Nguyen v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 453

1. The name of the second respondent be changed to "Administrative Review Tribunal".
2. The application is dismissed.
3. The applicants are to pay the first respondent's costs, fixed in the amount of $4,100.00.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration, (as the Minister was then called) ("the delegate"), to refuse to grant the applicants a Student (Temporary) (Class TU) (subclass 500) visa.

Application for a visa and the delegate's decision

1. The applicants are citizens of Vietnam. On 24 July 2017, the first applicant ("the applicant") applied for a Student (Temporary) (Class TU) (subclass 500) visa ("the visa") (Court Book ("CB") 1-20) to study an Advanced Diploma of Hospitality at the Australian National Institute of Business & Technology with a course completion date of 22 September 2017. The second applicant, the applicant's husband, was included in the visa application as a member of the applicant's family unit. In the visa application, the applicant confirmed that she had access to sufficient funds to support herself for the total period of stay in Australia. The applicant stated her sister in Vietnam would be willing to support her financially if requested (CB 11). The applicant did not upload any financial documents with the visa application.
2. On 7 September 2017, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant had genuine access to meet the financial requirements in cl 500.214(3) of the Migration Regulations 1994 (Cth) ("the Regulations") and therefore did not meet the requirements of cl 500.214 (CB 44-47). Accordingly, the delegate found that the second applicant did not meet the requirement of cl 500.311 of the Regulations as he was not a member of the family unit of a person who holds a student visa (CB 46).

Application for review to the Administrative Appeals Tribunal

1. On 9 September 2017, the applicants applied to the Tribunal for a review of the delegate's decision (CB 48-49). The applicants attached a personal statement dated 8 September 2017 by the applicant which stated that she did not provide financial evidence at the time of lodging the visa application because by the time she lodged her visa application she only had two months left to complete her two-year course. The applicant said she had been told that she could wait until a letter of request was sent to her to provide further information and therefore, she did not provide financial evidence as requested by the visa system and simply declared her sister as her financial support. The applicant provided a screenshot of her bank statement with ANZ showing a balance of $6,241.28 which the applicant said in the personal statement she believed was enough to cover the remaining living and travel costs of her and her husband (CB 51-52). The applicant also provided a Confirmation of Enrolment ("COE") for an Advanced Diploma of Hospitality at the Australian National Institute of Business & Technology with a course completion date of 22 September 2017 (CB 53).
2. On 12 September 2017, the Tribunal acknowledged receipt of the application and advised the applicants that should they wish to provide material or written arguments for consideration that they should do so as soon as possible (CB 63-64).
3. On 13 September 2017, the applicants sent an email to the Tribunal stating they "had provided all documentation requested by the system, except the financial evidence that we thought would not be asked in our case" (CB 69).
4. On 18 December 2018, the Tribunal invited the applicants to attend a hearing on 17 January 2019 to give evidence and present arguments relating to the issues arising in their case (CB 72-78). The Tribunal requested the applicants to provide at least seven days before the hearing (CB 73):

(a) a copy of the current COE to show that the applicant is currently enrolled in a course of study as defined in cl 500.111 of Schedule 2 of the Regulations; and

(b) either:

(i) documents that demonstrate a genuine access to sufficient funds to meet costs and expenses during the intended stay in Australia, as well as the costs and expenses of each member of the family unit who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period and evidence that the funds are of a kind specified in the relevant legislative instrument; or

(ii) evidence of the annual income of their parents/spouse/de facto partner.

1. On 2 January 2019, the applicants provided the Tribunal with the following documents regarding genuine access to sufficient funds (CB 86-122):

(a) Copies of four term deposits with a Vietnamese bank in the name of the applicant's brother-in-law (CB 102-105);

(b) A Student Visa Financial Support Statement dated 9 January 2018 signed by the applicant's brother-in-law (CB 119).

1. The applicant also provided a COE for an Advanced Diploma of Leadership and Management at St. Peters Institute with a course start date of 7 January 2019 and a completion date of 27 September 2020 (CB 120) and a statement of purpose (CB 121-122). In the statement of purpose, the applicant stated that they thought that as there were about two months left [to finish the Advanced Diploma of Hospitality they did not need to submit financial documents.
2. On 17 January 2019, the applicants attended the hearing (CB 124-125). The applicants were assisted by an interpreter in the Vietnamese and English languages (CB 124). At the hearing, the Tribunal gave an oral statement of reasons for its decision affirming the delegate's decision (CB 126; 152).
3. On 29 January 2019, the Tribunal provided the applicants with written reasons for its decision ("Decision") (CB 161-165)

1. The Tribunal identified that the issue on review is whether the applicant has genuine access to funds ([6]).
2. The Tribunal stated the applicant had provided the following documents relevant to that issue: a current COE for an Advanced Diploma of Leadership and Management for the period of 7 January 2019 to 27 September 2020; copies of four statements in respect of four term deposits held in the name of the applicant's brother-in-law from a Vietnam bank; and a statement of financial support dated 9 January 2018 by the applicant's brother-in-law in respect of both applicants, guaranteeing the sum of AU$97,000 for the applicant to stay and study in Australia ([6]-[7]).
3. At the hearing the Tribunal asked the applicant to confirm whether the four term deposits are in the name of her brother-in-law and are for the extensive [sic] use of the applicant's stay and study in Australia. The applicant replied that was the case ([9]). The Court has assumed that the use of the word 'extensive' was a typographical error by the Tribunal and that the Tribunal intended to use the word 'exclusive'.
4. The Tribunal explained to the applicant that to meet the financial capacity requirements in the Regulations, the applicant must:

(a) show proof that they meet the financial amount calculated to be the total costs of study and stay in Australia ([10]); and

(b) satisfy the Tribunal that they have genuine access to those funds.

1. The Tribunal said it calculated the total cost was $37,790 for their stay and study in Australia ([11]). The Tribunal said that it calculated that the total sum of the four term deposits amounts to approximately AU$102,355 (based on the exchange rate at the time of the Tribunal's decision) ([12]). The Tribunal said it was therefore satisfied that the amount held in the term deposits was sufficient to meet the applicants' stay and study financial expenses in Australia ([13]).
2. The Tribunal then referred to the criteria in cl 500.214 of the Regulations, which the Tribunal said, required the applicant to satisfy that:

(a) Whilst they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia as well as the costs and expense of any members of their family unit who will be in Australia [15];

(b) In accordance with cl 500.214(3), if the applicant is required to do so by the Minister, give evidence of financial capacity that satisfies the requirements set out in a legislative instrument ([14]). The Tribunal identified the legislative instrument as IME18/010 [sic] ([16]) and that cl 10 of IME18/010 [sic] requires that evidence be in the form of a money deposit with a financial institution or a loan from a finance institution or government loan or scholarship or financial support ([18]);

(c) The applicant will have genuine access to the relevant kind of funds ([15]).

1. The Tribunal stated that the applicant had sought to establish that she meets the requirements of cl 500.214 by demonstrating that she has access to sufficient funds to meet travel expenses, living costs and annual course fees ([17]).
2. The Tribunal stated the applicant had provided evidence of funds held in the name of her brother-in-law in a bank in Vietnam and a signed statement by her brother-in-law in the form of a statement of financial support ([19]).
3. The Tribunal accepted that the four funds were held in the name of the applicant's brother-in-law and that the combined total of the four term deposits exceeded the amount required by the applicants for their stay and study in Australia ([20]).
4. However, the Tribunal went on to say that to meet cl 500.214 of the Regulations, it must also be satisfied that the applicant will have genuine access to the funds in question ([20]).
5. The Tribunal invited the applicant to provide evidence of her genuine access to the funds. The applicant's evidence was that "the moneys are delivered to her in cash by visitors from Vietnam". The Tribunal said that the applicant stated that the moneys "remain in cash, and she pays her expenses largely in cash currency" ([21]).
6. The Tribunal said it invited the applicant to provide evidence of regular transfer of moneys from the brother-in-law's accounts to her and evidence of payments of her living and study expenses in Australia. The Tribunal said the applicant was unable to provide such evidence ([22]).
7. The Tribunal concluded that, on the basis above it was not satisfied that the applicant met

cl 500.214(3). Accordingly, the Tribunal was not satisfied that the applicant met cl 500.214 of the Regulations ([23]). 8. The Tribunal affirmed the delegate's decision to not grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa ([25]).

1. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 11 February 2019. The applicants also filed an affidavit by the first applicant affirmed on 7 February 2019. The affidavit outlines the background to the application and why the applicants contend the Tribunal erred in its decision to affirm the delegate's decision. The affidavit annexes a copy of the Tribunal's confirmation that an oral decision was made.
2. Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they sought to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it sought to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. The material before the Court was the application, the first applicant's affidavit, the first respondent's response, the first respondent's written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicants that they had these documents with them. The Court Book was made an exhibit in the proceedings.
4. The applicants appeared via Microsoft Team. The applicants were unrepresented. The applicants had the assistance of an interpreter in the Vietnamese and English languages.

1. For the applicants to be successful the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. The Court explained to the applicants that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicants should or should not be granted the visa.
3. Despite procedural orders permitting them to do so, the applicants did not file an amended application. The grounds of review set out in the application are (without alteration):

Ground One:

The Tribunal failed to act according to substantial justice and merits of the case, in breach of s 353(B) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s 357A(3) of that Act.

Ground Two

The Tribunal Member failed to place appropriate weight on the evidence provided in particular the declaration by The Anh Vu guaranteeing the exclusivity of the funds.

Ground Three

Clause 500.214 of Schedule 2 of the Migration Regulations 1994 requires that I have enough funds available for myself and my husband's time in Australia. I provided evidence of this. However, the Tribunal Member held that the evidence needed to be in the form of a bank transfer or proof of some payments.

Ground Four

The Tribunal incorrectly assessed whether I have accessed the funds (taken money) as oppose to whether I have genuine access to the funds.

Ground Five

The Tribunal Member incorrectly assessed how I have previously met my living expenses as opposed to whether I have genuine access to the funds.

Ground Six

The Tribunal Member erred in asking for evidence of bank transfers - this is only required if the funds appear to have been transferred from another source. This consideration is not relevant to whether I have access to the funds.

1. Despite the orders requiring them to do so, the applicants did not file any written submissions. The Court notes, however, that the applicant's affidavit sought to address the errors the applicants contend the Tribunal made and does so by largely repeating the grounds in the application. The applicants were given the opportunity to make oral submissions in support of their application for judicial review and in reply to the first respondent's submissions.

1. In ground one, the applicants contend that the Tribunal failed to act in a way that is fair and just in breach of s 357A(3) and s 353(B) of the Act. It is understood that the applicants intended to refer to s 353(b) of the Act.
2. Section 353(b) provides that the Tribunal in reviewing a Part 5‑reviewable decision shall act according to substantial justice and the merits of the case. Section 357A(3) provides that in applying Division 5, the Tribunal must act in a way that is fair and just.
3. The Court agrees with the first respondent's submission that s 353(b) is a facultative and not restrictive provision and does not mandate specific procedures to be observed by the Tribunal and that a decision is not reviewable on the ground that the Tribunal failed to observe procedures required by s 353 (first respondent's submissions ("FRS") [22] referring to Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21). The same is said of s 357A (FRS [22] referring to Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427). The Court agrees.
4. The Tribunal's procedural fairness obligations are set out in Division 5 of Part 5 of the Act which comprise an exhaustive statement of the natural justice hearing rule in relation to the matters those provisions deal with (s 357A). The application does not provide any particulars of how it might be contended that the Tribunal did not comply with those obligations.
5. The applicant seemed to make a submission to the Court that she lacked knowledge of the financial capacity requirements. It was not clear to the Court if the applicant was making a submission that meant she was denied procedural fairness at the Tribunal hearing because she was not given a meaningful opportunity to present her evidence and arguments. If the applicant is making that submission, the Court does not accept that the applicant did not have a meaningful opportunity to present her evidence and arguments by reason of any lack of knowledge of the issue before the Tribunal. The applicant is taken to know the legal requirements for the visa that she was applying for but, in any event, the applicant was cognisant of those requirements as they related to financial capacity because:

(a) The visa application form asked the question of whether the applicant had access to sufficient funds to support themselves for the total period of stay in Australia and advised that further evidence of funds may be requested (CB 11);

(b) The delegate's reasons for decision set out the financial capacity requirements (CB 45);

(c) The applicant's personal statement attached to the application for review demonstrates that the applicant was aware of the financial capacity requirement (CB 51);

(d) The correspondence from the Tribunal required the applicant to provide documents that demonstrate a genuine access to sufficient funds to meet costs and expenses during the intended stay in Australia, as well as the costs and expenses of each member of the family unit who will be in Australia over the relevant period and evidence that the funds are of a kind specified in the relevant legislative instrument (CB 73);

(e) The applicant provided the Tribunal with the copies of her brother-in-law's term deposits and a financial support statement (CB 102-104; 119).

1. Accordingly, the Court is satisfied that the applicants had a meaningful opportunity to give evidence and present arguments relating to the issue on review before the Tribunal.
2. The Court has been otherwise unable to discern any failure by the Tribunal to comply with its obligations in Division 5 of Part 5. Further, the Court agrees with the first respondent's submission (FRS [32]-[33]) that there is nothing in the material before the Court which would enliven the Tribunal's obligations under s 359A or 359AA of the Act.
3. No jurisdictional error is established on ground one.

Grounds two to six: failure to place appropriate weight on the guarantee of financial support and incorrectly assessing the requirements of cl 500.214

1. Grounds two to six concern the requirement in cl 500.214 and the Tribunal's reasoning and findings in that regard. It is useful to consider them together as there is overlap.
2. The applicants complain that the Tribunal did not give proper weight to the statement of financial support provided by the applicant's brother-in-law and incorrectly applied the requirements of cl 500.214 and took into account irrelevant considerations.
3. Clause 500.214 provides:

(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).

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

1. The Minister has issued a legislative instrument specifying the requirements for the purposes of subclause (3). This is IMMI 18/010: Evidence of financial capacity for subclass 500 (Student visas and Subclass 590 (Student Guardian visas) Instrument 2018) ("IMMI 18/010"). This is the legislative instrument the Tribunal referred to in its decision although because of what was likely an error of transcription it appears in the Tribunal's Decision as IME 18/010. It is otherwise clear from the Tribunal's Decision that it was referring to IMMI 18/010.
2. As to the evidence of financial capacity, cl 10 of IMMI 18/010 specifies the following forms of evidence:

(a) Money deposits with a financial institution;

(b) Loan with a financial institution;

(c) Government loans;

(d) Scholarship or financial support.

1. Before the Court, the applicants made submissions which suggested they thought the task of the Tribunal on review was to determine if the applicant had genuine access to sufficient funds of the specified kind for the period of study indicated in the COE which the applicant had relied upon in support of her visa application. This is misconceived. The Tribunal was required to consider whether the applicant met cl 500.214 by reference to the intended period of stay as provided for in the applicant's current COE which was for an Advanced Diploma of Leadership and Management at St. Peters Institute with a course start date of 7 January 2019 and a completion date of 27 September 2020.
2. As noted, the Tribunal was satisfied that the monies held in the four term deposits in the name of the applicant's brother-in-law were sufficient funds to meet the costs and expense of the applicant during the applicant's intended stay in Australia and the cost and expenses of the second applicant ([12]-[13]).
3. It is implicit in the Tribunal's Decision that it regarded the term deposits in the name of the brother-in-law as a form of evidence of financial capacity that met the requirements of cl 10 of IMMI 18/010. Whether this was because the deposits met the requirement of 'money deposits with a deposit in a financial institution' (as defined in the Regulations) or of 'financial support' is not stated in the Decision. The Court is satisfied that nothing turns on that in respect of the Court's inquiry as to whether the Tribunal made a jurisdictional error. The Tribunal was satisfied that the moneys in the term deposits met the requirement of sufficient funds.
4. The determinative issue before the Tribunal was whether the applicant had 'genuine access' to those funds ([20]).
5. The Tribunal referred to the financial support statement of the applicant's brother-in-law at [7] and [9]. The Tribunal accepted that the funds held in the term deposits were sufficient to meet the financial expenses of the applicants' stay and study ([13]). The weight to be given to the statement in respect of the issue of 'genuine access' to those funds was a matter for the Tribunal. A contention that the Tribunal did not give 'appropriate weight' to the statement is an invitation to the Court to engage in impermissible merits review.
6. The applicant's evidence at the hearing was that moneys were delivered to her in cash by visitors from Vietnam and that the monies remained in cash which she used to pay expenses ([21]). The applicant was not able to provide any evidence of transfer of moneys from the brother-in-law's accounts to her or evidence of how she paid her living and study expenses in Australia other than receiving money in cash from visitors from Vietnam ([22]).
7. The term 'genuine access' is not defined in cl 500.214 or in IMMI 18/010. The first respondent submitted that access is concerned with the capacity to withdraw funds immediately and that genuine is concerned with access that is realistic or practical at any particular time. The first respondent noted in oral submissions, the term deposits had on their face, maturity dates of 9 May 2019; 27 May 2019; 25 May 2019 and 19 January 2020 all of which were maturity dates that fell after the date of the Tribunal hearing. The Court considers that genuine access is concerned with the ability to call on the funds in question as required. The approaches are not dissimilar. It seems clear that this is what the Tribunal was concerned to determine in assessing 'genuine access'.
8. There is no jurisdictional error in the Tribunal's approach with respect to the questions that the Member put to the applicant as to how she accessed the funds in question and how she paid her living and study expenses in Australia. The questions were relevant to determining how the applicant had access to those funds and whether that access was 'genuine access'.
9. The Tribunal was not satisfied, on the evidence before it, which was of cash being delivered to the applicant by visitors from Vietnam, was 'genuine access' to the brother-in-law's funds held in the term deposits. The question is not whether this Court would or would not have been satisfied that this was 'genuine access' to the funds. The question is whether the decision was one which was reasonably open to the Tribunal on the evidence before it. The Court is satisfied that it was. The decision does not lack an evident or intelligible basis.
10. No jurisdictional error is established on any of grounds two to six of the application.
11. The Court has also considered whether any of the matters deposed to in the applicant's affidavit constitute jurisdictional error. The Court is satisfied that the matters deposed to do not raise any matters not raised by the grounds in the application and which have been dealt with in the Court's reasons above or otherwise identify a jurisdictional error.

1. Accordingly, for the reasons given above, the application is dismissed.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.