Bajaj v Minister for Immigration
[2017] FCCA 1162
•2 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAJAJ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1162 |
| Catchwords: MIGRATION – Subclass 572 visa – evidence of inability to satisfy financial capacity requirements – accepted error in calculating the value of funds borrowed – error as to jurisdictional fact – appeal allowed. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 |
| Applicant: | LOKESH BAJAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2690 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 20 April 2017 |
| Date of Last Submission: | 20 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2017 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 4 December 2015 is allowed.
A writ in the nature of certiorari be issued to quash the decision of the Second Respondent, AAT reference 1419634, dated 27 November 2015.
A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
Any application for costs be made within 14 days of the date of this order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2690 of 2015
| LOKESH BAJAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of application filed on 4 December 2015, the applicant seeks to set aside the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 November 2015, which affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (‘the visa’) under s.65 of the Migration Act 1958 (‘the Act’).
The applicant is a citizen of India who was enrolled in a Certificate III in Automotive Electrical Technology and Diploma of Business at Education Access Australia at the time of applying for the visa.
The applicant applied for the visa on 8 September 2014. The grant of the visa was dependent on the type of course in which the applicant was enrolled in or had an offer of enrolment as his principal course. As the relevant subclass was Subclass 572, the applicant had to meet the requirements of cl. 572.223 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). To meet this criterion, the applicant had to give evidence in accordance with Schedule 5A of the Regulations for the highest assessment level for the applicant.
On 9 September 2014, the Department sent an email to the applicant’s representative requesting that the applicant provide further information in relation to the genuine temporary entrant criterion and the financial capacity requirements as set out in Schedule 5A of the Regulations. The Department indicated that the applicant was required to demonstrate that he had access to $23,595.85 in order to satisfy the financial capacity requirements.
On 15 September 2014, the applicant provided a number of documents in response, including a statement from his father indicating that he was willing to financially support his son and attaching a letter from the Punjab National Bank sanctioning an overdraft of 14 Lakh, and confirming a fixed term deposit of 15.25 Lakh.
On 31 October 2014, the Department emailed the applicant inviting him to comment on information filed by the Department that it had been unable to identify the source and ownership of the funds.
On 4 November 2014, the Applicant’s representative emailed the Department stating that the source of his father’s funds was the sale of some properties and attached an “Agreement of permanent sale deed of residential land.”
On 21 November 2014, the delegate refused to grant the visa on the grounds that the applicant had not met the criteria for the grant of the visa as he had failed to provide acceptable evidence of the source of his funds.
The applicant applied to the Tribunal for review of the delegate’s decision on 1 December 2014 and appeared before the Tribunal on 21 August 2015 with his representative.
The Tribunal affirmed the decision of the delegate on 21 August 2015.
The Tribunal member referred to a term loan of 1600000 rupees to the applicant’s father, and noted that:
…the value of the loan against the house was significantly less than the value of the fixed term deposit…[1]
[1] Tribunal decision dated 27 November 2015 [12].
The Tribunal concluded that:
On the evidence presented the Tribunal is not satisfied that Mr Bajaj will have access to the relevant funds. The Tribunal is troubled where the funds for the fixed deposit came from. The gross income of Mr Bajaj’s parents from their businesses is in the vicinity of $4,000 each (combined $8,000) yet they have a fixed term deposit of approximately $52,000 well above their gross income. The applicant initially stated that the fixed term deposit includes money from a home loan and the accumulated income of his parents. The home loan was taken out in March 2014, yet the fixed deposit account was not established until 6 August 2015. Further, the home loan was for only $3,333. Further, the Tribunal found it odd that if the home loan was the source of funds for a fixed deposit, and the home was not the security for the overdraft rather than the fixed term deposit. In relation to the evidence that the money in the fixed deposit comes from the old overdraft – there are no records before the Tribunal showing that the monies were moved from the old overdraft to the fixed deposit. The Tribunal is not satisfied on the evidence presented that the funds in the fixed term deposit were accumulated from the income from Mr Bajaj’s parents and the home loan.[2]
[2] Tribunal decision dated 27 November 2015 [16].
Grounds of Application
The grounds set out in the Application are that (replicated precisely):
1. On 12th paragraph of Tribunal decision [“sanction letter”. This letter noted that the bank actioned on 4 March 2015 a term loan of 1600000 rupees ($3,333) to Mr Bajaj’s father for a term of 84 months and the collateral security was a “Eqm of residential House in the name of” Mr Bajaj’s father.] Was wrongly calculated made by Tribunal member. This amount should have been more than 35000.00 AUD.
2. On 16th Paragraph of the Tribunal decision need to be corrected because of loan was sanctioned against the home, that wasn’t for the education, so my parents have made the FD from that amount because of the bank wasn’t eligible bank so that parents had to go for the FD. It make sense.
3. Australian eligible banks are not giving the loan against our house so they went to convenient bank and got the loan and transferred that money in to the eligible bank to create FD and loan for study.
4. Paragraph 17 also is to observed by honourable justice, because of Tribunal serious concern that this source of funds is an ongoing source to funds that the applicant will have access to while the applicant holds the visa.
5. I have got money coming from parents there is evidence, funds are genuine and all evidence have been submitted. Still Tribunal has their own perception on my funds and that is their concern means, as a normal student what should I do in Australia.
6. It looks like I felt like I am removed from Australia indirectly.
7. Here, I would like to request the Federal circuit court to look in to this matter of claims.
8. If Federal Circuit court has not got power in it, I request the honourable judge to take this matter in to Honourable minister attention.
9. I am agreeing and came to know that absolutely my application has been made with genuine claims.
10. I have felt this is unfair that Administrative Appeals Tribunal has made a decision without allowing me.
11. I hope Federal circuit court has got Jurisdiction in this matter.
The applicant’s primary ground is that the Tribunal erred by wrongly referring to a term loan of 1600000 rupees to the applicant’s father for a period of 84 months, as equating to roughly $3,333. The applicant asserts that the conversion of the true value of the loan amounts to roughly $33,000.
The respondent concedes that the Tribunal miscalculated the value of the home loan, however argues that this error did not affect the exercise of the Tribunal’s jurisdiction, citing the former Federal Magistrate’s Court decision of Nadesan v Minister for Immigration and Anor [2013] FMCA 152 at [9]-[11]. The respondent argues that:
…the miscalculation did not affect the Tribunal’s discharge of its statutory review function. That is, the Tribunal considered the evidence before it and made findings in relation to the Applicant’s claims that were open to it, and for the reasons it gave.
The respondent asserts that the Tribunal’s decision turned on its finding that the applicant did not have access to the relevant funds, and did not satisfy cl. 572.224(2)(c), and did not turn on the applicant’s failure to provide evidence to the Minister in accordance with the requirements of Schedule 5A.
Consideration
In order to meet the requirements of cl.572.223(2), the applicant needed to provide evidence to the Minister in accordance with the requirements mentioned in Schedule 5A; and the Minister must be satisfied that the applicant is a genuine applicant and will have access to funds demonstrated or declared in accordance with Schedule 5A.
On 19 August 2015, the applicant provided written submissions to the Tribunal annexing various documents and made claims that he had funds of 23 Lakh ($46,000). The documents included a loan letter from the Punjab National bank, a fixed deposit certificate from Punjab National bank, tax returns from the applicant's mother and father, a “sanction letter” from the Royal Oriental Bank of Commerce and the applicant's bank statements.
The Tribunal was required to determine whether the applicant, while holding the visa, would have access to the funds demonstrated or declared in accordance with schedule 5A requirements relating to financial capacity.[3]
[3] Tribunal decision dated 27 November 2015 [9].
The Tribunal calculated the funds required as at the date of hearing to be $22,443 comprising of: $2,333 (course fees), $18,610 (living costs), and $1,500 (transport costs).
It is apparent (and conceded by the respondent) that the Tribunal made a factual error in equating 1.6 million rupees with $3,333 rather than about $33,000.
Not every error of fact will give rise to a jurisdictional error. The position is stated clearly in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 at 53:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at 481 [35] per McHugh J.
In my view, the quantum of funds available to the applicant was a jurisdictional fact, the existence of which was a condition precedent to the Tribunal’s jurisdiction. The Tribunal was required to satisfy itself that the while the applicant held the visa he would have access to funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity. As this decision was collateral to the merits of the case, the Tribunal was not permitted to give itself additional jurisdiction by making a wrong decision as to the existence of such facts.[4]
[4] R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (Adamson’s Case) (1979) 143 CLR 190, 214.
The decision of Nadesan v Minister for Immigration and Anor [2013] FMCA 152 referred to in submissions by the respondent is of no assistance to the Court. The factual error in that matter was that the Tribunal made reference to the wrong section of the Act in making a decision.[5] It was held in that case that the error was brought about by the applicant’s migration agent.[6]
[5] Nadesan v Minister for Immigration and Anor [2013] FMCA 152 [9].
[6] Ibid [13].
In my view, the error in relation to the quantum of the home loan constitutes an error which vitiates the decision. It affected the credibility of the applicant before the Tribunal. It was of significance that the Tribunal was concerned about how it was said that a home loan of $3,333 could support a payment of $23,000.
Whilst the quantum of the home loan was not the only reason for the Tribunal not accepting that the applicant was able to satisfy the requirements of the visa, it is plain that it was an issue that directly affected the credibility of the applicant in relation to other matters that were said to establish the satisfaction of the visa requirements. It is strongly arguable that if the Tribunal accepted that a home loan had been made in the sum equivalent to $33,000, the concerns arising over peripheral matters may have fallen away or a different result may have been obtained.
The applicant has established jurisdictional error by reason of the factual error in relation to quantum of the home loan. In the circumstances the application will be allowed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 2 June 2017
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