KAUR v Minister for Immigration

[2015] FCCA 2568

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2568

Catchwords:
MIGRATION – Application for judicial review – consideration of false or misleading information in the context of Public Interest Criteria 4020 – consideration of “funds” in cl.572.223(2)(c) of the Migration Regulations 1994 – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994, cls.572.223, 572.223(1)(b), 572.223(2), 572.223(2)(c), 572.224(2)(c), Sch. 5A

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Applicant: RAVINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1605 of 2014

Judgment of: Judge McGuire

Hearing date: 1 June 2015

Date of Last Submission: 1 June 2015

Delivered at: Melbourne

Delivered on: 29 October 2015

REPRESENTATION

Counsel for the Applicant: Ms Costello

Solicitors for the Applicant: Da Gama Pereira & Associates

Counsel for the Respondents: Mr Aleksov

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the second respondent be amended to read ‘Administrative Appeals Tribunal’.

2. The applicant’s application for leave to rely on an amended application be refused.

3. The application filed 6 August 2014 is hereby dismissed.

4. That the first applicant pay the first respondent’s costs fixed in the quantum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1605 of 2014

RAVINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 11 July 2014 pursuant to the Migration Act 1958 (Cth) (“the Act”), affirming a determination of the Minister’s Delegate not to grant the first applicant a Student (Temporary)(Class TU) visa (“the visa”).

2. The remaining applicants are reliant upon the success of the first applicant’s application.

3. The applicant relies on an amended application filed 18 May 2015.  She requires leave to do so.  Leave is opposed, and a consideration of the merits of the applicant’s complaints in respect of the Tribunal’s decision is required in order to determine whether leave should be granted.

4. The issue here, and in each of the applicant’s now six grounds of appeal, reference the financial requirements necessary to satisfy the criterion in cl.572.223(2)(c) of the Migration Regulations 1994 (“the Regulations”), obligating the applicant to demonstrate that she would have access to funds informed in accordance with Sch.5A of the Regulations for the duration of the visa.

Background

1. The first applicant is from India.  The second, third and fourth applicants are her partner and children.

2. The applicant arrived in Australia in March 2009 and undertook a Diploma course in Hospitality Management which she finalised in January 2013.

3. On 13 March 2013 the applicant enrolled in a Diploma of Management.  On 19 March 2013 she lodged an application for the visa submitting material/information that her brother, Jaspreet Singh, had the benefit of a loan from an Indian bank.  The brother provided supporting affidavits.  On 3 April 2013 the applicant provided the Minister’s Delegate with a copy of the loan sanction letter confirming that funds had been transferred into a loan account on 25 March 2013.  However, investigations revealed that the funds had been completely withdrawn on 25 April 2013.

4. On 21 October 2013 the delegate refused the grant of the visa.

The Relevant Legislation

1. Clause 572.223 provides:

   The Minister is satisfied that the applicant is a genuine applicant for a entry ..... as a student, because:

   The Minister is satisfied that the applicant intends, genuinely, to stay in Australia temporarily, having regard to:

   The applicant’s circumstances;

   The applicant’s immigration history;

   if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant;  and

   (iv) any other relevant matters;  and

   (b) the applicant meets the requirements of subclause (2).

   (2) An applicant meets the requirements of this subclause if: 

   (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant;  and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: 

   (i) the stated intentions of the applicant to comply with any conditions subject to which the visa is granted;  and

   (ii) any other relevant matters;  and

   (c) the Minister is satisfied that while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

2. Schedule 5A408 of the Regulations in respect of financial capacity provides:

   (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 18 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 18 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.

3. The Regulations provide Public Interest Criteria (“PIC”) and at cl.4020, the following:

   (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a) the application for the visa;  or

   (b) a visa that the applicant held in the period of 12 months before the application was made.

   (2) The Minister is satisfied that during the period:

   (a) starting three years before the application was made;  and

   (b) ending when the Minister makes a decision to grant or refuse the application:

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a) compelling circumstances that affect the interests of Australia;  or

   (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.  5.  In this clause:

   information that is false or misleading in a material particular means information that is:

   (a) false or misleading at the time it is given;  and

   (b) relevant to any of the criteria

   the Minister may consider when making a decision on an application whether or not the decision is made because of that information.

4. Clause 572.223(2)(c) required the applicant to have access to the funds informed in accordance with the provisions of Sch.5A for the requisite period of the visa.

The Tribunal’s decision

1. The applicant attended at the Tribunal hearing and had provided lengthy written submissions with the assistance of her representative, having been provided with notice and asked to comment on the funds from the brother’s loan account having been withdrawn.

2. The Tribunal noted the applicant’s reply that her brother’s wife had suffered a miscarriage, thereby causing financial burden, and that the balance of the funds had been invested in property [14] and that the brother had been burdened with medical bills following the death of the applicant’s mother in February 2014 [14]. 

3. At [14], the Tribunal noted discrepancies in the applicant’s evidence and stated at [15]:

   The tribunal is not convinced by the applicant’s explanations as to why the funds were withdrawn from the bank.  The tribunal has formed the view that the loan was arranged only for the purposes of enabling the applicant to show evidence and once that evidence was obtained, the money was withdrawn to be used for whatever needs the brother head.

4. At [16], the Tribunal’s reasons state:

   Secondly, and more importantly, the tribunal is concerned by the evidence of the applicant’s brother that he was unaware of the fact that the funds had to be kept in the bank until the visa was finalised.  The applicant also stated in her submissions to the delegate and the tribunal that she was unaware of that requirement.  That supports tribunal’s view that the money was never meant to be used by the applicant throughout her stay in Australia.  The applicant then changed her evidence and said that it was because of the emotional distress that the money was withdrawn.  For the reasons stated above, the tribunal does not accept that.  The tribunal prefers the applicant’s earlier explanation that neither she nor her brother realised that the money had to be kept in the account or that the funds had to be available beyond the visa application date.  The tribunal considers that the funds were always intended to be used for other purposes.  The tribunal is not satisfied that the funds were meant to be relied on by the applicant for the duration of her visa.

5. And at [17]:

   The tribunal notes that clause 572.223(2)(c) relevantly requires the applicant to have access to the funds demonstrated or declared in accordance with the requirements of schedule 5A relating to the applicant’s financial capacity.  The comments from the applicant and her brother suggest that they were only willing to keep the loan during the visa processing and, once the visa was granted, the funds were to be used for another purpose.  The claims refer to their lack of awareness of the requirement to keep the funds “until the time the visa is granted”.  However, that requirement extends far beyond the visa grant to the entire period while the applicant holds the visa.  The tribunal has formed the view that the funds demonstrated or declared were never going to be available for that period and it was always the intention of the applicant and her brother to withdraw the funds, at the latest upon the grant of the visa.

6. At [19]:

   The tribunal finds that the information the applicant gave in relation to the availability of funds, and the source of funds, for the period she was to hold the student visa was false or misleading because the bank loan was never going to be used for the duration of the applicant’s study in Australia.

7. At [20], the Tribunal deals with an argument mounted by the applicant that “the information relating to the bank loan was not false or misleading at the time it was given”, which is what the definition of PIC at cl.4020(5) requires.  The applicant argues that the provision cannot be applied retrospectively.

8. The Tribunal, however, accepted that at the time that the details of the bank loan funds were given, the information was not false.  Nevertheless, cl.572.223(2) also has to be addressed in that the applicant was required to satisfy the Minister that the funds would be available for the duration of the visa.  The Tribunal made a finding of fact that there was never any intention by the applicant or her brother to retain the funds for the statutory purpose being the duration of the visa and that the information was therefore false in respect of this requirement.

APPLICATION TO THIS COURT

Ground 1

The tribunal misinterpreted and/or misapplied provisions concerning “information that is false or misleading in a material particular as found in paragraphs [1] and [5] of the Public Interest Criteria (“PIC 4020”) in Schedule 4 of the Migration Regulations 1994.

Particulars

(i)  On 3 April 2013, the main applicant provided evidence of a bank loan to the delegate.

(ii)  On 25 April 2013, the bank loan funds were completely withdrawn from the account.

(iii)  The tribunal found that the details were not false or misleading at the time they were given.

(iv)  The tribunal found that “the applicant’s reliance on the loan to meet the requirements of cl 572.223(2)(c) and to have access to the funds for the duration of her visit” was “information that was false or misleading”.

(v)  PIC 4020(5) defines “information that is false or misleading in a material particular” to mean information that “(a) false or misleading at the time that it was given”.

(vi)  The tribunal erred because information that is accurate when given but later becomes false or misleading does not fall within the meaning of “false or misleading” in PIC 4020.

1. The applicant’s Counsel here argues that the Tribunal erred by finding that information which is accurate and is not false or misleading at the time that it is given, but then becomes false or misleading is contrary to PIC 4020(5).  Counsel argues, as I understand it, that the Tribunal was satisfied that the information when given was not either false or misleading and that the applicant and her brother mistakenly did not realise that the funds had to be retained, subject to obvious disbursement, for the duration of the visa.  On this argument, therefore, it follows that the applicant and her brother did not have a purposeful intent to mislead.  Importantly, the applicant says that there must be a mental element, in the sense of an intent to deceive.

2. The applicant says that by reason of the Tribunal’s own findings of mistaken belief, the information was not false and misleading at the time it was given, and that it would be a contradiction or a nonsense to find that the information later accrued some retrospective “dishonesty intent”. 

Consideration of Ground 1

1. I am of the view that the applicant’s argument here fundamentally misunderstands the requirements of the legislation and/or obfuscates the Tribunal’s findings.

2. Cl.572.223(1)(b) requires the Minister to be satisfied that the applicant meets the requirements of subclause (2), being that the applicant gives the Minister evidence in accordance with the requirements of Sch. 5A and at (c) that the Minister is satisfied that the applicant will have access to the funds for the duration of the visa.  There are, therefore, two limbs to be satisfied.  There is a dual consideration based on the information which cannot be false or misleading.  Firstly, whether the funds are available from an acceptable source?  In this respect the applicant’s evidence was not false or misleading.  Secondly, however, and separately, there is a requirement flowing from the information that the funds be available for the duration of the loan.

3. The Tribunal found that, even if based on honest mistake, the applicant did not intend the funds to be available for the required period of the visa. The lack of intention in this respect was a finding open to the Tribunal and probably the only one open given the applicant’s own evidence. The Tribunal found that there was “never any intention” to retain these funds. Hence cl.572.223(2) was not satisfied. The information required is prospective in its intent. That is, at the time it is given it should not be false or misleading in respect of the requirement that the funds be retained for the period of the visa. If, as is clear, the applicant’s information was proposed to satisfy schedule 5A408, then it was false or misleading.

4. I find no merit in this ground of complaint.

Ground 2

The tribunal erred when it construed “information that is false or misleading” in PIC 4020 as if to mean “a representation that is false or misleading”. 

Particulars

(i)  On 3 April 2013, the main applicant provided evidence of a bank loan to the delegate.

(ii)  On 25 April 2013, the bank loan funds were completely withdrawn.

(iii)  The tribunal found that the details of the bank loan were not false or misleading at the time they were given.

(iv)  The tribunal found that “the applicant’s reliance on the loan to meet the requirement of clause 572.223(2)(c) and to have access to the funds for the duration of her visit” was “information that was false or misleading”.

(v)  PIC4020(5) defines “information that is false or misleading in a material particular” to mean information that is “(a) false or misleading at the time when it is given”. 

(vi)  The tribunal erred because it characterised an implied representation that the loan funds would remain available to the main applicant as “information” that was false or misleading at the time it was given. 

(vii)  The tribunal’s construction of “information” in PIC4020 was contrary to the provision.

1. The applicant here argues that the Tribunal erred when it construed “information that is false or misleading” PIC4020 as synonymous with a “representation” that is false or misleading. 

2. Essentially, the applicant’s argument is that the section requires information that is not false or misleading at the time it was given.  It is argued that the error in the Tribunal is then to imply a “representation” as distinct from “information”.  Counsel says that there was no such representation, actual or implied, to the Tribunal, as the applicant did not “realise” her obligations in respect of the retention of the funds.

Consideration of Ground 2

1. The nature of the requirement of the section at cl.572.223(2)(c) is prospective. Whilst it is true that the terms “information” and “representation” are not necessarily synonymous in that not all “information” represents a “representation”, there is an overlap in meaning and application. In the prospective nature of the section, the information must form a type of representation. Put simply, the information conveyed must satisfy the prospective criterion. No direct “representation” is required. The applicant’s own evidence makes it clear that the information does not satisfy the criterion that the funds will be available for the duration of the visa. The semantic discussion drawn by the applicant is not a valid one here. No representation simpliciter is required by the section. It is information that is required. The information was not conveyed. As such, I can find no merit in the argument and ground 2 must fail.

Ground 3

The tribunal erred by purporting to apply PIC4020 without making a finding necessary to its ultimate conclusion in that the tribunal did not state what “information” the applicant had given about the availability of the loan for the duration of her visa  that was false or misleading.  In other words, the tribunal did not make necessary findings about how the information was false or misleading in any “material particular”. 

1. The applicant here argues that the Tribunal erred by purporting to apply PIC 4020 without making a finding, or particularising a finding, necessary to its ultimate conclusion in that the Tribunal did not state what “information” was false or misleading in respect to the availability of funds for the duration of the visa.

Consideration of Ground 3

1. At [17] of its reasons, the Tribunal notes:

   The tribunal has formed the view that the funds demonstrated or declared were never going to be available for that period and it was always the intention of the applicant and her brother to withdraw the funds, at the latest upon the grant of the visa.

2. And at [19], the Tribunal moves to the specific particularised finding:

   The tribunal finds that the information the applicant gave in relation to the availability of funds, and the source of funds, for the period she was to hold the student visa, was false or misleading because the bank loan was never going to be used for the duration of the applicant’s study in Australia.

1. Contrary to the applicant’s argument, the Tribunal did make findings in material particulars.  It found that there was a source of funds.  It found that the funds were never intended to be retained for the duration of the visa.  It found, therefore, that the requirements of cl.572.223 were not met. I am not persuaded, therefore that there is any merit to this ground.

Grounds 4 and 5

1. The applicant argues these grounds together and particularised as follows:

   4.  The tribunal erred by purporting to apply PIC4020 without making a finding necessary to its ultimate conclusion in that the tribunal did not make a finding that any person purposefully gave false or misleading information about the loan or access to the loan during the applicant’s studies.

   5.  The tribunal erred in applying PIC4020(1)(a) by interpreting the provision as if it applied where a document was merely incorrect, whereas “information that is false or misleading in a material particular” requires an element of fraud or deception, where information has the quality of being purposefully false or misleading.

2. Counsel refers me to and relies here on the decision of Buchanan J in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 where his Honour says at [33]:

   In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC4020.  To take the example of bogus documents, a counterfeit document is not produced accidentally.  Similarly, to charge that a statement is false is not to say only that it is wrong.  The accusation potentially imports some element of knowledge or intention on somebody’s part…

3. Counsel for the applicant argues that findings of “fraud or deception” are therefore necessary.  No such findings were made here or, indeed, could not have been made given the finding by the Tribunal as to the innocent mistaken understanding of the applicant as to the requirements of the section.

Consideration of Grounds 4 and 5

1. In Trivedi, Buchanan J moved on at [43] to use the term “purposeful falsity” in the context of the information conveyed in support of addressing the criteria for the grant of a visa. Respectfully, I find that term more suitable, less emotive, and relevant to the application of the facts here to the statutory requirements.

2. The Tribunal here at [17] finds:

   The tribunal has formed the view that the funds demonstrated or declared were never going to be available for that period and it was always the intention of the applicant and her brother to withdraw the funds, at the latest upon the grant of the visa (my emphasis).

3. The “purpose” of the information was to address the requirement of the section including for the retention/availability of funds and therefore the duration of the visa.  The Tribunal found an intent on the applicant and her brother contrary to the purpose.  The conveyance of the information was therefore false in the context of the requirements of the section.  Such is entirely consistent with the Tribunal’s other findings as to the lack of “realisation” at paragraph [16] and there was no need for the Tribunal to move on to a consideration of fraud or mala fides. Notably, such terminology is not evidenced in the section itself.  Consequently, I find no merit to these grounds of complaint.

Ground 6

The tribunal erred by construing “funds” in cl. 572.224(2)(c) as being the bank loan rather than considering whether the main applicant would have access to the underlying funds that were demonstrated by reference to the loan.

1. The applicant here argues that the Tribunal asked itself the wrong question in respect of the form of the facility that would or could have been available to the applicant to access for the duration of the visa.  That is, it is the funds themselves that must be demonstrated or declared to be accessible, not the current facility holding the funds, which on the facts here would be real property later purchased by the brother (save an amount spent on medical bills). 

Consideration of Ground 6

1. The evidence of the applicant and her brother was that an indeterminate part of the funds had been disbursed on medical expenses.  Clearly, those funds are not “fungible”.  Similarly, the remainder had been withdrawn from the loan account to purchase real property.  In any event, and crucially in my view, the Tribunal found that the fund, in whatever form, was never intended to be available for the duration of the visa.  There can, therefore, be no merit to this ground of complaint.

Conclusion

1. Having found no merit in any of the six grounds of complaint raised by the applicant, leave will not be granted to the applicant to rely upon an amended application and the application will be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 29 October 2015