Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 906
•11 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 906
File number(s): SYG 1878 of 2022 Judgment of: JUDGE GOODCHILD Date of judgment: 11 October 2023 Catchwords: MIGRATION – Student visa – decision of the delegate – extension of time – whether the delegate correctly applied cl 500.214 of the Migration Regulations 1994 (“the Regulations”) – inadequate reasoning – no genuine and proper consideration of the evidence – writ of certiorari issued – writ of mandamus issued. Legislation: Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth)
Legislative Instrument LIN19/198
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
ETA067 v Republic of Nauru (2018) 360 ALR 228
Gallo v Dawson (1990) 93 ALR 479
Kibogong v Minister for Immigration [2020] FCCA 3055
Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655
MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17; (2021) 95 ALJR 441
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 28 July 2023 Place: Sydney Solicitor for the Applicant: Residency Legal Solicitor for the Respondent: Minter Ellison ORDERS
SYG 1878 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRAJEN KUMAR SHRESTHA
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
1.The time for filing the application for judicial review be extended to 13 December 2022.
2.A writ of certiorari issue directed to the respondent quashing the decision of the respondent.
3.A writ of mandamus issue directed to the respondent, requiring the respondent to determine the applicant’s application according to law.
4.The respondent pay the scheduled costs of the applicant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD
This is a judgment on an application for an extension of time in which to seek a judicial review of a decision of a delegate of the respondent made on 17 October 2022. By that decision, the delegate refused to grant the applicant a student visa. The application seeking an extension of time in which to commence these proceedings was filed on 13 December 2022. The hearing proceeded on the basis that if the extension was granted, the Court would also give judgment on the review.
For the reasons that follow, the Court concludes that an extension of time should be granted and the decision of the delegate should be quashed and the delegate should be required to consider the applicant’s visa application for review according to law.
BACKGROUND
The applicant is a 20-year-old citizen of Nepal.
On 4 August 2022, the applicant applied for a Student (Class TU) (subclass 500) visa.
On 24 August 2022, a delegate of the respondent made a request under s 56 of the Act for further information regarding the applicant’s financial capacity and economic ties to Nepal.
On 29 August 2022, the applicant, in response to the s 56 request, provided to the delegate further evidence.
On 17 October 2022, a delegate of the respondent refused to grant the applicant a student visa. The delegate was not satisfied that the applicant would have genuine access to funds that his parents had put aside in a bank in Nepal.
On 13 December 2022, the applicant filed proceedings in this Court seeking judicial review of the delegate’s decision made on 17 October 2022.
THE CURRENT PROCEEDINGS
Jurisdiction
The Court has jurisdiction to hear and determine this matter as the applicant was at all relevant times offshore. The delegate’s decision is a migration decision for the purposes of s 476(1) of the Migration Act 1958 (Cth) (“the Act”), and not a primary decision under s 476(2) of the Act as the application is not reviewable by the Administrative Appeals Tribunal under Part 5 of the Act, due primarily to the applicant being outside the migration zone at all material times.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. As the applicant is 22 days out of time in respect of the delegate’s decision, he requires an extension of time pursuant to s 477(2) of the Act, to pursue his judicial review proceedings in this Court.
LEGAL PRINCIPLES – EXTENSION OF TIME
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if:
(a)the applicant makes an application for extension of time in writing detailing why the extension should be granted; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
In the present case, the applicant filed his Originating Application on 13 December 2023 and amended it on 7 July 2023. By his Amended Originating Application, the applicant provided the following grounds for why he believes an extension should be granted:
1.In the interests of the administration of justice the Applicant seeks an extension of time, especially given that the Delegate has failed to consider the Applicants’ case correctly and according to law and where it is submitted that the Applicants’ case has not been properly assessed and decision hasn’t been made based on information provided, as per legislative requirements.
2.The Applicant has to obtain significant funds to proceed with the application which puts him into a position of financial disadvantage.
3.The Applicant has to obtain legal advice as to prospects and seek counsel assistance, if possible, who can advise on whether this Court has the jurisdiction and authority to hear this application and then provide instructions as to the application proceeding.
(As per original)
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning of the High Court in Tu’uta Katoa[1] in relation to a substantively similar provision in s 477A(2) of the Act, the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether there has been a reasonable and adequate explanation for the delay (explanation);
(c)whether there is any prejudice to the Minister (prejudice); and
(d)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
SHOULD AN EXTENSION OF TIME BE GRANTED?
[1] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 (“Katoa”) at [12]-[13].
Length of delay
The Court notes that an extension of time is not granted as a right.[2] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[3]
[2] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[3] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As the applicant's Originating Application was filed on 13 December 2022, the delay in this matter is 22 days. This delay is not insignificant and weighs against the granting of an extension of time.
Prejudice
The applicant submits there is no prejudice to the respondent due to delay but that there is instead prejudice to the applicant's parents who it is asserted have "spent a lot of time and money for [the applicant]'s intended studies abroad".
The respondent conceded in written submissions that the respondent does not contend that any particular prejudice would be occasioned if the extension of granted, but stated, with reference to Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655 (“Makarov”) that the delay itself "will naturally cause some prejudice". Although in Makarov, the application for an extension of time was made 12 years after the decision.
In circumstances where no specific prejudice is being claimed on the part of the respondent, I give this consideration weight.
Explanation for delay
One of the main reasons for the delay appears to be the difficulty experienced by the applicant’s legal representative in determining the most appropriate forum and nature of relief in seeking to review the delegate’s decision. The applicant’s legal representative submitted that upon returning to Australia he had to seek counsel’s advice as to the appropriate way forward. He then points to the time required to obtain clear instructions and funds from the applicant’s family in Nepal.
The respondent submitted that the reasons provided for the delay do not provide a sufficient basis as to why it took the applicant two months from being notified of the delegate’s decision to obtain legal advice which led to the making of the application.
I accept that it is not always entirely clear in matters under the Act the appropriate forum to review a delegate’s decision. I take account of the fact that the applicant and his parents reside in Nepal. I also accept that some time would be required to seek advice from counsel with respect to the issue. In this case, however, the applicant is represented, and no explanation is provided as to why he did not first meet with his current lawyers until an unstated date in November 2022.
On the material before me, I do not consider that the Court has been provided with an adequate explanation for the delay in commencing proceedings and this weighs against the granting of the extension. However, the principal matter bearing upon the grant of an extension of time is the merit of the applicant’s proposed grounds of review which I will now consider.
Merit
The applicant submitted that even if I was not satisfied that the explanation of delay was adequate, an extension of time should be allowed having regard to the merits of the application and the lack of prejudice to the respondent.
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[4] Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[5]
[4] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 (“MZABP”).
[5] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (“MZAIB”); Katoa at [54].
In Katoa, the High Court considered, in relation to s 477A(2) of the Act, that the provision entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighted and assessed, including by reference to the merits of the proposed application. It will not constitute jurisdictional error to undertake more than an impressionistic assessment of the merits, leaving the discretion to exercise this power “deliberately broad”.[6]
[6] Katoa at [39], [46]-[61].
The question before the Court is whether the grounds are “arguable”, “reasonably arguable”, “sufficiently arguable” or have “reasonable prospects of success”, per Mortimer J in MZABP at [63].
The applicant advances one ground of review in his Amended Originating Application dated 7 July 2023, as follows:
1.The Delegate misinterpreted and misapplied the requirement of Clause 500.214 and the requirement as to evidence of financial capacity.
Particulars
a. The applicable legislative instrument as to evidence of financial capacity requirement for the Student Visa Subclass 500 is Migration (LIN 19/198: Evidence of financial capacity-Subclass 500 Visa and subclass 590 Visa) Instrument 2019 (LIN 19/198) which the delegate misinterpreted and misapplied.
b. The Applicant has provided evidence of financial capacity as required under LIN 19/198 in the form of ‘money deposit’ with a ‘financial institution’ as defined by regulation 1.03.
c. The funds were in the form of money deposit as required under Item 10 of LIN 19/198.
d. The Applicant has access to the funds available, evident from declaration provided by his sponsors. The funds were also released for issuing Confirmation of Enrolment by education provider.
e. In addition, whilst the applicant clearly met the financial requirement under the legislative instrument, the delegate considered irrelevant and unnecessary aspects including but not limited to ‘the employment history, income and assets of the person providing the funds as well as the applicant’s relationship to the business providing the funds’.
f. The delegate despite stating the requirement, acknowledging the money deposit, and having information of the above that the applicant has funds in the form of cash deposit with a financial institution as required and the funds meet the requirement of the legislative instrument and the clause, made a decision otherwise.
g. The delegate fell into error in so assessing.
(As per original)
The delegate’s reasoning appears to turn on a lack of satisfaction that the applicant’s parents had been able to accumulate the lumpsum based on their claimed income and therefore the delegate was not satisfied that the applicant would have access to that lump sum.
Before me, the legal representative for the applicant elaborated that the proposed ground for review was a failure on the delegate’s behalf to provide sufficient reasoning as to why he was not satisfied the applicant had not fulfilled cl 500.214 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicant’s submissions
In his submissions, the legal representative for the applicant steps through the requirements of cl 500.214 and the requirements of evidence of financial capacity as contained in LIN19/198. The applicant submits that cl 500.214(3) and (4) of the Regulations required the delegate to determine multiple requirements under cl 500.214 and LIN19/198, which if assessed correctly, the applicant would have satisfied.
The applicant submitted that the delegate was firstly required to determine that the evidence of financial capacity was in the form specified under Item 10 of LIN19/198. Item 10 required “money deposit with a financial institution” which the applicant submitted was satisfied on the evidence before the delegate.
The applicant submitted that the delegate was secondly required to determine whether the funds were with a “financial institution” as required by reg 1.03 of the Regulations. Regulation 1.03 defines “financial institution” as “a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money”.
The applicant submitted that the financial institution which held the money deposit was an institution regulated by the central bank of Nepal. There was no suggestion that these criterion had not been satisfied.
The applicant submitted that the delegate was required to determine whether the amount of funds held met the requirements as to financial capacity required by Item 6(2)(b) which provides:
6 Subclause 500 (Student) visa ---primary applicants
…
(2) The evidence of financial capacity
(a) is in the form specified in section 10; and
(b) demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
(i) travel expenses; and
(ii) the following living costs and expenses:
(A) if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and
….
(iii) the following course fees, minus any amount already paid:
…
(B) If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period study in Australia…
The applicant submitted that what was required of him was to demonstrate that he had sufficient funds available to meet his travel expenses, living costs and expenses and course fees. He submitted that his calculated total financial capacity was AUD38,841, consisting of AUD1000 for travel (estimated), AUD21,041 for living costs required under Item 6(2) and AUD16,800 being the course fee for one year of study, noting the total course fee for three years was AUD50,400.
The applicant submitted that he provided evidence of financial capacity above the amount required (AUD 45,472) and hence should meet the requirement.
It was submitted that in circumstances where the applicant has provided evidence of financial capacity above the amount required for one year, and where funds have been advanced on the applicant's behalf for the payment of fees as requested by his education provider, then the delegate should have found that the applicant met both the evidence of financial capacity and genuine access to funds.
Respondent’s submissions
The respondent agrees that LIN19/198 provides guidance for cl 500.214(2) and (3) of Schedule 2 of the Regulations however contends that this is irrelevant to this decision where the delegate was not satisfied that the applicant would have genuine access to the funds as required by the sub-clause. The respondent submitted that the delegate had regard to the fact that the applicant was relying upon a “money deposit”. The respondent submitted that it was open to the delegate in considering the evidence before it in reaching a state of satisfaction as to whether the applicant satisfied the sub-clause, to consider the source of funding relied upon by the applicant.
The respondent’s representative considered that the dispositive issue was not that the funds can be “seen” but whether the funds could genuinely be accessed and, in the circumstances of the single deposit, may not necessarily provide evidence in relation to his parent’s financial capacity. The respondent’s representative considered that it was open to the delegate on the evidence before it to be not satisfied that there was a genuine correlation that those funds could have been accumulated. The respondent’s representative, in response to a question from me as to what evidence would the delegate expect to see, responded that evidence of how funds have been accumulated would be expected. She stated that just because the parents assert income as X, with a single snapshot of a bank account, and evidence of assets such as land, does not prove where the funds come from. The concern identified is that the parents have deposited the funds into the identified account merely to satisfy the delegate and those funds will then be relinquished to cover their costs of living, different to the circumstances where the funds have all been transferred into a bank account in Australia and are ready and accessible to the applicant.
The respondent’s representative accepted that it was not clear on the reasons what evidence had been accepted or rejected by the delegate.
The Delegate’s Decision
The Delegate’s Decision Record (“the decision”) runs to a little over three pages. The delegate identifies in three dot points the information and evidence considered, which is said to have included the “documents and information provided by the applicant(s)”.
Under the heading Findings, the decision records as follows:
On the basis of all the information available to me, including the documents and information the applicant provided, I find that the criteria for the grant of the Student Visa are not met by the applicant.
Under the heading Reasons the decision records the fact that the applicant has made a valid application for a student visa and then correctly identifies that a visa cannot be granted unless the relevant criteria set out in the Act and the Regulations are satisfied. The decision then reproduces cl 500.214 in Schedule 2 of the Regulations.
I set out below the operative portion of the delegate’s Decision Record:
In order to satisfy the financial requirement specified by legislative instrument the applicant was required to provide the Minister with evidence of sufficient funds to meet travel expenses, living costs and annual course fees.
The applicant was also sent a s56 Request for further information requesting additional evidence in order to demonstrate their financial capacity.
I have conducted my assessment taking into account all the information provided by the applicant.
The applicant is relying upon a money deposit to provide them with sufficient funds to meet their travel expenses, living costs and annual course fees.
In considering whether they meet the genuine access to funds criterion I had regard to the following circumstances:
· the employment history of the person providing the funds
· the income and assets of the person providing the funds
· The applicant’s relationship to the business providing the funds
I note that the applicant is relying upon a lump sum which is claimed to be from another savings account in co-operative bank.
I am not satisfied that the applicant will have access to the money they have claimed as I am not satisfied that they have been able to accumulate these funds based on their sponsor’s claimed income.
In the absence of sufficient verifiable evidence to demonstrate otherwise, I have significant concerns that these funds may have been provided by someone else for the purposes of the applicant’s visa application. I am therefore, not satisfied that the applicant will have access to these funds while in Australia.
Hence, I am unable to be satisfied that the applicant will have genuine access to the funds shown for their study in Australia.
(As per original)
At a reasonably impressionistic level, the applicant’s judicial review application has, in my view, reasonable prospects of success. This is because the delegate's decision on its face fails to adequately grapple with the various financial and other documents provided by the applicant to evidence both his financial capacity and genuine access to funds. Although acknowledging the fact that the applicant relies on a “money deposit”, the decision does little to engage with the content of the documents to be satisfied of the true source of that money deposit and whether in turn, the requirement that the applicant's access to those monies is genuine, is met.
Considered cumulatively, the evidence of financial capacity submitted by the applicant not only takes the form contemplated by the relevant legislative instrument, but demonstrates, in the prescribed way, that the applicant had more than sufficient funds available to meet the specified costs and expenses. Against this background, the applicant’s ground that the delegate fell into jurisdictional error by misinterpreting and misapplying the specified requirements of the legislative instrument is reasonably arguable when considering, on the totality of the material before the delegate, the cogency of a finding by the delegate that the applicant would not have genuine access to the funds demonstrated.
Therefore, while I note there is a delay of 22 days which is not insignificant and I am not satisfied that the applicant has provided a reasonable explanation for the delay, I am satisfied that the ground for judicial review has some merit such that it is in the interests of the administration of justice for the Court to grant an extension of time in this matter. Accordingly, the application for an extension of time is granted.
SUBSTANTIVE JUDICIAL REVIEW APPLICATION
Having determined that it is appropriate to make an order extending the time to allow the applicant’s application to proceed, I now turn to consider the substantive application on its merits.
Relevant regulatory framework and policy
Clause 500.214 of Schedule 2 of the Regulations
(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2)While the applicant holds the visa, sufficient funds will be available to meet:
(a)The costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b)The costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia
(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
The legislative instrument Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 relevantly provides:
6 Subclause 500 (Student) visa – primary applicants
(1)For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5), or (6).
(2)The evidence of financial capacity
(a)is in the form specified in section 10; and
(b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
(i)travel expenses; and
(ii)the following living costs and expenses:
(A)if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and
(B)if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rate equivalent of annual living costs, calculated as specified in section 11; and
(iii)the following course fees, minus any amount already paid:
(A)If the duration, or the remainder of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study remaining or the remaining components of the course of study; or
(B)If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period of Study in Australia; and
(c)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:
(i)travel expenses; and
(ii)For each secondary applicant who intends to stay in Australia for a period of 12 months or more – the following costs (annual living costs):
(A)For a spouse or de facto partner – AUD7,362 and
(B)For a dependent child – AUD3,152; and
(iii)For each secondary applicant who intends to stay in Australia for a period of less than 12 months – pro rata equivalent of annual school costs, calculated as specified in section 11; and
(iv)The following school fees for each school-age dependant:
(A)If the school-age dependant intends to stay in Australia for more than 12 months – AUD8,296 (annual school costs); or
(B)If the school-age dependant intends to stay in Australia for less than 12 months – the pro rata equivalent of annual school costs, calculated as specified in section 11; or
(C)If the school-age dependant is enrolled in a course of study or State or Territory government school where the fees have been waived, and the Primary Applicant is enrolled in a course as a doctoral degree student, a Foreign Affairs student, a Defence student or a Commonwealth sponsored student – nil.
(3)The evidence of financial capacity:
(a)Is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and
(b)Demonstrates that the primary applicant’s parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:
(i)If there is no secondary applicant – at least AUD62,222; or
(ii)If there is a secondary applicant – at least AUD72, 592.
(4)The evidence of financial capacity is the primary applicant’s AASES form.
(5)If the primary applicant is a Foreign Affairs student – the evidence of financial capacity is a letter of support from the Department of Foreign Affairs and Trade.
(6)If the primary applicant is a Defence student – the evidence of financial capacity is a letter of support from the Department of Defence.
Item 10 of LIN 19/198 provides:
10 Evidence of financial capacity
The following forms of evidence of financial capacity are specified:
(a)Money deposit with a financial institution;
(b)Loan with a financial institution;
(c)Government loans;
(d)Scholarship or financial support.
Regulation 1.03 defines financial institution as:
“financial institution” means a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money:
(a)under a regulatory regime:
(iii)governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
(iv)that the Minister is satisfied provides effective prudential assurance; and
(b)in a way that the Minister is satisfied complies with effective prudential assurance requirements.
Item 6(2)(b)(ii) and (iii)(B) detail the amount that is required by the applicant to meet cl 500.214(2)(a) and (3) of the Regulations. For the purposes of Item 6(2)(b)(i) travel expenses, the relevant PAM at 4.6.5 Financial capacity evidence records that travel costs are set at AUD2000 for applicants applying outside Australia.
Did the delegate misinterpret and misapply the requirement of cl 500.214?
As identified earlier in this decision, the applicant submitted that he provided evidence of financial capacity above the amount required (AUD45,472) and hence should have met the requirements. The applicant submitted that in the circumstances where funds have been transferred to pay for his fees as requested by his education provider, that should demonstrate that he had genuine access to funds, in addition to the declaration by his parents to providing financial support to him.
The applicant’s legal representative submitted that the delegate’s decision that he is “not satisfied” does not provide any reasoning as to why he is not satisfied. The applicant’s legal representative stressed that the documents provided by the applicant’s parents were witnessed by a notary public and that is a matter of some significance. He points out there was no question as to the legitimacy of the document or suggestion that the documents were fraudulent. The applicant’s legal representative submitted that the regulation does not allow the delegate to “look into anything further” if there is evidence to satisfy it that the applicant had genuine access to the funds. If there was concern with respect to the genuine access to funds, the applicant’s representative submitted that the delegate could have issued a notice under s 57 of the Act giving an opportunity for the applicant to comment on those concerns.[7]
[7] The applicant’s legal representative did not advance any ground of review for the failure by the delegate to issue a notice under s 57 of the Act.
In Kibogong v Minister for Immigration [2020] FCCA 3055, Judge Kendall, on a review of a decision of the Tribunal affirming a delegate’s decision that the applicant did not meet cl 500.214 of the Regulations as she had not provided evidence that she met the financial capacity criterion, agreed with the submission of the respondent in that case that to determine what constitutes “sufficient funds”, the Regulations envisage a two-stage inquiry. Judge Kendall stated as follows:
24.First, the Tribunal must determine “the amount of the funds” required by the applicant (“Stage One”).
25.Second, the Tribunal must assess whether there is evidence in a “prescribed form” that shows that the applicant has access to the amount required (“Stage Two”).
…
27. It is apparent that in order for the decision-maker (here, the Tribunal) to determine whether an applicant has “genuine access to funds”, the “amount of funds” must first be calculated. This is the focus of Stage One (i.e., Determining the “quantum of funds necessary”).
…
32. In order to meet s.6(2)(b)(i) and (iii) and s.6(c)(i), the Tribunal must have sufficient information before it to determine “the sum of the travel costs and the course fees”.
33. Once the quantum of funds is determined, then (and only then) will the Tribunal be able to move to Stage Two.
34. Stage Two requires that the applicants provide evidence that they have funds available in the sum determining Stage One.
35. In Stage Two, the Tribunal must determine whether applicant has provided evidence (in a form that is specified in s.10 of IMMI 18/010) of the funds calculated in Stage One are. For example, if an applicant provides evidence in the form of a loan from a financial institution that equates to a sum in excess of the amount determined in the first part of the enquiry, then the second stage of the inquiries met.
36. If the funds are not in a valid form, then they are not evidence of “available” sufficient funds.
37. Arguably, a third stage/enquiry arises which requires the Tribunal to determine whether the applicant has “genuine” access to the funds that are available (i.e., that the evidence that the applicant provides is “genuinely” available). For example, if a deposit is made shortly prior to the hearing by family member, it may be necessary to consider if the applicant can genuinely access those funds or if they were transferred for the purpose of meeting the criteria to have “available” funds at the time of decision in a certain amount.
The summary nature of the reasons in this case makes it difficult to identify with any certainty to what material the delegate had regard in deciding that the criteria for the visa was not met. The reasons do not disclose any determination by the delegate of the amount of funds required by the applicant (“Stage One”) nor any assessment whether there is evidence in a “prescribed form” that shows that the applicant has access to the amount required (“Stage Two”). Judge Kendall considered that both those stages must be undertaken. I agree.
When considering the applicant’s genuine access to funds, the delegate noted the applicant was relying upon a lump sum from a co-operative bank, was not satisfied that the applicant’s parents had been able to accumulate the funds based on their income and, absent “sufficient verifiable evidence”, had significant concerns that these funds had been provided by someone else for the purpose of the applicant’s visa application.
On its face, the decision did not express any concern with the financial capacity evidence. The sole reason for the refusal of the applicant’s application was that the delegate was concerned that the lump sum funds, the money deposit, may have been provided by someone else for the purpose of the applicant’s visa application. The reasons do not contain any pathway of reasoning identifying upon what facts the delegate relied to reach the satisfaction that the funds were not able to have been accumulated, or that those funds may have been provided by someone else.
The decision seems to move between referring to the applicant in the singular and in the plural as if there is more than one applicant. This can be seen by use of the plural pronouns “them” and “their” and “they”. This could be simply an error and confusion regarding the applicant and both his parents as sponsors.
The reasons refer to the applicant “relying upon a money deposit to provide them with sufficient funds” and “noting that the applicant relying upon a lump sum, which is claimed to be from another savings account in co-operative bank”. The applicant is relying upon a money deposit which is a lump sum, not held in a co-operative bank but held in Sanima Bank Limited.
The delegate, in considering whether they (sic) met the genuine access to funds criterion, records in the decision that regard was had to the applicant’s relationship to the business providing the funds. As I understand, it is not a business providing the funds for the applicant, but, by declaration, the applicant’s mother and father sponsoring their son based upon their joint savings and income. The applicant’s mother certified that she held the position of Pre-Primary in charge at The Rolling Stones School of Arts and Music with an annual income of NPR 390000.00. The father certified that he was the business owner of Handmade Silver Craft with an annual income of NPR 1644948.07. Both parents certified that as at 23 June 2022 they were holding current savings/education loan of NPR 40,000,00.00 (AUD $45,472.83) for their son.
Whilst mindful that this review does not extend to a review of the factual merits of the decision under review and recognising that there is no obligation on the delegate to refer to every piece of evidence of contention (ETA067 v Republic of Nauru (2018) 360 ALR 228 at [13]), a cursory consideration of the documents relied upon suggests that the conclusion reached by the delegate was formed absent a qualitative evaluation of that material:
·GTE Financial Sponsorship Declaration (Notarised) 23 June 2022 Pyariyan Pradhan (mother) – declaring the following:
…
b. That I currently hold the position of Pre-Primary In-charge at The Rolling Stones School of Arts & Music with an annual income of NPR 390000.00 (AUD 4495) holding total current savings/education loan of NPR 40,000,00.00 (AUD 45,472.83) at Sanima Bank Limited.
c. That I am sponsoring my son, known as Prajen Kumar Shrestha…undertaking further studies in Bachelor of Information Systems at Homes Institute for 3 years and I shall provide him with full financial support during his stay in Australia which includes tuition fee of AUD 16,800 per annum and living expenses of AUD 21,041 per annum.
·GTE Financial Sponsorship Declaration (Notarised) 23 June 2022 Gautam Kumar Shrestha (father) – declaring the following:
…
b. That I currently hold the position of Business (Owner) at Hand Made Silver Craft with an annual income of NPR 1644948.07 (AUD 18957) holding total current savings/education loan of NPR 40,000,00.00 (AUD 45,472.83) at Sanima Bank Limited.
c. That I am sponsoring my son known as Prajen Kumar Shrestha…undertaking further studies in Bachelor of Information Systems at Homes Institute for 3 years and I shall provide him with full financial support during his stay in Australia which includes tuition fee of AUD 16,800 per annum and living expenses of AUD 21,041 per annum.
·Student Visa Financial Support Statement signed on 23 June 2022 for both Pyariyan Pradhan (mother) and Gautam Kumar Shrestha (father) guaranteeing that a level of financial support to the amount of AUD 45,472.83 will be provided and enclosing copies of evidence of money deposits with a financial institution totalling the amount of the financial support.
·Kathmandu Metropolitan City Office of the Municipal Executive certification (Notarised) for both Pyariyan Pradhan (mother) and Gautam Kumar Shrestha (father) of their sources of income and annual income of NPR 2,034,948.07 (AUD 23,452.20).
·Kathmandu Metropolitan City Office of the Municipal Executive Tax Clearance Certificate (Notarised) dated 8 May 2022 for both Pyariyan Pradhan (mother) and Gautam Kumar Shrestha (father) certifying that both had cleared his and her taxes of the fiscal year 2021/22.
·Independent Auditors report (Notarised) to Proprietor’s Handmade Silver Craft for the financial year ended on 16 July 2022 and annexing the Balance Sheet and Profit & Loss Account and Cash Flow Statement.
·The Rolling Stones School of Arts & Music statement (Notarised) dated 30 June 2022 as to Pyariyan Pradhan’s (mother) annual salary of NPR 3,90,000.00 and pay slips for January, February, March, April, May and June 2022.
·Jamko Saving & Credit Co-Operative Limited Statement of Account from 1 September 2020 to 22 June 2020 for Gautam Kumar Shrestha’s (father) saving account (10% interest), showing regular deposits and the withdrawal (by cheque) of NPR 4,000,000.00 on 22 June 2022.
·Sanima Bank Balance Certificate dated 23 June 2022 for Gautam Kumar Shrestha (father) of NPR 4,000,700.00 (AUD 45,472.83) holdings, reflecting the deposit of NPR 4,000,000.00 into the account on 22 June 2022.
·Property Valuation Report of Mr Govinda Kumar Shrestha (grandfather of the applicant) certifying value of land and building at NPR 18,300,000.00 (AUD 204,950.16).
·Holmes College Remittance advice for the payment of AUD 10,549.48 on 27 July 2022 from account number: 077011060002714.
·Sanima Bank account number 077011060002714 showing debit of NPR 948,925.73 on 27 July 2022.
·Holmes Institute Offer and Acceptance of Agreement dated 27 July 2022 for Bachelor of Information Systems, seven semesters (12/09/2022 – 15/07/2025) total tuition fee AUD 50,400.
The applicant was relying upon a lump sum of funds that were available from a regular savings account in his father’s name in a co-operative account in Kathmandu, Nepal. The statement of account for this account identifies the account as a savings account attracting a 10% interest rate. The transactions on this account identify regular payments into the account from September 2020 until June 2022 when the funds were withdrawn and deposited into a compliant financial institution, a financial institution regulated by the central bank of Nepal. The accumulation of funds in the co-operative account and then the subsequent deposit into the regulated bank account including the cheques and deposit slips was evidence available to the delegate. The applicant’s Statement of Purpose explains the accumulation of funds and the subsequent transfer of funds from the co-operative account into the compliant account. It appears that the reasoning of the delegate reflects a misunderstanding of the above as the basis of the applicant’s application.
I am not satisfied that the delegate engaged in a genuine and proper consideration of the evidence that was available.
In my view, the expressed concern (that is, that the funds may have been provided by someone else) was not open on the evidence. Given the paucity of reasons containing bare assertions, it is difficult to discern the factual basis for such lack of satisfaction. It appears that the delegate was not satisfied as to the veracity of the applicant’s claims. That is a matter of some significance in this case considering the evidence that was available to the delegate and what was required to be shown by the applicant for the purposes of the level of satisfaction as to the genuineness of access to funds.
The decision records that the delegate had regard to relevant policy and procedural information on LEGEND. This is a reference to the relevant procedural advice manual (PAM) which is not a binding document but simply provides guidance to officers applying the Act and Regulations: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 142 FCR 43 at [45].
The PAM relevantly provides examples of circumstances that may be considered when determining if an applicant meets the genuine access to funds criteria. The decision records that the delegate had regard to three of those circumstances, being the employment history of the person providing the funds, the income and assets of the person providing the funds and the applicant’s relationship to the business providing the funds. The applicant contends that the applicant fell into error in considering matters such as employment history and income and assets of the persons providing the funds. I do not agree. These matters are available to the delegate to consider.
However, it is noteworthy that the PAM provides the following when dealing with “Genuine access-Money deposit”:
Money deposits held by the applicant…or the applicant’s parents would generally satisfy the genuine access requirement.
According to the PAM, for the purposes of genuine access to money deposits, two of the eight factors to which consideration should be given are:
· whether the money is a lump sum payment in an account (even if held by the applicant or their spouse/defector partner/parent) or is there a savings history to accumulate the funds); and
· how long the money has been in the account.
It is unclear why it was that the delegate did not apply the above.
The respondent relies upon the example given by Judge Kendall in respect of the “third stage enquiry” requiring the determination as to genuine access to funds and questioning a deposit of funds made shortly prior to a hearing by a family member. The factual circumstances of this case can be distinguished to that example. In this case, there exists identifiable deposits of funds over a period.
Having regard to my expressed concerns with the delegate’s application of cl 500.214 and the failure by the delegate to give genuine and proper consideration to the evidence in assessing the criteria for the grant of the student visa, there is a realistic possibility that if the evidence had been properly considered and cl 500.215 properly applied a different decision could have been made: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17; (2021) 95 ALJR 441 at [39].
CONCLUSION
For the reasons I have given, I am satisfied that the delegate's decision is infected with jurisdictional error, and as such I make the orders set out at the forefront of this judgment.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 11 October 2023
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