Warnakulasooriya v Minister for Immigration and Border Protection
[2016] FCA 341
•8 April 2016
FEDERAL COURT OF AUSTRALIA
Warnakulasooriya v Minister for Immigration and Border Protection [2016] FCA 341
Appeal from: Warnakulasooriya & Anor v Minister for Immigration & Anor [2015] FCCA 2722 File number: VID 580 of 2015 Judge: MOSHINSKY J Date of judgment: 8 April 2016 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – application for student visa – financial capacity requirements – whether money deposit held by mother-in-law satisfied requirements Legislation: Migration Act 1958 (Cth)
Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112
Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296
Shrestha & Ors v Minister for Immigration & Anor [2008] FMCA 842
Date of hearing: 2 March 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Appellants: R Sorensen Solicitor for the Appellants: PLS Lawyers Counsel for the First Respondent: M Hosking Solicitor for the First Respondent Australian Government Solicitor Counsel for the Second Respondent: The second respondent did not appear ORDERS
VID 580 of 2015 BETWEEN: MANJU DISNAKA FERNANDO WARNAKULASOORIYA
First Appellant
MERIYAN AVANTHI HEIYANTUDUGE PERERA
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
8 APRIL 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
This is an appeal from a decision of the Federal Circuit Court of Australia dated 7 September 2015, which dismissed the appellants’ application for review of a decision of the then Migration Review Tribunal (the Tribunal). The Tribunal’s decision, made on 3 April 2014, was to affirm the decision of the delegate of the first respondent (the Minister) to refuse to grant Student (Temporary) (Class TU) visas to the appellants.
For the reasons set out below, in my view the appeal should be dismissed.
Background
The appellants are citizens of Sri Lanka. The second appellant is the first appellant’s wife.
On 5 September 2013, the appellants applied for Class TU visas. The first appellant applied on the basis that he satisfied the primary criteria for the grant of the visa. The second appellant applied on the basis that she was a member of the family unit of the first appellant, and therefore satisfied the secondary criteria for the grant of the visa. The relevant subclass of Class TU visa is Subclass 573.
On 12 November 2013, a delegate of the Minister decided not to grant the appellants Subclass 573 visas. The delegate found that the first appellant did not satisfy a primary criterion for the grant of a Subclass 573 visa, namely access to funds as required by the relevant criteria.
The appellants applied to the Tribunal for review of the delegate’s decision. Initially, the Tribunal decided that it did not have jurisdiction to review the delegate’s decision. Subsequently, however, the Tribunal vacated this decision and invited the appellants to appear before the Tribunal to give evidence and present arguments.
On 3 April 2014, the appellants appeared before the Tribunal. At the hearing, the appellants provided documents in support of their application for review. These documents are referred to below. On the day of the hearing, the Tribunal decided to affirm the delegate’s decision. The Tribunal’s decision is discussed below.
The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 19 June 2015, the appellants’ application was dismissed for non-appearances. On 27 July 2015, on the application of the appellants, the application for judicial review was reinstated. The appellants were given leave to file a further amended application, which they did on 17 August 2015.
On 7 September 2015, the Federal Circuit Court heard the appellants’ application for review. On the same day, the primary judge dismissed the appellants’ application.
Legal framework
In order to provide context for the Tribunal’s reasons and the reasons of the primary judge, it is necessary to outline the relevant legal framework.
The criteria for the grant of a Subclass 573 visa are set out in cl 573 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations): see the Migration Act 1958 (Cth) (the Act), s 31; the Regulations, regs 2.02, 2.03. (I note that the Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth) commenced on 22 March 2014, less than two weeks before the date of the Tribunal’s decision, and amended provisions relevant to the Tribunal’s decision. However, the relevant amendments applied only to visa applications made on or after 22 March 2014 and hence did not apply to the present case: see the Regulations, Sch 13, Part 28, cl 2801(1).) Some of the criteria for the grant of a Subclass 573 visa are informed by the evidentiary requirements set out in Sch 5A to the Regulations.
At the relevant time, cl 573.223(1)(b) of Sch 2 to the Regulations provided that it was a primary criterion for the grant of a Subclass 573 visa that, at the time of the decision in relation to the application for the visa, “[t]he 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 (1A) or (2)”.
Clause 573.223(1A) applied to an applicant who “is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student”. It is not in dispute that cl 573.223(1A) did not apply to the first appellant at the date of the Tribunal’s decision.
At the relevant time, cl 573.223(2) provided as follows:
If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(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.
The term “assessment level” was relevantly defined, in relation to a student visa, as the level of assessment specified for a kind of eligible passport for the student visa under reg 1.41 (reg 1.03). Under reg 1.41(1), the Minister was required to specify “by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject”.
At the relevant time, there were five assessment levels. The Minister specified that the assessment level for the holder of a Sri Lankan passport for a Subclass 573 visa was assessment level 4 (reg 1.41; Instrument Number IMMI 12/005).
Schedule 5A to the Regulations is headed “Evidentiary requirements for student visas”. At the relevant time, the evidentiary requirements for assessment level 4 for a Subclass 573 visa were set out in Division 2 of Part 4 of Schedule 5A. Relevantly, cl 5A505 provided as follows:
5A505 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.
…
(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 a 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 [various bodies].
(Emphasis added.)
The word ‘parent’ was not defined in the Regulations. It was not in issue on the hearing of this appeal that the word has its ordinary meaning and that this does not include a parent-in-law. The terms ‘financial institution’ and ‘money deposit’ were defined in cl 5A101, which relevantly provided that:
financial institution means a body corporate that, as part of its normal activities:
(a) takes money on deposit and makes advances of money; and
(b)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.
…
money deposit means a money deposit with a financial institution.
The Tribunal’s decision
The Tribunal found that, based on the course of study in which the first appellant was then enrolled, the relevant subclass of Class TU visa was Subclass 573. The Tribunal identified the relevant issue as being whether the first appellant satisfied the requirements of cl 573.223(2) of Sch 2 to the Regulations. As the first appellant was the holder of a Sri Lankan passport, the Tribunal found that the relevant assessment level for the purposes of Sch 5A was assessment level 4.
At the hearing before the Tribunal, the first appellant provided the following documents relating to the financial evidence criteria:
(a)An affidavit of Udugampolage Mary Consibal Pathima Fernando (the first appellant’s mother-in-law) dated 28 March 2014 stating that she had agreed to be the appellants’ financial sponsor until the first appellant completed his studies and:
(i)she had invested 7,500,000 Sri Lankan rupees (rupees) at Supirico Management and Consultant Service (Supirico), Thalwila Junction, Marawila, on 7 March 2011;
(ii)she had received the sum of 12,000,000 rupees (comprising capital and interest) from Supirico on 25 and 27 March 2014;
(iii)she had re-deposited the 12,000,000 rupees at Sanasa Development Bank, Wennappuwa.
(b)A document headed ‘Declaration of Investment Agreement’ signed on behalf of Supirico in relation to the investment of 7,500,000 rupees on 7 March 2011.
(c)A document on Supirico letterhead confirming the withdrawal of 12,000,000 rupees on 25 and 27 March 2014 (comprising 6,000,000 rupees on each of those dates).
(d)A document on Sanasa Development Bank plc letterhead confirming the deposit of 12,000,000 rupees (comprising 6,000,000 rupees deposited on 25 March 2014 and 6,000,000 rupees deposited on 27 March 2014) in the name of Mrs Fernando.
As recorded in paragraph [29] of the Tribunal’s reasons, the Tribunal advised the first appellant (referred to as ‘the applicant’ in the Tribunal’s reasons) that if the financial evidence was to be in the form of a money deposit, it needed to have been held for at least three months immediately before the date of application (which in the present case was 5 September 2013) but the evidence provided was of fixed deposits that had been created in the days shortly before the hearing before the Tribunal. (It appears that the Tribunal was referring to the deposit of 12,000,000 rupees with Sanasa Development Bank (comprising a deposit of 6,000,000 rupees on each of 25 and 27 March 2014), and did not have regard to the earlier deposit with Supirico. This is discussed further below.) On this basis, the Tribunal decided that the financial evidence provided did not meet the requirements: see paragraphs [29] and [38]-[40] of the Tribunal’s reasons.
The Tribunal said that, as the first appellant (being the primary applicant) did not satisfy the requirements for the grant of a student visa, it followed that the second appellant (as secondary applicant) was ineligible for the grant of a student (dependent) visa: Tribunal’s reasons, [44].
The Federal Circuit Court decision
The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. In their further amended application, the appellants challenged the Tribunal’s handling of the financial capacity requirements in Sch 5A to the Regulations, and alleged that the Tribunal was biased.
The Federal Court Circuit delivered ex tempore reasons which were then revised from the transcript (Reasons).
In relation to the financial capacity requirements, the primary judge noted that the Tribunal referred to the deposits on 25 and 27 March 2014 and said that these did not meet the requirements of the Regulations because they had not been held for at least three months prior to the date of the application for the visa: Reasons, [4]. The primary judge then said that the Tribunal did not refer to other evidence which was before it which showed that the first appellant’s mother-in-law had invested money with Supirico and that money was invested on 7 March 2011 and was due to mature on 7 March 2014: Reasons, [5]. The primary judge said that, to all intents and purposes, this was a term deposit rather than an investment.
The primary judge then referred to two arguments put by the Minister in support of the proposition that the first appellant did not meet the financial evidence requirements, even if regard were to be had to the Supirico investment or deposit: see Reasons, [5]-[7]. The first argument was that the Supirico investment or deposit did not meet the requirements of the Regulations because there was no indication that Supirico met the definition of ‘financial institution’. The second argument was that the money deposit with Supirico was held by the first appellant’s mother-in-law and this type of relationship did not satisfy the definition of ‘acceptable individual’ in the Regulations.
The primary judge then referred (Reasons at [8]) to an argument put by the appellants in response. The appellants submitted that, as the applicant in this case had a secondary applicant, who was his wife and the daughter of the person who held the deposit, it followed that the relationship with Mrs Fernando satisfied the definition of ‘acceptable individual’. The primary judge noted that in Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296, Siopsis J at [23] upheld a decision of the Federal Magistrates Court of Australia 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. In that case, the primary judge noted, there was the principal applicant as well as a second applicant and a third applicant, who were the principal applicant’s wife and daughter respectively.
The primary judge held that the decision of the Federal Court in Shrestha made it clear that the primary appellant’s mother-in-law was not an ‘acceptable individual’ within the meaning of the Regulations: Reasons, [10]. Further, there was no evidence that the Supirico entity was a ‘financial institution’ as defined in the Regulations; as such, the deposit made with Supirico could not satisfy the requirements in the Regulations: Reasons, [10].
The primary judge also considered, and rejected, a submission that the Tribunal was biased: Reasons, [11]-[13]. As this matter is not pursued on appeal, it is unnecessary to say anything about this.
The primary judge concluded that, first, 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: Reasons, [15].
The appeal
The appellants’ central contention on appeal was that the Federal Circuit Court erred in finding that the first appellant’s mother-in-law was not an ‘acceptable individual’ within the meaning of Sch 5A. The appellant contended that, as a consequence, the Federal Circuit Court erred in finding that the first appellant had not met the financial capacity requirements in Sch 5A, and that the Federal Circuit Court took into account irrelevant matters or failed to take into account relevant matters.
The appellants also contended that the Federal Circuit Court failed to afford them procedural fairness in relation to the issue of whether Supirico was a ‘financial institution’ as defined.
In relation to their central contention, the appellants submitted that the Federal Circuit Court erred by not holding that Mrs Fernando fell within the definition of ‘acceptable individual’ because she was the parent of the second appellant. The appellants noted that one of the relationships referred to in the definition of ‘acceptable individual’ was “the applicant’s parents” and submitted that the applicant for this purpose could be either the first appellant or the second appellant. The appellants contended that the facts of Shrestha were distinguishable because in that case the applicant’s wife had not signed the application for a visa: see Shrestha & Ors v Minister for Immigration & Anor [2008] FMCA 842 at [79]-[80].
In my view, for the purposes of determining whether Mrs Fernando was an ‘acceptable individual’ within the meaning of the relevant provisions, it was necessary to consider her relationship with the first appellant, as he was the primary applicant for a visa. That this is the correct construction arises from a consideration of the following provisions:
(a)Section 31(1) of the Act provides that there are to be prescribed classes of visas. Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class.
(b)Section 45(1) of the Act provides that, subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
(c)Section 65(1) of the Act relevantly provides that, after considering a valid application for a visa, the Minister, if satisfied (among other things) that the other criteria for it prescribed by the Act or the Regulations have been satisfied, is to grant the visa.
(d)Regulation 2.01 of the Regulations provides that, for the purposes of s 31 of the Act, the prescribed classes of visas are (among other things) such classes (other than those created by the Act) as are set out in the respective items in Sch 1. Regulation 2.02 deals with subclasses of visas, and refers to Sch 2 to the Regulations.
(e)Regulation 2.03 (1) provides that, for the purposes of s 31(3) of the Act, and subject to another regulation, the prescribed criteria for the grant to a person of a visa of a particular class are: the primary criteria set out in a relevant Part of Sch 2; or if a relevant Part of Sch 2 sets out secondary criteria, those secondary criteria.
(f)Schedule 2 to the Regulations contains a section headed ‘Subclass 573 – Higher Education Sector’. Within this, there is a section headed ‘573.2 – Primary criteria’. A note under this heading states: “The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.”
(g)Schedule 2 to the Regulations then sets out, within the section dealing with primary criteria, certain criteria which need to be satisfied at the time of application (clauses 573.211 and 573.212) and certain criteria which need to be satisfied at the time of the decision (clauses 573.211 to 573.235). These provisions are located under the heading, ‘Primary criteria’ and, as the note referred to in paragraph (f) above makes clear, need to be satisfied by at least one member of a family unit. These clauses include clause 573.223, which is the critical clause for present purposes, as this brings in the financial capacity requirements.
(h)Schedule 2 to the Regulations then contains a section headed ‘573.3 – Secondary criteria’. There is a note under this heading which reads: “Requirements to be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.” The secondary criteria include criteria to be satisfied at the time of the application (clauses 573.31 and 573.32) and criteria to be satisfied at the time of the decision (clauses 573.321 to 573.333).
When regard is had to the provisions described above, it is apparent that at least one member of the family unit must satisfy the primary criteria. In the present case, the visa application was made and the Tribunal hearing conducted on the basis that the first appellant was the family member who satisfied these criteria. For example, he was put forward as the person who was enrolled in a higher education course. In these circumstances, the first appellant must satisfy all of the primary criteria, including the financial capacity requirements described in paragraph [17] above. It follows that the reference to ‘applicant’ in the definition of ‘acceptable individual’ is, in the present case, to the first appellant, and that Mrs Fernando (who is the first appellant’s mother-in-law) did not satisfy the definition of ‘acceptable individual’.
The above conclusion is consistent with the decision of this Court in Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296. In that case, which related to Subclass 572 rather than 573 (but the provisions are comparable), Siopis J held at [23] that, contrary to the contention of the appellants, it was not open to the Tribunal to find, in the exercise of the discretion, that the first appellant’s father-in-law qualified as an ‘acceptable individual’ within the meaning of the Regulations as the Regulations plainly did not so provide. His Honour said that the Federal Magistrate had not erred in rejecting the appellants’ contention to that effect. The Federal Magistrate had considered, and rejected, the proposition that the applicant’s father-in-law could have satisfied the definition of ‘acceptable individual’ as the parent of the applicant’s wife: see Shrestha & Ors v Minister for Immigration & Anor [2008] FMCA 842 at [79]. The Federal Magistrate noted that Mr Shrestha was “the applicant for the visa to whom the primary criteria related” and the applicant’s wife “could only be considered as a ‘secondary’ applicant in the sense that she was not required in her own right to meet the primary criteria for the visa applied for”. While it is true that in that case the wife had not signed the visa application, whereas in the present case the second appellant was at least named in the application, the reasoning of the Federal Magistrate, affirmed on appeal, is consistent with the analysis set out above.
For these reasons, the definition of ‘acceptable individual’ was to be applied by reference to the first appellant and, accordingly, the first appellant’s mother-in-law did not satisfy the definition of an ‘acceptable individual’. The primary judge was correct to so hold.
It follows that it was not possible for the first appellant to satisfy the primary criteria and, consequently, that it was not possible for the second appellant to satisfy the secondary criteria (see cl 573.322 of Sch 2 to the Regulations). In these circumstances, as the primary judge held, it would have been futile to remit the matter to the Tribunal: see House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at [17]-[31] per Greenwood J, at [168], [174] per Logan J.
In light of this conclusion, it is unnecessary to consider the appellants’ contention that the primary judge failed to afford procedural fairness to the appellants in relation to the issue of whether Supirico was a ‘financial institution’. The appellants need to succeed on both contentions in order to succeed on the appeal and, for the reasons given above, I have concluded that their central contention is not made out. I will, nevertheless, make some brief observations about the appellants’ procedural fairness contention. The appellants noted that the Tribunal considered the financial evidence requirements only by reference to the deposits that had been created shortly before the hearing before the Tribunal and did not have regard to the earlier investment or deposit with Supirico. The appellants submitted that in the Federal Circuit Court they were confronted on the day with the argument that there was no evidence to show that Supirico satisfied the definition of ‘financial institution’. They submitted that, had there been substantive consideration of the Supirico investment or deposit by the Tribunal, the appellants may have had the opportunity to adduce further evidence that it did satisfy the definition of ‘financial institution’. On behalf of the Minister, it was submitted that the appellants were on notice of the evidential requirements prior to the hearing before the Tribunal and the appellants did not indicate at the hearing before the Tribunal that they sought to rely on the Supirico investment or deposit. It was also submitted that, as the documentation before the Tribunal referred to Supirico as a “Management & Consultants Service” the question whether it was a ‘financial institution’ did not arise on the material. As indicated above, it is not necessary to reach a concluded view of the appellants’ procedural fairness contention. In the absence of evidence about the way the issue emerged, and the submissions made, in the Federal Circuit Court, it would be difficult to conclude that there was a denial of procedural fairness.
For the above reasons, the appeal should be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the appellants pay the Minister’s costs as agreed or taxed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 8 April 2016
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