KAUR v Minister for Immigration
[2014] FCCA 1002
•13 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1002 |
| Catchwords: MIGRATION – Migration Review Tribunal – student visa – financial capacity – meaning of ‘regular income’ – application allowed. |
| Legislation: Migration Regulations 1994 |
| Singh v Minister for Immigration and Citizenship [2011] FMCA 923 Singh v Minister for Immigration & Anor [2013] FMCA 132 Patel v Minister for Immigration and Citizenship [2013] FCA 97 |
| Applicants: | MANDEEP KAUR & OTHERS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 897 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 10 April 2014 |
| Date of Last Submission: | 10 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 13 June 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr Poynder |
| Solicitors for the Applicants: | FCG Legal Pty Ltd |
| Counsel for the 1st Respondent: | Mr Priest |
| Solicitors for the 1st Respondent: | Sparke Helmore |
ORDERS
The decision of the Second Respondent made on 29 May 2013 be set aside.
The matter be remitted to the second respondent for reconsideration according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $6,439.00.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 897 of 2013
| MANDEEP KAUR & OTHERS |
Applicants
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant applied to the Department of Immigration and Citizenship for a student visa on 29 August 2011. The delegate refused the application on 23 September 2011.
On 7 October 2011 the applicant applied to the Migration Review Tribunal for a review of the delegate’s decision.
The Tribunal held a hearing on 1 March 2013 (see para. 16 of the decision) following which various further documents were supplied by the applicant. Ultimately the Tribunal made a decision in this matter on 29 May 2013.
The second and third respondents are family members of the applicant whose cases rise or fall with the applicant’s case.
When the applicant applied for a visa in 2011 she intended to depart Australia after completing her course on 31 March 2013. The applicant holds a Bachelor of Arts degree from the Punjab University in India completed in April 2007. The applicant had previously held a student visa to study in Australia from 14 April 2009, during which time she had completed a Certificate III in Hospitality Management and Cookery, and was completing an Advanced Diploma of Hospitality Management.
In the time that it has taken for the visa decision to be made by the Tribunal, the applicant has finished her proposed course of study. The decision in this case, however, is not purely academic because the applicant’s position with respect to future visa applications will be different if she has been refused a student visa on a previous occasion. Thus, although the time it has taken to determine the student visa review has meant that she has been able to complete her studies, the consequences of a refusal of her student visa will have impacts upon her.
The Tribunal determined that Subclass 572, Vocational Education and Training Sector, was the appropriate subclass visa to assess the applicant upon. This is not disputed by the applicant before me. Clause 572.223 states that the applicant will meet the requirements of the subclause if the applicant provides evidence in accordance with the requirements in Schedule 5A for the highest assessment level for the applicant. The tribunal determined that the highest assessment level for the applicant in the circumstances of this case was “Assessment Level 4”. (See paragraph 11) This is not disputed by the applicant.
As a result of these assessments, Schedule 5A, Clause 5A405 applies in this case. Clause 5A405 sets out the basic requirements in clause 1 and it follows:
5A405. Financial Capacity
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 36 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
At the hearing the applicant estimated her expenses, which the Tribunal recounted as:
20. In response to questions as to how much she had calculated she would need to demonstrate to meet course fees, living expenses and travel costs the applicant estimated between $15,000 and $20,000. She said did not have any funds owing for her previous Diploma of Management course and that she had paid the amount of $5750 owing for that course the day prior to the hearing.
The Tribunal recounted the applicant’s circumstances as:
26. The first-named applicant is a national of Indian, as shown by the copy of her relevant passport pages held on the departmental file. The tribunal is satisfied that and finds accordingly. For the purpose of brevity the first named applicant is generally referred to in these reasons as “the applicant”.
27. The applicant arrived in Australia in April 2009 as the holder of a student visa. She has completed a short English course, a Certificate III in Hospitality, an Advanced Diploma of Hospitality and stated that she was set to complete a Diploma of Management in March 2013.
28. The applicant is now enrolled in an Advanced Diploma of Management with a course start date of 22 April 2013 and a course end date of 6 April 2014 (folio 99 tribunal file). The tuition fees are $4500 less an initial prepaid tuition fee of $300 with non-tuition fees of $200.
29. The applicant claims that her father and grandfather will provide financial support to her. Their joint signed statement/affidavit is at folio 86 of the tribunal file.
Importantly, the Tribunal found:
30. The applicant’s father is said to have a fixed deposit in his name of 2,225,000 Indian rupees which he used to secure an overdraft/loan of that amount (folios 64 and 65). The applicant has not provided evidence that her father’s regular income was sufficient to accumulate the level of funding provided by her father. Rather she has provided evidence that the funds in the fixed deposit arose out of the sale of land (the applicant’s oral evidence at hearing and her father’s affidavit at folio 103). Despite that claim the contract for the sale of land is in the name of the applicant’s grandfather (folio 69). Post hearing, the applicant advised that the sale has not even been registered yet. In any event the tribunal is not satisfied on the evidence before it that the applicant’s father’s regular income was sufficient to accumulate the level of funding provided by him. Proceeds from the sale of land do not normally constitute regular income.
31. The applicant’s grandfather has had his income verified at 228,250 Indian rupees per year (folio 72) despite his claim that his total income from his own land is 450,000 Indian rupees (folio 73). Regardless the applicant has not provided evidence that her grandfather has any funds in a bank deposit or a loan in his name. It is not claimed that the funds in the fixed deposit (at folio 64) arise out of the applicant’s grandfather’s income. The applicant claims that the funds arise from the agreement for the sale of land entered into by her father. The grandfather’s income alone, as contrasted to evidence of a bank deposit or a loan, does not demonstrate that he has financial capacity to support the applicant as is required. That matter is addressed further, below.
…
35. As set out above the tribunal is not satisfied that the applicant’s father’s regular income was sufficient to accumulate the level of funding provided by him. That funding is the loan/overdraft (folio 65) secured against the fixed deposit of 2,225,000 Indian rupees (folio 64). The proceeds of the contract for the sale of property are not the regular income of the applicant’s father. Indeed as set out above, the contract for the sale of land was actually in the name of the applicant’s grandfather and not her father. As such the overdraft/loan which arises from the fixed deposit receipt does not meet the requirements of cl.5A405(1)(c). Nor is there other evidence before the tribunal that would demonstrate that the regular income of the applicant’s father was sufficient to accumulate the level of funding he purports to provide.
36. As set out above the tribunal has been provided with evidence of the regular income of the applicant’s grandfather. His joint statement with the applicant’s father is that they will provide financial support to the applicant for her studies. The applicant however has not provided evidence of funds from an acceptable source being in a manner that would meet the requirements of Schedule 5A. Although the applicant’s grandfather would meet the requirement of being an “acceptable individual” there is no evidence of a money deposit or a loan in his name. Evidence as to his income alone is insufficient to meet the requirements of cl.5A405.
The case therefore, turns upon the interpretation of clause 5A405(1)(c). That is, whether “the regular income” of the applicant’s father “was sufficient to accumulate the level of funding being provided”.
The parties referred to an earlier decision by myself in Singh v Minister for Immigration and Citizenship [2011] FMCA 923, however that case turned upon a different aspect of the regulations and is of no assistance here.
In Singh v Minister for Immigration & Anor [2013] FMCA 132 Burchardt FM (as his Honour then was) considered this provision saying:
62. I think that regular income implies both money coming in periodically and money that comes in over periods that themselves have a regular periodicity. That seems to me what the words mean.
His Honour noted that the words of the provision appear to differ from the approach suggested in PAM3 which states “Income from non-regular sources in line with” funds which do not originate from the regular income stream such as an inheritance, lottery win or funds from the sale of assets may be considered acceptable where supported by evidence demonstrating that the funds were genuinely obtained through these means (see section 61 Non-cash assets). The section on non-cash assets suggests that assets which are not in the form of cash are not acceptable, however can be used as collateral to secure a loan.
In Patel v Minister for Immigration and Citizenship [2013] FCA 97, Bromberg J considered the meaning of the phrase “a loan from a financial institution that is made to, and held in the name of, an acceptable individual.” Whilst the provision specifically refers to a loan being “made to and held in the name of” the relevant person, his Honour concluded that for the purpose of this section there did not need to have been a disbursement of any funds to the relevant person from the bank, but merely an agreement by way of an overdraft, and thus:
19. … the definition encompasses a legal enforceable agreement by which a financial institution promises to advance funds to a borrower on condition that the funds advanced be repaid.
Importantly, his Honour gave the provision a broad reading on the basis that:
22. The purpose of cl 5A405 is to provide some assurance that an applicant has access to funds or financial support sufficient to cover the basic expenses likely to be incurred during the applicant’s stay in Australia. Sub-cl 572.223(2)(a)(iii) (with which cl 5A405 should be read) speaks of the Minister’s satisfaction about the applicant’s “access” to funds. In my view, a legally-enforceable agreement from a financial institution whereby an “acceptable individual” has been given access to funds to be drawn down as and when required, satisfies both the overarching purpose of the provisions in question, and falls within the meaning of “loan” as used in the definition of “funds from an acceptable source”. The need for some certainty about the applicant’s access to funds is sought to be accommodated in paragraphs (c) and (d) of the definition of “funds from an acceptable source”, primarily by the restrictions placed on the nature of the lender (ie “financial institution” or “government”) and not by reference to the nature of the lending. That view is fortified by the restricted meaning of the term “financial institution”. If there had been a concern to restrict the nature of the lending, a more explicit approach may have been expected to have been taken by the draftsperson in relation to that subject matter.
Clause 5A405(1)(c) specifically requires evidence that the regular income of the provider of funds “was sufficient to accumulate the level of funding being provided.”
In this case, the interest earned on the capital deposited with the bank was insufficient to meet the level of funding required under clause 5A405. Counsel for the applicant argued that draw-downs on the capital would enable the applicant to meet the financial capacity requirements.
This leaves the difficult question of determining what role clause 5A405(1)(c) has to play in a situation where the funds being utilised by a visa applicant are capital obtained from the sale of land.
The PAM3 guidelines raise an interesting example of a person who may win a lottery. The guidelines interpret the provision to include lottery winnings as a form of money which a person’s regular income would be sufficient to accumulate.
There is no reason in principle why lottery winnings would not represent appropriate financial capacity based upon the purpose of the clause as set out by Bromberg J in Patel.
The question relates to whether the accumulation can be sustained by the regular income. Hence, a loan that cannot be supported by the regular income of an applicant, or an individual providing funds from an unknown source to an applicant, will not fall within the meaning of the provision. However, on a literal reading of the clause, even a very modest, regular income would be sufficient to purchase a lottery ticket each week, and therefore the proceeds of a winning lottery ticket could be accumulated from regular income for even a person on a very low income.
This still leaves some difficulty with providing work for the word “accumulate” to perform if the accumulation is read as simple savings. However, if the term “accumulate” refers to the accumulation of wealth generally, the hypothetical lottery winnings (whilst perhaps an overwhelming percentage) are part of a person’s accumulation of funds or wealth over their lifetime. Similarly, with respect to a bequest, the regular income of the person, no matter what it is, would be sufficient to accumulate funds that included a bequest from a deceased, as a bequest comes as a gift without need for any regular income at a particular rate.
Looking to the purpose of the provision, as set out by Bromberg J in Patel, it seems that the work for clause 5A405(1)(c) to perform is to ensure that the funds being provided have been accumulated by the provider within the limits of their regular income, such that they are either without obligation to third parties, or to the extent that the funds may be a loan, that the regular income would be sufficient to support the repayment of that loan. That is, to ensure the money is actually available from a legitimate source and remains available.
Thus, for the Tribunal to conclude that the proceeds of the contract for sale of the property “are not the regular income of the applicant’s father” overlooks the requirement that the regular income of the father only be sufficient “to accumulate the level of funding being provided.” If the land was genuinely gifted to the applicant’s father, then his income, regardless of the amount of it, would have been sufficient to accumulate the funds that he intends to provide to the applicant. That is, the section focuses enquiry upon the provenance of the funds, not the ability to save the money.
Such an interpretation meets the underlying purpose of the regulations as set out in Patel’s case of ensuring there are funds sufficient to support the applicant. By focusing on the provenance of such funds to ascertain whether there is a legitimate provenance of the funds by the person who provides them, having regard to what they could be expected to accumulate on their regular income in the circumstances of the case. Thus in the case of a lottery win little income is needed but in the case of savings careful enquiry is needed of income amounts.
Whether the Tribunal would be ultimately satisfied on the correct test is a question that I cannot answer, particularly given the most unsatisfactory state of the evidence that was placed before the Tribunal with respect to the ownership and sale of the land said to be the basis for the funds, and the apparent absence of evidence as to the provenance of the land as an asset of the father or grandfather.
In these circumstances, it appears to me that as the Tribunal has not, asked itself the correct question when interpreting these provisions. I must allow the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 13 June 2014
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