Singh v Minister for Immigration
[2019] FCCA 1452
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1452 |
| Catchwords: MIGRATION – Administrative Appeal Tribunal – Student (Temporary) (Class TU) (Subclass 572) visa – application rejected by the Minister for Immigration and Border Protection – application for review dismissed by the Administrative Appeals Tribunal – application for judicial review – application for judicial review dismissed with costs. |
| Legislation: Australian Constitution 1900, s.75(v) Migration Act 1958 (Cth), ss.476, 500 Migration Regulations 1994 (Cth), cl. 572.223 of Schedule 2, cl. 5A405 of Schedule 5A, cl. 5A409 of Schedule 5A, cl. 5A508 of Schedule 5A |
| Applicant: | JAIGURWANT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2701 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 24 April 2019 |
| Date of Last Submission: | 24 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Advocate for the First Respondent: | Mr Van Der Westhuizen |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | None |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 12 December 2016 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,892.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2701 of 2016
| JAIGURWANT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 17 November 2016 (‘the Application’). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 572) visa (‘the visa’).
For the reasons set out below, I have decided to dismiss the Application.
Background
The Applicant is an Indian national. He applied for the visa on
25 December 2015.
On 15 January 2016, a delegate of the Minister requested further information from the Applicant via his migration agent. The information requested included evidence of the course he was enrolled in, his financial capacity to support himself in Australia, overseas student health cover and evidence of a health examination. Of significance, in the Request Checklist and Details that accompanied this letter, the following information was included:
‘Funds in the form of a money deposit must be held by the applicant, or an acceptable individual who is providing support to the applicant, for a minimum of three (3) months prior to the date of your visa application lodgement’.
The Applicant was represented by a registered migration agent. On
13 February 2016, the Applicant’s agent provided a number of documents in response to the above mentioned request, which relevantly included:
a)A letter from Bupa dated 27 January 2016 confirming the Applicant has Overseas Student Health Cover;
b)Various documents including several Certificates of Balance issued by GPO ASR and Chogawan Post Office in the names of Darshan Kaur and Rajwant Singh (the Applicant’s parents) attesting to funds held in the respective accounts;
c)a statement from the Applicant responding to the queries from the Department regarding the genuine temporary entrant criteria;
d)confirmation of enrolment in Certificate IV in Project Management Practice;
e)statement from Alexandra Green from the Green Refectory;
f)letter from the ICICI Bank that Mrs Darshan Kaur Ji has 79,414 Indian Rupees with interest in an account as at 28 January 2016;
g)a statement for the above mentioned account as at 9 February 2016;
h)affidavit of Rajwant Singh and Darshan Kaur, the parents of the Applicant, confirming that they are financially supporting their son whilst he is studying;
i)letter from the State Bank of India dated 29 January 2016 that Darshan Kaur held 2,17,692.28 Indian Rupees in that account; and
j)letter from the State Bank of India dated 27 January 2016 that Rajwant Singh held 80,652.73 Indian Rupees in that account.
On 31 March 2016, a delegate of the Minister refused to grant the visa. The delegate found that the Applicant did not meet the financial requirements of Schedule 5A, more particularly 5A408 of the Migration Regulations 1994 (‘the Regulations’). The Applicant was therefore not able to satisfy the requirements of clause 572.223 for the visa. Among other things, the delegate considered that deposits held with India Post were not deposits held by a ‘financial institution’ within the meaning of the Regulations.
The Applicant applied to the Tribunal for review of the delegate’s decision on 5 April 2016.
On 7 October 2016, the Tribunal wrote to the Applicant. The Applicant was invited to attend a hearing scheduled before the Tribunal on
17 November 2016. Along with the invitation to the Tribunal hearing, the Tribunal also requested that the Applicant provide any further documents in support of his visa application. The Tribunal outlined the type of evidence that would be required to assist the Applicant in the review application. Of particular significance, the letter from the Tribunal included the following paragraph, as reproduced on page 128 of the Court Book:
Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:
…
Evidence of funds from an acceptable source…
If you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application…
On 25 October 2016, the Applicant’s migration agent responded to the request above on behalf of the Applicant. In relation to his financial capacity, the Applicant provided the following:
a)
A balance certificate for Darshan Kaur Ji with an amount of 81,814 Indian Rupees with ICICI Bank. The statement was dated
24 October 2016, however the balance of monies in the account reflects the balance as at 20 July 2012;
b)A statement from ICICI Bank confirming the amount of 81,814 Indian Rupees. The statement relates to the period 1 August 2016 to 23 October 2016;
c)A document from the State Bank of India dated 24 October 2016 certifying that the balance in an account held by Darshan Kaur and Rajwant Singh as at 24 October 2016 was 4,58,055 Indian Rupees. A statement of account accompanying this document covers the period 1 August 2016 to 24 October 2016. A separate document for this account shows a slightly different balance, but nothing turns on the amounts.
d)A document from the State Bank of India dated 24 October 2016 certifying that the balance in an account held by Darshan Kaur and Rajwant Singh as at 24 October 2016 was 3,99,370.83 Indian Rupees. An account statement accompanying this document covers the period 1 August 2016 to 24 October 2016. A separate document for this account shows a slightly different balance, but nothing turns on the amounts.
e)A document from the State Bank of India dated 24 October 2016 certifying that the balance in an account held by Darshan Kaur and Rajwant Singh as at 24 October 2016 is 5,17,433.73 Indian Rupees. An account statement accompanying this document covers the period 1 August 2016 to 24 October 2016. A separate document for this account shows a slightly different balance, but nothing turns on the amounts.
f)Affidavit of the Applicant’s parents confirming that they are financially sound to sponsor the Applicant.
A hearing was held on 17 November 2016. The Applicant attended and gave evidence. He was represented by his migration agent. On the same day, the Tribunal provided oral reasons for its decision and affirmed the delegate’s decision not to grant the Applicant the visa. The Tribunal reduced its oral reasons to writing and produced those reasons on
12 January 2017.
The Application in this Court
The Applicant applied to this Court on 12 December 2016. The Applicant filed the Application and an Affidavit in support, which annexed the delegate’s decision as the Applicant had not yet received the Tribunal’s decision in writing.
The Applicant filed a further affidavit in support of the Application on
9 January 2019. That affidavit essentially contained submissions regarding his Application to this Court. The Minister filed written submissions on 31 July 2017.
The Applicant was unrepresented at the hearing and was assisted, when required, by an interpreter.
At the commencement of the hearing, I asked the Applicant to confirm that he had received all of the relevant material, including the Court Book and a copy of the Minister’s written submissions. The Applicant indicated that he had not received a copy of the Court Book. The Minister indicated that the Court Book had been sent by post to the Applicant, but was not able to produce an affidavit of service to that effect.
In the circumstances, I arranged for the Court’s copy of the Court Book to be photocopied and a copy be provided to the Applicant. I then stood the matter down to enable the Applicant to review the Court Book. I then proceeded to hear the matter.
The grounds of review
The Application contains three grounds of review. The grounds of review are as follows:
1. The decisions of the Respondent (First) and Second Respondent are infected by jurisdictional error in that it has misinterpreted the regulatory requirement under cl.572.223(2)(a) and Schedule 5A, specifically 5A409 of the Migration Regulations.
2. First Respondent made jurisdictional error by failing to consider by misconstruing definition of "financial institution" and money deposit in cl. 5A405 of the Migration Regulations 1994. They misunderstood and misapplied key elements in definition of "financial institution" in the application made.
3. Tribunal (AAT) misunderstood the requirements of the Act & Regulations and did not address the correct question.
During the hearing, I asked the Applicant to explain to me why the decision of the Tribunal was wrong. In support of his position, the Applicant submitted that:
a)the funds in the bank accounts held by his parents exceed the level of funds the Applicant is required to have under the Regulations;
b)the Minister disregarded the funds that were held by India Post because India Post was not a financial institution, however, the funds have since been transferred into a bank account and there are now sufficient funds to meet the requirements of the Regulations.
The grounds of review and the Applicant’s submissions engage the following paragraphs of the Tribunal’s decision:
10. The original decision put you on notice that the issue in your case was the provision of financial evidence by an acceptable individual in funds that had been held in the satisfaction of the requirements.
11. With the invitation to today’s hearing we provided considerable detail about the evidence required including advising that if you sought to rely on a money deposit, you would need to show that the funds had been held for a period immediately before the date of your application.
12. In response the Tribunal received a submission which included an affidavit of support from your parents and a copy of statements of accounts they each hold with the State Bank of India. There were two statements in the name of your mother and one in the name of your father both of which were for the period August to October 2016.
…
14. The evidence provided is of funds that would appear to be sufficient to cover the requirements however there is no evidence those funds were held for the period of 3 months immediately before the date of application. That is the three months before 25 December last year.
15. In the circumstances, you are represented by a migration agent, I believe you have had ample time and opportunity to respond to the requests to provide the required evidence but have failed to do so.
16. Having considered the available evidence I am not satisfied you meet the Schedule 5A Financial Capacity requirements. You therefore do not meet 572.223(2)(a) and it is therefore the decision of this Tribunal to affirm the decision under review.
The relevant regulation engaged in this matter is set out in clause 572.223 of the Regulations. This clause provides as follows:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A) If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2) If subclause (1A) does not apply:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) 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.
Clause 5A508 of Schedule 5A of the Regulations, which is also engaged in this matter, then provides as follows:
(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; 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 12 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 in a legislative instrument made by the Minister 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:
financial support, from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full‑time;
(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 3 months immediately before the date of the application;
(b) a loan from a financial institution made to, and held in the name of, an acceptable individual;
(c) a loan from the government of the applicant’s home country;
(d) 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.
As I have noted above, there are three grounds of review raised in the Application. I will deal with ground 2 first, and then grounds 1 and 3 together.
The Second Ground of Review
It is apparent from the second ground of review and the submission of the Applicant that he takes issue with the decision made by the delegate of the Minister that ‘India Post is not included in the list of acceptable financial institutions maintained on the Australian High Commission India website’ and with the conclusion of the delegate that ‘I am therefore not satisfied that the money deposits held by Darshan Kaur and Rajwant Singh with India Post are held with an acceptable financial institution and cannot be used to evidence your financial capacity’.
This Court does not have jurisdiction to review the decision of the delegate. Section 476(1) of the Migration Act 1958 (‘the Act’) provides that this Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. However, section 476(2) provides, among other things, that this Court has no jurisdiction in relation to a ‘primary decision’. A ‘primary decision’ is defined in section 476(4) to mean, among other things, a privative clause decision, or purported privative clause decision, that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed).
The decision of the delegate is a ‘primary decision’. It is a decision that has been reviewed under Part 5 of the Act by the Tribunal. Accordingly, to the extent that the Applicant seeks to challenge the decision of the delegate, this Court has no authority to entertain such a claim.
The other way in which ground 2 and the Applicant’s submissions may be understood is that the Applicant takes issue with the Tribunal’s supposed interpretation of the term ‘financial institution’. If that is the case, the Applicant has misunderstood the finding of the Tribunal. The Tribunal found that the evidence indicated there would be funds sufficient to cover the requirements in the Regulations. However, the Tribunal’s decision was based on a lack of evidence that the funds were held in the relevant account in the 3 months prior to the application being made.
For the reasons above, ground 2 of the application for review cannot be made out and must be dismissed.
Grounds 1 and 3 of the Grounds of Review
It is pertinent to observe that ground 1 takes issue, in part, with the decision of the delegate. For the reasons articulated earlier in this decision, this Court cannot entertain such a claim.
Aside from what is noted earlier in this decision, the Applicant was not able to provide any particulars identifying how the Tribunal misinterpreted or misunderstood the Act and the Regulations. The position of the Applicant seems to be that he was able to now demonstrate that the accounts held a sufficient amount of funds. He did not engage, despite direct questioning, with the proposition that he needed to demonstrate under the Regulations that those funds were held in in an account for three months prior to the date of the visa application.
A review of the Court book and the evidence that was before the Tribunal discloses the following:
a)Clause 5A508 of Schedule 5A relevantly required the Applicant to provide evidence that the relevant money deposit had been held for at least the three months immediately before the date of the visa application;
b)the visa application was made on 25 December 2015. Accordingly, the relevant three-month period for the purposes of clause 5A508 was the three month period immediately preceding 25 December 2015 (‘the Relevant Period’);
c)there was not any evidence supplied by the Applicant or his migration agent concerning whether the funds relied on by the Applicant were held during the Relevant Period. The only evidence as to the dates on which funds were held in accounts in India relate to periods in 2016 (which post-dated the application for the visa) or to a date in 2012.
In light of the circumstances outlined above it was open to the Tribunal to conclude, as it did at paragraph [14] of the decision of the Tribunal, that:
‘The evidence provided is of funds that would appear to be sufficient to cover the requirements however there is no evidence those funds were held for the period of 3 months immediately before the date of application. That is 3 months before 25 December last year’.
In respect of this matter, it is also pertinent to observe that the Applicant was on notice as to the specific requirements he needed to meet in order to obtain the visa. The requirement that there be evidence of the funds being held for a period of 3 months preceding the date of application was clearly articulated in the documentation that was originally requested by the delegate and was then reiterated again by the Tribunal itself, as noted above. It is also pertinent to observe that throughout this period, the Applicant was represented by a migration agent.
I discern no error in the approach of the Tribunal. Accordingly, the Application should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 30 May 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Costs
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Procedural Fairness
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