YOUSAF v Minister for Immigration

[2015] FCCA 1802

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUSAF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1802

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – whether applicant demonstrated funds from an acceptable source – not so demonstrated – no jurisdictional error – application dismissed.

Legislation:  

Migration Regulations 1994 (Cth), Schedule 2, cl.572.223; Schedule 5, cll.5A405(1)(a), 5A405(2)

Applicant: AQUEEL YOUSAF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 1129 of 2014

Judgment of: Judge Jarrett

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Brisbane

Delivered on: 9 April 2015

REPRESENTATION

Counsel for the Applicant: Mr Travers

Solicitors for the Applicant: Chand Lawyers

Solicitor for the First Respondent: Ms Given

Solicitors for the Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 27 March 2015 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 1129 of 2014

AQUEEL YOUSAF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for judicial review of a decision of a migration review tribunal made on 14 November, 2014. The tribunal determined to affirm the decision of a delegate of the first respondent made on 26 March, 2014 to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

2. The grounds of review are set out in an amended application filed on 27 March, 2015. In the amended application, the applicant says the tribunal fell into jurisdictional error by acting unreasonably and failing to afford the applicant procedural fairness in the review of the application.

3. The particulars of that ground are said to be that the tribunal failed to inform the applicant that there was any deficiency in the financial documents provided by him in support of his application so as to allow the applicant to address the deficiency.

4. It is also asserted, in a separate ground, that the tribunal fell into jurisdictional error by ignoring a relevant matter.  The particulars of that ground are that the tribunal did not properly analyse various documents relating to the finance provided by the applicant to the tribunal.  It is said that the tribunal did not take into account, or consider, funds in the applicant’s account and funds held by the applicant’s spouse.

5. The application for the visa needed to satisfy the relevant criteria prescribed for the grant of the visa for which the applicant applied.  Some of those criteria were found in Schedule 2 of the Migration Regulations 1994 and, in this particular case, clause 572.223.

6. That clause, by derivation, refers to clause 5A405 in schedule 5 to the Migration Regulations and the combined effect of those clauses requires a visa applicant to provide evidence of certain matters to the Minister, or the tribunal on a review.

7. One of the matters in respect of which the tribunal must receive evidence from the applicant relates to financial resources. The applicant must have funds from an acceptable source in an amount equal to or exceeding the amount assessed by the tribunal or the Minister for the purposes of cl.5A405(1)(a). Those costs cover expenses like course fees and living expenses.

8. Here, the tribunal made an assessment of how much the applicant needed to provide.  No dispute is taken with the amount so assessed by the tribunal.

9. The applicant asserts that he provided evidence to the tribunal in accordance with the regulations so that the tribunal ought to have been satisfied that the applicant had access to funds from an acceptable source as required by cl.5A405.

10. The funds to which he had access were a combination of a deposit held by him and some deposits held by his wife.  I accept, for the purposes of this application, that those amounts when combined were sufficient to meet the amount determined by the tribunal for the purposes of 5A405(1)(a).

11. The difficulty for the applicant before the tribunal lay in the definition of “funds from an acceptable source.” That definition, found in cl.5A405(2) provides that funds from an acceptable source means one or more of the following:

    a)a money deposit held by an acceptable individual;

    b)a money deposit that an acceptable individual has held for at least the three months immediately before the application;

    c)financial support from a number of therein specified sources;

    d)a loan from a financial institution that is made to and held in the name of an acceptable individual; and

    e)a loan from the Government of the applicant’s home country.

12. An acceptable individual is also defined in 5A405(2) and includes the applicant or the applicant’s spouse and so the money deposits here, held by the applicant and the applicant’s spouse, come within the definition of funds from an acceptable source.

13. There seems to be no dispute between the parties that the definition that was applicable in this case, required those money deposits to have been held for at least the three months immediately before the date of the application for the visa, and that, on the facts of this case, those deposits were not so held.

14. During the course of the hearing of this application I raised with counsel for the applicant and the solicitor for the respondent an argument about the way in which cl.572.223 and cl.5A405 ought to properly be construed and whether the requirements set out in 5A405 are simply requirements to provide evidence and having provided evidence, the requirements are met or whether cl.5A405 required something more. Did it require the applicant to provide evidence that is acceptable to the Minister or upon which the Minister determines to act, for example.

15. The point in this case is moot and need not be decided because, on any view of it, the evidence provided by the applicant did not meet the requirements of cl.5A405. That is because the evidence did not demonstrate that the relevant deposits had been held for the relevant period of time.

16. The applicant’s argument about procedural fairness, as elucidated in the amended application and the written submissions that have been filed on his behalf, recognise that point because it is said that the tribunal failed in its duty to provide procedural fairness to the applicant because it did not raise that issue with him.

17. It is said that in the particular circumstances of this case, the tribunal was obliged to raise with the applicant the fact that it did not consider that the evidence that he had provided about his funds was insufficient.  The failure of the tribunal to raise that with him, it is said, was a breach or denial of the procedural fairness to which he was otherwise entitled.

18. In my view, that argument must fail for these reasons.  First, it is clearly the case that the applicant, at all times, was told about the nature of the evidence that he needed to give to the tribunal.  The delegate’s decision made it clear that the evidence that he provided to the delegate was insufficient.  It is not the tribunal’s task to tell the applicant what it is that the applicant must or must not place before the tribunal. 

19. Second, the tribunal, in its hearing invitation informed the applicant in writing of what he needed to provide to the tribunal.  There was a warning in the hearing invitation that he may have to provide details about the time for which the relevant deposits were held.  The issue was not new.

20. Third, that the tribunal might have raised something concerning the health declaration or health requirements with the applicant does not mean that the applicant could comfortably expect that the rest of his application would be accepted by the tribunal.  On that point, there is no direct evidence before me that suggests that the tribunal in fact made the inquiries about the health matters that is suggested were made.

21. There is a letter from the applicant’s solicitor, or migration agent, to the tribunal on the day of the hearing which, on one view of it, might lead to the inference that the issue dealt with in that letter was raised by the tribunal but there may be other explanations for that.  It may be that that was a view that the migration agent came to, him or herself,  having heard the exchanges that took place between the tribunal and the applicant.  One does not know.  There is no evidence from the immigration agent and there is no transcript.

22. Certainly the applicant, in his affidavit, filed when this application was commenced on 12 December, 2014 does not say that by reason of something that the tribunal had raised with him concerning his health matters, he caused certain things to be done.  He does not say that because only those medical matters were raised with him, he thought that the requirements relating to financial matters were met.

23. Moreover, to the extent that it is now suggested that had the tribunal raised those things with the applicant at the tribunal hearing he might have taken other steps to ensure that he met the financial capacity requirements, I reject that argument.  The applicant swears, in paragraph 16 of his affidavit:

    He did not raise any particular objection to the money being held in an account for three months because if he did I would have provided adequate explanation.

24. Whether the relevant money deposits had been held for three months or not, was a black and white matter.  They had either been held for three months or they had not. It was not a matter which called for explanation.  The suggestion now that the applicant might have gone away and used the money deposits to secure a loan and thereby provide further evidence of funds from a different acceptable source, namely a loan from a bank or a financial institution, is not something that is supported by the applicant’s own evidence.

25. In all of those circumstances it is my view that there has been no denial of procedural fairness to the applicant in these proceedings.

26. To the extent that it is suggested that the tribunal did not properly analyse various documentary evidence relating to the finance provided by the applicant, in my view the tribunal did exactly that.  It analysed the various documents provided by the applicant but irrespective of how the tribunal analysed that documentary evidence, the relevant criteria could never have been satisfied because the relevant deposits had not been held for the requisite period of time.

27. For all of those reasons, the amended application, filed on 27 March 2015, must be dismissed.  Order that the applicant pay the first respondent’s costs of an incidental to the application fixed in the sum of $5800.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  6 July 2015