Warnakulasooriya v Minister for Immigration

[2015] FCCA 2722

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARNAKULASOORIYA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2722

Catchwords:
MIGRATION – Migration Review Tribunal – student visa – financial requirements – alleged bias.

Legislation:
Migration Regulations 1994 (Cth), sch.5A, reg.5A101, 5A505(2)(a)

Cases cited:
Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296
Shrestha & Ors v Minister for Immigration & Anor [2008] FMCA 842

First Applicant: MANJU DISNAKA FERNANDO WARNAKULASOORIYA

Second Applicant: MERIYAN AVANTHI HEIYANTUDUGE PERERA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 804 of 2014

Judgment of: Judge Riley

Hearing date: 7 September 2015

Date of last submission: 7 September 2015

Delivered at: Melbourne

Delivered on: 7 September 2015

REPRESENTATION

Counsel for the first applicant: Ronald Gordon

Solicitors for the first applicant: Ronald Gordon

Counsel for the second applicant: Ronald Gordon

Solicitors for the second applicant: Ronald Gordon

Advocate for the first respondent: David Brown

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 1 May 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 804 of 2014

MANJU DISNAKA FERNANDO WARNAKULASOORIYA

First Applicant

MERIYAN AVANTHI HEIYANTUDUGE PERERA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (“the tribunal”).  The application was filed on 1 May 2014.  The matter was listed for final hearing on 19 June 2015.  On that occasion the matter was dismissed following the non-appearance of the applicant.  The applicant then filed an application in a case seeking the reinstatement of the matter.

2. The reinstatement application came before the court on 27 July 2015.  On that occasion the court did reinstate the matter and ordered that the matter be listed for final hearing today.  In the meantime, the applicant has filed a further amended application and submissions and the first respondent has filed further submissions of fact and law.

3. The primary applicant had applied for a student visa, which was refused by the delegate on 12 November 2013.  The applicant then sought review by the tribunal.  The tribunal conducted a hearing and eventually handed down reasons for decision in which it concluded that the applicant did not meet the financial requirements in the regulations for a student visa and affirmed the delegate’s decision.  The application to this court challenges the tribunal’s handling of the financial capacity requirements and also alleges that the tribunal was biased.

4. The tribunal noted that the applicant relied upon deposits made on 25 and 27 March 2014.  The tribunal noted that those deposits did not meet the requirements of the regulations in that they had not been held for at least three months prior to the date of the application for the visa, which was 5 September 2013.  The deposits that the tribunal referred to were made about six months after the visa application was lodged and as such they had not been in existence for at least three months prior to the date of the application for the visa.

5. However, the tribunal did not refer to other evidence which was before it which showed that the primary applicant’s mother in law had invested money with an entity called Supirico Management & Consultants Service.  That money was invested on 7 March 2011 and was due to mature, as it were, on 7 March 2014.  In the court book at page 134 there is a contract setting out the nature of that investment.  It provides for 20 per cent interest payable at maturity.  To all intents and purposes, it is a term deposit rather than an investment, as that term would normally be understood, in a company.

6. However, the Minister says that that investment or deposit did not meet the requirements of the Migration Regulations 1994 (Cth) (“the regulations”). Under sch.5A to the regulations, reg.5A101 defines a “money deposit” as being a money deposit with a “financial institution” and re.5A101 defines a “financial institution” to mean a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money and does so under a regulatory regime governed by the central bank or its equivalent of the country in which it operates that the Minister is satisfied provides effective prudential assurance. There was no indication that Supirico met that definition. Consequently, the Minister submits that the deposit with Supirico made on 7 March 2011 could not meet the relevant requirements.

7. The Minister raised another hurdle to the applicant’s case, which was that the claim was that the money deposit held in the term deposit and held by Supirico was held by the applicant’s mother in law. The regulations provide that the deposit must be held by an acceptable individual, and define an acceptable individual to be various relatives of an applicant. However, under cl.5A505(2)(a) of sch.5A, the relevant people do not include a parent in law.

8. The applicant argued that, as the applicant in this case had a secondary applicant, who was his wife and the daughter of the person who held a deposit, it followed that the applicant’s mother in law was an acceptable individual. However, there is Federal Court authority in the case of Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296 in which Siopsis J at paragraph 23 upheld a decision of the Federal Magistrates Court in which it was found that the applicant’s father in law did not qualify as an acceptable individual within the meaning of the regulations.

9. In that case, there was a similar family arrangement to the present.  There was the principal applicant as well as a second and third applicant. They were the principal applicant’s wife and daughter respectively.  That is apparent from paragraph 3 of the decision at first instance, which is Shrestha & Ors v Minister for Immigration & Anor [2008] FMCA 842. It seems to me that, on the clear evidence in this case, the matter could not be resolved in a way other than the way in which the tribunal did resolve it. There was no suggestion that anybody else was holding an acceptable money deposit.

10. The authority of the Federal Court makes it clear that the primary applicant’s mother in law was not an acceptable individual within the meaning of the regulations.  Additionally, there was no evidence that the Supirico entity was a financial institution as defined in the regulations.  As such, the deposit made on 7 March 2011 with Supirico could not satisfy the requirements in the regulations. 

11. The other argument that the applicant raised today was that the tribunal was biased.  That is said to appear from paragraph 22 of the tribunal’s reasons, where the tribunal was explaining what occurred at the hearing.  The tribunal set out the applicant’s academic history and then said in paragraph 22:  

    He agreed with the tribunal that he had failed to successfully advance academically in the past seven years.  The tribunal told the applicant that on the evidence presented it did not believe he was a genuine student. 

12. The applicant submitted that these statements were evidence of prejudgment.  I do not accept that submission.  It seems to me that what the tribunal was doing at that point was simply alerting the applicant to a difficulty that the tribunal perceived with the applicant’s case to enable the applicant to make further submissions or produce further evidence about it.

13. The tribunal specifically said that, on the evidence presented, it did not believe that the applicant was a genuine student. That is a mechanism by which the tribunal was inviting the applicant to produce such further evidence or make such further submissions as he wished. In any event, ultimately, the tribunal did not rely on the applicant’s academic record. All it relied upon was the financial deposit issue. As I have explained, on any view of the evidence, the applicant could not have succeeded on that ground.

14. That is for two reasons: that the money deposit was held by the primary applicant’s mother in law and that there was no evidence before the tribunal that the money deposit was held in a financial institution under a regulatory regime governed by the central bank or its equivalent of the country in which it operates that the Minister is satisfied provides effective prudential assurance. 

15. So for these reasons I consider that, firstly, the tribunal did not make a jurisdictional error, but, secondly, even if it did, it would be futile to remit the matter to the tribunal for further hearing. In the circumstances, the application must be dismissed.   

16. The usual rule should apply that the applicant pay the costs of the proceeding as he was unsuccessful.  Although a new argument was raised by the first respondent at the hearing regarding the deposit being held by the mother in law, it seems to me that if the applicant had been properly advised, he would have been aware of that issue himself.  In the circumstances, the applicant has simply been unsuccessful and costs should follow the event in the normal way.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  6 October 2015