Syed v Minister for Immigration and Multicultural Affairs

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. The applicant is a non-citizen who applied for a student visa. A delegate of the Minister refused to grant the applicant a student visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision on 1 May 2018. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.

1. The applicant is a citizen of India who entered Australia on a student visa in June 2014.
2. The applicant applied for the student visa the subject of this judicial review application on 2 August 2016.
3. On 16 September 2016 the Minister's Department sent to the applicant a request to provide further information, including evidence of financial capacity. The detail of the requested information about financial capacity was:

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 $10,833.51.

Evidence of financial capacity includes:

• Money deposit with a financial institution

• Loan with a financial institution

• Government loans; and

• 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. The applicant provided various information to the Department in response to the request for information.
2. On 9 December 2016 a delegate of the Minister refused to grant the applicant a student visa. The delegate was not satisfied that the applicant met the financial capacity requirements in cl 500.214 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
3. The applicant applied to the Tribunal for merits review of the delegate's decision on 15 December 2016. The applicant was represented by a registered migration agent in relation to the review.
4. On 5 April 2018 the Tribunal sent to the applicant, via his representative, an invitation to attend a hearing scheduled on 1 May 2018. The invitation relevantly requested that the applicant provide the following information to the Tribunal:

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. On 30 April 2018 the applicant provided to the Tribunal information relating to his financial capacity.
2. The applicant attended the hearing before the Tribunal on 1 May 2018 to give evidence and present arguments. The applicant provided further evidence relating to his financial capacity to the Tribunal during the course of the hearing. At the conclusion of the hearing, the Tribunal delivered an oral decision affirming the delegate's decision.
3. On 21 May 2018 the Tribunal sent to the applicant a written statement of its decision and reasons dated 18 May 2018.

1. The Tribunal noted that the applicant was asked to provide a range of supporting evidence including evidence that he met the financial capacity requirement, namely, that he had access to sufficient funds to meet course fees, living costs and travel costs for the period of his intended stay in Australia.
2. The Tribunal recorded that the applicant provided bank statements of an account held by the applicant and his wife, showing a debit balance of $304.76, accounts of his brother and father in India showing balances equivalent of, respectively, less than $5, approximately $20, $2,550 and a liability of $6,268, which the Tribunal recorded may have been a loan and treated as a credit balance for the purpose of the review. The Tribunal also recorded the applicant's evidence that he intended to study a Diploma of Hospitality, for which the confirmation of enrolment (COE) showed an outstanding fee of $3,000 and a Bachelor of Business that had a fee of $38,000 of which the applicant had paid a few thousand.
3. In calculating the amount of funds to which the applicant would need to show access, the Tribunal said at [18]:

In considering how much you need to show access to, your living expenses for the next 12 months would be over $20,000, some $7000 for your wife, $3000 in fees for your Diploma and the first tranche of fees for the Bachelor of Business that is probably another $5000 and travel expenses of $1,000 or $2000 so it would appear you need to provide evidence of access to in excess of $30,000.

1. The Tribunal found that the applicant provided 'questionable evidence at best'. The Tribunal noted that the applicant indicated that he had support from his uncle and his father but found that there was no evidence of the relationship between the applicant and the account holders, and that the evidence provided indicated that they had funds in the bank equivalent to approximately $8,500, which was significantly less than required.
2. The Tribunal noted that the applicant was represented by a migration agent and that the delegate's decision was made over one and a half years earlier. The Tribunal believed that the applicant had been given a number of opportunities and plenty of time to provide the requested evidence but had failed to do so.
3. In the circumstances, the Tribunal found that the applicant had not provided evidence that he met the financial capacity requirements for the grant of a subclass 500 student visa and therefore did not satisfy cl 500.214 in Sch 2 to the Regulations.

1. The applicant filed his application for judicial review on 28 May 2018. The judicial review application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
2. In his judicial review application as filed, the applicant sought an order that the decision of the Tribunal be quashed, but did not seek any writ of mandamus, prohibition or an injunction. This is insufficient to invoke the Court's jurisdiction in this matter. Section 476(1) of the Migration Act provides that the Court has the same original jurisdiction in relation to migration decisions as the High Court has in s 75(v) of the Constitution, being where a person seeks a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth. At the hearing I made an order allowing the applicant to orally amend his application to seek a writ of mandamus. I am satisfied that the Court now has jurisdiction to consider the application.
3. The applicant raises the following grounds in his judicial review application (reproduced without alteration):
   1. This is an application for review of a decision made by Tribunal and delegate of the Minister for Immigration refuse to grant the Student (Temporary) (ClassTU) visa under s.65 of the Migration Act 1958 (the Act).Reason behind the Refusal was Financial documents, especially on the income prospect.
   2. I have got the oral decision from Tribunal and also delegate decision, there wasn't much information discussed and explanation in regarding why authorities can't accept the payslips instead of Govt tax assessments.
   3. If sponsor did not work previously, and did not have the tax assessment done, if sponsor just started working in these cases sponsor must be exempted for Tax assessment. Here nothing has been done in my case. Hence, I request the Federal Circuit court to accept it is a Jurisdictional error made by Tribunal.
   4. Delegate has refused the visa on the basis of financial documents, 495A of the Act, also on the basis of 500.214, but delegate did not give any brief explanation why my documents are not meeting the criterion, also tribunal has not looked and did not give enough weight on my documentation which is to be considered as jurisdictional error.
   5. I feel delegate and tribunal has made decision wrongly wit out considering the available material in my case as there is no procedural fairness.
   6. Also there is suspecting situation where there is misuse of s.65 act, because of there isn't much attention given by delegate and tribunal on my evidence. This is my humble request to court to examine my case and decisions of tribunal including the delegate decisions.
   7. Due to tribunal decision and Immigration decision, I have felt unfair and went in to trauma where I have lost concentration on my studies.
   8. That is the reason I am bringing the Decision of Tribunal to FCCA to review as I think there is Judicial Error in tribunal Decision.
   9. I hope FCCA will understand my situation. I will pay my FCCA court application fee, and also I will hire Barrister in the future.

1. The evidence before the Court comprises the court book filed on behalf of the Minister on 4 September 2019 and an affidavit of the applicant that accompanied his judicial review application and annexed a copy of the Tribunal's written record of the outcome of review. In his affidavit, the applicant deposed:
   1. I am applying Judicial Review at Federal circuit court because of court may intervene my matter and serve the natural justice.
   2. Tribunal decision and Delegate decision both are not justified properly according to Migration act 1958.
   3. In case of sponsor doesn't have last fiscal year income or sponsor about to submit the tax assessment for this year, government document is not possible in this situation, this is a genuine claim and genuine situation from my side.
   4. I have submitted whatever I have in my hand, I did not try to give any adverse information to Immigration or Tribunal and Court.
   5. Tribunal and Immigration both, did not consider any documents did not tell any reason or ask me further clarification.
   6. Here, I would like to request the respected court to look into my financial documents.
   7. All rest of the documents including financial documents are genuine and authentic, I will take full responsibility on those documents.
   8. All evidence can be done through integrity checks if needed.
   9. Also my intention to study in Australia is genuine.
   10. Also All family and relatives in India where I can return to home country after my education.
   11. Tribunal oral decision and Immigration decision have been enclosed, I have requested the written full decision from tribunal.
   12. Once decision come from AAT, I will submit the written decision to court.
2. A Registrar of this Court made an Order on 7 August 2019, which set out the steps to be taken by the parties to progress this matter to hearing. One of the orders contained in the Order of 7 August 2019 required the applicant to file and serve at least 28 days before the hearing any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions.
3. The application was first listed before me for hearing on 9 October 2024. The applicant did not file any documents 28 days before that hearing in accordance with the Registrar's Order. The Minister filed written submissions ahead of the hearing.
4. At the hearing on 9 October 2024, I granted the applicant's oral application for an adjournment and made an Order requiring the applicant to file and serve an amended application and written submissions by 6 November 2024. The applicant did not file any amended application or written submissions as required by the Order I made on 9 October 2024, either by the date set out in the order or subsequent to that. Notwithstanding that the applicant did not comply with the Order, the Minister still proceeded to file additional submissions on 3 December 2024. These submissions addressed an issue that the Court raised on 9 October 2024.

1. As indicated above, the applicant made an oral request for an adjournment at the hearing on 9 October 2024. The reasons given by the applicant for making that request were because he had found a lawyer to represent him, who had identified arguable grounds of application, and the lawyer required two weeks to prepare the case for the Court. I delivered reasons for granting the adjournment application in Syed v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1071 (Syed).

Second application for an adjournment or further opportunity to provide documents

1. On 10 January 2025 the applicant sent an email to my chambers requesting an adjournment of the hearing on 20 January 2025 due to a 'medical emergency in [his] family requiring [his] immediate presence in India'. The applicant indicated that he would be travelling to India from 12 January 2025, tentatively returning on 24 February 2025, and attached to the email his flight itinerary and a document showing the grant of a bridging visa. My associate replied to this email on 10 January 2025 noting that there was nothing in the email from the applicant to show whether he had sought the Minister's consent to the adjournment request, and inviting the parties to provide signed consent orders to the Court if the Minister consented to the applicant's request for an adjournment. The email further noted that if the Minister did not consent to the adjournment and the applicant continued to seek an adjournment, any application for an adjournment should be made by way of an application in a proceeding supported by an affidavit containing more detail about why the applicant says the adjournment is necessary. The email also confirmed that the hearing listed on 20 January 2025 was to take place by Microsoft Teams and that it would be open to the applicant to appear at the hearing by Microsoft Teams from outside of Australia.
2. My chambers received no further email correspondence from the applicant ahead of the hearing. My chambers did receive an email from the Minister's lawyer on 15 January 2025 confirming that the Minister did not consent to a further adjournment of the hearing of this matter.
3. Shortly before the hearing commenced on 20 January 2025, the Minister's lawyer forwarded to the Court an email from the applicant to the Minister's lawyer sent on 19 January 2025 requesting an adjournment of the hearing. The email explained that the applicant's mother had been hospitalised and was to undergo an operation and required the applicant's 'presence for emotional and moral support'. The applicant requested a 20-day adjournment on 'humanitarian grounds' and attached a medical certificate relating to the applicant's mother.
4. The applicant joined the hearing on 20 January 2025 by Microsoft Teams. At the start of the hearing, I invited the parties to raise any preliminary issues. The applicant raised that his lawyer did not submit any documents and asked the applicant to talk to the hearing first. He said he could not do that and his mother has had a stent recently. When asked what documents he intended to provide, the applicant responded, 'the paperwork necessary for the case'. When asked why the documents were not provided yet, the applicant explained that the documents were taking some time in preparation and he was going to India so there was no point in submitting documents. He said that yesterday he submitted papers from the hospital.
5. Based on this submission, it was not possible for me to ascertain exactly what the applicant was asking the Court to do so I sought clarification from him. The applicant responded that first he wished to express his embarrassment for not submitting things on time, and he was not expecting his mother would be ill. He submitted that if he can get an extension of 20 days he can submit everything. It is important for him to be in India. He said he already spoke to a lawyer about his submission and they asked him to get all the proof and said that getting the proof would take some time. He said they asked him to go to India and talk to the Court about it. He will be back within two weeks and then he will make everything clear and he took a risk because of his mother.
6. Counsel for the Minister treated the applicant's request to the Court as a request for an adjournment of the hearing and opposed it. Counsel for the Minister referred the Court to the medical evidence about his mother provided by the applicant and to some information in the court book. The Minister submitted that there must be some doubt about the explanation for the adjournment request, noting that the hospital admission report provided by the applicant suggested that his mother had been admitted on 18 January 2025 and had presented symptoms relating to the illness for which she was admitted around 15 January 2025, whereas the applicant first wrote to the Court to seek an adjournment due to his mother's illness on 9 January 2025, almost a week before the hospital admission report suggested that the person was experiencing symptoms. Counsel for the Minister also highlighted that, while the applicant's mother's name on the admission certificate was consistent with the information in the court book, it was not necessarily consistent with the date of birth of the mother as recorded in the court book. Counsel for the Minister submitted that there must be some doubt about the applicant's explanation for an adjournment request. Counsel for the Minister acknowledged that the Minister would not be prejudiced by the short adjournment.
7. At the hearing, I indicated to the parties that I proposed to proceed with the hearing on that day and that I would give reasons for doing so when I publish my judgment. I also indicated that I was not satisfied based on what had been said so far that the applicant needed a further opportunity to provide documents to the Court, but I would hear from him as to whether there were any specific documents that he had intended to provide, particularly documents that he could only gather from India. The applicant confirmed that he did not need to get any documents from India. Nothing the applicant said throughout the balance of the hearing referred to any specific documents that he had intended to provide to the Court and I have determined not to afford the applicant a further opportunity to submit documents.
8. I now set out my reasons for refusing to grant the applicant any further adjournment of the hearing or to provide him any additional time to provide documents to the Court. I note at the outset that in determining whether to grant the applicant an adjournment or additional time to provide documents, I am required to have regard to the overarching principle of the Court's civil practice and procedure provisions, set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which relevantly provides:

(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

1. I first address the request for an additional 20 days to submit documents to the Court, as this was the application that the applicant made at the hearing. I consider this request in the light of the history of this matter, including not only the fact that the application has now been before the Court for over six years, but also because when the matter was last before the Court in October 2024, the applicant represented to the Court that he had engaged a lawyer who would need only two weeks to prepare his case. Orders were made based on the representations of the applicant at the last hearing. The applicant did not produce documents in accordance with those orders and no lawyer has ever gone on the record for the applicant in this proceeding. No meaningful explanation has been offered by the applicant as to why this is the case. The applicant has not identified what further documents he needs to provide to the Court or how they would be relevant to his judicial review application. In the light of:

(a) the two previous opportunities afforded to the applicant, pursuant to the Order of the Registrar made on 7 August 2019 and the Order I made on 9 October 2024, to provide documents to the Court;

(b) the failure of the applicant to produce documents in accordance with these Orders and without affording any reasonable explanation for not complying with the Orders, particularly in circumstances where the Court has already adjourned the hearing once to give him a further chance to provide documents;

(c) the lack of identification of any specific documents that the applicant still intends to provide to the Court and how they would be relevant to his judicial review application; and

(d) the overarching purpose of the Court's civil practice and procedure provisions, including the need to resolve matters as quickly, inexpensively and efficiently as possible, the just determination of all proceedings, the efficient use of the Court's resources and the effective disposal of this proceeding in as timely a manner as practicable (while acknowledging that there has been a long delay in getting this matter to hearing due to the overall number of migration matters before the Court),

I have determined not to afford the applicant an opportunity to provide further unspecified documents to the Court.

1. Although the applicant did not formally make any oral application for an adjournment of the hearing based on his mother's health, and did not file any application in a proceeding to this effect, given his communication to the Court on 10 January 2025 and his communication to the Minister's lawyer on 19 January 2025, I considered whether I should adjourn the hearing based on the applicant's claimed need to travel to India because of his mother's health.
2. While I acknowledge the discrepancies identified by Counsel for the Minister in the hospital admission record and the evidence in the court book in relation to the timing of the applicant's mother's symptoms and admission to hospital and the identity of the applicant's mother, I consider these to be minor issues and place no adverse weight against the applicant on these matters. I am satisfied that the medical evidence provided by the applicant to the Minister's lawyer, and in turn by the Minister's lawyer to the Court, relates to the applicant's mother and confirmed that she does have a health issue for which she has been admitted to hospital and is about to undergo an operation. Even if the applicant had decided to travel to India and had requested an adjournment prior to the applicant's mother experiencing her current symptoms and being admitted to hospital, that would not preclude the grant of the adjournment of the hearing based on the applicant's mother's health if the evidence before the Court otherwise supported a finding that the applicant would be unable to, or unable to effectively, participate in the hearing on 20 January 2025 because of his mother's health condition at that time.
3. Having regard to all the relevant evidence and information available to the Court, I was not satisfied that there was a proper basis to grant the applicant a second adjournment of the hearing listed in this matter. There is no evidence before the Court to suggest that the applicant would be unable to take a short break from any care he was providing to his mother to participate in the hearing, and there was no reason provided as to why the applicant would not be able to participate in the hearing by way of Microsoft Teams. Indeed, after I declined to adjourn the hearing, the applicant was able to effectively participate in the hearing by Microsoft Teams. There was no evidence before the Court to suggest that the applicant's mother's illness had any psychological effect on him personally that would compromise his ability to effectively participate in the hearing.
4. In circumstances where the hearing of this matter has already been adjourned on one occasion, and the applicant has failed to take advantage of that adjournment for the reasons it was granted, I would be hesitant to grant a second adjournment unless I was properly persuaded by evidence that a second adjournment was warranted. For the reasons explained above, the evidence does not show that a second adjournment is required for the just determination of this proceeding. The quick, just and efficient resolution of this proceeding, as well as considerations relating to the disposition of the Court's overall caseload, weigh against the grant of a further adjournment in this matter.
5. I therefore determined at the hearing not to adjourn the hearing. Given that the applicant did not formally make an oral application for an adjournment (as opposed to further time to provide documents), it is unnecessary to make any order to formally dismiss any application to that effect.

CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17].
2. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
3. As can be seen from the extract of the applicant's affidavit above, aspects of the applicant's case invite the Court to consider the factual merits of the Tribunal decision and whether the applicant should be granted a visa. This is beyond the jurisdiction of the Court. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
4. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
5. Some of the grounds raised in the application appear to assert error in the delegate's decision. This Court only has jurisdiction to judicially review the Tribunal decision, not the delegate's decision. That is because the delegate's decision is a 'primary decision' within the meaning of s 476(4)(a) of the Migration Act and, pursuant to s 476(2)(a) of the Migration Act, this Court does not have jurisdiction in respect of primary decisions. I therefore do not address in this judgment whether there is any jurisdictional error in the delegate's decision.

Consideration of the grounds raised in the application

1. The grounds in the application are a narrative, and not all the grounds assert jurisdictional error. The Minister in his written submissions has interpreted the grounds in a way that is beneficial to the applicant and has endeavoured to elicit assertions of jurisdictional error from the narrative provided. This approach is appropriate and has assisted the Court in addressing the grounds of application.
2. I have also had regard to the applicant's oral submissions and I address each of the issues raised by the applicant in his oral submissions in the context of the ground to which I think they are most relevant.

1. I accept the Minister's submission that grounds 1, 7 and 8 are statements of facts and do not give rise to jurisdictional error. I would say the same of ground 9. None of these grounds assert any error in the Tribunal decision and they are not capable of establishing jurisdictional error.

1. By ground 2 the applicant asserts that there was not much information discussed in the Tribunal decision, or explanation, regarding why pay slips cannot be accepted as evidence of financial capacity, rather than government tax assessments. The assertion raised by ground 3 is that the applicant should have been exempted from tax assessments. When read with the information in his affidavit, it appears that the applicant is asserting that he did not have a tax assessment that he could have provided and therefore the Tribunal should have accepted other evidence.
2. While the Minister addressed these grounds separately, I address them together and I have interpreted ground 2 more narrowly than the Minister, who treated the ground as an assertion that the financial requirements were not explained to the applicant. The applicant is not disadvantaged by my narrower interpretation of ground 2, because the additional matters raised by the Minister are considered more fully below in relation to an issue raised by the Court.
3. To properly consider the grounds raised by the applicant, it is first necessary to appreciate how any potential issue might arise in relation to whether pay slips could be considered as relevant evidence rather than a tax assessment.
4. Clause 500.214 in Sch 2 to the Regulations relevantly 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. At the time of the Tribunal decision IMMI 18/010 was the instrument made for the purposes of cl 500.214(4).
2. There are two ways that the applicant in the present case might have shown that he met the financial capacity requirements.
3. The first is by showing evidence as of financial capacity in accordance with s 6(2) of IMMI 18/010, which provides:

(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.

1. The form of evidence specified in s 10 is a money deposit with a financial institution, a loan with a financial institution, government loans or scholarship or financial support.
2. The second way the applicant in this matter might have shown financial capacity is in accordance with s 6(3) of IMMI 18/010, which provides:

(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. The requirement to provide official government documents to show income arises when an applicant seeks to demonstrate financial capacity under s 6(3) of IMMI 18/010. However, the applicant did not provide any documentary evidence (be it payslips or otherwise) to show that his spouse or parents had a personal income, in the 12 months immediately before the application was made, of the amount specified in s 6(3)(b).
2. The applicant provided to the Department, prior to the decision under s 65 of the Migration Act, three payslips in relation to his own employment for periods between 24 November 2015 and 21 December 2015 and a PAYG summary statement which appears to relate to the applicant and appears to be dated 6 July 2016, although the copy that appears in the court book is partially illegible. Taking into account the requirements of s 6(3) of IMMI 18/010, I accept the Minister's submission that this evidence could not be considered for the purposes of meeting cl 500.214.
3. In circumstances where, before the Tribunal, the applicant sought to meet the financial capacity criterion by meeting s 6(2) of IMMI 18/010, and did not provide any evidence relevant to meeting s 6(3) of IMMI 18/010, there is no jurisdictional error in the Tribunal not addressing 'why the authorities can't accept the payslips instead of Govt tax assessments' or 'whether the sponsor must be exempted from Tax assessment'. The task of the Tribunal was to conduct the review, considering for itself whether the applicant met the relevant criteria for the grant of a student visa. The Tribunal was required by s 368 of the Migration Act to provide a written statement that, relevantly, set out the decision of the Tribunal on the review, the reasons for that decision and the findings on any material questions of fact, and referred to any evidence on which the findings of fact were based. Nothing in this required the Tribunal to address the matters referred to in grounds 2 and 3.
4. Grounds 2 and 3 are not established.

1. Grounds 4 and 6 are appropriately understood as an assertion that the Tribunal did not give sufficient weight to evidence presented by the applicant. In his oral submissions, the applicant submitted that his case was refused due to the unavailability of funds and it was not that he did not have the funds. His father's account had funds, but they were $300 to $400 less because his father had purchased a property. He also had his personal account, which he told the Tribunal about. The applicant submitted that he was surprised that the Tribunal made it matter that there was $300 to $400 less in his father's account in India, because he had the money in his account here that was compensating for the deficiency.
2. I accept the Minister's submission in response to the grounds as drafted that the Tribunal considered the evidence provided by the applicant, including the evidence that he provided after the Tribunal adjourned the hearing briefly to allow the applicant to email statements from his father and brother. The Tribunal considered the funds in the applicant's father's account, the applicant's evidence that his father had bought a property and the applicant's personal account.
3. To the extent that the applicant's submission is that the Tribunal should have found that the money in the applicant's account compensated for the deficiency in the balance in his father's account, that is not borne out on the evidence before the Tribunal and the findings made by the Tribunal. The Tribunal considered that the total of the funds available to the applicant was well below the amount of funds to which the applicant was required to show access. The Tribunal calculated the amounts in the applicant's father's and brother's accounts totalled 'approximately $8800' at [15] and found the amount available to the applicant was 'approximately $8,500' at [19] of its reasons. The Tribunal recorded the amount in the applicant's personal account to be a debit balance of $304.76. That finding was open to the Tribunal on the evidence before it, which showed that balance as at 19 April 2018, which represented the most recent balance provided to the Tribunal. The applicant did not provide evidence to the Tribunal that he held money in his bank account, at the time of the Tribunal decision, that 'compensated' for the deficiency in his father's account. It was open to the Tribunal to find on the evidence before it that the amount to which the applicant had access was less than the amount required.
4. There is no jurisdictional error in the Tribunal's consideration of the evidence provided by the applicant in relation to his financial capacity, with the Tribunal making findings of fact that were open to it and giving weight to the evidence as it considered appropriate in the course of its fact-finding function. Grounds 4 and 6 are not established.

1. Ground 5 asserts that the Tribunal did not consider the available material and denied the applicant procedural fairness. The applicant submitted in his oral submissions that he told the Tribunal he would receive a Confirmation of Enrolment (COE) the next day, but the Tribunal did not listen to him. The Tribunal told him that it would only accept documents submitted on the day of the hearing, otherwise they would dismiss the case. The applicant submitted that the Tribunal was quite rude to him and did not give him an opportunity to talk much. When the Tribunal refused to give the applicant until the following day to provide the COE, the applicant could not say anything, because he respects the 'magistrate and Minister' so he was just quiet. The applicant submitted that if the Tribunal had just listened to him for half an hour, then there would be 'no more reason to come this way forward'.
2. Although the Tribunal had the power, pursuant to s 363(1)(b) of the Migration Act, to adjourn the review from time to time, it did not deny the applicant procedural fairness in not exercising that power to allow him to obtain a COE in the present matter. While there is no clear evidence before the Court to show that the applicant requested an adjournment from the Tribunal, the Tribunal did record in its reasons that the applicant advised he would have a COE the following day. This can be seen at [23], where the Tribunal said:

In addition you have told the Tribunal you do not have a current enrolment which you say you should have tomorrow. In the absence of current enrolment you do not meet clause 500.211 however your visa was initially refused because you failed to provide evidence of access to sufficient finance. Today you have failed again to provide evidence of sufficient finance.

1. At [24], the Tribunal confirmed that the delegate's decision was affirmed because the applicant did not satisfy cl 500.214. It was not a denial of procedural fairness, nor was it unreasonable, for the Tribunal not to await the provision of a COE when the main issue for its consideration, and the reason the decision was affirmed, related to the financial capacity criterion.
2. There is no evidence before the Court to support the applicant's assertion that the Tribunal was rude to him to denied him an opportunity to talk much.
3. The Tribunal adjourned the hearing briefly to allow the applicant to provide bank statements of his family members. There is no evidence before the Court, and no indication by the applicant, that the applicant sought any further adjournment from the Tribunal to provide evidence relating to the financial capacity criterion.
4. I otherwise accept the Minister's submission that the Tribunal complied with its procedural fairness obligations under Part 5 of the Migration Act. In particular, the Tribunal invited the applicant to attend a hearing, as required by s 360 of the Migration Act, and the hearing invitation complied with the requirements of s 360A of the Migration Act. The applicant was aware that the dispositive issue was whether he met the financial capacity criterion (I address below an issue as to whether he may have been taken by surprise in relation to the amount to which he needed to show access). There was no information that the Tribunal was required to put to the applicant in accordance with s 359A.
5. To the extent that ground 5 asserts that the Tribunal did not consider the available material, it overlaps with grounds 4 and 6, addressed above. The applicant has not otherwise identified any information that he provided to the Tribunal and which the Tribunal overlooked.
6. Ground 5 is not established.

1. When I granted an adjournment of the hearing to the applicant on 9 October 2024, I raised a concern relating to the fact that the delegate had calculated the amount of funds to which the applicant needed to show access to as $10,833.51 and the Tribunal calculated the amount of funds required as 'in excess of $30,000', when there was no obvious evidence as to whether or how the applicant had been put on notice of the change in the required amount. As Counsel for the Minister correctly identified at the hearing, my concern related to the possibility of the applicant being taken by surprise at having to show access to such a higher amount of funds, and whether this may amount to a denial of procedural fairness.
2. The Minister addressed this issue in further written submissions that he filed after the adjourned hearing. The Minister first noted that the applicant bears the onus of establishing jurisdiction error and would need to show that the figures were not put to him. The Minister submitted that the applicant could do this by providing a transcript, but has not done so.
3. The Minister submitted that, in any event, the Tribunal was not required to put the applicant on notice of the figure in excess of $30,000, as the figure used by the Tribunal emanated from legislation, namely, IMMI 18/010.
4. The Minister submitted that under IMMI 18/010, the applicant was required to show that he had funds available to meet costs and expenses including, but not limited to:

(a) $20,290 in living expenses for a period of 12 months;

(b) $7,100 for a secondary applicant;

(c) course fees for the first 12 months of the period of study in Australia; and

(d) travel expenses.

1. The Minister acknowledged that procedural fairness can require the Tribunal to offer a person to comment on adverse information and can impose on the Tribunal a duty to identify issues. The Minister referred to Commissioner for Australian Capital Territory v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone), where the Full Court of the Federal Court said at [591]-[592] (emphasis in Minister's submissions):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decisionmaker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

1. The Minister noted that the High Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 endorsed the statement of principle in Alphaone and said at [9] (footnotes omitted; emphasis in Minister's submissions):

... Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. ...

1. In reliance on these cases, the Minister submitted that the requirement for the applicant to demonstrate financial capacity in excess of $30,000 was made clear from the terms of the statutory power, in particular, the Regulations and legislative instrument. The Tribunal therefore did not need to spell out for the applicant what was required.
2. The Minister submitted that this approach accords with Judge Young's findings in Sasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1969, where the applicant argued he was not informed about IMMI 18/010 and Judge Young said at [14]:

Ground 5 is an allegation that the applicant was not informed by the Tribunal that IMMI 18/010 applied. The applicant said that that constituted a denial of procedural fairness. In my view, that is not a matter that the Tribunal was required to advise the applicant about. It is simply the legislative provisions that apply to his particular case. It is most regrettable, perhaps, that the applicant was unrepresented and unfamiliar with the relevant legislative provisions, however, the fact that he was ignorant of the relevant legislative provisions does not constitute procedural unfairness. Further, even if there was such an obligation, in my view, there has been no disadvantage. The applicant was aware or ought to have been aware of the matters he needed to address which were going to be foremost in the mind of the member when considering the application - that is the evidence of financial capacity and the relevant components set out in the Delegate's reasons and in the letter dated 26 February 2018.

1. When invited to address this issue in his oral submissions, the applicant submitted that he had no idea that $30,000 would be required because his agent had told him $10,000. The applicant submitted that when he spoke with his father, he said that the amount could be arranged to be shown, but that was based on what the agent told them, namely, $10,000. When he asked his father about $10,000, his father said that he had $9,000 and that they could organise the rest, but he did not know about the $30,000 at the time.
2. Having regard to the submissions of both parties, I do not find on the evidence before me that any jurisdictional error arises in this matter. The applicant's submissions do not focus on what the Tribunal said to him or did not say about the amount to which he would need to show access, and instead focus on what his agent told him. It is unnecessary to make any findings about what the applicant was told by his agent, and inappropriate to do so in the absence of evidence (the applicant's assertions being made in submissions). I would only observe that it would be unfortunate if the applicant's agent either was not aware of the requirements of IMMI 18/010, or otherwise failed to inform the applicant of those requirements. Having paid the agent to represent him, the applicant should have been entitled to expect his agent to know the relevant law and assist the applicant in preparing the evidence for his case. However, any failure by the agent to properly advise the applicant would not, in the circumstances of this case, give rise to jurisdictional error on the part of the Tribunal.
3. I accept the Minister's submission, having regard to the authorities cited by the Minister, that the Tribunal did not have any procedural fairness obligation to advise the applicant of the specific requirements in IMMI 18/010. I therefore find that there is no jurisdictional error in the Tribunal failing to put the applicant on notice of IMMI 18/010 or the requirement to show access to funds 'in excess of $30,000' ahead of the Tribunal hearing.
4. While I have not found jurisdictional error, I would make two additional points.
5. First, in circumstances where (1) the delegate advised the applicant that he would have to show access to a specific amount without explaining how that amount was calculated; and (2) the applicable legislative instrument changed between the delegate's decision and the Tribunal decision, it might have promoted better administrative decision-making if the Tribunal had advised the applicant that the amount of funds to which he would be required to demonstrate access would be calculated in accordance with IMMI 18/010, or at least put him on notice ahead of the hearing that the amount to which he was required to show access may have changed since the delegate's decision. It is perfectly understandable that the Tribunal did not advise the applicant of a specific amount ahead of the hearing, as the amount required would depend on the applicant's circumstances, and the Tribunal could not calculate that amount without hearing the applicant's evidence in relation to his current circumstances. However, choosing to advise the applicant that the amount to which he would need to demonstrate access would be calculated in accordance with IMMI 18/010 may have better equipped the applicant with the tools to work out for himself the evidence he would need to provide.
6. Second, I acknowledge the possibility that, in some cases, an applicant's surprise at a significant change in the amount of funds to which he or she is required to demonstrate access, with the Tribunal having taken no steps to put the applicant on notice of the possibility that the amount may be different from that indicated by the delegate, may form part of the factual context for the consideration of other types of jurisdictional error, such as an assertion that the Tribunal unreasonably failed to grant the applicant an adjournment to provide evidence that they had access to a higher amount of funds. However, there is no assertion that the applicant requested an adjournment to provide further evidence of financial capacity in the present case, or that any other type of jurisdictional error may have arisen from the change in the amount to which the applicant was required to show access in the delegate's decision and the Tribunal decision.

1. The applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court for judicial review of the Tribunal decision must therefore be dismissed.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.