Singh v Minister for Immigration
[2013] FCCA 1215
•29 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1215 |
| Catchwords: MIGRATION – Student visa – decision of Migration Review Tribunal – whether the Tribunal misconstrued the meaning of the word ‘loan’ – whether Tribunal should have given applicant more time to provide evidence – whether there was jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), Schedule 2, cl.572.223, Schedule 5A, cls.5A404, 5A405 & 5A406, regs.1.03 & 1.41 |
| Minister for Immigration & Citizenship v Li (2012) 202 FCR 387; unreported High Court appeal [2013] HCA 18 Sidhu v Minister for Immigration & Anor [2011] FMCA 890 Patel v Minister for Immigration & Citizenship [2013] FCA 97 VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1 Naif v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 114 VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086 |
| Applicant: | MANPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 72 of 2012 |
| Judgment of: | Judge Simpson |
| Hearing date: | 21 March 2013 |
| Date of Last Submission: | 21 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 29 August 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 13 April 2012 and the Amended Application filed on 5 December 2012 are dismissed.
The applicant shall forthwith pay the respondent its costs fixed in the sum of SEVEN THOUSAND DOLLARS ($7,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 72 of 2012
| MANPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
I have before me an application seeking judicial review of a decision of the Migration Review Tribunal dated 19 March 2012.
Litigation History
The original application was filed on 13 April 2012. It first came before a Registrar on 8 May 2012 at which time orders were made for the filing of the Court Book, leave was given to the applicant to file and serve an Amended Application by 19 June 2012. The applicant was given leave to file and serve further material including the transcript of the proceedings before the second respondent by 19 June 2012, and the matter was listed for final hearing on 18 October 2012. The parties were ordered to file and serve Outlines of Submissions before hearing date.
Orders were made by consent by a Registrar on 8 May 2012 extending the time within which the Court Book was to be filed and again giving the applicant leave to file and serve an Amended Application, this time by the 19 June 2012.
The Court Book was filed on 22 May 2012.
The respondent filed its Outline of Submissions on 9 October 2012.
On 12 October 2012, the applicant filed an affidavit annexing certain documents that he described as “financial documents relating to my application of (sic) student visa”.
On 17 October 2012, the applicant filed a further affidavit giving evidence about his history of seeking an education in Australia and his contact with the Department of Immigration (“the Department”) and the Migration Review Tribunal.
On 18 October 2012, submissions were put but not completed. The matter was then adjourned to allow the applicant to file an Affidavit annexing the transcript of proceedings before the Migration Review Tribunal.
The matter next came before the Court on 22 October 2012 at which time both parties appeared by telephone. Orders were again made permitting the applicant to file and serve an Amended Application, this time by 19 November 2012. An order was made that the applicant file and serve an affidavit annexing the Tribunal transcript on or before 19 November 2012. The matter was re-listed for further hearing of the application on 23 November 2012.
On 19 November 2012, the applicant filed a further affidavit in which he deposes to his efforts to obtain a copy of the transcript of evidence taken by the Migration Review Tribunal.
On 21 November 2012, orders were made by consent in chambers vacating the hearing on 23 November 2012, ordering again that the applicant have leave to file and serve an amended application, this time by 5 December 2012, that if the applicant did not file an amended application within the time allowed, that the matter would stand reserved but, if complied with, would be re-listed for further hearing. The applicant filed his Application on 5 December 2012. The matter was re-listed for further hearing on 21 March 2012 and the applicant and respondent were ordered to file and serve their Outlines of Submission by 8 February and 1 March 2013.
On 5 December 2012, the applicant filed an Amended Application together with an affidavit in which he exhibited the transcript of evidence taken before the Migration Review Tribunal on 19 March 2012.
On 1 March 2013, the respondent filed supplementary submissions.
On 21 March 2013, further submissions were put and judgment was reserved.
Hearing
At the hearing on 21 March 2013, the applicant was given an opportunity to put any submissions that he wished. He did so. I then heard submissions on behalf of the respondent. I then asked the applicant whether he had anything to say in reply. He indicated that he would like his friend, Mr Umang Rajani, to speak on his behalf. Mr Rajani informed the Court that he was a Migration Agent. Counsel for the respondent quite properly indicated that he would not oppose me hearing from Mr Rajani in the event that I thought it appropriate to do so. Whilst I had some reluctance to hear from Mr Rajani as it would have been more appropriate for him to have assisted the applicant to prepare submissions to be provided to the Court and the other party prior to the hearing, I decided that I would hear from him.
The grounds detailed in the Amended Application were as follows:
“1.The Tribunal made decision in hurry (sic).
2.The applicant was not given enough time to produce the documents.
3.The decision was on (sic) jurisdictional error.”
When read together, these grounds essentially allege that the Tribunal fell into jurisdictional error because it did not allow the applicant sufficient time to provide documents to the Tribunal. The applicant also complains in his affidavit dated 5 December 2012, that the Tribunal did not give him enough time to provide documents but rather, “forced” him to provide them within half an hour following the hearing.
Background
The applicant is a citizen of India. On 24 December 2010, the applicant applied to the Department of Immigration and Citizenship (as it then was) for a Subclass 572 Visa. Attached to the Application were Confirmation of Enrolments relating to the applicant.
As at 16 August 2010, the primary criteria to be satisfied at the time of the decision for the grant of a Subclass 572 Visa included that the applicant meet the requirements of cl.572.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Pursuant to cl.572.223(2)(a)(i), the applicant was required to provide evidence in accordance with the requirements mentioned in Schedule 5A of the Regulations for the highest relevant assessment level applicable to him. The phrase “assessment level” is defined under reg.1.03 as being the level of assessment specified under reg.1.41 of the Regulations which in turn provides that the Minister must specify by Gazette Notice the relevant assessment level.
In the present case, the Gazette Notice for reg.1.41 in force at the time that the visa application was lodged was IMMI 10/003. The Gazette Notice specified that the relevant assessment level in respect of a Subclass 572 visa where the applicant was from India was “4”. This meant that for the purpose of meeting the requirements in cl.5A405 of Schedule 5A to the Regulations, the applicant had to provide evidence that he had “funds from an acceptable source” that were sufficient to meet the expenses incurred for the first 36 months relating to his course fees, living costs and school costs (see cl.5A405(1)(a)). The terms “acceptable individual” and “funds from an acceptable source” are defined by cl.5A405(2).
“5A405 Financial capacity
…
(2)In this clause:
acceptable individual means one or more of the following:
(a)the applicant;
(b)the applicant’s spouse or de facto partner;
(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.
…
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 3 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 an instrument in writing for this subparagraph; or
(viii)an acceptable nonprofit 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.”
The applicant was also required to satisfy the decision-maker that he was a “genuine applicant for entry and stay as a student” and that while he held the visa he would have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A. So far as relevant to the present matter, that criterion requires that at the time of the decision, the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2). Clause 572.223 relevantly states:
“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 the an applicant who is not a person designated under regulation 2.07AO:
…
(iii) The Minister is satisfied that while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.”
The delegate’s decision
By a letter dated 6 January 2011, the Delegate wrote to the applicant requesting that he provide further information in support of his application for a Subclass 572 visa. In particular, the Delegate requested that the applicant provide evidence of English language proficiency as required by cl.572.223(2)(a)(i) and evidence of at least $22,326 in funds that had been held in a bank account for at least six months prior to the application and that the regular income of any individual providing those funds was sufficient to accumulate the level of funding being provided to him.
On 1 February 2011, the applicant requested that the Delegate give an extension of time to respond of “at least one week”. The applicant was granted an extension of time until 10 February 2011 to provide all outstanding documents.
On 8 February 2011, the applicant sent an email to the Department in which he confirmed that he was providing “half of requested documents” (sic). The documents attached to this email included evidence of funds, tax and income documents for Mr Prabhjit Singh. The applicant stated that the rest of the requested documents would be “sent soon”.
On 11 February 2011, the Delegate sent an email to the applicant informing him that no further extension of time would be granted.
On 11 February 2011, the Delegate refused to grant the applicant a Subclass 572 Visa on the basis that he did not satisfy cl.572.223 of the Regulations. The Delegate found that the applicant had not provided evidence of English language proficiency as required by cl.572.223(2)(a)(i).
The Tribunal’s decision
On 25 February 2011, the applicant lodged an application for review with the Tribunal to review the Delegate’s decision. Attached to the application for review were copies of pages from the applicant’s passport.
By a letter dated 1 December 2011, the Tribunal invited the applicant to attend a hearing before it scheduled for 19 March 2012. The applicant appeared at the hearing with his representative and gave evidence and made submissions in support of his application.
The Tribunal received a written submission from the applicant’s representative on the morning of the Tribunal hearing and a further written submission following the hearing on 19 March 2012. Also on 19 March 2012, the applicant’s representative sent a further fax to the Tribunal seeking to correct an error in the calculation of funds made in an earlier submission.
The Tribunal’s decision
In a decision dated 22 December 2011, the Tribunal affirmed the Delegate’s decision to refuse to grant the applicant a Subclass 572 Visa.
The Tribunal correctly set out in its decision the applicable statutory requirements in its determination of whether the applicant satisfied cl.572.223. The Tribunal accepted that the applicant met some of the Schedule 5A requirements for Assessment Level 4. For example, he had completed a substantial proportion of a particular course of study within the last two years as required by cl.5A404(d)(iii) and had provided evidence that he had completed Year 12 schooling or its equivalent as required by cl.5A406.
The Tribunal found that the applicant had not given evidence in accordance with the Schedule 5A requirements for Assessment Level 4 in relation to the necessary financial capacity. The Tribunal noted evidence of nine term deposits in the name of “Prabjeet Singh” totalling INR900,000 or AUD$16,932, but found there was no evidence as to the relationship (if any) between the holder of these funds and the applicant and no declaration of support. The Tribunal also found there was no evidence that these funds would be available to the applicant at any stage and that the amount of the deposits was substantially less than the AUD$21,100 required to meet cl.5A405.
The Tribunal did not have regard to income tax returns for Prabjeet Singh showing that his gross annual income was INR230,000 but found it was “not apparent” how a person in receipt of such an income could accumulate the savings required to lodge term deposits totalling INR900,000. Clause 5A405(1)(c) relevantly required that evidence be provided to demonstrate that the regular income of the individual providing the funds was sufficient to accumulate the level of funding being provided by that individual.
The Tribunal also had regard to evidence of a “demand loan” in the sum of INR950,000, but found this was “nothing more than an overdraft or line of credit” and did not accept that it was a “loan in any accepted sense”. The Tribunal found that an overdraft was “at best, a facility for borrowing money to a predetermined limit” and which could be “withdrawn in an instant by the lender”. The Tribunal found that until and unless the funds were actually disbursed to a borrower or transferred to their custody and underwritten by a loan contract, the arrangement could not be reasonably characterised as a loan. The Tribunal also relied on the underlying policy objective that students actually have the funds to support themselves and meet their commitments whilst holding the visa. Accordingly, the Tribunal disregarded the “demand loan” amount of INR950,000 and found that as the applicant had only AUD$16,932 it was not satisfied that he met the requirements of cl.5A405.[1]
[1] This finding by the Tribunal is dealt with in more detail later in these reasons.
As a result, the Tribunal found that the applicant did not satisfy the requirements of cl.572.223(2)(a)(i). The Tribunal found further that there was no evidence that the applicant while holding the visa would have access to the funds demonstrated or declared in accordance with Schedule 5A and found that he also did not meet cl.572.223(2)(a)(iii). Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the applicant a Subclass 572 Student Visa.
Proceedings in the Federal Magistrates Court (now Federal Circuit Court of Australia)
I have earlier in these reasons identified the grounds that the applicant now relies on.[2]
[2] See paragraph 16 of these reasons.
It is to be noted that the applicant was only entitled to the rights afforded to him under Part 5 of the Migration Act1958 (Cth): Review of Decisions. Section 357A provides an exhaustive statement of the natural justice hearing rule. Section 357A states:
“357A Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.”
The Tribunal was not required to afford the applicant common law natural justice or procedural fairness. The Tribunal was however required to act in a way that was fair and just.
It was the applicant’s responsibility to be aware of the criteria that he was required to meet in order to be eligible for the grant of a Subclass 572 Visa and to provide sufficient evidence for the decision-maker to be satisfied that he met those criteria.
In any event, it is to be noted that the Department sent a letter to the applicant on 6 January 2011 advising him that it was necessary for him to provide certain information to the Delegate. This included the following items of evidence:
“Evidence of at least $22,326 in funds that have been in a bank account for at least 6 months prior to Visa application. The saving history is not required if you provide evidence that you have completed at least 74% of your course or if the required funds are held in a loan.
Evidence that the regular income of any individual (including yourself) providing funds was sufficient to accumulate the level of funding being provided by that individual (eg tax returns, income statements, pay slips) and evidence of your relationship to that individual if the funds were not provided by you.”
The transcript of the Tribunal hearing conducted on 19 March 2012 reveals that the Tribunal expressly put to the applicant that he had to establish that he met the financial requirements set out in Schedule 5A of the Regulations for the grant of a Subclass 572 Visa. This included that he would have access to funds from an acceptable source in the amount of “$21,000”. Whilst the applicant complains in his affidavit dated 5 December 2012 that he was taken by surprise of this “new requirement” the amount of funds that he was required to demonstrate that he had access to, was actually less than the amount referred to in the delegate’s letter dated 6 January 2011.
When the matter was before the Tribunal the applicant indicated that he had certain documents in relation to funding that he wished to put before the Court. The Tribunal member indicated that he would be happy to wait for no more than half an hour after the hearing had finished for this to be sent to the Tribunal. The applicant complains that this was unreasonable. When considered in proper context it was, in my view, not unreasonable.
At the hearing the applicant expressly informed the Tribunal member that his appointed representative had access to the documents that he wished to provide to the Tribunal to meet the requirements. The Tribunal member (who was in Melbourne) informed the applicant and his representative that they could have access to the facsimile machine at the location where the hearing was being conducted in Adelaide, namely the Administrative Appeals Tribunal, following the hearing to send the documents to the Tribunal member in Melbourne. The applicant’s representative subsequently confirmed that he would be able to send to the Tribunal scanned copies of the documents that the applicant wished to provide.
The important point to note is that at no point did the applicant or his representative request further time to provide any documents.
The Tribunal hearing was adjourned at 11.47am Australian Eastern Standard Time. At approximately 12.21pm, the Tribunal received a 12 page written submission from the applicant’s representative. The submission thanked the Tribunal for giving the applicant the opportunity to provide the enclosed documents and informed it that a scanned copy of the document could be provided if requested. The applicant’s representative did not make any request for a further opportunity to provide additional documentation. At approximately 1.17pm that day, the applicant’s representative telephoned the Tribunal to notify it that a mistake had been made in the previous submission and that he would be faxing a further submission in approximately 10 minutes time. At approximately 1.34pm that same day, the applicant’s representative sent a further fax to the Tribunal seeking to correct an error in the calculation of funds made in the earlier submission. The applicant’s representative again thanked the Tribunal for giving the applicant the opportunity to provide the relevant documents and informed it that scanned copies could be provided if requested but did not make any request for a further opportunity to provide additional documentation.
There is no evidence before me to indicate that the applicant or his representative made any request after this further submission had been sent to the Tribunal for further time to provide documents or for the Tribunal to otherwise delay making its decision for a specified reason. Accordingly, the factual circumstances in this case are very different from those considered by the Full Court in Li[3]. Further, there is no evidence before me that the Tribunal acted upon a wrong principle, allowed irrelevant matters to guide it, mistook the facts or failed to take into account a relevant consideration in exercising its discretion to make a decision on the material before it.
[3] Minister for Immigration & Citizenship v Li (2012) 202 FCR 387 at [26] [30] & [101] – [104]. On appeal the High Court affirmed this decision (see [2013] HCA 18).
Demand loan
Although the applicant’s Amended Application did not raise the point, the respondent quite properly, as a model litigant, felt it appropriate to raise the question of whether or not the Tribunal asked itself the wrong question by disregarding the evidence of a “demand loan” in its assessment of whether the applicant satisfied clause 5A405 on the basis that the demand loan was not a “loan in any accepted sense”. The respondent points out that the decision that the Tribunal relied upon, Sidhu v Minister for Immigration & Anor [2011] FMCA 890, had been over-ruled by the decision of Bronburg J in the case of Patel v Minister for Immigration & Citizenship [2013] FCA 97. In the Sidhu decision it was decided that overdrafts were not loans in ordinary parlance or within the meaning of the Regulations. In Patel’s case his Honour found that the Tribunal in that matter had misconstrued the definition of “funds from an acceptable source” because an overdraft facility could be properly described in ordinary parlance as a loan. His Honour concluded that this had led the Tribunal to ask itself the wrong question by confining the definition of a “loan” in a similar manner to the approach taken by the Tribunal in this current matter. The respondent says that the Minister concedes that this Court is bound to follow the decision in Patel and that the present Tribunal fell into error by asking itself the wrong question. It is submitted on behalf of the respondent however, that the error was one within jurisdiction, or alternatively, that relief should be refused on a discretionary basis.
The respondent points out that in VCAD v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 1 at para.23, Gray J stated:
“There have been numerous cases in which decisions of Tribunals under the Migration Act have been upheld, notwithstanding error apparent in the Tribunal’s reasons, because those reasons also disclose that there is another basis on which the Tribunal concerned found against the person applying for a visa.”
A number of other decisions were referred to.[4]
[4] Naif v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 114 at para.17; VBAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 965 at para.33; NAUW v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1086 at para.24.
The respondents further submit that the relevant issue in the present matter is whether the applicant satisfied clause 572.223(2)(a) of Schedule 2 of the Regulations for the grant of a subclass 572 Visa. Relevantly, this subclause requires that:
“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 the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; 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; and
(iii)the Minister is satisfied that while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.”
Part 4 of Schedule 5A of the Regulations provided that:
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 or de facto partner;
(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 fulltime;
(iii)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 an instrument in writing 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.”
The respondent submits that the Tribunal reached its decision on four independent bases. Firstly, the Tribunal found that there was no evidence as to the relationship (if any) between the applicant and the holder of the funds identified in the term deposits and no declaration of support. In other words, there was no evidence before the Tribunal to enable it to be satisfied that the holder of the funds was an “acceptable individual” as that term was defined by cl.5A405(2). This finding is unaffected by the error identified by Bronberg J in Patel as the ‘demand loan’ was in the same name as the term deposits.
Secondly, the Tribunal found that the amount of funds being provided to the applicant in the form of nine term deposits totally AUD$16,932 was substantially less than the AUD$21,100 required to meet cl.5A405(1)(a) and (b). The Minister concedes that this finding is affected by the error identified by Bronberg J in the case of Patel.
Thirdly, the Tribunal found that it was “not apparent” how the person providing the funding to the applicant could accumulate savings totalling INR900,000 given his regular level of income. Even if the Tribunal had taken into account the demand loan (which as noted above was in the same name as the person providing the term deposits) the applicant would not have satisfied cl.5A405(1)(c).
Fourthly, the Tribunal found that there was no evidence before it that the funds would be made available to the applicant as is required by cl.572.223(iii). Again, this finding applies equally in relation to both the term deposits and the demand loan and remains unaffected by the error identified by Bronberg J in Patel.
Accordingly, the respondent submits, even if the Tribunal asked itself the wrong question in relation to the demand loan, the Court should refuse to grant discretionary relief as the error could not have possibly made any difference to the Tribunal’s eventual decision.
As there is no jurisdictional error in the Tribunal’s decision, it is a privative clause decision within s.474 of the Act. On this basis, the application ought to be dismissed with costs in a fixed amount.
For the reasons so helpfully put by counsel for the respondent, I agree that the fact that the Tribunal asked itself the wrong question by disregarding the evidence of the demand loan should not enable the applicant to have the relief that he seeks.
I consider that the Amended Application should be dismissed with costs.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 29 August 2013
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