer to the evidence or any other material on which the findings of fact were based. On what is before the Court, the Tribunal complied with its obligation in this regard.
In any event, a breach of s.318 of the Act does not contribute to jurisdictional error (Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 at [17], ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [70], per McHugh J).
Consideration: Tribunal’s Discretion
In submissions, the applicant also complained that he had a “legitimate expectation from the Tribunal” that, in effect, it could exercise its discretion to “amended the regulations”. I understood this to be an assertion that it exercise its discretion in such a way as to find that the applicant did satisfy relevant requirements, particularly, given that “culturally”, father-in-law should be seen as fitting into the meaning of “acceptable individual”, and, further, with reference to the political situation in Nepal (see page 2 of the applicant’s submissions).
It is, as Mr Smith correctly submits, in my view, that the Tribunal had no discretion in this matter in the way alleged by the applicant now. Plainly, the Tribunal was required to be satisfied that the relevant criteria were met. These criteria do not relevantly provide the Tribunal with any discretion as the applicant now asserts. If it could not be so satisfied, it was compelled to affirm the delegate’s decision.
I cannot see that the Regulations provided any discretion to the Tribunal to finding that a “father-in-law” was an “acceptable individual”. Nor that it otherwise had discretion in circumstances of this case to look at what may have been otherwise “reasonable” in the circumstances. Nor is the political situation in Nepal relevant to whether the applicant was able to satisfy the criteria prescribed for this category of visa. If the applicant had some difficulty in obtaining relevant evidence from Nepal because of the political situation in that country, then this was never put to the Tribunal, despite opportunity to do so, in any event. Nonetheless, even in this circumstance, it is difficult to see how this could have assisted the applicant as the Tribunal had no discretion in this regard.
To the extent that the applicant makes this complaint under the general heading of a complaint about the fairness of the procedure adopted by the Tribunal, this is, in reality, a complaint about the fairness of the outcome before the Tribunal. In which case, I cannot see that this is a ground for judicial review (in particular, see Attorney General of New South Wales v Quinn (1990) 170 CLR 1).
I should just note, that I did consider whether the applicant’s father-in-law could have met the meaning of “acceptable individual” as “the parent” of the applicant’s wife. In this regard, I note, that the applicant in this matter was Mr Shrestha (that is, the applicant for the visa to whom the primary criteria related). I note further in this regard, that the application for the visa was signed only by Mr Shrestha, and not by his wife. The applicant’s wife could only be considered as a “secondary” applicant in the sense that she was not required in her own right to meet the primary criteria for the visa applied for (cl.572.223). Nor did she make an application on that basis. In this regard, therefore, the requirements set out in that part of the Schedule, and as they relate to the visa applied for, could only be satisfied by the applicant husband.
In relation to the meaning of “acceptable individual”, therefore, it was a person meaning any one of the degrees relationship set out there with the relationship being to Mr Shrestha and not his wife.
Conclusion
In all, I cannot discern jurisdictional error in the decision of the Tribunal. For the applicants to succeed before the Court, the Court would need to at least discern such error. On this basis, therefore, the application is dismissed.
Postcript
While I cannot discern jurisdictional error on the part of the Tribunal, I cannot help but note that this case does provide an outcome that in some way appears harsh. I have some sympathy for the applicant’s submission in relation to his not so rhetorical question as to why his father-in-law was not an acceptable source. It does not take any specific cultural reference to make this a reasonable question, particularly given the degree and range of persons who are otherwise said to be within the meaning of “acceptable individual” for the purposes of cl.5A405 of Schedule 5A to the Regulations. I can only ask that in reviewing the criteria relevant to such student visa applications, the Minister (and I hope that my comment will not be seen to be presumptuous) would seek to provide some flexibility, by either expanding the category of “acceptable individual” or, indeed, by providing some degree of flexibility in decision making, and allowing some exercise of discretion to avoid such harsh outcomes.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of FM Nicholls FM
Associate: C Darcy
Date: 30 June 2008
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