Yathirajam v Minister for Immigration and Anor
[2017] FCCA 2655
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YATHIRAJAM v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2655 |
| Catchwords: MIGRATION – Student visa application – Higher Education (Subclass 573) visa – Student (Temporary) (Class TU) visa – financial capacity requirements assessed under Schedule 5A of Migration Regulations 1994 – whether applicant is an eligible higher education student – show cause hearing – review of Tribunal’s decision to affirm delegate’s decision – whether the applicant was afforded procedural fairness – whether jurisdictional error can be shown – Tribunal applied wrong criteria – Tribunal’s decision affected by jurisdictional error – utility in grant of final relief a matter that warrants consideration – application to proceed to final hearing. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.44.05, 44.12 Migration Act 1958 (Cth), ss.4, 5, 29, 30, 31, 40, 65, 359AA, 424AA, 474 Migration Regulations 1994 (Cth), reg.1.40A, 1.41, 2.01, 2.01; Sch 1, cl 1222, Sch 2 cl 573.111, cl 573.223, Sch 5A cl 5A408, cl 5A508 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] 241 FCR 30 Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 Morad v El-Ashey [2017] FCA 1136 |
Applicant: | SWAROOP KUMAR YATHIRAJAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 775 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 3 August 2017 |
| Date of Last Submission: | 3 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr Petrie |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent: | Having filed a submitting notice |
ORDERS
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the application be fixed for final hearing at 10.00am on Wednesday, 7 March 2018.
By 4.00pm on Thursday, 15 February 2018, the parties file and serve any further affidavits upon which they rely.
By 4.00pm on Thursday, 1 March 2018, the parties file and serve an outline of submissions.
The costs of this show cause application are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 775 of 2016
| SWAROOP KUMAR YATHIRAJAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 March 2016. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse an application for a Student (Temporary) (Class TU) visa. It did so, essentially on the basis that the applicant did not provide the evidence necessary to satisfy the requirement that he had the financial capacity to complete his intended course of study.
The only contention made by the applicant is that the Tribunal did not comply with s 424AA of the Migration Act1958 (Cth) (Act). The Minister responds to that contention, but submits that the substantive issue is whether the applicant met the financial requirements for his visa. The way in which the Minister framed that submission conceals an anterior question as to which criteria were applicable to this visa application.
The application should be adjourned for final hearing pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth). My reasons follow.
Background
The applicant, a citizen of India now aged 27 years, is the holder of an Indian passport. Before arriving in Australia the applicant had secured an undergraduate degree, a Bachelor in Technology, from Jawaharial Nehru Technological University in 2011.
The applicant, with the assistance of a migration agent, applied for a Student visa while he was onshore.
The applicant provided a confirmation of enrolment (CoE) with his visa application. The CoE indicated that the applicant was enrolled in a Master of Business Administration at Holmes Institute. The CoE also stated that the MBA would be undertaken by coursework, that the course would run from 16 March 2015 to 24 June 2016 and that the total tuition fee was $22,500 of which $3,250 was prepaid.
On 16 March 2015, the Department of Immigration and Border Protection (Department), wrote to the applicant requesting further information, including in relation to his financial capacity. Attached to that letter was a Request Checklist and Details which provided a detailed explanation of the information sought from the applicant in relation to his financial capacity. Relevantly, it requested the applicant to provide “evidence of funds to support yourself . . . during the first 12 months of proposed study and stay in Australia . . . You need to demonstrate that you have access to $35,056” (emphasis in original). The applicant was told that evidence of access to funds could comprise bank statements, certificates of deposit and loan statements and that “. . . if you supply bank statements, deposit slips or evidence of loans from eligible family members who live outside of Australia, you should demonstrate how you can access this money from Australia . . .”
On 12 April 2015, the applicant’s migration agent provided the Department a number of documents including:
(a)a declaration of support from his father, stating “My funds are available in India as Fixed deposits and can be used by [him] anytime during his entire study period in Australia”;
(b)receipts for certain deposit accounts with Allahabad Bank, showing that, in aggregate, sums of 2,250,000 rupees were held on various fixed term deposits on 30 day terms;
(c)a letter from Allahabad Bank, accepting an application by the applicant’s father for a loan of 2,025,000 rupees to be secured against the fixed term deposits above.
On about the same date, the applicant wrote to the Department explaining, amongst other things the quality of his academic record.
On 20 April 2015, the Department wrote to the applicant’s migration agent stating that the applicant had not yet addressed its request for evidence of his father’s income. To this request the applicant furnished copies of his father’s tax returns for the three financial years to 2015.
On 20 May 2015, the Department received information from the Australian High Commission in New Delhi that the father’s deposit accounts and loan accounts with Allahabad Bank had been closed. The information was that the accounts had been closed on 2 May 2015, the monies on fixed term deposit not reinvested and that no money had been transferred from those accounts to the applicant or to a University.
By letter dated 27 July 2015, the applicant was invited to comment on this information. He was informed by the Department’s letter that “This information raises serious concerns that you do not have access to these funds as claimed. Please take this opportunity to comment on this adverse information.” A response was sought within 28 days.
The applicant did not respond to that invitation.
On 8 September 2015, the Minister’s delegate refused the application, finding that the applicant did not have the financial capacity to satisfy the requirements of the visa application. The delegate:
(a)after referring to the withdrawal of funds from, and closure of, the accounts held with the Allahabad Bank, placed “great weight on the information obtained . . . which indicates that the applicant does not have access to funds as claimed”;
(b)noted the applicant had not responded to the Department’s invitation to comment on that adverse information;
(c)applied the criteria prescribed by cl 573.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (regulations) in finding that the applicant was not eligible for a student visa.
The applicant applied for a merits review of the delegate’s decision, attaching a copy of the delegate’s decision record.
The applicant was invited to a hearing scheduled for 8 March 2016 and told that he could give evidence and present arguments relating to the issues in the case. The hearing was rescheduled to 15 March 2016. In the course of these communications the Tribunal requested the applicant to provide documents demonstrating that he had “sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant) and travel costs over the relevant period” and to provide “evidence that you have genuine access to the funds . . .”
The applicant attended, with his representative, the Tribunal hearing. At the hearing, the applicant provided to the Tribunal an updated CoE which stated that the applicant was enrolled in a MBA at Holmes Institute, that this course would run from 11 July 2016 to 31 July 2017 and that tuition fees amounting to $9,625 were payable.
The applicant provided evidence that the sum of $7,720 had been paid in reduction of those tuition fees.
The applicant’s representative also filed submissions which stated that the fees payable in respect of the next semester’s coursework had been paid and that the applicant’s father was ready to transfer the monies necessary to pay the balance of tuition fees.
In addition, the applicant provided the Tribunal with evidence of an account he held with Commonwealth Bank of Australia showing, as at 14 March 2016, that the balance standing to the credit of that account was the sum of $1,192.
The applicant gave evidence of his casual work at a petrol station.
The applicant adduced no further evidence of his financial capacity.
During the hearing, the Tribunal put to the applicant that he was required to demonstrate that he, or an acceptable person, held the sum of $21,515 as at that date. The applicant accepted he could not do so.
On 21 March 2016, the Tribunal affirmed the delegate’s decision to refuse the visa application. In arriving at that decision, the Tribunal:
(a)recounted the history of the application;
(b)set out in some detail the written submission filed by the applicant’s migration agent;
(c)identified the documents which the applicant had provided;
(d)undertook consideration of the claims and evidence;
(e)applied the criteria in cl 573.223(2) to the visa application and found that those criteria were not met;
(f)concluded that there was no evidence that the applicant was eligible to be granted a student visa of another subclass, and;
(g)confirmed that the delegate’s decision should be affirmed.
I examine below in greater detail the reasoning of the Tribunal.
Procedural History
On 15 April 2016, the application filed in this court an application for judicial review of the Tribunal’s decision made on 21 March 2016. The applicant filed an affidavit to which he exhibited the Tribunal’s decision.
By his response, the Minister contended that the Tribunal’s decision was not affected by jurisdictional error and was, for that reason, a privative clause decision within the meaning of s 474(2) of the Act. It was further contended that the Tribunal’s decision was final and binding, could not be challenged, appealed against, reviewed, quashed or called into question and was not amenable to prerogative or other relief.
The Minister sought dismissal of the proceeding on the stated basis that the decision under review was not affected by jurisdictional error.
The applicant’s ground of review was that “The Tribunal decision is affected by Jurisdictional Error. The Tribunal did not take account of relevant considerations and took account of irrelevant considerations. The Tribunal did not comply with s 424AA of the [Act].”
The application was listed for directions on 14 September 2016. On that date, the parties agreed in consent orders that the proceeding be listed for a show cause hearing. Further orders were made regulating the filing of submissions and a court book.
The applicant did not take the opportunity to file a submission.
The Minister’s submissions responded to the application itself.
The show cause hearing was listed for 3 August 2017. The applicant did not request that an interpreter be present to assist him.
Applicable principles
Show cause hearings
On the face of the application, the relief sought by the applicant was for an order that the respondents show cause why a remedy ought not be granted in respect of the Tribunal’s decision affirming the delegate’s decision to refuse the visa application: r 44.05.
As noted, on 14 September 2016, the application was fixed for a show cause hearing under r 44.12. Rule 44.12(1) confers power on the court at the hearing of a show cause application, to grant relief by way of dismissal of the proceeding or to adjourn the proceeding for a final hearing or to make final orders in relation to the claims for relief.
The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2).
The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13], (Whelan J); SZUTB v Minister for Immigration & Border Protection [2015] FCCA 1383, [10] (Smith J). In light of the statements that the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: Spencer v The Commonwealth (2010) 241 CLR 118.
It is clear that caution must be exercised when considering whether to grant summary judgment. By extension, such caution is equally appropriate upon the determination of a show cause hearing.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospectof successfullyprosecuting the proceeding. So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Ltd [2016] FCAFC 158, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra stated a series of further propositions, including the following:
a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
d)fourthly, the intensifying epithets of ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
see [2016] FCAFC 158, at [46]-[49]. The propositions stated above in Upaid Systems were endorsed by the Full Federal Court in Nichol v Discovery Africa Ltd [2016] FCAFC 182 at [133]- [142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey[2017] FCA 1136, [15] (Kenny J).
In SZUTB, supra, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: [2015] FCCA 1383, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the Court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” The residual discretionary component is to be applied.
I apply those principles in determining this show cause application.
Legislative regime
The object of the Act as expressed in sub-s 4(1), is to regulate the coming into, and presence in, Australia of non-citizens (being those persons as defined by sub-s 5(1)). The Act is an exclusive source of the right of non-citizens to enter or remain in Australia: sub-s 4(2).
Subject to the Act, the Minister may grant a non-citizen permission – to be known as a visa – to travel to, enter, and remain in Australia and to do so for a prescribed, specified or indefinite period: ss 29-30.
By s 65, the Minister is required (subject to exceptions that are not here relevant), to consider a valid visa application. Where a valid visa application has been made, the Minister is required to grant or refuse that application: s 65. The grant or refusal of the application turns on whether the Minister has been satisfied of certain criteria.
The Minster is required to refuse a visa application where not satisfied that the criteria for that visa are met: para 65(1)(b).
The regulations may prescribe criteria for the grant of a visa: sub-s 31(3). Further, the regulations may provide that a visa of a specified class may only be granted in specified circumstances: sub-s 40(1).
In the consideration of a visa application, one constraint imposed on the Minister in the determination whether the requirements of s 65 have been satisfied is that the application may not be granted unless the criteria for the particular visa applied for have been satisfied: ss 31(3), 65(1)(a)(ii), 65(1)(b); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, [3].
Classes of visas
A non-citizen who wants a visa must apply for a visa of a specified class: sub-s 45(1). Visas are in prescribed classes: sub-s 31(1). The prescribed classes of visas are those as itemised in Schedule 1 to the regulations: reg’n 2.01. In addition, there may be subclasses of visa being as set out in Schedule 2 to the Regulations: reg’n 2.02.
Identification of the applicable class or subclass of visa is necessary by reason of the need to ascertain the relevant criteria for that visa.
Item 1222 of Schedule 1 – Classes of Visa, prescribes as a visa class, a Student (Temporary) (Class TU) visa.
Part 573 of Schedule 2 is titled Subclass 573 – Higher Education Class. Identification of the relevant subclass in Part 573 of Schedule 2 – Higher Education Class, requires consideration of certain regulations and legislative instruments.
In Part 573, Division 573.1 provides certain definitions and preliminary matter. Division 573.2 prescribes primary criteria for the subclass. Divisions 573.2 – 573.6 contain further regulations that are not relevant. However, it may be noted that in common with the primary criteria in Division 573.2, the secondary criteria in Division 573.3 also prescribe requirements that are to be satisfied as at the date of the application and as at the date of decision respectively.
Regulation 1.41(1) prescribes that the Minister must specify by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject.
By legislative instrument ‘Student Visa Assessment Levels” IMMI 14/014’ (IMMI 14/014), the Minister specified, for the purpose of reg’n 1.41, in relation to an application for a student visa made on or after 1 July 2014, an assessment level for an eligible kind of passport, in relation to each subclass of student visa.
The schedule to IMMI 14/014 addressed 7 subclasses of visa, including subclass 573 (Higher Education Sector). In relation to subclass 573, the schedule specified 3 assessment levels arranged according to the kind of eligible passport listed in each level. Assessment level 3 was specified in relation to an Indian passport.
IMMI 14/014 commenced with effect from 13 June 2014.
Course types for subclasses of student visas
At the relevant time, reg’n 1.40A(1) prescribed that the Minister must specify by instrument in writing, the types of courses for each subclass of student visa. Identification of the type of course being undertaken enables the particular subclass of student visa to be ascertained. In turn, this serves to identify the criteria for that subclass.
By legislative instrument ‘Specification of Types of Course for Student Visas – IMMI 14/015’ (IMMI 14/015), the Minister specified, for the purpose of reg’n 1.40A, the types of course for each subclass of student visa in the Schedule. The Schedule to IMMI 14/015 identified the visa subclass and types of course to which that subclass would apply. The Schedule designated visa subclass 573 (Higher Education Sector) as the applicable subclass for a masters degree by coursework.
IMMI 14/015 commenced with effect from 22 March 2014.
However, reg’n 1.40A(2) provided that the Minister was not required to specify a course where, relevantly:
(b) the course would be undertaken by:
(i)the applicant for a Subclass 573 (Higher Education Sector) visa who would be an eligible higher degree student within the meaning of Part 573 of Schedule 2; or . . . (emphasis added)
The scope and operation of the exception created by reg’n 1.40A(2) was the subject of consideration in Ghimire v Minister for Immigration and Border Protection [2016] FCCA 1440, [7]-[13] (Reithmuller J). In summary, reg’n 1.40A(2) provided a means by which certain student visa applications might be eligible to be processed upon a streamlined (or perhaps fast tracked), basis. As counsel for the Minister submitted, the requirements imported by reg’n 1.40A(2) afforded a more streamlined pathway for persons who qualified as an eligible higher degree student. Conversely, for those who did not so qualify, the pathway prescribed by reg’n 1.40A(1) is more burdensome.
Accordingly, the question whether reg’n 1.40A(1) or 1.40A(2) applied was also necessary for the purposes of identifying the criteria to be applied by the Minister in the consideration whether such criteria had been satisfied for the purposes of s 65.
The exception created by para 1.40A(b)(i) from the requirement that that the Minister must specify by instrument in writing, the types of courses for each subclass of student visa is not engaged unless the visa applicant is an eligible higher degree student within the meaning of Part 573 of Schedule 2.
The phrase ‘eligible higher degree student’ is defined by cl 573.111 of Div’n 573 of Schedule 2. The definition is comprised of two limbs.
First, an applicant will meet the definition provided by cl 573.111 where, relevantly: (1) the applicant is enrolled in a principal course of study for the award of a masters degree by coursework, and; (2) that course of study is provided by an eligible education provider.
Secondly, alternatively, an applicant will meet the definition where: (1) the applicant proposes to undertake another course of study, before, and for the purposes of, the principal course of study; (2) the applicant is also enrolled in that course, and; (3) that course is provided by: (a) an eligible education provider; or (b) an educational business partner of the eligible education provider.
There are marked differences in the two limbs. An applicant will not qualify as an eligible higher degree student under the first limb of this definition where they have enrolled in a principal course of study for the award of a masters degree by coursework, but that course of study is being provided, not by an eligible education provider but by an educational business partner. The second limb of the definition is of wider and different scope than the first. The second limb addresses a situation in which an applicant proposes to undertake another course of study, before, and for the purposes of, the principal course of study.
The phrases ‘eligible education provider’ and ‘educational business partner’ are also defined by cl 573.111:
(a)eligible education provider means a provider specified as an eligible education provider in an instrument under cl 573.112;
(b)educational business partner in relation to an eligible education provider, means an education provider who is specified as an educational business partner in an instrument under cl 573.112.
Clause 573.112 prescribed that the Minister may, by instrument in writing, specify an education provider as an eligible education provider and further, may specify one or more education providers as an educational business partner of an eligible education provider.
By legislative instrument ‘Eligible Education Providers and Educational Business Partner – IMMI 14/075’ (IMMI 14/075), the Minister acting under, relevantly, cll 573.111 and 573.112, specified certain institutions as eligible education providers and educational business partners of such providers respectively.
Clauses 2-3 of IMMI 14/075 respectively, specified that such institutions held the designation of an eligible education provider or educational business partner (as the case required), in relation to an application for a student visa that was made after 23 November 2014.
An institution held the designation of an eligible education provider if it was listed in column 1 of the Schedule to IMMI 14/075. An institution held the designation of an educational business partner if it was listed in column 2 of that Schedule.
The Schedule to IMMI 14/075, was arranged in two sections. First, the Schedule addressed University Education Providers. Secondly, the Schedule addressed Non-university Education Providers. Each section was arranged in three columns: (1) Eligible Education Provider; (2) Educational Business Partner; (3) Educational Business Partner CRICOS Code.
IMMI 14/075 commenced with effect from 23 November 2014.
More recently, by legislative instrument titled, ‘Eligible Education Providers and Educational Business Partners 2016’ (IMMI 16/003), the Minister acting under, relevantly, cl 573.112, specified certain institutions as eligible education providers and educational business partners of such providers, respectively. This legislative instrument dated 15 January 2016, commenced operation upon being registered.
Criteria for visas – access to sufficient funds
As noted, Division 573.2 prescribes primary criteria for subclass 573.
Sub-division 573.21 prescribes primary criteria to be satisfied as at the time of making the visa application.
Clause 573.211(1) provides that an applicant meets the requirements of designated sub-clauses where the application was made in Australia. In this case, the applicant made the application when he was onshore.
Clause 573.212 prescribes that if the applicant is an eligible higher degree student, the applicant must have a CoE. Putting to one side the question whether the applicant was an eligible higher degree student, it will be recalled that the applicant provided a CoE at the time of his application and an updated CoE when he appeared at the Tribunal.
Sub-division 573.22 prescribes primary criteria to be satisfied as at the time of decision. In particular, cl 573.223(1A)(c)(i) applied where the Minister was satisfied that, while the applicant holds the student visa, they will have sufficient funds to meet certain costs and expenses to support them during their stay in Australia. By contrast, when that clause does not apply, sub-cl 573.223(2) applies. It reads:
(2) If subclause (1A) does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity. (emphasis added)
A feature of para 573.223(2)(a) was that it prescribed a requirement that the applicant must give the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant: see also para 573.223(2)(c) above.
It will be recalled that, by operation of IMMI 14/004, the applicant’s student visa application was specified to be assessed under assessment level 3 (by reason that he held an Indian passport).
Subject to certain qualifications, the applicant was also required to satisfy the criteria in sub-cl 573.223(2) at the time of decision: cl 573.321(1). Again, the applicant was required to satisfy the requirement in para 573.223(2)(c) concerning access to funds.
Before turning to Schedule 5A, it should be recognised that a criterion in both sub-paras (1A)(c)(i) and (2)(c) of cl 573.223, requires that the Minister be satisfied that an applicant would have sufficient funds to meet certain costs and expenses to support them during their stay in Australia. Contrasting those provisions, one may identify the point of departure in relation to the means by which those costs were to be considered. Under sub-para 573.223(2), resort to the requirements of Schedule 5A was necessary. By contrast, the text of sub-para 573.223(1A) contains no reference to that Schedule 5A.
Schedule 5A to the Regulations concerned ‘Evidentiary requirements for student visas.’Clause 5A508 of Schedule 5A provided:
Clause 5A508 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 12 months:
(i)course fees;
(ii)living costs;
(iii)school costs; and
(aa)a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 12 months; and
(b)evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c)evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
(emphasis added)
The meaning of ‘funds from an acceptable source’ is defined in cl 5A508(2). Further defined terms also require consideration.
Clause 5A104 is titled Meaning of living costs and school costs and provides that an applicant’s designated costs are taken to accrue at the sum of the rates set out in a series of tables.
The content of cl 5A104 does not conform to the idea of a definition. Instead, it provides criteria for the quantification of each cost.
For example, the meaning of living costs as addressed by cl 5A104(1) simply provided that the applicant’s living costs were taken to accrue at the sum of the rates set out in the table. By reference to those tables, the applicant’s living costs fell to be assessed under Item 2(a) of that table. Items 1 and 2(b)-(d), 3 and 4 were not relevant.
Under Item 2(a) of the table related to living costs, the amount of those costs was as specified by the Minister in an instrument in writing for such clause (defined as the basic rate). By legislative instrument ‘Evidence of Further Funds and Living Costs – IMMI 14/004’ (IMMI 14/004), the Minister acting under, relevantly, sub-cl 5A104(1), specified the sum of AUD$18,610 for that basic rate. IMMI 14/004 commenced operation on 22 March 2014.
An applicant’s ‘school costs’ were also taken to accrue at the sum of the rates set out in the table: cl 5A104(2). By reference to those tables, school costs fell to be assessed under Items 1 and 2 of that table in respect of an applicant who was subject to assessment level 3. The Minister accepted that such school costs were not relevant as they applied, to children who were school age dependents.
The phrase ‘course fees’ was defined as meaning “the fees for each course proposed to be undertaken by the applicant in the period, as indicated by the proposed education providers in a letter or other document.” Here, the document provided by Holmes Institute indicated that the tuition fee was $9,625. The evidence before the Tribunal was that the applicant had paid $7,720 in reduction of the fee such that the outstanding balance of tuition fee was $1,905.
By cl 5A508(1)(b), the applicant was required to have evidence that he had funds from an acceptable source in a sum sufficient to meet the cost of travel. The Tribunal accepted the applicant’s assessment that $1,000 was an appropriate sum to allow for a one-way flight to India.
By dent of those calculations, using Schedule 5A and the criteria provided by cl 5A508, the applicant was required to demonstrate financial capacity for the period of his course of study to have or have acceptable access to funds of $21,515.
According to the delegate and the Tribunal, it was upon those criteria that the applicant’s visa application fell for consideration.
Consideration
The applicant was self-represented at the hearing before me and, as noted above, did not file any submissions. While he presented as an articulate young man, I have assumed that he was unfamiliar with court processes: cf AMF15 vMinister for Immigration and Border Protection [2016] 241 FCR 30, [44(g)]. The court considered for itself the competing arguments in relation to this application.
In light of the issues presented by the application, I invited the applicant who agreed that it might be of assistance to an understanding of the case, for the Minister’s counsel to make submissions and allow the applicant to explain anything that he wished to raise once counsel for the Minster had completed his submission.
Mr Petrie of counsel who appeared on behalf of the Minister, relied upon his written outline and made careful oral submissions.
Notwithstanding the adoption of that course, it is convenient to identify the submissions made by the applicant and the events which ensued.
The applicant submitted that, despite the finding of the Tribunal that he had not demonstrated an ability to meet the financial requirements prescribed by cl 5A508, his father sent him money from time to time. The applicant was taken to the CoE which had been produced at the Tribunal and his attention drawn to the handwritten change of the Course Start Date for the MBA course which he was to undertake.
The applicant was also directed to the CoE Course End Date and to the fact that the applicant should have completed his MBA only three days before the hearing before me. At this point the applicant stated he had been unable to complete the course because, without a visa, Holmes Institute would not accept his enrolment. The applicant was then invited and expressed a desire to give evidence, which he did.
The applicant gave evidence that, without a visa, Holmes Institute would not accept his enrolment. He first said and confirmed that he had not attempted to re-enrol by reason that he had no valid visa. The applicant was then taken to certain tax invoice/receipts in the court book, each dated 11 March 2016, issued by Holmes Institute and addressed to the applicant. Each document confirmed the payment of the entire invoice amount and stated a Receipt Total.
It was pointed out to the applicant that those receipts were dated 10 days before the Tribunal decision (the hearing took place on 15 March 2016). The applicant then gave evidence that he had attended Holmes Institute and asked to be re-enrolled in his MBA but said that although he had paid his fees, the Institute would not accept his enrolment because his application to the Tribunal had been unsuccessful.
In cross-examination, the applicant was taken to his first CoE and to the decision record of the delegate made on 8 September 2015. He agreed that after the delegate’s decision had been given, he had completed two semesters of course work for his MBA.
Taken to his new CoE, the applicant agreed that this had been issued by Holmes Institute after the delegate’s decision had been given. He said that the Institute had changed the Course Start Date in hand because they had “accidentally put the wrong dates.” He agreed that Holmes Institute had issued the new CoE upon being told that the applicant was seeking a review of the delegate’s decision from the Tribunal.
Asked whether he had told Holmes Institute that he was now seeking to challenge the Tribunal’s decision, the applicant said that he had done so. He said that Holmes Institute “had not accepted that.”
After giving that evidence, the applicant reiterated that his father did support him financially and had continued to do so.
Tribunal’s reasoning
I have referred to the structure of the Tribunal’s reasons. In terms of the detail of those reasons, the Tribunal’s consideration of the applicant’s claims and evidence was as follows.
The Tribunal reasoned that, as the applicant was currently enrolled in the MBA as his principal course, the subclass that could be granted to him was a visa subclass 573.
The Tribunal considered the issue in the review to be whether the applicant was a genuine applicant for entry and stay as a student. The Tribunal cited and attached a copy of cl 573.223.
The Tribunal recognised the different requirements which may apply depending on whether the applicant was, and was at the time of application, an eligible higher degree student. The reasons record that the Tribunal had regard to the definitions of eligible higher degree student, eligible education provider and educational business partner.
The Tribunal referred to IMMI 16/003 and acknowledged that, under the terms of this instrument, Holmes Institute was an eligible education provider. The Tribunal then proceeded to qualify that conclusion, observing that it also needed to be satisfied that the applicant was at the time of application (and is at the time of decision), an eligible higher degree student. With respect to this requirement, the Tribunal found:
In this case, at the time of application the applicable legislative instrument IMMI 14/075 did not designate Holmes Institute as an eligible education provider (although it was designated as an educational provider partner). Tribunal’s Reasons [12].
On that basis the Tribunal concluded that the applicant was not at the time of application an eligible higher degree student: Reasons [13].
In the result, the Tribunal found that cl 573.223(1A) did not apply: Tribunal’s Reasons [13].
The Tribunal then reasoned that to meet the requirements of cl 573.223, the applicant was required to give evidence which satisfied the requirements of Schedule 5A (including the financial capacity requirements which were prescribed). It stated that the “financial capacity the applicant must demonstrate is prescribed in cl 5A408” and also attached a copy of that clause, cl 5A408, to the decision record.
As concerned the applicant’s financial capacity, the Tribunal noted that the delegate had refused the application because satisfactory evidence had not been provided that the applicant would have access to sufficient funds. The Tribunal referred to the matters identified by the Australian High Commission in Delhi concerning the withdrawal and closure of the father’s deposit and loan accounts with Allahabad Bank.
The Tribunal also recorded that, despite its request, the applicant had provided no evidence at the hearing of his financial capacity. The applicant also provided an explanation as to why he had not provided documents to the Tribunal until the day of the hearing.
The Tribunal reasoned that in light of the completion date for the applicant’s new MBA course (31 July 2017), it was necessary for the applicant to demonstrate that he had funds from an acceptable source in an amount sufficient to meet his expenses for twelve months. The Tribunal made a calculation of those expenses which it totalled at the sum of $21,515. The reasons record the applicant’s evidence of his casual work as a petrol pump attendant for twenty hours each week and of the support that his father provides to him.
The Tribunal recorded that the applicant “agreed he cannot presently demonstrate financial capacity of $21,515.”
The Tribunal concluded that the applicant had not provided evidence of his financial capacity sufficient to satisfy the requirements of Schedule 5A. It observed that the applicant had been “on notice that the issue on review is whether he can satisfy the financial capacity requirements” and in this regard alluded to the written request in which the Tribunal had identified to the applicant “all of the evidence he would be required to provide in order to have a successful outcome.” The Tribunal concluded on this issue that, because the applicant had given evidence that he could not provide evidence of the necessary financial capacity, it would not grant additional time to do so.
The Tribunal further noted that the applicant had not successfully completed any study since arriving in Australia. In the circumstances, the Tribunal did not consider whether the applicant satisfied certain other requirements for his visa as prescribed by Schedule 5A.
In the Tribunal’s view, the determinative issue was that the applicant did not satisfy the financial capacity requirements under cl 5A408 and, for that reason, did not satisfy the criteria of cl 573.223(2)(a).
The Tribunal also noted that there was no evidence that the applicant was eligible to be granted a student visa of another subclass.
For those reasons, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
Ground of review – procedural fairness
Although the applicant did not articulate these contentions, the Minister identified two matters as presenting a question of procedural fairness. First, whether there was a requirement for the Tribunal to disclose information that was considered to be the reason, or part of the reason, for affirming the delegate’s decision. Secondly, whether the hearing ought to have been adjourned.
Counsel for the Minister submitted, correctly, that although the application relied upon s 424AA, that ground was properly to be understood as a reference to s 359AA (being the analogue provision which applies to Part 5-Reviewable decisions).
I agree in the Minister’s submissions that the Tribunal gave the applicant clear particulars of information which it considered would be the reason, or part of the reason for affirming the decision. The subject information concerned the applicant’s failure to meet the financial capacity requirements prescribed by cl 5A508 of Schedule 5A. The Tribunal wrote to the applicant before the hearing requesting the applicant to provide information that would demonstrate he had sufficient funds or access to funds to pay the designated costs.
Further, the applicant himself provided to the Tribunal a copy of the delegate’s decision in which his failure to meet those financial requirements had been addressed directly. The Minister submitted, and I accept, that the delegate’s decision constituted particulars of information that formed the basis of the refusal of the visa.
In the circumstance that the applicant gave the Tribunal a copy of the delegate’s decision, if the objection was otherwise sound, nonetheless para 359A(4)(b) applied with the result that an obligation in the Tribunal to provide such information to the applicant did not apply: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131, [25], (Gray J); VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302, [48] (Heerey J). In the latter case, Heerey J observed at [51] that since the information had been positively advanced by the applicant, para 424A(3)(b) operated to remove from the obligations in sub-s 424(1)-(2) a requirement to provide that information.
In the same vein, the applicant gave evidence in which he informed the Tribunal that he did not have the financial capacity in the sum of $21,515 and in this respect para 359A(4)(ba) also removed any such obligation.
Insofar as the Tribunal concluded that it would be inutile to adjourn the hearing to allow the applicant further time to produce documents going to the issue of his financial capacity, I consider that it did not act unreasonably in doing so. The applicant was on notice as to the centrality of this issue from at least the time of the delegate’s decision. Indeed, the Department’s letter dated 16 March 2015 directly raised the issue of the applicant’s financial capacity. Although the applicant did not respond to that request immediately, he did so in due course. The issue was also raised with the applicant by the Tribunal’s request before the hearing. Throughout, the applicant was assisted by his migration agent who also appeared at the hearing. The belated production at the hearing of certain documents coupled with the explanation why those documents had not been provided earlier also provided part of the basis for the conclusion that the hearing should not be adjourned.
A decision will be unreasonable if it is “a conclusion which may be applied to a decision which lacks an evident and intelligible justification” or if it reflects “a conclusion so unreasonable that no reasonable authority could ever have come to it”: Minister for Immigration and Border Protection v Li (2013) 249 CLR 332, [78] (Hayne, Kiefel and Bell JJ), [28] (French CJ).
The test for unreasonableness is well established: Gupta & Ors v Minister for Immigration & Anor [2017] FCAFC 172, [36]-[37] (Gilmour and Mortimer JJ, Logan J agreeing). Unreasonableness in the relevant sense arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker: Li, supra at [30] (French CJ), [113] (Gageler J).
I do not regard as unreasonable in the relevant sense, the conclusion of the Tribunal in deciding not to adjourn the hearing. It did not lack an intelligible justification and I do not consider that it was a conclusion so unreasonable that no reasonable authority could ever have come to it. The decision was not illogical. Nor was it irrational.
These possible grounds of complaint are not made out.
Is jurisdictional error shown otherwise?
The Minister submitted that the application concerned the Tribunal’s interpretation of a single visa criterion. The criterion was described as a prerequisite to the grant of a subclass 573 visa. Put another way, in the determination whether the requirements of s 65 had been satisfied in this case, the Minister was constrained from achieving the requisite state of satisfaction unless the criteria for the student visa were met: ss 31(3), 65(1)(a)(ii), 65(1)(b).
The Minister submitted that in this case, the Tribunal was concerned to apply cl 573.223(2)(a) of Schedule 2 together with what are commonly referred to as the financial capacity requirements of Schedule 5A and, in particular, cl 5A508.
The Minister contended that the Tribunal correctly interpreted and applied the requirements of cl 573.223 of Schedule 2.
The Minister accepted that the Tribunal was in error in referring to cl 5A408 (which was attached to the reasons), and was in error in not referring to the correct clause so as to ascertain and consider the criteria relevant to an assessment of the applicant’s visa application.
However, it was submitted that because the criteria in cll 5A408 and 5A508 were relevantly identical, the error was immaterial. In support of that submission the Minister pointed up that whichever clause had been used for the purposes of calculation, the Tribunal would still have arrived at a total sum of $21,515. Further, it was said that it was for the applicant to demonstrate a financial capacity for that amount.
The Tribunal found that the applicant was not an eligible higher degree student as defined by cl 573.111.
The classification of the applicant as an eligible higher degree student was essential to a conclusion whether his MBA course was required to be specified by the Minister pursuant to reg’n 1.40A or whether the exception created by reg’n 1.40A(2) applied to his course.
The Minister was not required to specify the applicant’s course if, relevantly, the applicant was an applicant for a subclass 573 visa who was an eligible higher degree student within the meaning of Part 573.
Was the applicant an eligible higher degree student? I have analysed the two limbs of the definition of eligible higher degree student at [65] - [68] above. The applicant was enrolled for the award of a masters degree by course work. He was so enrolled in that course as a principal course of study. For that reason the applicant could only qualify as an eligible higher degree student under the first limb of that phrase as defined in cl 573.111. The applicant could not qualify under the second limb of the definition because the MBA course in which he was enrolled was not another course of study being undertaken for the principal course of study.
To meet the first limb of the definition, the remaining question was whether Holmes Institute was an eligible education provider. Under the first limb it would not suffice if Holmes Institute was an educational business partner of an eligible education provider. Whether at the time of the visa application, Holmes Institute held the status of an eligible education provider turned on IMMI 14/075.
The Tribunal found that “at the time of application the applicable legislative instrument IMMI 14/075 did not designate Holmes Institute as an eligible education provider (although it was designated as an educational provider partner).” Reasons at [12]
It was submitted that the Holmes Institute was not specified as an eligible education provider under IMMI 14/075. I disagree.
By cl 2 of IMMI 14/075, the education providers listed in column 1 of the Schedule were specified as eligible education providers.
By cl 3 of IMMI 14/075, the education providers listed in column 2 of the Schedule were specified as educational business partners of the eligible education providers listed in column 1.
As I have said, the Schedule to IMMI 14/075, was arranged in two sections: (1) University Education Provider; (2) Non-university Education Providers. From my examination of that Schedule:
(a)in the first section, Holmes Institute was not listed under column 1 as an Eligible Education Provider (however, it was listed in column 2 as an Educational Business Partner of at least Charles Sturt University, Deakin University and University of Canberra);
(b)however, in the second section, Holmes Institute was listed under column 1 as an Eligible Education Provider [00012G] (with the Australian Institute of Business & Technology listed in column 2 as its Educational Business Partner).
Contrary to the Tribunal’s finding, Holmes Institute was therefore listed in the Schedule to IMMI 14/075 as an eligible education provider and not merely as an educational business partner.
The Tribunal’s further finding that the applicant was not an eligible higher education student rested upon the premise that Holmes Institute was not specified as an eligible education provider under IMMI 14/075 and was therefore in error.
It was not in contest that IMMI 14/014 and IMMI 14/075 applied to this application:
(a)as to IMMI 14/014, the applicant held an Indian passport and fell within assessment level 3 pursuant to the schedule to that legislative instrument. IMMI 14/014 applied only in relation to a student visa application that was made after 1 July 2014;
(b)as to IMMI 14/075, the designation by cl 2 of that legislative instrument of an institution as an eligible education provider applied only in relation to an application for a student visa that was made after 23 November 2014.
The materials before me do not indicate whether the applicant’s student visa application was made after 23 November 2014. However, this was not an issue raised on review by the Tribunal and was not raised before me. I do not address it further.
The other elements of the first limb of the definition being satisfied, the applicant was an eligible higher education student. Thus, reg’n 1.40A(2)(b)(i) was engaged, the Minister was not required to specify the applicant’s course under reg’n 1.40A(1) and the application fell to be processed under the streamlined regime.
The Tribunal considered that the evidentiary requirements for the assessment of a subclass 573 visa were set out in Part 5 of Schedule 5A and attached an of that schedule. It is plain that the Tribunal conducted its review on this basis: Reasons at [14], [17], [18], [29]-[31].
The Tribunal’s conclusions that cl 573.223(1A) did not apply and for that reason, “to meet cl 573.223, the applicant must give evidence in accordance with the requirements set out in Schedule 5A” were erroneous.
As the applicant was properly classified as an eligible higher degree student, the criteria upon which his visa application fell to be satisfied were those set out in cl 573.223(1A), not cl 573.223(2). It follows that the applicant did not need to give evidence in accordance with the financial capacity or other requirements set out in Schedule 5A.
I conclude that the Tribunal proceeded upon an erroneous principle in applying – via cl 573.223(2) – the financial capacity requirements set out in Schedule 5A, cl 5A508. The wrong criteria were applied.
The criteria in cl 573.223(1A) applied to his visa application. Those criteria were not applied by the delegate or the Tribunal upon review.
The applicant, being a person who qualified as an eligible higher degree student, was entitled to have his visa application assessed via the more streamlined pathway than that which applied under the more cumbersome regime prescribed by Schedule 5 A of the regulations.
It follows that the applicant’s visa application was not assessed correctly either by the delegate or upon review, by the Tribunal. I consider that the Tribunal’s decision is affected by jurisdictional error.
Conclusion
Rule 44.12(1) confers power on the court at the hearing of an application to show cause, either to grant relief by way of dismissal of the proceeding or to adjourn the proceeding for a final hearing or otherwise to make final orders in relation to the claims for relief.
Sub-division 573.223.22 concerns the subject, Criteria to be satisfied at time of decision. The applicant’s claim was assessed by the Tribunal upon the wrong criteria. Whether the applicant would satisfy the corresponding financial requirements of cl 573.223(1A)(c) has not been considered. Having an entitlement to be assessed upon the criteria prescribed by para 573.223(1A), it remained for the applicant to satisfy those criteria. The Minister would still need to be satisfied that, while the applicant held a student visa, he would have sufficient funds to meet the certain costs and expenses described in sub-paras 573.223(1A)(c)(i)-(ii).
The applicant has thus far failed to give evidence that he had access to funds sufficient for the ensuing twelve months of his MBA coursework. I note the applicant’s course of study was to be completed by 31 July 2017. I also note his evidence as to that study.
A question was raised by counsel for the Minister whether there is utility in the grant of prerogative relief in all the circumstances: Stead v State Government Insurance Commission (1986) 161 CLR 141; BJN16 v Minister for Immigration & Anor (No.2) [2017] FCCA 1512, [97]-[102]. It was submitted that the court was entitled to take into account both that the applicant’s MBA course (in accordance with his second CoE) was to be completed by 31 July 2017 and that the applicant has conceded an inability to meet the financial capacity to meet the requirements of cl 5A508. However, the Tribunal is required to consider the matter on the available and relevant material that is before it at the time of the hearing of the application for review: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, [36] (Besanko J) citing Drake v Minister for Immigration and Ethnic Affairs[1979] 2 ALD 60; (1979) 24 ALR 577 (Full Court); on the remittal [1979] 2 ALD 634 (Brennan J); Bushell v Repatriation Commission(1992) 175 CLR 408 (Brennan J); Shi v Migration Agents Registration Authority(2008) 235 CLR 286 at [98]-[99] (Hayne and Heydon JJ); at [140][142] (Kiefel J).
In BMB16, Besanko J held at [51] that the Tribunal, as an administrative decision-maker under the Act formed a part of an administrative process and was given the power to review decisions under Parts 5 and 7 of the Act. His Honour observed that the Tribunal’s role, including its review function both under the Act and more generally, was well-established and that it was required “to make the correct and preferable decision on the information before the Tribunal”: see also Charlesworth J at [77]-[88].
It will also remain for consideration whether the grant of relief is constrained by any relevant discretionary considerations: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, [95]-[100]. Those are matters upon which the parties should be entitled to make further submissions.
The applicant has raised an arguable case for relief. The show cause application should be adjourned for a final hearing.
I certify that the preceding one-hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 3 November 2017
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