Tuladhar v Minister for Immigration
[2012] FMCA 1166
•13 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TULADHAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1166 |
| MIGRATION – Student visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it made findings which were factually incorrect, failed to identify a determinative issue, failed to consider an argument which was not advanced, failed to ask itself whether it might be wrong, failed to foreshadow a conclusion, failed to make enquiries, failed to take a relevant consideration into account, failed to consider material information, erred in fact finding, applied the wrong test and applied a superseded version of the relevant regulations. |
| Migration Act 1958, ss.357A, 359A, 360, 474 Migration Regulations 1994, reg.1.41, cl.572.223 of sch.2, cl.5A405 of sch.5A Migration Amendment Regulations 2011 (No.6), reg.4 Migration Legislation Amendment Regulation 2012 (No.1), reg.6 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Sidhu v Minister for Immigration & Citizenship [2011] FMCA 890 SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| Applicant: | ETNA TULADHAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 511 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 October 2012 |
| Date of Last Submission: | 30 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Applicant: | Harish Prasad & Associates |
| Counsel for the First Respondent: | Mr H.P.T Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLG 511 of 2012
| ETNA TULADHAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Nepal, applied for a Student (Temporary) (Class TU) subclass 572 visa on 24 November 2010. On 28 January 2011 her application was refused by a delegate of the first respondent (“Minister”) on the basis that she did not satisfy cl.572.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then sought a review of that decision with the second respondent (“Tribunal”). She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time the decision was made on her visa application was cl.572.223 which relevantly provided:
(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 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; …
Which clause of sch.5A to the Regulations applies to a particular applicant is determined by the assessment level applicable to that applicant. Applicants for student visas are allocated assessment levels between one and five depending on which country’s passport they hold.
Regulation 1.41 provides the regulatory basis for the specification of assessment levels and requires that this be done by the Minister by instrument in writing. At the time of both the delegate’s decision and the Tribunal’s decision the assessment level applicable to applicants for subclass 572 visas who held Nepalese passports was level four.
The sch.5A requirements for assessment level four in relation to subclass 572 visas relevantly provided:
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.
…
(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 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.
Background facts
As already mentioned, the applicant applied for a Student (Temporary) (Class TU) visa on 24 November 2010. On 25 November 2010 the Minister’s department wrote to the applicant seeking further information about her visa application, including evidence that she had funds amounting to $22,525 to meet the total costs of her proposed study and stay, and evidence that those funds had been held for six months prior to the date she lodged her application. In response, the applicant provided a letter dated 16 December 2010 and a bank statement, both from the Nabil Bank in Nepal, showing a balance in her brother’s account equivalent to AUD24,882.
On 28 January 2011 the delegate refused to grant the applicant a visa. The delegate concluded that the applicant did not meet the cl.572.223(2)(a)(i) criterion because her sponsor’s bank account had only been opened on 3 August 2010 and therefore had not held the funds for at least six months prior to the visa application.
The applicant sought a review of the delegate’s decision and on 3 April 2012 her advisers sent the following documents to the Tribunal:
a)a statement of fees issued by the Australian College of Beauty Therapy;
b)a loan approval letter from the Nabil Bank dated 19 March 2012 for NPR3,000,000 in favour of the applicant’s brother (“Education Loan”);
c)a loan disbursement letter from the Nabil Bank dated 20 March 2012 certifying that NPR275,000 (AUD3,246.80) of the loan had been disbursed to the applicant’s brother; and
d)a letter dated 23 March 2012 from the applicant’s brother affirming his sponsorship of the applicant.
The applicant’s advisers also included an estimate of $28,705.25 as the applicant’s financial requirement for her course.
The applicant appeared before the Tribunal on 3 April 2012 and said that the loan referred to in the letter from the Nabil Bank was in fact an overdraft or line of credit. The Tribunal also noted that the applicant required $25,705 instead of the $28,705.25 estimated by her agent.
The Tribunal’s decision and reasons
The Tribunal found that the applicant had not given evidence of her financial capacity in accordance with the requirements of sch.5A to the Regulations. In this regard, the Tribunal noted that the applicant’s brother had raised a loan of NPR3,000,000 which would meet the requirements of cl.5A405 comfortably. However, the Tribunal also noted that the loan documents referred to the transaction as a line of credit and that the applicant had confirmed this at its hearing. In the Tribunal’s view, an overdraft or line of credit was a facility for borrowing money to a predetermined limit which might never be used by a borrower and could be withdrawn instantly by a lender, in particular where a lender formed the view that the credit facility could become non-performing. The Tribunal found that this was likely in the applicant’s case given the disparity between the applicant’s father’s [recte: brother’s] income and the amount of his liability under the credit arrangement. The Tribunal was of the view that until funds were transferred to a borrower and underwritten by a loan contract setting out terms and conditions, the arrangement could not be characterised as a loan and, in the applicant’s case, only AUD3,246.80 had been drawn by her brother, well short of the AUD25,705 required. Consequently, the Tribunal found that the applicant did not satisfy the requirements of cl.572.223(2)(a)(i).
The Tribunal further found that there was no explanation before it as to how the $3,246.80 that the applicant’s brother had already drawn down would be accessible to her. The Tribunal was therefore not satisfied that the applicant would have access to the funds and thus satisfy cl.572.223(2)(a)(iii).
Proceedings in this Court
In the further amended application the applicant alleged:
1.The Tribunal committed jurisdictional error when the Tribunal failed to properly consider the nature of loan (student loan) stating without evidence that the loan at [25] (MRT p10) “… can be withdrawn in an instant by the ‘lender’ …” and taking other irrelevant considerations such as income of the applicant’s father at (CB 137) [25] (RRT p10.7). The Tribunal mischaracterised the loan as “line of credit” and had failed to have regard to relevant considerations [documents (CB 113 – CB 115)] showing the monies to be Education Loan (having complete disregard to the documents) such at paragraph D which sets out mortgage items including mortgage component. The Tribunal denied procedural fairness regarding determinative issue (the delegate was not satisfied the fund was held for minimum of 6 months) whereas the Tribunal decided on the basis of the characterisation of the further documents/monies.
Particulars
The Tribunal ignored the terms of offer dated 19 March 2012 which sets out the procedure for recall of the student loan and proceeded to make findings without evidence.
2. The Tribunal committed jurisdictional error when the Tribunal failed to accord procedural fairness/natural justice in respect of significant issue of access to fund and/or take into account relevant considerations and/or has otherwise misapprehended the documents and applied wrong test.
Particulars
The Tribunal stated at [28] (MRT p11) “… no evidence or explanation as to how the limited amount of the ‘loan’ that her brother has drawn down would be accessible to the applicant whilst holding the visa.” The Tribunal failed to put such basis of its concern to the applicant or otherwise failed to take into account relevant consideration by ignoring material before it.
The brother’s letter dated 23 March 2012 to the Visa Officer has been ignored and not taken into consideration. The Tribunal further records withdrawal of $3,286.40 [sic] (CB 136 at [20], CB 137 [25] and CB 138 [28]) but has otherwise failed to put the basis that it would decide the Application or sought any clarification and obligation when it was clear duty to do so (particular in the circumstances where it misapprehended the documents and particularly failed to put to the Applicant its misconceived apprehension of the documents).
3.The Tribunal committed jurisdictional error by misdirecting itself as to the proper limits of its power; and/or misapprehending the law and failing to apply the applicable legislation at the time of the Tribunal’s decision.
Particulars
(a)The Tribunal misapprehended that himself to be bound legislation applicable at the time of the application and applying incorrect version of Regulations 572.223 and Schedule 5A in reviewing the application and applied the legislation as in force at the time of application and subject to the consideration by the delegate; and/or
(b)misconstrued the law giving rise to jurisdictional error failing to recognise that the correct version of the delegated legislation to be applied as at the time of its decision.
Ground 1
Mischaracterisation of loan
The applicant raised a number of issues in the context of the first ground of the further amended application, the first being that the Tribunal had mischaracterised the Education Loan extended to her brother by, among other things, taking irrelevant considerations into account, failing to have regard to relevant considerations, asking the wrong questions, failing to consider the loan agreement and by applying the reasoning in Sidhu v Minister for Immigration & Citizenship [2011] FMCA 890 rather than by independently satisfying itself that the requirements of cl.572.223 had been met.
At the outset, it should be observed that the Tribunal’s mistaken description of the applicant’s brother as her father is an error of no significance as the identity of the borrower was not an issue of relevance before the Tribunal or in doubt. To the extent that the applicant alleges that her brother’s income was an irrelevant consideration, it should be noted that this was not a consideration in the relevant sense but an item of evidence which the Tribunal believed was relevant to its inquiry. This was an unexceptionable view as it was the applicant’s brother who had obtained the facility and whose ability to support it, in circumstances where it was a discretionary line of credit rather than a fully drawn loan for a fixed period, would be a matter relevant to the bank’s willingness to maintain it, particularly once it started to be drawn down to a significant degree.
Turning to more substantive features of this aspect of the first ground of the further amended application, it should first be noted that the Tribunal’s characterisation of the Nabil Bank’s Education Loan as an overdraft or line of credit was an intermediate finding of fact in respect of which irrelevant and relevant considerations and appropriate questions to ask are not apposite issues. The relevant question in relation to such findings is whether there is any evidence to support them.
To the extent that the applicant alleged an error of law because the Tribunal misunderstood or misapplied Sidhu’s case, the Tribunal expressly observed at para.25 of its reasons that the relevant comments in that case were obiter dicta and thus not binding on it. In an independent exercise of its powers, the Tribunal reached its own conclusion as to what amounted to a loan for the purposes of cl.572.223.
The applicant also submitted that there had been no evidence before the Tribunal to support its conclusion that the Education Loan could be “withdrawn in an instant by the lender”. However, this submission ignores para.K of the loan approval letter which was before the Tribunal and said:
In the event of any Material and/or adverse change in the business conditions(s), the Bank reserves the right to call back the facility(s) by giving an appropriate notice and assigning reason(s) thereof.
At this point, it should also be observed that the applicant did not submit that Burchardt FM’s obiter observations in Sidhu’s case concerning the difference between a loan and an overdraft or line of credit were wrong. That is to say, the applicant did not seek to argue that an overdraft or a line of credit facility would amount to a loan for the purposes of cl.5A405. Rather, the submission was that the Tribunal misunderstood the nature of the loan, wrongly believing it to be an overdraft or line of credit, and therefore concluded that it was not a loan.
As there was evidence before the Tribunal on which it could conclude that the facility was an overdraft or line of credit and not a loan, those arguments of the applicant provide no basis to find error on the Tribunal’s part.
Failure to identify determinative issue
Further in connection with the first ground of the further amended application, the applicant submitted that she had been denied procedural fairness in relation to the issue which was determinative of the review before the Tribunal. She pointed to the fact that she had been unsuccessful before the delegate because the bank account on which she had relied to satisfy the financial criterion had not been on foot for six months. She then pointed to the fact that she had been unsuccessful before the Tribunal because the Education Loan on which she relied was not, in the Tribunal’s view, a loan. She submitted that these were distinct issues and that the Tribunal should have given her an opportunity to explain the Education Loan and why it satisfied the relevant criterion for the grant of a subclass 572 visa.
Given that the administrative decision the subject of these proceedings was a Tribunal review, the applicant’s references to common law procedural fairness were misplaced. The relevant duty is set out in s.360(1) of the Act which provides:
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The presently relevant issue was whether the applicant satisfied the cl.572.223(2)(a)(i) criterion for the grant of the visa. Before the delegate, she attempted to do this by relying on her brother’s bank account at the Nabil Bank. When she made her review application to the Tribunal, she sought to satisfy the criterion by a different route, namely through the Education Loan secured by her brother. How the applicant sought to satisfy the Tribunal that she met the financial criterion for the grant of the subclass 572 visa was a matter for her but she knew that whether she did satisfy it was an issue because she submitted the information in relation to the Education Loan. This aspect of the applicant’s argument not only confuses the relevant law but it also confuses the determinative issue with the manner by which the applicant sought to address it. It does not identify error on the Tribunal’s part.
Failure to consider nature of loan
The applicant also alleged that the Tribunal had failed to consider the nature of the loan or to have regard to the loan documents. For the reasons already given, these allegations are not made out.
Failure to consider argument not advanced
In addresses, the applicant suggested that the Tribunal erred by failing to consider that she satisfied the financial criterion for the grant of the visa because, by the time of the Tribunal hearing, the Nabil Bank account she had relied on when her application was being considered by the delegate would have been on foot for the required period. However, there is no evidence to suggest that the applicant submitted to the Tribunal that the bank account in question was still on foot or had the same balance in April 2012 as it had had in December 2010. It is plain enough that the applicant, who was represented before the Tribunal, decided not to try to satisfy the visa criterion by relying on the earlier bank deposit and chose a different route. In this regard:
In the absence of unusually compelling reasons to conclude otherwise, where a claimant is professionally represented, as was the case here, it must be assumed that the claims which the claimant wished to make before an independent merits reviewer were the ones expressly articulated by him and his advisers and that none were left to be inferred. An unrepresented claimant may not know how to articulate a claim and thus some latitude is allowed if a claim is plainly available on the material but has not been expressly advanced. Represented claimants are in a different position and if they have not pursued an issue, then that is their election. In the circumstances, the Reviewer did not err by not considering a claim which had not been made. (SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10], see also at [26])
As in SZRPA’s case, the Tribunal was not invited to consider whether the applicant still had access to a large deposit held in the Nabil Bank. In such circumstances, the fact that it did not do so was not erroneous.
Further, cl.5A405(2)(aa) provides that funds on deposit which may be used to satisfy the financial criterion for the grant of a subclass 572 visa must have been held for six months prior to the visa application being made, not six months prior to the making of the decision on that application. For this reason too, the submission does not demonstrate that the Tribunal erred.
“What if I am wrong?”
Finally, the applicant submitted that the Tribunal had failed to ask itself “what if I am wrong?”. It was not necessary for the Tribunal to do this. Such self-questioning, which was discussed in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, is appropriate to circumstances where a decision-maker is uncertain whether a postulated event occurred and thus ought to entertain the possibility that his or her conclusion on that question might be wrong. However, it has no application where the Tribunal has no real doubt that the event in question occurred and it is not relevant to the present situation where the Tribunal construed a document and reached a conclusion in connection with it, specifically, a conclusion with which it was content.
Ground 2
Failure to foreshadow conclusion
The second ground of the further amended application also contained a number of elements. The first of these was an allegation that the Tribunal had denied the applicant procedural fairness in connection with a letter from the applicant’s brother dated 23 March 2012, effectively addressed to the Tribunal, where he stated that he was sponsoring the applicant and would bear the full expense of her tuition fees, accommodation and other miscellaneous expenses during her stay and study in Australia, referring in that connection to the NPR3,000,000 Education Loan approved by the Nabil Bank. The applicant submitted that the Tribunal had failed to alert her to its conclusion that the Education Loan would not satisfy the requirements of cl.572.223 and had also failed to put to her its concern that there was no evidence or explanation as to how the amount drawn down would be accessible to her while she held a subclass 572 visa.
Again, the applicant relied on the common law notwithstanding that for Tribunal reviews s.357A of the Act has relevantly codified the natural justice hearing rule and replaced it with those provisions found in div.5 of pt.5 of the Act. The provision relevant to the present submission is s.359A(1) which states:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
The information which the applicant says should have been provided to her was not information in the relevant sense but subjective appraisals, thought processes or determinations which the Tribunal was not obliged to disclose: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18].
However, in deference to the applicant’s arguments based on the common law, it should be said that the submission of the loan documentation and the letter from the applicant’s brother was plainly designed to meet the financial criterion found in cl.5A405(2) which, under the definition “funds from an acceptable source”, referred to:
(c)a loan from a financial institution that is made to, and held in the name of, an acceptable individual;
It is just as clear that the applicant sought to satisfy the Tribunal that the Nabil Bank’s Education Loan to her brother was a loan for the purposes of cl.5A405 and that she placed the relevant documentation before the Tribunal for its consideration in that context. In my view, it could not be said that the Tribunal’s conclusion – that a loan facility which was not fully drawn and could be terminated by the bank was not a loan of the sort referred to in cl.5A405 – was an adverse conclusion that was not obviously open on the known material.
The particular significance of this conclusion lay in the fact that, at the most, the Nabil Bank had actually lent the applicant’s brother only the equivalent of AUD3,246.80. The remainder of the facility was undrawn and represented no more than an approval to borrow, an approval which the Nabil Bank was expressly free to withdraw if circumstances changed in a material or adverse fashion. That is to say, the bulk of the amount which the Nabil Bank offered to the applicant’s brother had not been lent to him and thus was not a loan, merely the subject of a loan agreement. In circumstances where the characterization of the facility was not a conclusion not obviously open on the known material, the Tribunal’s further conclusion that the necessary amount had not in fact been lent was not one which common law procedural fairness required it to alert to the applicant before it reached its final decision.
Failure to disclose concerns
The applicant’s further submission, that the Tribunal failed to put to her its concern that there was no evidence or explanation as to how the amount drawn down by her brother would be accessible to her while holding a visa, is directly related to cl.572.223(2)(a)(iii) which required the Minister to be 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;
It was up to the applicant to satisfy the Tribunal that such funds as her brother had would be available to her. For the reasons already given, s.359A of the Act did not require the Tribunal to alert her to deficiencies in her evidence on this issue or elicit from her an explanation which she had not sought to make.
Failure to make enquiries
Related to this aspect of the second ground of the further amended application was an allegation in the applicant’s first written submissions that the Tribunal had failed to seek clarification of the documents in question. However, interpretation of the documents required no more than a consideration of their terms and no additional enquiry by the Tribunal was necessary in order for it to properly discharge its review function: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123.
Failure to take relevant consideration into account
The second element of the second ground of the further amended application was that the Tribunal failed to take a relevant consideration into account. It was submitted that the issue which had not been considered was the fact that the applicant’s brother had said that he would provide the applicant with the support she required.
Contrary to the applicant’s submission the relevant issue was not whether the applicant’s brother had undertaken to support his sister but whether the form of support he offered in his letter to the Tribunal of 23 March 2012 met the relevant regulatory criteria. The letter in question did not purport to address or satisfy those criteria and thus it was not relevant to the Tribunal’s consideration of that issue. Consequently, any failure by the Tribunal to consider it, which in any event I conclude is unlikely to have been the case as the documents which accompanied it were drawn on by the Tribunal in its summary of the evidence, did not amount to reviewable error.
Failure to consider material information
The applicant also submitted in connection with the latter arguments that the Tribunal failed to consider the financial support statement signed by her brother on 17 December 2010 which, it can be inferred, relied on the open letter from the Nabil Bank dated 16 December 2010 to the effect that the applicant’s brother held NPR1,832,630.59 in an account with that bank. However, for the reasons given above at [27]-[29], there was no reason for the Tribunal to consider that statement submitted prior to the delegate’s decision in the context of the review application and the fact that it did not do so does not disclose error.
Error in fact finding
The applicant also alleged that the Tribunal had “misapprehended” her brother’s 23 March 2012 letter. She submitted that the Tribunal had misdirected itself about her access to the funds to which he referred. These submissions really assert no more than that the Tribunal reached an incorrect finding on an intermediate fact. Even were that to be so, that would not amount to jurisdictional error.
Wrong test applied
The next matter raised by the applicant in the context of the second ground of the further amended application was her submission that the Tribunal had applied the wrong test. It was said that the Tribunal had done this by failing to address the issue of the financial support which the applicant’s brother said in his letter of 23 March 2012 would be available to the applicant. However, as discussed earlier in these reasons, the relevant question was whether the applicant met the financial support criteria relevant to the subclass 572 visa. The letter from the applicant’s brother did not address this question because it assumed the suitability and acceptability of the line of credit from the Nabil Bank. The fact that the Tribunal did not discuss that letter was no more than an implicit and correct assessment that it was irrelevant to its considerations. It does not suggest that the Tribunal asked itself the wrong question.
Further failure to make enquiries
The final matter raised by the applicant in the context of the second ground of the further amended application was her submission that the Tribunal had failed to seek clarification of the documents she had submitted. For the reasons already given, the Tribunal had no obligation to seek “clarification” of the Education Loan offer. Nor did it need to seek clarification of the intentions which the applicant’s brother expressed in his letter of 23 March 2012. If the applicant wished to be successful in her visa application, it was her responsibility to ensure that the material she placed before the Tribunal satisfied it that she met all the criteria for the grant of that visa. If the material she submitted did not do that, the Tribunal had no obligation to prompt her to submit more.
Ground 3
The applicant alleged that the Tribunal erred by applying the versions of cl.572.223 and sch.5A that had been applied by the delegate because the Regulations had been amended between the date of the delegate’s decision and the date of the Tribunal’s decision. The applicant submitted that at the time of the Tribunal’s decision cl.572.223 and sch.5A relevantly provided:
572.22 Criteria to be satisfied at time of decision
…
572.223(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)…; and
(b)the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(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.
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 24 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 24 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) …
(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 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.
In her further written submissions filed on 5 November 2012 and in her submissions in reply (to the Minister’s supplementary submissions) filed on 19 November 2012, the applicant submitted that the Tribunal had erred by relying on versions of these clauses which had been superseded by later amendments.
The Minister submitted that the amendments to cls.572.223(2) and 5A405 which had occurred between the delegate’s decision and the Tribunal’s decision did not apply to visa applications which had been made before the commencement dates of those amendments. The Minister submitted that the applicant’s visa application had been made before the commencement of the amendments with the result that those amendments did not apply in this case.
In her written submissions in reply to the Minister’s further supplementary submissions, the applicant appeared to say that by linking the application of the regulatory amendments to the date when the visa application was made, the Minister’s argument would, if accepted, have the effect of turning cls.572.223(1), 572.223(2) and 5A405, which were time of decision criteria, into time of application criteria. She submitted that the amendments were intended to have a remedial effect and were to be construed as applying to all visa applications, not just to ones lodged after certain dates.
Consideration
This matter was raised by me at the hearing on 29 October 2012. However, upon researching the issue it has become apparent that the amendments to cls.572.223(1) and 5A405 and to cl.572.223(2) which, respectively, were effected by the Migration Amendment Regulations 2011 (No.6) and the Migration Legislation Amendment Regulation 2012 (No.1) did not apply in this case because, respectively, they only applied to visa applications made on or after 5 November 2011: reg.4(2) Migration Amendment Regulations 2011 (No.6), and to visa applications made on or after 24 March 2012: reg.6(1) Migration Legislation Amendment Regulation 2012 (No.1).
Nothing the applicant has submitted provides any basis to treat cls.572.223(1), 572.223(2) and 5A405 other than in accordance with the express terms of the Migration Amendment Regulations 2011 (No.6) and the Migration Legislation Amendment Regulation 2012 (No.1). Even if the amendments had a remedial purpose, a matter of which I am not presently satisfied given the unelaborated nature of the submission to this effect, the applicant did not explain how this would prevent the operation of the Migration Amendment Regulations 2011 (No.6) and the Migration Legislation Amendment Regulation 2012 (No.1) according to their terms. Further, the amendments did not have the effect of turning cls.572.223(1), 572.223(2) and 5A405 into time of application criteria. In their combined operation they remained time of decision criteria but, in combination and in their relevant versions, applied only to visa applications made during a limited period. They were not criteria which had to be satisfied at the time an applicant made his or her visa application.
As a consequence, the matters raised by the third ground of the further amended application do not support a finding of jurisdictional error on the part of the Tribunal.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 December 2012
0
7
4