Singh v Minister for Immigration, Citizenship & Multicultural Affairs
[2023] FedCFamC2G 1109
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 1109
File number: MLG 3343 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 30 November 2023 Catchwords: MIGRATION LAW – review of the decision of the Administrative Appeals Tribunal to not grant a student visa – whether the Tribunal erred in its finding that the Applicant did not have genuine access to funds and did not satisfy cl 500.214 of Schedule 2 of the Migration Regulations 1994 (Cth) – no jurisdictional error identified – application dismissed – costs ordered Legislation: Migration Regulations 1994 (Cth) reg 1.03, cl 500.212 and cl 500.214 of Schedule 2 Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submissions: 21 November 2023 Date of hearing: 21 November 2023 Place: Melbourne The Applicant: Appearing in person Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting an appearance save as to costs ORDERS
MLG 3343 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURDEV SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed 7 November 2018 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,500.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 7 November 2018 (Application), the Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 15 October 2018 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Tribunal’s Decision affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) (subclass 500) visa (Visa).
This matter was heard on 21 November 2023 and proceeded in person at the Melbourne Registry of the Court (Hearing). The Applicant appeared in person with the assistance of a Punjabi and English interpreter and a Solicitor appeared for the Minister. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court. At the conclusion of the Hearing, judgment was reserved. These Reasons for Judgment are in relation to the Hearing.
ISSUES IN DISPUTE
The issues in dispute are whether:
(a)The Tribunal erred in its finding that the Applicant did not have genuine access to funds and therefore did not satisfy cl 500.214 of Schedule 2 of the Migration Regulations 1994 (Cth) (MigrationRegulations); and
(b)The Tribunal denied the Applicant procedural fairness.
SYNPOSIS
I have determined that the Tribunal’s Decision does not contain jurisdictional error. The Applicant has failed to identify, and it is not apparent on the evidence, how the Tribunal erred in its findings or denied the Applicant procedural fairness.
BACKGROUND
The Court has before it a Court Book with 104 paginated pages filed by the Minister on 4 September 2020 (Court Book). The Court has reviewed the Court Book in detail. The Minister’s Submissions filed on 6 November 2023 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [10]. The Court adopts those submissions as its own with some amendments as follows.
The Applicant is a citizen of India.
On 9 May 2017 the Applicant applied for the Visa (Visa Application).[1] The Visa Application was made on the basis of the Applicant’s enrolment in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV and Diploma in Automotive Management.
[1] Court Book (CB) 10-33.
On 20 July 2017 the Delegate refused to grant the Visa (Delegate’s Decision).[2] The Delegate was not satisfied that the Applicant satisfied cl 500.214 of Schedule 2 of the Migration Regulations, as the Applicant had not submitted any evidence of financial capacity pursuant to cl 500.214(3).
[2] CB 41-47.
On 28 July 2017 the Applicant applied to the Tribunal for review of the Delegate’s Decision.[3]
[3] CB 48-50.
On 19 September 2018 the Tribunal invited the Applicant to attend a hearing on 15 October 2018 (Hearing Invitation).[4] The Hearing Invitation contained Direction No. 69, which outlined the assessment of the genuine temporary entrant criteria, and the following request for the Applicant to submit further documentation:[5]
[4] CB 55-62.
[5] CB 56.
[…]
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1. A copy of your current Confirmation of Enrolment (CoE) or other document/s that show that you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
3. Either:
•Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
OR
•Evidence of the annual income of your parents/spouse/de facto partner
[…]
(Emphasis added)
The Applicant responded to the Hearing Invitation on 10 October 2018.[6] The Applicant indicated that he would attend the hearing before the Tribunal and attached the following evidence:[7]
[6] CB 63-65.
[7] CB 66-90.
(a)The Applicant’s course completions.
(b)The Applicant’s current confirmation of enrolment in a Diploma of Automotive Management, which notably recorded that the Applicant had not paid the entirety of his course fees. The Applicant had only paid $600, as an “Initial Pre-Paid Tuition Fee”, of the $6,500 “Total Tuition Fee”.[8]
(c)The Applicant’s health insurance.
(d)An affidavit signed by the Applicant’s father, dated 10 October 2018, which stated that he “shall bear the entire financial expenses at Australia for the referred duration” of the Applicant’s course, and that he had “sufficient funds to financially Sponsor [the Applicant] for the requisite period”.
(e)A General Provident Fund Certificate, dated 1 October 2018, regarding the funds held by the Applicant’s father in his general provident fund (Provident Fund) as at 31 March 2018.
(f)An Annual Statement of the Provident Fund account, dated 10 October 2018.
(g)A Balance Confirmation Certificate from a HDFC Bank account, dated 10 October 2018, recording the funds held by the Applicant’s father (HDFC Bank Account) as at 9 October 2018.
(h)Bank Statements from the HDFC Bank Account, dated 10 October 2018.
(i)Evidence of the Applicant’s father’s salary for the 2018-2019 year.
(j)The Applicant’s father’s work ID card and government ID cards.
[8] CB 66; Transcript P7:L11-20.
On 15 October 2018 the Applicant attended a hearing before the Tribunal (Tribunal Hearing) with the assistance of an English and Punjabi interpreter.[9]
[9] CB 91-93.
On 15 October 2018 the Tribunal affirmed the Delegate’s Decision.
THE TRIBUNAL’S DECISION
The Tribunal’s Decision is at pages 96 to 104 of the Court Book. The Minister’s Submissions accurately summarise the Tribunal’s Decision at [16] to [18].
The Tribunal briefly outlined the Visa Application and the Delegate’s Decision. The Tribunal noted that the Applicant only claimed to meet the criteria for Subclass 500 of the temporary student visa.
The Tribunal then considered the primary criteria for the Visa as set out in cl 500.211 to cl 500.218 of Part 500 of Schedule 2 of the Migration Regulations. The Tribunal identified that the relevant issue to be determined was whether the Applicant had genuine access to funds by meeting certain financial requirements in cl 500.214. The Tribunal identified that genuine access to funds requires genuine access to the relevant kinds of funds and that IMMI 18/010 (Financial Capacity Instrument) relevantly sets out the requirements for evidence of financial capacity pursuant to cl 500.214(3).[10]
[10] CB 101-104.
The Tribunal considered whether the Applicant provided evidence of financial capacity in accordance with the Financial Capacity Instrument. Pursuant to s 10 of the Financial Capacity Instrument the acceptable forms of financial capacity must be: a money deposit in a financial institution; a loan with a financial institution; a government loan; or a scholarship or financial support.
The Tribunal found that based on the conversion rate at the time, the funds held by the Applicant’s Father in the HDFC Bank Account were the equivalent of $7,519.81.
The Tribunal considered the evidence provided of funds held by the Applicant’s Father in the Provident Fund but found that this did not fall within the types of evidence required by s 10 of the Financial Capacity Instrument. This was on the basis that it was a provident account which did not satisfy the definition of a ‘financial institution’ as provided in reg 1.03 of the Migration Regulations. The Tribunal further found that the funds in the Provident Fund would not be available to the Applicant’s Father for transfer to the Applicant.
The Tribunal then considered whether there were sufficient funds available to meet costs and expenses while the Applicant holds the Visa. The Tribunal found that the funds of $7,519.81 held in the HDFC Bank Account were not sufficient to meet the costs required under cl 500.214, including the costs of tuition, living costs and the cost to return to India.
Accordingly, the Tribunal found that the Applicant did not satisfy cl 500.212(2) and (3) of Schedule 2 to the Migration Regulations and the Applicant did not meet cl 500.214.
PROCEEDINGS BEFORE THE COURT
The Application was filed in the Court on 7 November 2018, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 18 August 2020 Orders were made by a Registrar for the Applicant to file any amended application, supplementary court book and written submissions at least 28 days before the final hearing.[11] The Applicant sent by email his current Confirmation of Enrolment to my Associates’ Chambers (Current CoE) and did not otherwise file any further material. On 22 August 2023 Orders were made by a Registrar adjourning the matter for final hearing. The 22 August 2023 Orders included a notation that the Applicant confirmed that he had received a copy of the Court Book.[12]
[11] Orders made on 18 August 2020 by Registrar Carlton, Order 5.
[12] Orders made on 22 August 2023 by Registrar Van Der Westhuizen.
The Applicant relied upon the following documents:
(a)The Application; and
(b)The Affidavit of the Applicant, sworn and filed 7 November 2018 (Applicant’s Affidavit).
As submitted in the Minister’s Submissions at [29] and in submissions by the Solicitor for the Minister at the Hearing, the Applicant’s Current CoE was not admitted as evidence as it is irrelevant to determining whether the Tribunal’s Decision is affected by jurisdictional error.[13] The Applicant’s Current CoE was not before the Tribunal and has no bearing on whether the Tribunal fell into jurisdictional error.
[13] Transcript P5:L21-33.
The Minister relied upon the following documents:
(a)The Response, filed 13 December 2091;
(b)The Court Book;
(c)The Minister’s Submissions; and
(d)The List of Authorities, filed 6 November 2023.
The Applicant relied on the following ground of review in the Application (Ground of Review):[14]
Member made an error in establishing that there was a ground for refusal. In any case I have satisfied the condition of genuine access to funds (cl. 500.214). I have provided the evidence of funds of financial supporter. The Tribunal did not consider it, and did not give chance to proof. Even though there was a ground for refusal, the member did not look at relevant facts. I believe member made an error in judgement. If this application is not accepted then I would be denied the procedural fairness. On top of that, I request that the court accept on the basis of fair justice as my whole life depends on the decision. It is more than a career.
(As written)
[14] CB 2-6.
The Applicant’s Affidavit rephrased the Ground of Review as follows:[15]
Member made error in establishing there was a ground for refusal. In any case I have satisfied the condition of genuine access to funds (cl. 500.214) from my previous records too. I believe member made error in judgment. If this application is not accepted then I would be denied the procedural fairness.
(As written)
[15] CB 7-9.
At the commencement of the Hearing the Applicant confirmed that he understood the interpreter and would only require the assistance of the interpreter if he did not understand.[16] The role of this Court in undertaking judicial review of the Tribunal’s Decision was explained to the Applicant.[17]
[16] Transcript P2:L13-37.
[17] Transcript P4:L18-21.
At the Hearing the Applicant submitted the following further information in relation to the Ground of Review:
(a)At time of the Tribunal Hearing the Applicant had paid all his fees, had demonstrated his funds and had three (3) months of study pending. Despite providing proof of his funds the Tribunal did not grant the Visa.[18]
(b)The Applicant has finished his studies and he cannot lodge another visa application as he has been waiting for this matter to be heard.[19]
CONSIDERATION
[18] Transcript P4:L23-27.
[19] Transcript P4:L34-P5:L12 and P8:L25-27.
The finding that the Applicant did not satisfy cl 500.214
The Tribunal was not satisfied that the Applicant had genuine access to funds. Clause 500.214 provides the following primary criteria for a student visa:
500.214
(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 Financial Capacity Instrument was applicable at the time of the Tribunal’s Decision and required that an applicant must give to the Minister evidence of financial capacity that satisfied the requirements specified within the Financial Capacity Instrument. Section 6(2)(a) of the Financial Capacity Instrument required that the evidence of financial capacity be in the form specified in s 10 of the Financial Capacity Instrument. Section 6(2)(b) required that the Applicant had sufficient funds available to meet: travel expenses; specified living costs and expenses; and specified course fees.
Section 10 of the Financial Capacity Instrument specified the following:
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 of the Migration Regulations defines financial institution as follows:
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:
(i)governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
(ii)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.
Ground of Review
The Ground of Review contends that the Applicant’s evidence was sufficient to satisfy the requirements of cl 500.214. The extent to which the Ground of Review expresses the Applicant’s dissatisfaction and disagreement with the Tribunal’s Decision the Applicant invites the Court to undertake impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272]. The Applicant’s submissions at the Hearing were largely irrelevant to the task of judicial review. The Applicant contends that the Tribunal made the wrong decision on the evidence and suggests that he was denied procedural fairness.
The Minister submitted that it was reasonably open to the Tribunal to find that the evidence did not satisfy cl 500.214. The Minister submitted that the Tribunal based its calculation of sufficient funds by considering the length of time the Applicant intended to stay in Australia to study, the costs of the course minus what the Applicant had already paid and living costs, as calculated under s 11 of the Financial Capacity Instrument. The Minister submitted that it was open to the Tribunal to find that the Provident Fund did not meet the definition of a financial institution, and in particular that it was not a “body corporate that, as part of its normal activities, takes money on deposit and makes advances of money”: reg 1.03 of the Migration Regulations.
The Minister further submitted that if the Tribunal did make an error in finding that the funds in the Provident Fund were not available to transfer to the Applicant the error would not have been material, given the independent finding that the Provident Fund did not satisfy s 10 of the Financial Capacity Instrument. The Tribunal may have overlooked the ability to access the Provident Fund, given the certificate that a specified portion of the funds could be withdrawn for the purposes supporting the Applicant’s study in Australia.[20] The error would have been immaterial to the Tribunal’s Decision and therefore does not amount to jurisdictional error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, at [35] and [41]. I accept this submission.
[20] CB 78.
The Tribunal’s calculations as to the Applicant’s costs and expenses during his study were logical and based on relevant and reliable information. The Tribunal’s calculations of the available funds relied upon the conversion rate at the time. The Applicant only relied upon the HDFC Bank Account and the Tribunal considered the funds available to the Father to support the Applicant financially. The Tribunal’s conclusion was that the funds were not sufficient to satisfy the requirements of “sufficient funds”.
The Applicant has not identified how the Tribunal erred in its determination that the Provident Fund was not a financial institution as defined in reg 1.03 of the Migration Regulations. A provident fund is a compulsory government managed retirement savings fund, similar to a pension fund, and it was an open and logical conclusion for the Tribunal that a provident fund did not meet the definition of financial institution.
To the extent that the Ground of Review contends that the Tribunal breached procedural fairness obligations the ground must be dismissed, and to the extent the Applicant contends that he was not afforded an opportunity to provide proper evidence of his financial capacity, the ground must also be rejected. The Applicant was on notice of the need to provide evidence of his financial capacity in accordance with the financial capacity requirements. As submitted by the Solicitor for the Minister, the Tribunal discussed its concerns with the Applicant, the Applicant did not request an adjournment and there was no suggestion that he relied on other funds or had further evidence that was not before the Tribunal.[21] At the Hearing it was apparent that the Applicant considered that he had put all evidence before the Tribunal. The Applicant has not particularised or identified how procedural fairness was denied by the Tribunal. It is not apparent on the evidence that the Tribunal failed to afford procedural fairness to the Applicant.
[21] Transcript P8:L5-12.
No jurisdictional error can be found in the Ground of Review. The Ground of Review is therefore dismissed.
CONCLUSION
No jurisdictional error in the Tribunal’s Decision has been identified by the Applicant nor is apparent on the material. The Application must be dismissed.
The Minister sought costs fixed in the sum of $5,500.[22] This amount is below the scale amount in Item 3 of Division 1 of Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
[22] Transcript P8:L14-18.
Orders will be made accordingly.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 30 November 2023
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