Shrestha v Minister for Immigration and Citizenship

[2008] FCA 1296

FEDERAL COURT OF AUSTRALIA

Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296

HEMANTA SHRESTHA and VINITA SHRESTHA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 1010 OF 2008

SIOPIS J
21 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1010 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

HEMANTA SHRESTHA
First Appellant

VINITA SHRESTHA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	21 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the first respondent’s costs in the sum of $3,000.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1010 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

HEMANTA SHRESTHA
First Appellant

VINITA SHRESTHA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	21 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are citizens of Nepal.  On 22 March 2005, the husband appellant (the first appellant) applied for a Student (Temporary) (Class TU 572) visa.  Included in the application were his wife (the second appellant) and daughter.  At the time that he made the application, the first appellant was part way through an Advanced Diploma of Hospitality Management (Commercial Cookery) course at an institution named, ACTH Management.

2. The delegate of the first respondent refused to grant the visa application because he was not satisfied that the first appellant had provided evidence of his financial capacity to undertake the proposed course of study in accordance with the requirement of cl 572.223(2) of the Migration Regulations 1994 (Cth) (the Regulations). In order to satisfy that requirement, the first appellant had provided evidence of the monies held on deposit by his father‑in‑law in Nepal. The delegate found that the evidence did not satisfy the prescribed requirement because for funds to be from an “acceptable source” as required by the Regulations, the funds had to be funds held on deposit by an “acceptable individual” within the meaning of cl 5A405(2) of Sch 5A of the Regulations. Clause 5A405(2) listed the categories of persons who qualified as an “acceptable individual” for the purposes of the Regulations. Fathers‑in‑law were not included within the nominated categories.

3. The first appellant applied for a review of the delegate’s decision to the Migration Review Tribunal (the Tribunal).

   THE TRIBUNAL

4. By a letter dated 14 December 2005, the Tribunal invited the first appellant to comment upon the information that his father‑in‑law did not qualify as an “acceptable individual” within the meaning of the Regulations and that he had, therefore, not provided complying evidence in support of the visa application.  In response to the Tribunal’s letter, the first appellant said that he would provide evidence of his father’s bank statement as soon as possible.  A visa applicant’s father or mother is included in the categories of persons referred to in cl 5A405(2) as an “acceptable individual”  The first appellant subsequently provided some evidence of monies held by his father and mother in a bank account.

5. Further, before inviting the first appellant to a hearing, the Tribunal learned that the first appellant had, in the meanwhile, completed his course of study for the Advanced Diploma of Hospitality Management (Commercial Cookery).  By a letter dated 8 February 2006, the Tribunal inquired whether the first appellant had enrolled in another course.  In response to that letter, the first appellant advised the Tribunal that he had enrolled in a course for an Advanced Diploma of Business Management at the Lambert College of Technology which would be completed in February 2008.

6. By a letter dated 6 March 2006, the Tribunal invited the first appellant to comment on the requirement to provide evidence of sufficient funds from an acceptable individual to cover the course of study and living expenses.  The letter referred to the specific categories of persons who within the meaning of the Regulations qualified as an “acceptable individual”.  The appellant said he would provide bank statements as soon as possible.

7. The Tribunal invited the first appellant to a hearing to be held on 5 June 2006.  After the hearing, the Tribunal again wrote to the first appellant inviting him to provide further information.  The letter stated:

   [T]he Tribunal now invites you to provide the following additional information:

   ·The Tribunal refers to its letter of 6 March 2006.  Please provide information that an acceptable individual had access to approximately $40,000 in the 6 months between 22 September 2004 and 22 March 2005.

8. On 21 June 2006, the first appellant provided a document which appeared to be a copy of a bank statement to the Tribunal.  The Tribunal wrote to the first appellant on 21 June 2006 advising that whilst the information provided appeared to be a bank statement, it was necessary for the first appellant to provide an explanation of the document.  The Tribunal said that the explanation should set out in whose name the bank account was held, how that person was related to the first appellant, the range of dates contained in the bank statement and the amounts of money held in that account.  In response to that letter, the first appellant provided a copy of a letter from the Agricultural Development Bank dated 19 March 2006, which showed that his mother had a deposit of US41,933.69.

9. There followed further invitations from the Tribunal to the first appellant whereby the Tribunal sought information which demonstrated that an “acceptable individual” had access to approximately $40,000 in the six months between 22 September 2004 and 22 March 2005.  The Tribunal stated that the material provided to date by the first appellant was not satisfactory.  The Tribunal twice extended the time for the first appellant to provide that information.  By a letter dated 16 November 2006, the first appellant provided further material regarding his father’s bank deposit.

10. By a decision dated 20 February 2007, the Tribunal affirmed the decision of the delegate to refuse the visa application. The Tribunal found that the first appellant did not satisfy cl 572.223(2)(a)(i) of Sch 2 to the Regulations, because he failed to provide evidence in accordance with cl.5A405(2) of Sch 5A to the Regulations in relation to the financial capacity of the appellant to meet the costs of the proposed course of study and living expenses. The Tribunal found that the first appellant had not provided evidence of the holding of the funds in the required amount by an “acceptable individual” for the six month period preceding the making of the visa application. The Tribunal said:

    However the Tribunal is not satisfied that the funds equivalent of $30,182 are available from an acceptable course [sic].  In this case the definition of acceptable source provides that the funds must be held for at least 6 months immediately before the date of application by the acceptable individual.  The Tribunal sought on 3 occasions evidence that the funds were held in the 6 month period before the application and also discussed this requirement with the visa applicant at the hearing.  However the visa applicant has not provided evidence of the holding of the funds in the 6 month period before the time of application.  The statement provided by the visa applicant on 21 June 2006 is not adequate as it stands.  The Tribunal sought an explanation of the document on 2 occasions.  However the visa applicant has not provided any explanation.  Without the explanation the Tribunal is unable to be satisfied that it is evidence of any holding of funds for any period by an acceptable individual.

    THE FEDERAL MAGISTRATE

11. The appellant sought judicial review of the Tribunal’s decision before the Federal Magistrate.  The Federal Magistrate dismissed the application.

12. The Federal Magistrate rejected the first appellant’s contention that the Tribunal made an error of law in assessing his visa application by reference to the proposed course of study for the Advanced Diploma of Business Management and the material in relation thereto before the Tribunal, rather than by reference to the material before the delegate.

13. The Federal Magistrate also found that the Tribunal was correct to assess whether there were funds held by an acceptable source by reference to the six month period immediately prior to the date of the visa application.  The Federal Magistrate also rejected the first appellant’s contention that the Tribunal should have found that the appellant’s father‑in‑law was an “acceptable individual” under the Regulations.

14. Further, the Federal Magistrate found that the Tribunal complied with all of its obligations under the Migration Act 1958 (Cth) (the Act) ‑ in particular ss 359, 359A and 360 of the Act. The Tribunal had also provided clear reasons for its decision. Finally, the Federal Magistrate found that the Tribunal did not have any discretion in its application of the Regulations.

    THE APPEAL

15. The notice of appeal contains two grounds of appeal – each of which contains a number of rolled up contentions.  It appears from the grounds of appeal, however, that the appellants rely upon the following contentions:

    1.The Federal Magistrate erred in concluding that the Tribunal had correctly assessed whether the first appellant had complied with the Regulations by reference to his proposed course of study for the Advanced Diploma of Business Management.

    2.The Federal Magistrate erred in failing to conclude that Tribunal fell into jurisdictional error because it did not take into account the exceptional situation of political unrest in Nepal.

    3.The Federal Magistrate erred in failing to conclude that the Tribunal had a discretion in applying the Regulations and, implicitly, that the Tribunal had fallen into jurisdictional error in failing to exercise that discretion.

    4.The Federal Magistrate had erred in finding that the first appellant’s father‑in‑law did not qualify as an “acceptable individual”.

    5.The Federal Magistrate erred in failing to conclude that the Tribunal had failed to accord the appellants natural justice.

16. As to the appellants’ first contention, the Federal Magistrate found that there was a distinction in the Regulations between the criteria which had to be satisfied by a visa applicant at the time of the visa application (cl 572.21) and those which had to be satisfied at the time of the decision (cl 572.22).

17. Clause 572.22 relevantly provides:

    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.

18. The relevant parts of Sch 5A of the Regulations provide as follows:

    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.

    …

    (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 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.

19. It is apparent from the language of cl 572.223(2)(a)(i)(A) and (B) that the financial capacity of a visa applicant has to be assessed by reference to the proposed course of study which at the date of the decision the visa applicant proposes to undertake. This is reinforced by the requirement in cl 572.222 that the visa applicant provide evidence that he or she is enrolled in an acceptable course of study.

20. In assessing the evidence which the first appellant provided as to his financial capacity by reference to the first appellant’s proposed course of study for the Advanced Diploma of Business Management, the Tribunal correctly applied the Regulations.  This was the course of study which, prior to the Tribunal’s decision, the first appellant had advised the Tribunal he intended to undertake.

21. Further, it is also apparent from the definition of “funds from an acceptable source” in [18] above, that it was incumbent upon the first appellant to provide evidence of a money deposit held by an acceptable individual for at least six months immediately prior to the date of the visa application.  Therefore, in assessing whether the evidence provided by the first appellant disclosed that his mother or father held the requisite amount of money on deposit during the period 22 September 2004 to 22 March 2005, the Tribunal correctly applied the Regulations, because the visa application was made on 22 March 2005.  In my view, the Federal Magistrate did not err in determining that the Tribunal had not made an error of law.

22. As to the appellants’ second contention, in my view, there was no requirement that the Tribunal take into account the political situation in Nepal. The Regulations provided for the visa applicant to provide evidence which complied with cl 572.223(2). The function of the Tribunal, in this regard, was limited to determining whether the evidence complied with the Regulations. As set out below, it did not have a discretion. The Federal Magistrate did not err in failing to find that the Tribunal fell into error in this respect.

23. As to the appellants’ third contention, contrary to the contention of the appellants, it was not open to the Tribunal to find, in the exercise of its discretion, that the first appellant’s father‑in‑law qualified as an “acceptable individual” within the meaning of the Regulations when the Regulations plainly did not so provide.  The Federal Magistrate did not err in rejecting the appellants’ contention to that effect.

24. As to the appellants’ fourth contention, as already stated, the Federal Magistrate did not err in concluding that the first appellant’s father‑in‑law did not fall within the category of persons who qualified as an “acceptable individual” for the purposes of the Regulations.  The categories of persons who were eligible to be an “acceptable individual” were set out in cl 5A405(2) of the Regulations and simply did not include parents‑in‑law.

25. As to the appellants’ fifth contention, in my view, the Tribunal did accord the first appellant natural justice and complied with the requirements of the Act.  The Tribunal notified the first appellant of its concerns regarding the evidence which the first appellant had provided as to his financial capacity in support of the visa application.  The Tribunal, before and after the hearing, pointed out the deficiencies in the evidence which the first appellant had provided to the Tribunal and gave the first appellant every opportunity to remedy the deficiencies.  In my view, the Federal Magistrate did not err in concluding that the Tribunal had complied with the Act and that it had afforded the appellants natural justice.

26. It follows that the appellants’ appeal is dismissed.

I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:
Dated:        21 August 2008

Counsel for the Appellants:	The first appellant appeared in person.
Counsel for the First Respondent:	Mr P Reynolds
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	18 August 2008
Date of Judgment:	21 August 2008