Paudel v Minister for Immigration

[2014] FCCA 665

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAUDEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 665

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether the Tribunal misconstrued meaning of “financial institution” – jurisdictional error found – relief granted. 

Legislation:

Migration Act 1958 (Cth), s.476,

Migration Regulations 1994 (Cth) reg.1.03, 1.41, 1.42, Sch.2, Sch.5A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

First Applicant: ASHOK CHANDRA PAUDEL

Second Applicant: KALPANA BARAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 869 of 2013

Judgment of: Judge Nicholls

Hearing date: 13 February 2014

Date of Last Submission: 13 February 2014

Delivered at: Sydney

Delivered on: 4 April 2014

REPRESENTATION

Counsel for the Applicants: Mr J R Young

Solicitors for the Applicants: Shamser Thapa & Associates

Counsel for the Respondents: Mr B O'Donnell

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. A writ in the nature of certiorari issue quashing the decision of the second respondent dated 3 April 2013 to affirm the decision of the delegate of the first respondent to refuse to grant the applicants Student (Temporary) visas.

3. A writ in the nature of mandamus issue remitting the matter to the Tribunal and requiring it to determine according to law the application made to it by the applicants for review of the delegate’s decision.

4. The application made on 26 April 2013, and amended on 13 February 2014, is otherwise dismissed

5. The first respondent pay the applicants’ costs set in the amount of $6,646.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 869 of 2013

ASHOK CHANDRA PAUDEL

First Applicant

KALPANA BARAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 26 April 2013 and amended at the final hearing (leave granted) on 13 February 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) delivered orally on 3 April 2013 (a written statement of the decision is dated 8 April 2013) which affirmed the decision of the Minister’s delegate not to grant the applicants Student (Temporary) visas.

Background

1. Mr Ashok Chandra Paudel (“the applicant”) and his spouse applied for student visas on 31 May 2012 (“Court Book” – “CB” – CB 1 to CB 10). His spouse’s application (the second applicant in these proceedings) was dependent on his claims. The Minister’s delegate refused to grant the visas on 24 July 2012 (CB 21 to CB 33).

2. The applicants applied for review to the Tribunal on 8 August 2012 (CB 39 to CB 49). They were represented by a registered migration agent (CB 45).

3. To be granted the visa the applicant was required to meet the relevant criteria for the visa as set out at cl.572.223 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (as it was at the relevant time):

   “572.223

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

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

   (i) the applicant’s circumstances; and

   (ii) the applicant’s immigration history; and

   (iii) if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv) any other relevant matter; 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 intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii) any other relevant matter; 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.”

4. Relevantly, the applicant was required to provide evidence as set out at that part of Sch.5A to the Regulations that applied to his circumstances (the assessment level – see reg.1.41, reg.1.42(i) and reg.1.03 of the Regulations).

5. There was no dispute between the parties that the issue before the Court arose from the Tribunal’s understanding and application of cl.5A405 of Sch.5A to the Regulations. That was in the following terms, at the relevant time:

   “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 24 months:

   (i) co     urse 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 24 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.

   (1A) If the applicant is:

   (a) fully funded; or

   (b) an applicant:

   (i) who is not funded, wholly or partly, by:

   (A) the Commonwealth Government, or the government of a State or Territory; or

   (B) the government of a foreign country; or

   (C) a multilateral agency; and

   (ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and

   (iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or

   (c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:

   (i) a provincial or state government in a foreign country, with the written support of the government of that country; or

   (ii) an organisation specified by the Minister in a Gazette Notice for this paragraph;

   the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.

   (2) In this clause:

   acceptable individual means one or more of the following:

   (a) the applicant;

   (b) the applicant’s spouse or de facto partner;

   (c) the applicant’s parents;

   (d) the applicant’s grandparents;

   (e) the applicant’s brothers and sisters;

   (f) an uncle or aunt of the applicant who is:

   (i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii) usually resident in Australia.

   financial support, from an applicant’s proposed education provider, means:

   (a) a scholarship that:

   (i) is awarded on the basis of merit and an open selection process; and

   (ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

   (iii) is awarded to the greater of:

   (A) not more than 10% of overseas students in a course intake; and

   (B) not more than 3 overseas students in a course intake; or

   (b) a waiver of the applicant’s course fees carried out in the following circumstances:

   (i) the applicant is part of an exchange program that involves:

   (A) a formal agreement between an education provider and an education institution in a foreign country; and

   (B) the reciprocal waiver of course fees as part of that agreement;

   (ii) the applicant proposes to study full‑time;

   (iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

   funds from an acceptable source means one or more of the following:

   (a) if the applicant:

   (i) has successfully completed at least 75% of the requirements for his or her principal course; and

   (ii) has applied for the visa in order to complete the course; and

   (iii) does not propose to undertake any further course;

   a money deposit held by an acceptable individual;

   (aa) if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

   (b) financial support from:

   (i) the applicant’s proposed education provider; or

   (ii) the Commonwealth Government, or the government of a State or Territory; or

   (iii) the government of a foreign country; or

   (iv) a corporation that:

   (A) conducts commercial activities outside the country in which it is based; and

   (B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or

   (v) a multilateral agency; or

   (vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or

   (vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or

   (viii) an acceptable non‑profit organisation;

   (c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;

   (d) a loan from the government of the applicant’s home country.”

   [Emphasis in the original.]

6. The term “financial institution” was defined, at the relevant time, as follows (cl.5A101 of Sch.5A to the Regulations):

   “…

   financial institution means a body corporate that, as part of its normal activities:

   (a) takes money on deposit and makes advances of money; and

   (b) does so under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operates, that the Minister is satisfied provides effective prudential assurance.

   …”

   [Emphasis in the original.]

7. The applicant had provided some evidence that he had access to funds held by his father in certain institutions in Nepal, his home country (with reference to cl.5A405(1)(aa) of Sch.5A to the Regulations). The Tribunal stated ([28] at CB 125) that:

   “The first named applicant seeks to rely upon the availability of funds from deposits held by his father with the Nabil Bank and the Shuvechha Saving & Credit Co-Operative Ltd in Nepal.”

8. The critical parts of the Tribunal’s reasoning relevant to the issue before the Court are at [29] and [30] (at CB 125 to CB 126):

   “[29] … In terms of the requirements of paragraph (aa), the Tribunal is satisfied on the basis of advice from the Australian High Commission in India contained on their website that the Nabil Bank in Nepal satisfies regulatory and prudential assurance requirements for the purposes of the legislation. The Tribunal is thus satisfied that the Nabil Bank is a financial institution as defined in clause 5A101. However the Tribunal finds that the first named applicant has not provided any evidence of a money deposit held in that financial institution for the required period of at least 3 months immediately before the date of application (28 February 2012 – 31 May 2012). The evidence establishes that the Nabil Bank account has been operated only since 29 July 2012, approximately 2 months after the date of application, and the documents from that bank confirm account balances as at 29 July 2012 and 17 March 2013 only.

   [30] The Tribunal accepts that the first named applicant’s father has held funds in his Shuvechha Co-operative account at a level in excess of the required amount, and for at least 3 months prior to the visa application. As indicated above, the Tribunal discussed with the applicants the requirements that the money be held for a relevant three month period prior to the application date and that it be held with a financial institution as that term is interpreted in the legislation. The Tribunal referred to the advice from the Australian High Commission in India regarding the banks in Nepal it considered had met relevant regulatory and prudential assurance requirements. The first named applicant provided details only about the reasons his father held his savings in the Shuvechha Co-operative account. In the circumstances, the Tribunal relies on the evidence provided through the Australia High Commission in India, which has considered those institutions operating in Nepal

   
   

   which meet the relevant legislative requirements (see That advice is that only the Nabil Bank and Nepal SBI Bank operate in the way required under a regime that provide effective prudential assurance. The High Commission advice has been provided in a context where specific attention was paid to the regulatory environment in Nepal. In the circumstances, the Tribunal finds that the Shuvechha Saving and Credit Co-operative Ltd is not a financial institution for the purposes of the legislation. Thus while a relevant deposit was held by the first name applicant’s father with that organisation for the period of at least 28 February 2012 to 31 May 2012, this was not a money deposit held with a financial institution.”

   [Emphasis added – see [79] below.]

9. The question for consideration before the Court is whether the Tribunal misunderstood, and misapplied, the definition of “financial institution” to the circumstances presented. [Throughout the remainder of this judgment a reference to cl.5A101(a) or (b) of Sch.5A to the Regulations are those subsections as found under the defined term (“financial institution”).]

Before the Court

1. At the hearing, Mr J R Young of counsel appeared for the applicants. Mr B O’Donnell of counsel appeared for the respondent Minister.

2. The applicant did not press ground one of his amended application. No submissions were made in relation to ground three, however, it was said to be “not abandoned”. I did not find this to be helpful or satisfactory. The ground is a mere statement of a general assertion. It lacks any particularity whatsoever.

3. In the circumstances, it remained lacking in definition and explanation. It was not put by the applicants that the ground should be considered as an alternative to ground two, or that it arose from the circumstances of that ground or otherwise. It is not for the Court to speculate about the applicants’ actual assertion of legal error. Further, I note that the applicants’ were legally represented before the Court.

4. In the absence of even a cursory explanation, let alone argument, I am not satisfied that the ground is made out. In any event, for the reasons that follow, the applicants’ ground two is made out and they should be granted the relief they seek on that basis.

5. Grounds two and three, as amended on 13 February 2014, are in the following terms:

   “2. The decision of the Second Respondent is infected by jurisdictional error in that it had misinterpreted the regulatory requirements under cl 572.223 and schedule 5A cl5A101 of the Migration Regulations:

   Particulars

   a) The Second Respondent fully relied on the website of the Australian High Commission (AHC) in India to conclude that Nabil Bank in Nepal satisfies regulatory requirements as an acceptable financial institution and discarded the funds the Applicant’s father held in Shuvechha Co-operative account for the required period prior to transferring the same funds into Nabil Bank. The Second Respondent failed to consider the fact that the advice contained in the AHC’s website is not a regulation but general guidelines. The status quo authority has accepted that the combination of funds held in other financial institutions which have later been transferred to Nabil Bank. In the MRT case number 1105033 (4 April 2013), at para. 34, the Tribunal found that, ‘…The money deposit meets the requirements of paragraph (aa) of ‘funds from acceptable source’ in cl.5A405(2). On the basis of the bank statements from Gantabya Saving and Credit Co-operative and Nabil bank provided in support of the visa application, the Tribunal finds that … money deposit has been held for at least 6 months immediately before the date of the application’. Gantabya Saving and Credit Co-operative is not on the AHC’s website as an acceptable financial institution and yet was still accepted.

   2A. The Second Respondent made jurisdictional error by misconstruing the definitions of ‘financial institution’ and ‘money deposit’ in Cl 5A405 of the Migration Regulations 1994.

   2B. Further or in the alternative to 2A above, the Second Respondent made jurisdictional error by failing to consider whether the particular institution with which a money deposit was held was a ‘financial institution’ as defined.

   2C. The Second Respondent made jurisdictional error by failing to consider the states and nature of the list compiled by the Australian High Commission in India and Published on its website.

   3. The Second Respondent’s decision was so unreasonable that no reasonable Tribunal member would have made it.”

6. I should note that the applicant had served a Notice to Produce on the Minister which was called upon at the hearing. The Minister responded with the tender of correspondence from the Minister’s solicitors to the applicants’ solicitors and the affidavit of Mr Liam Dennis, solicitor, made on 12 February 2014 (no objection was raised by the applicants). The applicants did not press their call on the Notice further. To the extent that the material contained in the affidavit is relevant it is considered below.

Consideration

1. While the Tribunal made reference to, and set out, the terms of some aspects of the relevant regulatory scheme, it made no reference to the terms of the definition of “financial institution” in its relevant correspondence with the applicant. Nor did it quote the terms of the definitions in its decision record (see CB 73 to CB 75 and CB 121 to CB 127). In any event, the applicant did not dispute the “correctness” of the relevant law (that is, the text of the applicable version of the Regulations, see [4] – [7] above), as proposed by the Minister to the Court.

2. The applicant did make a number of points about the definition of “financial institution” (in the Regulations) and the Tribunal’s relevant reasoning.

3. First, the definition speaks of a “body corporate” not necessarily a “bank”. In its decision record, the Tribunal made reference to “banks” in Nepal and relied on advice from the Australian High Commission in India (“AHCI”) as to “…the banks in Nepal it considered had met the relevant regulatory and prudential assurance requirements…” ([30] at CB 125).

4. While plainly, in its decision record, the Tribunal said it referred to advice about “banks” (and not “financial institutions” or “body corporates” that take money on deposit and make advances of money), it may be allowed that such a reference was consistent with the fact that the evidence provided by the applicant in relation to the availability of funds from one institution was that it was a bank (“Nabil Bank”).

5. In relation to the other institution (“Shuvechha Saving and Credit

   
   

   Co-operative Ltd”), it may be allowed, in context, that the use of the term “bank” was a generic reference and not one revealing, on its own, some misunderstanding of the Regulations by the Tribunal. This view is supported by the Tribunal’s subsequent reference to “those institutions operating in Nepal which meet the relevant legislative requirements…” ([30] at CB 125, although see further below).

6. Second, the applicants submitted that the term “money deposit” is not further defined. The applicants’ submission was that in these circumstances meaning could be derived from its focus in context of the definition. In this sense the relevant meaning was said to characterise a “money deposit” as being a deposit with a financial institution.

1. It is important to pause and note the actual words employed by the definition of “financial institution” as defined at cl.5A101 and see if any plain meaning can be ascertained.

2. There did not appear to be any dispute between the parties that the concept of “financial institution” in the Regulations meant a “body corporate” characterised as taking money on deposit and making advances of money as part of its “normal activities” (essentially cl.5A101(a)).

3. However, the meaning of cl.5A101(b) was subject to some dispute. This clause is directed to the environment in which such a body corporate must operate such as to fall within the definition. That is, it must, as a part of its “normal activities”, perform the functions at cl.5A101(a), and do so under a regulatory regime that the relevant decision maker (here the Tribunal) is satisfied “provides effective prudential assurance”.

4. In my view the commas after “regime” and after “operates” (see [7] above) make it clear that the satisfaction is directed to the regulatory regime, and not necessarily to the governance by, or of, the central bank. The word “it” as it appears in the phrase “…which it operates” refers to a body corporate which operates under a regulatory regime governed by the central bank of the country in which the body corporate operates.

5. Therefore, the following are elements of cl.5A101(b). First, that the body corporate which otherwise satisfies cl.5A101(a), must also be a body corporate that the Minister is satisfied carries out the functions at cl.5A101(a) under a regulatory regime that provides effective prudential assurance.

6. Second, a precondition to, if not a part of this, is that the regulatory regime must be governed by the relevant central bank. These are questions of fact. Whether the regulatory regime provides effective prudential assurance is to be determined at the satisfaction, or otherwise, of the Minister.

7. In all, a “financial institution” is a body corporate that as part of its normal activities has the particular characteristics set out at cl.5A101(a) and (b). Further, in my view, given the structure of the definition of “financial institution” what appears in both (a) and (b) of cl.5A101  must relate to the “body corporate” as it appears in the first line of the defined term.

8. The Minister submitted that “it”, at cl.5A101(b), referred to the central bank. In my view, such a reading creates a tautology. That is, it would read as being that the regulatory regime is governed by the central bank of the country in which the central bank operates as a central bank which operates a regulatory regime

9. In my view, the preferred reading, which maintains the relationship between the first line of the definition and its constituent parts, is to read the reference in cl.5A101(b) to “it”, as being the body corporate. This avoids a result, under the Minister’s reading, of having superfluous language in the definition.

10. Thus, in my view,  the meaning of “financial institution” is as follows:

    1)It is a body corporate,

    2)that as part of its normal activities,

    3)takes money on deposit and make advances of money, and

    4)conducts these activities under a regulatory regime that the Minister is satisfied provides effective prudential assurance, and

    5)that regime is governed by the central bank (or equivalent) of the country in which the body corporate operates.

11. One point in the applicant’s attack on the Tribunal’s decision is of note here. The applicant submitted that there was no contention by him that “the Minister”, in context the Tribunal, could not have recourse to expert opinion as to whether the regulatory regime provides effective prudential assurance on which to then base his, or its, consideration of the relevant level of satisfaction.

12. However, the applicant did argue that the relevant definition did not operate in the sense seen elsewhere in the migration regulatory scheme, (for example, occupations recognised by “ASCO”), where the “advice” provided by a third party to the decision maker was “conclusive”. That is, in the ASCO example, the occupation was either “on” the relevant list, or not.

13. The applicant argued that, in the current circumstances, while an expert opinion (here the AHCI advice) could be considered, it should not be seen as abrogating the decision maker’s obligation to consider whether the requisite level of satisfaction could be reached, or not reached. In short, the “opinion” from the AHCI could not be “substituted” for the relevant decision maker’s consideration relating to the satisfaction posited in cl.5A101(b).

14. The applicant argued that throughout the conduct of the review (including in correspondence to the applicant), the Tribunal proceeded on the basis that the advice from the AHCI, was conclusive. That is because the particular institution was not on the list provided by the AHCI it could not satisfy the relevant regulatory requirement. The Tribunal did not have regard to the actual regulatory requirement as set out in the definition of “financial institution”, but simply proceeded on the basis of what the AHCI said were the “acceptable institutions” in Nepal. That regulatory requirement required it, on the evidence before it, to reach, or not reach the requisite level of satisfaction. I accept the applicants’ submissions in this regard.

15. As against that background, and for the reasons that follow, the Tribunal’s reasoning reveals that it did not understand the definition in its essential parts and therefore misapplied the definition to the facts before it.

16. It is to be remembered that the applicant provided evidence to the Tribunal from the Nabil Bank and the Shuvechha Saving and Credit Co-operative Ltd.

17. In relation to the Nabil Bank, the Tribunal said at [29] (at CB 125):

    “…the Tribunal is satisfied on the basis of advice from the Australian High Commission in India contained on their website that the Nabil Bank in Nepal satisfies regulatory and prudential assurance requirements for the purposes of the legislation…”

18. What is immediately apparent when regard is had to the understanding and meaning of the relevant definition as summarised at [32] above, is that it is not the Nabil Bank (assuming it is a body corporate) that is required to satisfy the regulatory and prudential assurance requirements for the purposes of the definition.

19. Rather, the relevant consideration should have been applied to the question of whether the regulatory regime in Nepal, being a regime governed by the Nepalese central bank (or its equivalent), provided effective prudential assurance.

20. It must be noted that the applicant’s evidence relating to the funds in the Nabil Bank was not found by the Tribunal to be unsatisfactory for any reason connected with the bank itself or the regulatory regime and the like. The reason, as set out subsequently at [29] of its decision record (at CB 125), was that the relevant money deposit was not held for the three month period immediately before the date of the visa application as otherwise required by the relevant criteria.

21. Nonetheless, the reference (see at [39] above) is revelatory of the Tribunal’s mistaken understanding of the meaning and operation of the definition at cl.5A101 which is repeated at [30] (at CB 125) of its decision record in relation to the Shuvechha Saving and Credit

    
    

    Co-operative Ltd.

22. In relation to this latter set of funds the Tribunal found that the evidence satisfied the relevant requirements as to the minimum level of funds held, and that the funds were held for the relevant three month period.

23. However, the Tribunal ([30] at CB 125) referred:

    “…referred to the advice from the Australian High Commission in India regarding banks in Nepal it considered had met relevant regulatory and prudential assurance requirements…”

24. In relying on, or more precisely applying, that advice, the Tribunal found that the Shuvechha Saving and Credit Co-operative Ltd was not a “financial institution for the purposes of the legislation” ([30] at CB 126). In coming to this conclusion the Tribunal said it proceeded on advice that only two banks (which did not include Shuvechha Saving and Credit Co-operative Ltd) “…operate in the way required under a regime that provides effective prudential assurance” ([30] at CB 126).

25. The Tribunal’s analysis here contained the same flaw that was revealed above (see at [39] – [43]). That is, it was of the mistaken view that the relevant definition required that the “banks” or “institutions”, not the relevant regulatory regime, to meet the prudential assurance requirements. The focus of the AHCI advice was understood by the Tribunal to be whether the institutions “operate in the way required”.

26. That is, the focus was on the quality, or character, of the operation of the “banks”. Rather, the focus should have been on whether the regulatory regime provides effective prudential assurance.

27. If the regulatory regime provided such assurance, then what the language of the regulation requires is as set out above. That is, that as part of its normal activities the relevant body corporate takes money on deposit and makes advances of money under such a regulatory regime, which is governed by the central bank of, in this case, Nepal.

28. That is, the focus in relation to effective prudential assurance should have been on the regulatory regime, not the individual “banks”.

29. The Tribunal misinterpreted the Regulations in this way. The consequent application of this mistaken understanding of the definition of “financial institution” led to the Tribunal’s failure to exercise its jurisdiction. The Tribunal did not consider whether the evidence from Shuvechha Saving and Credit Co-operative Ltd could have assisted the applicant to satisfy the relevant criteria for the grant of the visa. This evidence, it must be noted on the Tribunal’s own assessment, otherwise met the minimum deposit level for the relevant period that the funds were required to be held.

30. I was not persuaded to a different view by the Minister’s submissions. The Minister argued that a financial regulatory regime can operate in relation to different financial institutions in different ways. That is, that a country can operate multiple regulatory regimes.

31. The Minister submitted that, in this context, the relevant question to be asked as arising from the definition is whether the particular institution (in this context the Shuvechha Saving and Credit Co-operative Ltd) operates under a regime that provides effective prudential assurance.

32. The Minister’s position was that the Tribunal did not have to look at the particular institution itself and determine whether or not it was “well-run”, or, for example, look at its “balance sheet”. The question that the Minister said the regulation posed for the decision maker was: “Which regime or which part of the regime does this institution operate under?”. That was put also in context of the submission that a country can operate multiple regimes.

33. It may be said that the Minister’s emphasis in submissions on the matter of “multiple regimes” could be seen as a diversion from the required particular focus on the subject matter at cl.5A101(b).

34. I accept the Minister’s submission that the language of the definition allows for “multiple regimes”. The focus at cl.5A101(b), as referred to above, is that a body corporate, as part of its normal activities undertakes certain tasks (at cl.5A101(a)) under “a” regulatory regime that the Minister is satisfied provides effective prudential assurance, and is a regulatory regime governed by the central bank of the country in which the body corporate operates. That allows for a number of regulatory regimes.

35. I also accept the Minister’s submission that the Tribunal was not required by the “definition” to look at the detail of the institution’s operations. That is, its balance sheets and the like. This is because the required focus on the regulatory regime makes such an inquiry unnecessary. In that sense, the Minister’s submissions here simply serve to reinforce the applicants’ view of the definition of “financial institution” that I have taken.

36. The Minister agreed that the definition requires that it is the regulatory regime that must provide effective prudential assurance, and that the focus of the regulation at cl.5A101(b) was on the regulatory regime, and not the institution. However, the Minister’s submissions did not satisfactorily explain why the Tribunal, in these circumstances, expressly said it referred to advice regarding “banks” (assuming this term was meant to refer to a body corporate) and whether those banks, and not the regime itself, met regulatory and prudential assurance requirements.

37. I agree with the applicant’s submissions that whether the definition allows for one or more “regimes” is not relevant to the disposition of the applicant’s ground. What is relevant was whether the Tribunal answered the questions asked by the definition. As set out above, these were whether there is a body corporate, does it take money on deposit and make advances of money, and does it do these activities under a regulatory regime, which has the characteristics of being governed by the relevant central bank. This latter element to be at the decision maker’s satisfaction.

38. The Tribunal’s decision record, at relevant parts, reveals that the Tribunal did not understand the sequence, or nature, of the questions posed by the definition. Its answers, therefore, could not be properly related to the requirements of the definition. This reveals the Tribunal’s error in the exercise of its jurisdiction.

39. The Minister also submitted that a further relevant question is whether a regime provides effective prudential assurance to a particular category of institution. The Minister’s submissions proceeded on the premise that institutions operate in different ways and that different regulatory regimes may apply to them.

40. While accepting that the definition may allow for more than one regulatory regime in each country, the submission proceeds on the basis that the focus of that part of the definition at cl.5A101(b) is to establish whether the regime provides effective prudential assurance to a particular “category” of institution.

41. As set out above, I do not accept that is an accurate reading of the regulation. The Minister’s proposed link between the institution and the regulatory regime goes further than that allowed by the wording in the definition.

42. As set out above, the body corporate must do certain things under a regulatory regime to meet the definition of “financial institution”. The other relevant elements at cl.5A101(b) are directed to the regulatory regime under which it operates.

43. These latter elements  say nothing about the efficiency of the particular institution. I agree with the applicant that on the plain wording of the regulation, so long as the body corporate carries out the activities at cl.5A101(a) “under a regulatory regime” which has certain characteristics, then that is sufficient to meet the definition. This includes that the relevant focus is on the Minister being satisfied that the regulatory regime provides effective prudential assurance, not the body corporate.

44. In his submission the Minister, separately, raised a “policy issue”. He argued that the “evident purpose” of the regulation is that the Minister requires assurance, in matters of this type, that applicants from certain countries have funds, or access to funds, that will be available to support their study and stay in Australia. That assurance, it was said, was based on the need for some satisfaction that the relevant institution continued to operate, and that the funds would not “disappear”. That is, this was the “policy outcome” the Minister wanted to achieve.

45. A number of points must be noted here. First, the Court was not taken to any extrinsic material to support the Minister’s contention as to the policy intention of the Regulation.

46. Second, in these circumstances it can only be assumed that the Minister presses his reading of the Regulation as reflecting a particular “policy intention” as arising from the language used in it. In that regard, I have set out at a number of places in this judgment my view of that plain language (for example, see [32] above).

47. Third, and in any event, even assuming that that was the policy intention, it is fulfilled by the view of the language of the Regulation that I have taken. That is, a body corporate, operating under a regulatory regime which is governed by the central bank (or its equivalent) of the appropriate country. Further, that the Minister is satisfied the regulatory regime provides effective prudential assurance. The Minister could be assured therefore that his “policy outcome” (if indeed this was the case) could be met because the body corporate is subject to such regulation by the central banking authority of the relevant government.

48. In oral submissions, the Minister described the applicant’s interpretation (which as set out above, I accept) as having an “absurd effect”. That was explained as follows. If one “bank” in a “developing country” operated under a regime that provided effective prudential assurance then every “bank” operating in that country, operating under “any variety” of the regime, “would have to be acceptable”.

49. The Minister’s submission repeats, and proceeds, with the same error identified in the Tribunal’s approach. That is, it does not comprehend that the focus in cl.5A101 is on a particular body corporate doing certain activities in a prescribed environment, that is the regulatory regime governed by the central bank, that the Minister is satisfied offers effective prudential assurance. In any event, even on the Minister’s argument, any “variety” of the regime in respect of which the Minister could not reach the relevant satisfaction would fall outside the definition.

50. In his submissions, the Minister also spent some time pressing the point that the Tribunal is entitled to seek and rely on “expert opinion”. The Minister drew an analogy with cases before the Refugee Review Tribunal where that Tribunal often relies on “country information” to determine complicated issues relating to factual claims in the country of claimed persecution.

51. That may be the case, but I did not understand the applicant’s attack in this case to be that the Tribunal could not have regard to expert opinion. Rather, I understand the applicant’s position to be that the expert opinion needed to be relevant to the elements existing in, and the questions posed by, the Regulation.

52. In the current case, the “expert opinion” to which the Tribunal had regard was the advice from the AHCI. That advice is not reproduced in the Tribunal’s decision record. The Tribunal simply makes reference to a page on a website (see [30] at CB 125).

53. That advice, however, is before the Court as an annexure to the affidavit of Mr Dennis. The advice is in the following terms (see annexure “B” to the affidavit of Mr Dennis):

    “Acceptable Institutions for Funds and Loans – Nepal

    Acceptable Financial Institutions in Nepal

    Nabil Bank

    Nepal SBI Bank”

    [Emphasis in the original.]

54. As is clear, that advice is simply to list two institutions in Nepal which the AHCI says are “Acceptable Institutions for Funds and Loans” in Nepal. This says nothing about the regulatory regime governed by the central bank to which the Minister’s satisfaction must be directed, and answered in the affirmative if the “body corporate” is to meet that element of the definition at cl.5A101(b).

55. Further, it must be said the advice, as it stands, begs the question as to what the word “acceptable” may relate to. The question may be rhetorically posed: “Accepted for what purposed and to what end?”

56. In any event, there is no error, nor was it asserted by the applicant, in the Tribunal simply having regard to an “expert opinion”. However, what this advice does reveal now is that the Tribunal relied on advice about the “banks” (and the absence of the Shuvechha Saving and Credit Co-operative Ltd from that list) rather than the character of the regulatory regime itself. This would not have enabled it to answer the question as to its satisfaction as posed at cl.5A101(b).

1. Finally, the Minister urged the Court to apply a fair reading to the Tribunal’s decision record as explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] (“Wu Shan Liang”):

   “When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker (23). The Court continued (24):

   ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’”

2. In particular the Minister pointed to those parts of the decision record where the Tribunal used the language of the Regulation. In this context the Minister also sought to explain the Tribunal’s reference in its decision record at [30] (at CB 125), where the Tribunal used the words “operate in the way required” (see at [9] above). The Minister submitted that, on their own, these words may suggest that the Tribunal had misunderstood the relevant definition. But, when read in context, such a reading would, in the Minister’s submission, reveal no error.

3. I should note that some reference was made at the hearing to SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 per Stone J (“SZCBT”), as further illuminating what was said in Wu Shan Liang. The Minister urged the Court not to see what was said in that case (at [26] of SZCBT) as being  supportive of the proposition that any ambiguity in the Tribunal’s record should be decided against the Tribunal. At [26] Justice Stone said:

   “The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”

4. In my respectful view, what Her Honour said at [26] of SZCBT was plain and clear. But in any event, it does not assist in the current case. That is because, even on a fair reading of the Tribunal’s reasoning, there is no ambiguity as to its intended, but in context, erroneous meaning.

Conclusion

1. For the reasons set out above, the Tribunal misunderstood and misapplied key elements in the definition of “financial institution” in the disposition of the application made to it. This affected the exercise of its. Ground two is made out. The applicants are, therefore, entitled to the relief they seek on that basis. Ground three is not made. I will make the relevant orders.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 4 April 2014