Kapoor v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 597

Financial capacity

Provide evidence of funds to support yourself and all family unit members during the first 12 months of your proposed study and stay in Australia, or during your entire proposed study and stay in Australia if it is less than 12 months.

In order to meet expenses for course fees, living costs, school costs and travel costs, you need to demonstrate that you have access to $20,721.

Evidence of financial capacity includes:

• money deposit with a financial institution

• loan with a financial institution

• government loans

• scholarship or financial support.

Evidence of annual income of the primary applicant's spouse or parents can also be used to show financial capacity. The evidence of annual income must be provided in the form of official government documentation, such as a tax assessment and must have been issued in the 12 months immediately before the application is made.

• For an individual applicant, evidence of annual income of $60,000

• For an application that includes family members, evidence of annual income of $70,000

The funds shown in the visa application must be available for use to financially support you and any accompanying family members during your stay in Australia. If the funds are held in an account owned by another person, you should provide a signed letter from that person stating that the money is released to you to spend on your studies. You should also provide a copy of identification for that person showing their full name and signature, such as a passport or national identity card.

1. In response, the applicant's representative advised that the "applicant's bother [was] willing to sponsor [the applicant] for his studies, living and return costs" and provided additional supporting documents to the Department (CB 40-44).
2. On 8 March 2017, a delegate of the first respondent (the "Minister") refused to grant the applicant the visa (CB 50-52). The delegate found that the applicant did not meet cl 500.214(3) in Schedule 2 of the Migration Regulations 1994 (Cth) (the "Regulations"). That is, the delegate was not satisfied that the applicant had provided adequate evidence of his financial capacity (CB 52).
3. On 27 March 2017, the applicant applied for review of the delegate's decision by the Tribunal (CB 53-54). In his review application, the applicant again provided details of his representative and asked that all correspondence be sent to that representative (CB 54).
4. On 9 August 2018, the Tribunal invited the applicant (via email and through his representative) to attend a hearing before it on 6 September 2018 (CB 60-64).
5. The Tribunal's invitation letter also asked the applicant to provide the following information to it ahead of the hearing (CB 63):

In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

1. A copy of your current Confirmation of Enrolment (CoE) or other document/s that show that you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

3. Either:

• Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.

OR

• Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

1. In response, the applicant provided a completed "response to hearing invitation form" and a variety of additional documents (CB 69-94). In relation to "financial capacity", the applicant provided the following documents:

(a) an ICICI Bank Statement for an account held by the applicant (CB 74);

(b) an affidavit deposed by the applicant's parents which stated that they had "sufficient funds and [would] pay his tuition, living and misc. [e]xpenses" (CB 75);

(c) Indian income tax return verification forms for the applicant's parents for the 2018-2019 financial year (CB 81-82);

(d) a statement of account for the period from 1 April 2018 to 24 August 2018 from the Punjab and Sind Bank for an account in the applicant's mother's name (CB 83-84); and

(e) a certificate relating to the applicant's parents' investment accounts (showing funds invested in a "5 yr MIS scheme") (CB 85).

1. On 6 September 2018, the applicant appeared at the Tribunal hearing to give evidence and present arguments in support of his review application (CB 95-98). The applicant was assisted at that hearing by his representative (CB 95).
2. At the end of that hearing (on 6 September 2018), the Tribunal made an oral decision (CB 103). By that decision, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa.
3. On 26 September 2018, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 107-110). A copy of those written reasons was provided to the applicant (through his representative) on 27 September 2018 (CB 111-113).
4. On 3 October 2018, the applicant applied to this Court for judicial review of the Tribunal's decision (CB 114-119). The applicant provided an affidavit with that application (annexing a copy of the Tribunal's written reasons for its decision) (CB 120-126).

1. The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal's decision is four pages long and spans 21 paragraphs (CB 107-110).
3. The Tribunal began by explaining that the matter before it related to an application for review of a decision made by a delegate of the Minister (on 8 March 2017) refusing to grant the applicant the visa. The Tribunal noted that the delegate had refused the visa because they had determined that the applicant did not satisfy the requirements set out in cl 500.214 in Schedule 2 of the Regulations. The Tribunal further noted that the applicant had appeared at a hearing before the Tribunal to give evidence and present arguments and was assisted at that hearing by his representative. The Tribunal confirmed that it had made an oral decision at that hearing (on 6 September 2018) and explained that this was a record of the reasons provided at that hearing (at [1]-[4]).
4. The Tribunal identified that the issue before it was whether the applicant had "genuine access to funds" and set out the additional documents provided by the applicant (through his representative) - noting that the applicant had confirmed that this was "the sum of the evidence he [had] to tender... in support of [his] application" (at [5]-[8]).
5. The Tribunal outlined that cl 500.214 in Schedule 2 of the Regulations required the applicant to meet certain financial requirements and explained that the relevant legislative instrument (Migration (IMMI 18/010: Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2018 ("IMMI 18/010")) set out the requirements for providing evidence of financial capacity. The Tribunal noted that the applicant could establish that he could meet the requirements of cl 500.214 in Schedule 2 of the Regulations by providing evidence (in an acceptable form) that his parents, spouse or de facto partner had an annual income of at least $60,000 in the 12 months immediately prior to applying for the visa or he could demonstrate that he had access to sufficient funds to meet travel expenses, living costs and course fees (at [9]-[12]).
6. The Tribunal explained that, because the applicant's intended course extended beyond 12 months, the Tribunal had calculated the relevant living costs for the first 12 months (in accordance with IMMI 18/010) to be $20,290. The Tribunal noted that it also needed to include remaining course fees of $5,500 and the cost of a one way return trip to India of $900, bringing the total required for the applicant to meet the financial capacity requirement to $26,690. The Tribunal explained that the applicant did not dispute this amount during the course of the Tribunal hearing (at [13]-[14]).
7. The Tribunal acknowledged that the applicant had provided a variety of documents and financial information and noted that the Tribunal had explained to the applicant (at the hearing) that the income tax returns relating to his parents were not applicable as they were not from the 12 months prior to the date of his visa application and, even if they were within the requisite time period, "[fell] far short of the $60,000" requirement stipulated in the relevant legislative instrument. The Tribunal noted that it had also considered the personal access to funds by the applicant and had determined that, according to foreign currency exchange rates at that time, the applicant had access to $6,100 (which also fell well short of the required $26,690) (at [15]-[17]).
8. The Tribunal further explained that it was required to be satisfied that the applicant had genuine access to the funds and noted that the applicant's evidence given in relation to financial capacity was either not applicable (in the case of the applicant's parents' personal income) or significantly below the amount required to meet the legislative requirements (in relation to his own funds) (at [18]).
9. Overall, the Tribunal was not satisfied that the applicant met cl 500.214 in Schedule 2 of the Regulations. Accordingly, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (at [19]-[21]).

1. The application for judicial review (filed by the applicant on 3 October 2018) contains three "grounds of review", as follows (without alteration):

1. AAT didn't use their independent power to assess the case.

2. The evidence were not looked not been searched.

1. The case wast referred to the Migration Act Student Visa Subclass 500.211. The member was aware of the case history. That there was enough money in the account. Had money, bank statement letters from Australian brother, and overseas parents. have completed my studies, continuing to study. Never breached any student visa condition that the course was already paid. Was continued with the course.

1. The applicant also filed an affidavit in support of that judicial review application (affirmed and filed on 3 October 2018). That affidavit annexed a copy of the Tribunal's decision.
2. On 27 May 2020, procedural orders were made by Registrar Carlton of the then Federal Circuit Court of Australia giving the applicant an opportunity to file an amended application, a supplementary court book, written submissions and any affidavit evidence.
3. On 1 July 2024, this Court vacated some of those orders and made further programming orders requiring that the "matter be listed for a final hearing on a date to be advised".
4. The parties were also notified (on that same date and via email) that the matter had been listed for a final hearing before the Court (by video link) on 7 November 2024.
5. On 4 November 2024, Ms Kate Heremaia from Mills Oakley (solicitors for the Minister) contacted the Court to advise that, despite orders made by the Court requiring the Minister to file and serve submissions 14 days prior to the hearing (that is, by 24 October 2024), "due an administrative oversight, [the Minister] regrettably did not file and serve submissions until [that day], 4 November 2024".
6. The applicant appeared at the first hearing of this matter (on 7 November 2024) by video link. Mr Julian Pinder from Mills Oakley ("Mr Pinder") also appeared at that hearing by video link on behalf of the Minister.
7. At that first hearing before this Court (on 7 November 2024), the Court expressed concern that the Minister had failed to adhere to the Court's orders and timeframes which were designed to ensure basic procedural fairness guarantees. Noting that the applicant had effectively only been given three days to review the Minister's submissions (due to the late filing of the document by the Minister), the Court was not satisfied that the applicant had been afforded procedural fairness or that he would have had sufficient time to review the Minister's submissions. In the circumstances, the Court determined that it was in the interests of the administration of justice to adjourn the hearing and give the applicant a further opportunity to file any amended application, written submissions and any additional evidence. Orders were made by the Court in that regard and the hearing of the matter was adjourned to 23 January 2025.
8. On 3 December 2024, the applicant filed written submissions in accordance with the orders made by the Court (on 7 November 2024).
9. On 19 December 2024, the Minister filed further written submissions.
10. On 20 January 2025, the applicant filed further written submissions.
11. The matter came before the Court for a second hearing on 23 January 2025. The applicant appeared at that hearing by telephone, indicating that he was having some difficulties connecting by video. The Court asked him if he was willing to proceed by telephone and the applicant responded that he was "perfectly fine with that". Mr Pinder appeared by video link on behalf of the Minister. The Court asked the applicant to confirm that he had received copies of the Court Book and both sets of the Minister's written submissions.
12. The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 3 October 2018 (the affidavit being taken as read and in evidence at the second hearing before this Court on 23 January 2025), a Court Book numbering 126 pages (marked as Exhibit 1 at the second hearing of this matter), written submissions filed on behalf of the Minister on 4 November 2024, written submissions filed by the applicant on 3 December 2024, further written submissions filed on behalf of the Minister on 19 December 2024 and further written submissions filed on behalf of the applicant on 20 January 2025.
13. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
14. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. Against this background, the applicant told the Court that he had "a few main concerns with the Tribunal's decision", as follows:

(a) he was concerned that the Tribunal "clearly did not accept the funds given by [his] parents and they said that [he did] not have genuine access to those funds or personal access";

(b) genuine access means that the funds are genuine and they have not been restricted with that access by the account holder. The account holders are his parents and there is a provision in the legislative instrument that parents can sponsor their children if the funds are available and, to prove genuine access, there are bank statements showing where the income is coming from;

(c) he submitted various bank statements, proof of income and income tax returns from the last three to six months and those documents prove genuine access; and

(d) there is a provision in the legislative instrument that says parents are eligible to sponsor their children. His parents provided an affidavit (being a notarised document authorised by the government of India) and the Tribunal "totally ignored that affidavit".

1. The applicant's concerns with the Tribunal's decision (as raised at the second hearing) largely mirror the concerns raised by the applicant in both sets of his written submissions filed with this Court. The applicant also raised some concerns with the delegate's decision (also included in his written submissions).
2. Unfortunately, after approximately 15 minutes from the commencement of the second hearing, the Court's IT system experienced technical difficulties which made it impossible to continue with the hearing. Regrettably, the matter had to be adjourned (again) to 28 January 2025 (by video link).
3. The matter came before the Court for a third hearing on 28 January 2025. The applicant appeared at that third hearing by video link. Mr Pinder again appeared by video link on behalf of the Minister.
4. The Court again asked the applicant (at the third hearing) if there were any further concerns that he had with the Tribunal's decision or the approach the Tribunal took in his matter that he wished to raise with the Court.
5. The applicant told the Court that he had submitted documents relating to his parents' income source (including their income tax returns) and explained that the funds were in a "monthly income scheme" which could be accessed anytime. The applicant stressed that there was "no problem" with him accessing the funds whenever he needed to do so. The applicant again mentioned the affidavit signed by his parents and explained that there were no false or misleading documents given to the Tribunal. He also stressed that his parents had confirmed that they had the money and that it could be used by the applicant at any time.
6. The applicant's concerns (raised at both the second and third hearings before this Court), to the extent that they point to any issue of jurisdictional error on the part of the Tribunal, will be addressed by the Court with the applicant's grounds of review below.

1. As outlined above, the Tribunal's decision in this matter centres around whether the applicant satisfied the requirements set out in cl 500.214 in Schedule 2 of the Regulations. At the time of the Tribunal's decision, those provisions relevantly provided as follows:

(1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

(2) While the applicant holds the visa, sufficient funds will be available to meet:

(a) the costs and expenses of the applicant during the applicant's intended stay in Australia; and

(b) the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.

(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

Note: For arrangements for the use of a computer program, see section 495A of the Act.

(4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

1. In its earlier decision in Kibogong & Anor v Minister for Immigration & Anor [2020] FCCA 3055 ("Kibogong") (at [23]-[38]), this Court explained that these Regulations essentially envisage a two-stage inquiry. The analysis provided in Kibogong applies equally here and is repeated below (with some minor amendments and additions).
2. First, the Tribunal must determine "the amount of funds" required by an applicant ("Stage One").
3. Second, the Tribunal must assess whether there is evidence, in a "prescribed form", that shows that the applicant has access to the amount required ("Stage Two").
4. It is apparent that in order for the decision-maker (here, the Tribunal) to determine whether an applicant has "genuine access to funds", the "amount of funds" must first be calculated. This is the focus of Stage One (that is, determining the "quantum of funds necessary").
5. What constitutes "sufficient funds" is determined by reference to cll 500.214(2) and 500.214(3) in Schedule 2 of the Regulations.
6. The relevant legislative instrument (in force at the time of the Tribunal's decision) for the purposes of cl 500.214(3) in Schedule 2 of the Regulations was IMMI 18/010. That instrument was made pursuant to cl 500.214(4) in Schedule 2 of the Regulations and required evidence of "financial capacity", as follows:

6 Subclass 500 (Student) visa - primary applicants

(1) For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

Note: For primary applicant, see section 4 of Part 1 of this instrument.

(a) is in the form specified in section 10; and

(b) demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

(i) travel expenses; and

(ii) the following living costs and expenses:

(A) if the primary applicant intends to stay in Australia for a period of 12 months or more - AUD20,290 (annual living costs); and

(B) if the primary applicant intends to stay in Australia for a period of less than 12 months - the pro rata equivalent of annual living costs, calculated as specified in section 11; and

(iii) the following course fees, minus any amount already paid:

(A) if the duration, or the remainder, of the primary applicant's period of study in Australia is less than 12 months - the fees for the course of study or the remaining components of the course of study; or

(B) If the duration, or the remainder, of the primary applicant's period of study in Australia is more than 12 months - course fees for the first 12 months of the period study in Australia; and

Note: The period of study is the period commencing:

(a) if the applicant's first course of study commenced after the date of application, on the first day of the first course of study; or

(b) if the applicant's first course of study commenced before the date of application, on the date of application,

and ending on the final day of the applicant's final course of study.

(c) demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:

(i) travel expenses; and

(ii) for each secondary applicant who intends to stay in Australia for a period of 12 months or more - the following costs (annual living costs):

(A) for a spouse or de facto partner - AUD7,100; and

(B) for a dependent child - AUD3,040; and

(iii) for each secondary applicant who intends to stay in Australia for a period of less than 12 months - the pro rata equivalent of annual living costs, calculated as specified in section 11; and

(iv) the following school fees for each school-age dependant:

(A) if the school-age dependant intends to stay in Australia for more than 12 months - AUD8000 (annual school costs); or

(B) if the school-age dependant intends to stay in Australia for less than 12 months - the pro rata equivalent of annual school costs, calculated as specified in section 11; or

(C) if the school-age dependant is enrolled in a course of study at a State or Territory government school where the fees have been waived, and the Primary Applicant is enrolled in a course as a doctoral degree student, a Foreign Affairs student, a Defence student or a Commonwealth sponsored student - nil.

Note: For secondary applicant, see section 4 of Part 1 of this instrument.

(3) The evidence of financial capacity:

(a) is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

(b) demonstrates that the primary applicant's parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:

(i) if there is no secondary applicant- at least AUD60,000; or

(ii) if there is a secondary applicant - at least AUD70,000.

1. Sections 6(2)(b)(ii) and 6(2)(c)(ii) in IMMI 18/010 detailed the amount that is required to meet cl 500.214(b) in Schedule 2 of the Regulations. Here, funds in the sum of $20,290 were required to cover the applicant's "annual living costs".
2. Clause 500.214(2) and IMMI 18/010 also required that the applicant demonstrate access to additional funds to meet travel expenses and course fees.
3. In order to meet ss 6(2)(b)(i) and (iii) and s 6(c)(i) in IMMI 18/010, the Tribunal must have sufficient information before it to determine "the sum of the travel costs and the course fees".
4. Once the quantum of funds is determined, then (and only then) will the Tribunal be able to move to Stage Two.
5. Here, the Tribunal determined the quantum of funds required as follows:
   1. As explained to the applicant in the course of the hearing, he may demonstrate that he has genuine access to sufficient funds to meet the cost and expenses of his intended stay in Australia by providing evidence in an acceptable form either that his parents, spouse or de facto partner had an annual personal income of at least $60,000 in the 12 months immediately before he applied for a Student visa.
   2. Alternatively, the applicant may establish that he could meet the financial capacity requirements of clause 500.214 by demonstrating that he has access to sufficient funds to meet firstly travel expenses, secondly, living costs and finally annual course fees. In the course of the hearing, these categories of costs were calculated as follows.
   3. As per IMMI 18/010, the applicant's annual living costs. Given that his intended course extends beyond 12 months therefore these costs were calculated for the first 12 months. It was agreed according to IMMI 18/010 that the applicant's annual living costs would be $20,290.
   4. His course fees for the first 12 months which were calculated in respect of his advanced diploma of business were 5,500, taking into account the $1,000 that he has already paid. His travel costs for a one way return trip to India was calculated to be approximately $900. In total, the amount the applicant needed to reach in order to satisfy the financial capacity requirement amounted $26,690. In the course of the hearing, the applicant did not dispute that was the amount of calculated in accordance with IMMI 010.
6. As outlined above, Stage Two requires that the Tribunal assess whether there is evidence before it (in a "prescribed form") to show that the applicant has access to the amount determined in Stage One.
7. IMMI 18/010 required that the evidence be "in the form specified". The "form specified" was defined in IMMI 18/010, as follows:

10 Evidence of financial capacity

The following forms of evidence of financial capacity are specified:

(a) money deposit with a financial institution;

(b) loan with a financial institution;

(c) government loans;

(d) scholarship or financial support.

1. In Stage Two the Tribunal must determine whether an applicant has provided evidence (in a form specified in s 10 of IMMI 18/010 set out above) of the funds calculated in Stage One. For example, if an applicant provides evidence in the form of a loan from a financial institution that equates to a sum in excess of the amount determined in the first part of the inquiry, then the second stage of the inquiry will be met.
2. In certain circumstances, there is "third stage/inquiry" which requires the Tribunal to determine whether the applicant has "genuine" access to the funds that are available (that is, the evidence that the applicant provides is evidence of funds that are "genuinely" available and "accessible" by the applicant). That is the case here and will discussed below.
3. All of these provisions will be discussed below (as they relate to the application before this Court and the concerns raised by the applicant).

1. AAT didn't use their independent power to assess the case.

1. In written submissions filed by the applicant in this Court on 3 December 2024, the applicant expanded on ground one, as follows (without alteration):

The AAT operates independently, reviewing cases based on law and evidence. With clear proofs and evidences submitted. However, in my case it was not, the decision didn't take into account the unique context of my financial proofs, specifically the combination of legal Affidavits and available funds.

1. The applicant again expanded on ground one in further written submissions filed in this Court on 20 January 2025, as follows (without alteration):
   1. In the **first decision**, visa applied on 25 November 2016, Immigration accepted that funds held in **[the applicant's mother's] account** (Mother of Applicant) ($10,291 AUD, CB 26) was accessible to the Applicant. - The decision record (CB 51-52) explicitly states: > "Taking into consideration the value of the available funds provided by the applicant $10,291 AUD was deemed accessible by the Applicant." (which was clearly on the name of [the applicant's mother]) Mother of an Applicant. (CB 26)
   2. This acceptance establishes a precedent that funds in parental accounts, supported by bank statements, affidavits, and declarations, satisfy the financial capacity was being accepted by immigration officer earlier.
2. To the extent that the applicant suggests that the Tribunal failed to assess his case or to properly undertake a review of his application, this fails at a factual level.
3. It is clear that the Tribunal considered the application and made an oral decision at the conclusion of the hearing before it (on 6 September 2018) (CB 103) and later produced a written statement of its decision and reasons (on 26 September 2018) (CB 107-110).
4. Insofar as the applicant takes any issue with the delegate's decision or argues that the Tribunal was bound to follow the same reasoning process or the decision made by the delegate in this matter, the Court disagrees for the reasons that follow.
5. It is well established that the duty of the Tribunal in matters of this sort is to conduct a de novo review of the case before it. In this regard, the Court notes the following comments made by the Federal Court in SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791 where (after referencing a number of provisions of the Act, particularly s 430 of the Act), Justice Mansfield stated:
   1. In my judgment, that constellation of provisions indicates that the Tribunal's function by its review was to determine the correct or preferable decision on the material before the Tribunal in relation to the application for a protection visa.
   2. That approach is consistent with the decisions of the Full Court in Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 in relation to a review of a decision of a delegate of the respondent to the Administrative Appeals Tribunal, in particular per Bowen CJ and Deane J at 589. It is also consistent with the discussion by the Full Court in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [68]- [72] in which the Court said that "the review is by way of re-hearing de novo".
   3. In a similar context, the High Court (Kitto, Taylor and Owen JJ) in Phillips v Commonwealth of Australia [1964] HCA 22; (1963) 110 CLR 347 at 350 said of an appeal under the Commonwealth Employees' Compensation Act 1930-1959 (Cth) in the nature of a re-hearing:

"What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it."

See also the discussion by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 620-621.

1. The "review" provided for under the Administrative Appeals Tribunal Act 1975 (Cth) has similarly been held to involve a review de novo: see Re Brindle; Ex parte FB & FA McMahon Pty Ltd [1992] FCA 203; (1992) 108 ALR 470; 48 FCR 111; Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554; Woss v Jacobsen [1985] FCA 185; (1985) 60 ALR 313.

1. The Court also notes comments made by the High Court in relation to a hearing de novo in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 ("Coal"). In that matter, the High Court stressed that "in the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing": Coal at [13]. Further, the High Court explained that "[a]ll the issues must be retried" and the "party succeeding below enjoys no advantage, and must, if he can win the case a second time": Coal at [119] (citing Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716).
2. As can be seen from the authorities outlined above, the Tribunal was not bound to follow the decision made by the delegate or the reasoning provided in the delegate's decision. Instead, the Tribunal was required to consider the matter afresh and make its own decision in relation to all of the issues raised.
3. The Tribunal did so here. No error arises in that regard.
4. To the extent that the applicant suggests that the Tribunal failed to consider the financial evidence provided by him, the Court again disagrees.
5. The Tribunal had regard to the evidence before it (including evidence in relation to financial capacity) and considered that evidence in detail. The Court notes that the Tribunal is not required to refer to every piece of evidence in its decision: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]. Further, a failure by the Tribunal to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [27] & [43].
6. No jurisdictional error arises in relation to ground one.
7. The Tribunal's consideration of the evidence before it will also be discussed further below (in relation to ground two).

2. The evidence were not looked not been searched.

1. In written submissions filed by the applicant in this Court on 3 December 2024, the applicant expanded on ground two, as follows (without alteration):

EXPLANATION: - the following relevant documents was provided during the application;

1. An ICICI bank account statement in applicant's name with a balance of approximately 315,000 INR ($6,100 AUD) (CB 74);
2. A Punjab and Sind Bank account statement in name of applicant's mother with a balance of 920,000 INR ($17000) (CB 83-84)
3. A certificate relating to applicant's parents' investment of a total of 600,000 INR ($11,600 AUD) in "5 yr MIS scheme" (CB 85)
4. An Affidavit or affirmation (used in legal proceedings or support for claim) by parents of Applicant ensuring to have enough funds to sponsor the applicant (both bank amount and MIS amount) to be used for applicants' tuition, living and misc. expenses. (CB 75)

Here, the applicant was required $26,690 to satisfy the financial capacity requirements. So, adding up the funds in applicants account, along with the parents' funds (supported by the legal affidavit submitted with ensures the access to the parent's funds to be used on all applicants' expenses) comes out to be ($6,100+ $17,000 + $11,600) $34,700 AUD which was way above the required amount ($26,690) to be satisfied. So, the claim made in the Tribunal's decision about applicant fail to fulfill the financial requirement for study visa is based on incorrect assessment of the applicant's financial evidence and circumstances.

1. The applicant again expanded on ground two in further written submissions filed in this Court on 20 January 2025, as follows (without alteration):
   1. During the **second submission** to the Tribunal on 6 September 2018 the Applicant submitted updated financial documents showing that:

- **[the applicant's parents] (parents)** collectively held over **$28,600 AUD** in their accounts (CB 84-85).

- This amount is supported by an affidavit (Certified by Govt On India) usually used in legal proceedings (CB 75), legally declaring the funds available for the Applicant's exclusive use.

1. The Tribunal neglected this evidence, failing to address the:

- Higher amount of funds in updated accounts.

- Legal validity of affidavits and their alignment with Migration Instrument IMMI 18/010.

1. The Applicant submits that this omission constitutes a lack of procedural fairness, as it disregarded compelling evidence of financial capacity.

1. Reading this ground of review as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392), the applicant is arguably claiming that the evidence he provided to the Tribunal satisfied cl 500.214 in Schedule 2 of the Regulations and s 6(2) of IMMI 18/010.
2. As correctly summarised by the Minister (in written submissions filed in this Court on 19 December 2024), the applicant claims that the combination of his funds (in the sum of $6,100 AUD), his parents' funds (in the sum of $17,000 AUD) and the money in his parents' investment accounts (in the sum of $11,600) was greater than the amount he required to meet the financial capacity requirement (being $26,290 AUD).
3. The Court notes that the Tribunal expressly referenced the evidence before it relevant to this issue (at [6] in its written reasons) as follows:

1. Just prior to today's hearing, the applicant provided through his migration agent several documents. These comprised of a COE for a diploma of business for the period 13 November 2017 to 11 November 2018. A second COE for an Advanced Diploma of Business for the period 7 January 2019 to 5 January 2020. Further documents in support of his application include: * A page of banking passport in respect of his parent's banking accounts * The front page of the income tax return for his mother, Mrs Savita Kapoor for the assessment year 2018 to 2019 * The front page of the Indian income tax return for his father, Babu Ram for the year 2018/19 * A certified page showing two MIS scheme accounts held across a five year term in the names of his parents for the combined sum of six lakh (three lakh each in separate accounts) - 600,000 INR. At today's exchange rate this sum is approximately $11,600 Australian * A further financial document with a single page bank statement from ICICI Bank for the applicant as account holder. It is a summary of accounts as on 27 August 2018 showing that the applicant holds in his Indian bank account the sum of 3.15 Lakh which is about 315,000 Rupees which equates approximately at today's rates at about $6,100 Australian.

• Further documents include a computer print-out of his mother's savings bank account at Punjab and Singh Bank. The print out is dated 24 August 2018 showing his mother has about 9.2 Indian Lakh which is 920,000 Indian Rupees approximately or about $17,000 Australian.

4. The Court also notes the applicant's reference to an affidavit provided by his parents (CB 75). That affidavit relevantly stated as follows (without alteration):

C) We are sponsoring our son Rohit Kapoor who will be studying from Australian National College Melbourne, Australia. We have sufficient funds and we will pay his tution, living and misc. Expenses.

That we have sufficient fundss and income from an acceptabel source that are sufficient to meet course fee, living expenses and misc. expenses for the remainder of applicant expected stay in Australia.

1. The Court notes that the Tribunal did not expressly reference the affidavit in its written reasons. However, as outlined above, the Tribunal was not required to refer to every piece of evidence before it.
2. In considering the other financial evidence before it, the Tribunal was concerned that the applicant did not have "personal access" to sufficient funds to meet or exceed the financial capacity requirement sum of $26,290.
3. As correctly submitted by the Minister, the affidavit provided by the applicant simply stated that the applicant's parents had the funds available and that the applicant's parents would meet the applicant's expenses. It did not, however, indicate that the applicant would himself have access to his parent's funds.
4. As outlined above, cl 500.214(1) in Schedule 2 of the Regulations, the applicant was required to have "genuine access to funds" of the specified kind. Further, s 6(2)(b) in IMMI 18/010 required that the evidence of financial capacity "demonstrate that the ... applicant ha[d] sufficient funds available to meet [his] costs and expenses".
5. In those circumstances, there was insufficient evidence before the Tribunal that the applicant had or would have genuine access to his parents' funds (both in their bank account or in their investments accounts, for which no maturity date was provided, nor any information in relation to how readily accessible those funds were in the applicant's parents' investment accounts). Further, the amount held by the applicant (personally) was insufficient to meet the financial capacity requirements.
6. The Court is satisfied that the Tribunal's findings were open to it on the evidence before it and that the Tribunal properly considered that evidence.
7. No jurisdictional error arises in relation to ground two.

1. Ground three provides as follows:
   1. The case wast referred to the Migration Act Student Visa Subclass 500.211. The member was aware of the case history. That there was enough money in the account. Had money, bank statement letters from Australian brother, and overseas parents. have completed my studies, continuing to study. Never breached any student visa condition that the course was already paid. Was continued with the course.
2. In written submissions filed by the applicant in this Court on 3 December 2024, the applicant expanded on ground two, as follows (without alteration):

While I respect the Tribunal's conclusion, but i believe the explanations are mentioned on all the three grounds given by the tribunal. However, the Affidavit is a legal document which should hold weight in verifying access to financial resources. Affidavits are generally accepted by immigration; this affidavit (CB 75) should have been adequate in confirming access to parents' funds (CB 83-85). Also, it has been claimed that the personal income of parents was below $60,000, despite the fact that income is a standard factor, it is not the sole indicator of financial capability, particularly when the funds are already available and set aside specifically for my education. Therefore, I believe the Tribunal decision may have been overly rigid, potentially applying income criteria in a way that failed to fully consider the Affidavits as legitimate financial document.

Also, I had shown serious commitments to my education, by securing funding and taking legal steps (like Affidavits) to ensure compliance with immigration requirements.

At the end, I respectfully request the court to set aside the Tribunal's decision and remit the matter for reconsideration, ensuring a fair review in the line with legal standards and procedural fairness. Alternatively, if his honor finds appropriate, I request to make necessary orders to correct any legal or procedural errors that may have affected the outcome of my case.

1. The applicant again expanded on ground two in further written submissions filed in this Court on 20 January 2025, as follows (without alteration):
   1. The Tribunal's inconsistent treatment of financial evidence undermines procedural fairness:

- In the **first decision**, $10,291 AUD in parental funds was accepted without question referred to (CB 51-52).

- In the **second decision**, despite the higher amount and stronger documentation (CB 84-85), the funds were improperly disregarded.

1. The Applicant emphasizes that the financial checklist allows funds in another person's account if:

- The sponsor provides a signed declaration confirming the funds are accessible.

- The sponsor's identity is verified through documentation, such as an affidavit.

8. The evidence provided in CB 84-85 fully satisfies these requirements.

1. To the extent that the applicant raises concerns with the Tribunal's decision being inconsistent with the decision made by the delegate in his matter, the Court notes that, as outlined above (in relation to ground one), the Tribunal is required to conduct a review of the applicant's case de novo and is not required to ensure its decision is "consistent" with the decision made by the delegate.
2. Insofar as the applicant again references the affidavit evidence, the Court has also addressed this issue in relation to ground two (above).
3. To the extent that the applicant raises concerns about the assessment of the applicant's parents' income being below $60,000 AUD (noting his argument that income is not the sole indicator of financial capacity), the Court notes that the Tribunal specifically stated as much in its written reasons.
4. Relevantly, the Tribunal stated as follows (emphasis added):
   1. Further, the Tribunal must also be satisfied that the applicant will have genuine access to the relevant kind of funds. In the present application, the Minister has required the applicant to give evidence of financial capacity in accordance with clause 500.214(3). The requirements for evidence of financial capacity are set out in the current legislative instrument which is IMMI 18/010.
   2. As explained to the applicant in the course of the hearing, he may demonstrate that he has genuine access to sufficient funds to meet the cost and expenses of his intended stay in Australia by providing evidence in an acceptable form either that his parents, spouse or de facto partner had an annual personal income of at least $60,000 in the 12 months immediately before he applied for a Student visa.
   3. Alternatively, the applicant may establish that he could meet the financial capacity requirements of clause 500.214 by demonstrating that he has access to sufficient funds to meet firstly travel expenses, secondly, living costs and finally annual course fees. In the course of the hearing, these categories of costs were calculated as follows.
5. Unfortunately, having had regard to all of the evidence before it, the Tribunal was not satisfied that the applicant satisfied either requirement.
6. In particular, the Tribunal stated:
   1. To meet clause 500.214(1), the Tribunal must also be satisfied that the applicant will have genuine access to the funds referred above. However, given that the applicant's evidence in respect of financial capacity is either not applicable (in the case of his parents' personal income) or significantly insufficient to meet the legislative requirements, the Tribunal does not require consideration of the issue of genuine access.
7. As set out above, cl 500.214(4) in Schedule 2 of the Regulations provided that the Minister could, "by legislative instrument, specify requirements" for the provision of evidence of financial capacity. As correctly submitted by the Minister, IMMI 18/010 was such a legislative instrument and the Tribunal was thus correct to have regard to it.
8. The Court is satisfied that the Tribunal properly had regard to the relevant legislative provisions and instrument applicable in this matter.
9. No jurisdictional error arises in relation to ground three.

1. The application for judicial review (filed by the applicant on 3 October 2018) and the applicant's written submissions (filed in this Court on 3 December 2024 and 20 January 2025) have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
2. The application is, accordingly, dismissed.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.