Singh v Minister for Immigration

[2017] FCCA 1751

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1751

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Regulations 1994 (Cth), cl.573.223, cl.5A508
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Applicant: KULJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1408 of 2017

Judgment of: Judge Emmett

Hearing date: 27 July 2017

Date of Last Submission: 27 July 2017

Delivered at: Sydney

Delivered on: 27 July 2017

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Mr Dominic Eberl
Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1408 of 2017

KULJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 8 May 2017, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 13 April 2017 (“the Tribunal”).

2. On 5 June 2017, the applicant attended a directions hearing a Registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 14 June 2017.

3. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims, the Tribunal’s decision, and the relevant legislation, as follows:

   “PART I BACKGROUND

   3. The applicant is a national of India. On 24 December 2015, the applicant applied for the visa on the basis of his intention to study a Diploma of Accounting (Court Book (CB) 1-7). On 14 January 2016, the delegate wrote to the applicant, requesting that he provide further information in relation to his financial capacity (CB 19-29).

   4. On 31 March 2016, the delegate refused to grant the applicant visa (CB 33-38). The delegate noted the applicant's principal course was a type specified by Gazette Notice as a type of course for a Subclass 572 visa. Accordingly, the delegate assessed the applicant against the Subclass 572 criteria.

   5. The delegate was not satisfied that the applicant had provided evidence of his financial capacity to pay his living costs, being $23,458.00, and as such found that he did not meet the criteria for the grant of the visa (cl 527.225, 572.224, and 572.223) (CB 34).

   On 18 April 2016, the applicant applied for review to the Tribunal (CB 39-40). On 16 February 2017, the Tribunal invited the applicant to attend a hearing (CB 51). In the invitation, the Tribunal requested that the applicant provide information about a number of matters, including evidence of sufficient funds to pay his course fees, and living costs (CB 52).

   7. On 21 March 2017, the applicant provided submissions and copies of bank statements in support of his application (CB 73). Prior to the hearing, the applicant enrolled in a Bachelor of Accounting (CB 129).

   8. On 22 March 2017, the applicant attended a Tribunal hearing (CB 116), and on 5 April 2017, he provided further material to the Tribunal for its consideration (CB 120).

   PART II DECISION OF THE TRIBUNAL

   9. On 13 April 2017, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 156). As the applicant was enrolled in a Bachelor of Accounting as his principle course, the Tribunal assessed his application against the criteria for a Subclass 573 visa. The Tribunal correctly identified that the applicant was required to meet the requirements set out in Schedule 5A of the Migration Regulations 1994 (the Regulations) (CB 158-159 at [10]-[14]).

   10. The issue before the Tribunal was whether the applicant met the financial capacity requirements (cl 5A508). Adding all the factors, the Tribunal concluded that the applicant was required to give evidence of sufficient funds, totalling $27,314.00, to meet his expenses (CB 159-160 at [22]-[28]). The Tribunal noted that the applicant was required to show that he held the funds 3 months prior to the date of the visa application (cl 5A508(2) of the Regulations) (CB 160-161 at[30], [34]).

   11. As the applicant had provided no evidence that he held the funds 3 months prior to the visa application, the Tribunal was not satisfied that he met cl 5A508 (CB 161-162 at [37]-[41 ]).

   PART III RELEVANT LEGISLATION

   12. As noted by the Tribunal the applicant was assessed under the criteria for a Subclass 573 visa. Pursuant to reg 1.40A of the Regulations, the Minister, by instrument in writing, may specify the types of course for each of the subclass of student visa (reg 1.40A(1) of the Regulations).

   13. By instrument dated 16 March 2014, the Minister specified that a Bachelor Degree is a type of course for a Subclass 573 visa (IMMI14/015, Types of courses for Student visas).

   14. Relevantly, cl 573.223 provides that the applicant is required to give the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant (cl 573.223(2)(a) of the Regulations).

   15. Schedule 5A, relevantly provides:

   5A508 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 12 months:

   (i) course fees;

   (ii) living costs;

   (iii) school costs

   …

   16. The term 'acceptable source' is defined in cl 5A508(2) (with emphasis):

   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;

   (b) if paragraph (a) does not apply-a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

   17. The phrase the 'first 12 months' is defined to mean the period that (cl 5A101 of the Regulations):

   (a) begins:

   (i) if the application is made outside Australia-on the day of the applicant's expected arrival in Australia; or

   (ii) if the application is made in Australia-on the day that the student visa is expected to be granted to the applicant; and

   (b) ends on the earlier of the following:

   (i) the day 12 months after the beginning of the period;

   (ii) the last day of the applicant's proposed stay in Australia.

   18. Course, living and school costs are defined in the Regulations (cl 5A 101 and cl 5A 104). For the purposes of cl 5A 104(1), the Minister, by instrument in writing, specified the amount of livings costs is $18,610.00 (IMMI14/004, Evidence of further funds and living costs).”

7. The applicant was unrepresented before the Court this morning.

8. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with directions or otherwise. 

9. The applicant had no further documents to provide to the Court this morning.  The applicant confirmed that he relied on the grounds of his application although he informed the Court that he had not written those grounds.

10. The applicant’s application for judicial review, filed on 8 May 2017, stated the grounds of review as follows:

    “1. The Tribunal, based on department of immigration and Border Protection 'DIBP' decision, denied the Applicant appeal that he has fulfilled significantly the student visa application requirement and meet the visa application of student (Temporary) (Class TU) visa hence misconstrued the requirement by the DIBP.

    Particulars

    1.1 The Tribunal misconstrued the requirement by the DIBP decision to refuse the visa under clause 572.223(2)(a) of the migration Act

    1.2 The Tribunal failed to consider the Applicant has been completed the corresponding study more than 80% of the study at the time of tribunal hearing

    1.3 Tribunal failed to consider the finance available at the time of hearing which was valid as sufficient funds was available for the purpose of cl. 5A508 of the schedule 5A.

    1.4 The Tribunal did not take into consideration of the closure of the course provider resulted destruction in study for significant of time due to financial loss and time loss.

    2 The Tribunal committed jurisdictional error when took into account irrelevant considerations by DIBP and constructively failed to consider the requirement of visa grant was met hence misconstrued the criteria or applied wrong test regarding the grant of the visa application of subclass 572.

    Particulars

    1.1 The Tribunal, based on the decision by DIBP, failed to consider the Applicant has failed to considered that the applicant meet the requirement of visa grant clause 5A508 Financial capacity requirement.

    1.2 The Tribunal failed to consider that applicant has met all other relevant requirement to grant of student visa subclass 572.”

11. The applicant’s complaints appear to be that he now has access to funds; he is part way through a further course; and, that there are other factors that the Tribunal should have taken into account in relation to his application.

12. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law.

13. I also explained to the applicant that it appeared on the face of the Tribunal’s decision record that the applicant was required to meet a mandatory criterion at the time of application. That mandatory criterion was that the applicant had sufficient funds deposited in the account of an acceptable individual who had held those funds for at least three months immediately before the date of the application. The applicant conceded that that was not so. However, the applicant continued to submit that he now does have the funds, that he is continuing to study successfully and that he wishes to have an opportunity to remain in Australia and pursue his courses.

14. The applicant sought an adjournment of today’s hearing, not at the outset of the hearing, but after I had stood the matter down for some time to allow the first respondent to explain to the applicant the difficulties he faced in his application and in the hope that he may be able to negotiate costs with the first respondent should he choose to withdraw his matter. The applicant then sought an adjournment to obtain legal advice. That adjournment was opposed by the first respondent.

15. The applicant has had sufficient time to obtain legal advice. The applicant filed his application for review in this Court on 8 May 2017 in respect of the Tribunal’s decision dated 13 April 2017.

16. The applicant was also given, at the directions hearing on 5 June 2017, the contact details of legal services providers and translating and translating and interpreting services.  The applicant has taken no steps to seek to obtain any legal advice. Having regard to the lack of steps taken by the applicant to obtain any legal advice, the opportunity that the applicant has had to seek that legal advice, and the lack of prospects of success of the applicant’s substantive application for judicial review, the application for adjournment was refused.

17. The grounds identified in the applicant’s application allege that the Tribunal misconstrued the requirements of the Department of Immigration and Border Protection (“the Department”); took into account irrelevant considerations; and, failed to consider that the applicant is now able to meet all requirements of the visa. 

18. A fair reading of the Tribunal’s decision record makes clear that the Tribunal affirmed the decision on review because the applicant did not satisfy the financial capacity requirements under cl.5A508 of Schedule 5A of the Migration Regulations 1994 (Cth) (“the Regulations”).

19. Whilst there is more than one requirement in schedule 5A of the Regulations that the applicant may have satisfied, the financial capacity requirements under cl.5A508 of the Regulations is of critical and mandatory importance. Clause 5A508 of the Regulations requires the applicant to give evidence of funds from an acceptable source that is sufficient to meet his course fees and living costs for the first 12 months. The Tribunal found that those costs were $27,314 and the applicant does not suggest otherwise. The Tribunal found that the applicant had provided evidence of $23,610.53 only.

20. The Tribunal also noted that the applicant provided a further sum of $10,078.35 as at 14 March 2017. The Tribunal noted that while the funds in the applicant’s bank account as at 14 March 2017, together with his parent’s funds are in excess of the sufficient funds required for the purposes of cl.5A508 of the Regulations, the evidence before the Tribunal did not demonstrate that those funds had been held for three months prior to the date of the visa application.

21. The Tribunal further noted that the applicant’s Commonwealth Bank account statements only provided a record of transactions from 17 November 2016. The applicant applied for the visa on 24 December 2015. The Tribunal noted that the applicant was alerted to the evidentiary deficiency at the Tribunal hearing on 22 March 2017 and the Tribunal had agreed to defer making a determination until after 5 April 2017 to allow the applicant time to submit further documents. On 5 April 2017 the Tribunal noted that the applicant submitted evidence of fixed deposits held in the name of his father as at 31 March 2016, and a further statement from his bank account for the period 28 January 2017 to 1 April 2017.

22. The Tribunal noted that the applicant had been advised at the Tribunal hearing that he would need to show evidence of the funds three months prior to the application on 24 December 2015. The Tribunal noted that the applicant had also been on notice of that requirement since the request from the Delegate on 14 January 2016. The Tribunal noted that at the date of the Tribunal decision, no further documents had been received from the applicant and that there was no evidence before the Tribunal that the applicant held funds available from an acceptable source for three months prior to the visa application.

23. The Tribunal found that the evidence before it only demonstrated that the applicant’s father held a sum of $26,418.75 more than three months after the date of the visa application. The Tribunal noted that this amount was also less than the sufficient funds required.

24. Accordingly, the Tribunal was not satisfied that the applicant had provided evidence that he has funds from an acceptable source that are sufficient to meet his expenses for course fees, living costs and travel costs for the 12 month period. The Tribunal found that in those circumstances, the applicant did not satisfy cl.5A508 of the Regulations and on that basis did not satisfy clause 572.223(2)(a) of the Regulations being a mandatory requirement of his visa.

25. The Tribunal then affirmed the decision under review.  Those findings would appear to be open to the Tribunal on the evidence and material before it, and for the reasons it gave.

26. Having found that the applicant did not have funds from an acceptable source and that he therefore did not satisfy cl.5A508(2)(b) of the Regulations, there was no imperative on the Tribunal to go on to consider other criteria that the applicant may have met.

27. In the circumstances, the applicant’s allegation that the Tribunal misconstrued the requirements of his visa in Ground 1 is not made out. 

28. Further, the applicant’s complaints in Ground 2 that the Tribunal took into account irrelevant considerations and constructively failed to consider other matters, is similarly not made out. 

29. The allegation in Ground 2 that the Tribunal failed to consider that the applicant had met all other relevant requirements was not a matter that the Tribunal was required to consider for the reasons above. 

30. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

31. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 8 May 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  7 August 2017