SAJI v Minister for Immigration - [2015] FCCA 1170

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAJI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1170

Catchwords:
MIGRATION – Application for Student (temporary) (class TU) visa – where applicant borrowed funds from a financial institution for study expenses – whether applicant was required to show income sufficient to accumulate the funds provided – where tribunal required applicant to show income sufficient to accumulate the funds provided – where to do so was an error – jurisdictional error established.

Legislation:

Acts Interpretation Act1901, s.2B

Migration Amendment Regulations2011 (No.6), cls.3, 4

Migration Regulations 1994 (Cth), Schedule 2 cl.572.223, Schedule 5A cls.5A405(1)(a), 5A405(1)(b), 5A405(1)(c)

Cases:
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant:

DEEPA SAJI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 254 of 2014

Judgment of:

Judge Jarrett

Hearing date:

10 March 2015

Date of Last Submission:

25 March 2015

Delivered at:

Brisbane

Delivered on:

7 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Travers

Solicitors for the Applicant:

Chand Lawyers

Counsel for the Respondents:

Mr Richardson

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue quashing the decision of the second respondent made on 6 March, 2014.
The applicant’s application for a Student (Temporary) (Class TU) visa be remitted to the second respondent for re-determination according to law.
The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 254 of 2014

DEEPA SAJI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By this application the applicant seeks to have a decision of the second respondent made on 6 March, 2014 quashed and her application for a Student (Temporary) (Class TU) visa remitted to a migration review tribunal to be determined according to law. The second respondent’s decision affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a student visa.
The application raises for consideration the proper construction of cl.5A405(1)(c) found in Schedule 5A of the Migration Regulations 1994. More particularly, the issue is whether a visa applicant must provide evidence that their regular income was sufficient to accumulate the amount of a loan from a bank raised by the applicant to meet the expenses specified in cl.5A405(1)(a) of the Regulations.
The application specifies one ground of review, expressed in general terms, but with two limbs. The first limb asserts unreasonableness in the tribunal’s decision of such a nature that this Court should intervene. The second limb suggests that the tribunal did not apply a procedure mandated by law. This latter aspect of the ground of review attracted no discreet written or oral submissions. It was effectively abandoned and I say nothing more about it.
Both parties filed written submissions for the purposes of the final hearing. In addition, at the hearing of the application I raised an issue that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1170
Decision Date: 7 May 2015

CaseChat Overview and Summary

This matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia concerning an application for review of a decision made by the Administrative Appeals Tribunal. The applicant, SAJI, sought to challenge the Tribunal's finding that she did not satisfy the requirements of clause 5A405(1)(c) of the Migration Regulations 1994, which related to demonstrating sufficient regular income to accumulate the level of funding provided. The core of the dispute revolved around the weight the Tribunal gave to a loan approval from the State Bank of Travancore as evidence of the applicant's regular income.

The primary legal issue before the Court was whether the Tribunal's decision that the applicant had not provided sufficient evidence of regular income was so unreasonable as to constitute a jurisdictional error. The applicant contended that the Tribunal was required to act reasonably in its assessment and that its conclusion, particularly regarding the loan approval, was unreasonable in the sense described in *Minister for Immigration and Citizenship v SZMDS*. Specifically, the applicant argued that a bank's approval of a loan necessarily implied the borrower's capacity to service and repay it, and therefore the Tribunal should have inferred sufficient regular income from the loan approval.

Judge Jarrett reasoned that while the loan approval might afford some evidence of the applicant's income at the time of the application, the Tribunal's task was distinct from that of the bank. The bank's assessment focused on the future likelihood of loan repayment, which might not necessarily depend on the applicant's personal income. The Court noted that the applicant's argument conflated the bank's lending criteria with the Tribunal's evidentiary requirements under the Regulations. Consequently, the Court found that the Tribunal's decision was not unreasonable in the *SZMDS* sense, as the bank's assessment and the Tribunal's assessment involved different considerations and purposes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The tribunal considered the use it could make of the approval of the loan from the State Bank of Travancore as evidence of the applicant’s regular income. About this, the tribunal said:23. The Tribunal has taken into account the evidence of the loan approval itself, and whether this might satisfy the Tribunal of the question in relation to the applicant’s regular income. However in the absence of other current evidence to demonstrate the applicant’s regular income, the Tribunal is not satisfied from the approval itself that the applicant’s regular income was sufficient to accumulate the level of funding provided. (my emphasis) The tribunal concluded by saying that:24. Having considered the evidence provided, the Tribunal is not satisfied that the applicant meets the requirements of cl.5A405(1)(c). 25. On the basis of the above, the applicant has not given evidence in accordance with the Schedule 5A requirements for Subclass 572 and assessment level 4, and therefore does not satisfy cl.572.223(2)(a)(i). The applicant accordingly does not satisfy cl.572.223. The applicant argues that in determining whether the applicant satisfied the requirements of cl.5A405(1), and therefore cl. 572.223, the tribunal was required to act reasonably. And so it was. However, she argues that the tribunal did not act reasonably and the tribunal’s decision was so unreasonable as to engage the principles which suggest that an unreasonable exercise of a power is a reviewable jurisdictional error as explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 esp. per Crennan and Bell JJ at [130-131]. The applicant points out that the acceptable source of the funds for the purpose of her application was a loan provided by the State Bank of Travancore. She argues that it is “a universally accepted standard, that financial institutions do not lend or provide money without evidence of the borrower’s capacity to service and repay the loan”. Whilst I do not think that I can take judicial notice of such a “universally accepted standard” it is tolerably clear from the tribunal’s reasons for decision that the tribunal accepted that the applicant’s loan application might afford some evidence of her income at the time of the loan application. The applicant’s submissions focus upon her regular income and her capacity to accumulate the level of funding being provided in the form of the loan. The applicant argues that: “If the bank assessed the applicant’s financial situation, or that of her backers, and has decided to advance the funds, then the only reasonable inference, it is submitted, is that the applicant’s income is sufficient to accumulate the level of funding provided on the basis that the funds have been provided.” On that basis the applicant argues that the tribunal’s decision is unreasonable in the SZMDS sense. But that argument equates the task undertaken by the bank when assessing whether the applicant’s loan application meets its lending criteria with the task that the tribunal has to undertake for the purpose of cl.5A405(1)(c) of the Regulations. The tasks are different. The material contained in the applicant’s loan application and the bank’s attitude towards that application might afford some evidence that the applicant has a regular income and has some ability to repay the loan. But the bank’s concern is about what might happen in the future and whether the funds borrowed will be repaid, and not necessarily that it will be repaid by the applicant. In that respect, depending upon the nature of the loan and the arrangements for repayment, the income of the applicant might be irrelevant to the bank.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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