SAJI v Minister for Immigration
[2015] FCCA 1170
•7 May 2015
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 was arguably captured by the general ground of review and perhaps hinted at, but not articulated with any precision, in the applicant’s written submissions. That issue is whether, in the circumstances of this case, any occasion at all had arisen for the tribunal to consider the matters raised by cl.5A405(1)(c) of the Regulations. I invited further written submissions on the point, which both parties duly delivered. In that regard, I am grateful for the industry of counsel. The issue arises in the following way.
Background
The applicant arrived in Australia on 9 February, 2009. Since arriving in Australia she has completed certain vocational level courses. On 12 July, 2011 she made an onshore application for a subclass 572 student visa. The applicant had two dependents who also made applications for visas based upon their membership of the applicant’s family unit. The success of their applications was entirely dependent upon the success of the applicant’s application.
On 14 October, 2011 a delegate of the first respondent refused to grant the applicant a student visa on the basis that she had failed to demonstrate that she satisfied reg.223(2)(a)(ii)(A), 225 and 328 of the Regulations. The applications by her dependents consequently failed. The applicant subsequently applied for a review of the delegate’s decision by a migration review tribunal.
On 9 January, 2014 the applicant appeared before a migration review tribunal to present evidence and make submissions in support of her application. A couple of days before the hearing the applicant (by her migration agent) delivered a written response to a request for information from the tribunal. However, despite the applicant’s best endeavours and those of her agent, on 26 February, 2014 the tribunal affirmed the decision of the first respondent’s delegate to refuse the visa.
Student visas have two subclasses – subclass 572 and subclass 573. The tribunal assessed the applicant’s visa application against the criteria relevant to a subclass 572 visa only. No complaint is made by the applicant about that. The relevant criteria include the matters specified in cl.572.233 of Schedule 2 to the Regulations. The first respondent’s submissions point out that the relevant version of cl.572.223 to be applied by the tribunal was that which was current at the time of the tribunal’s decision. The parties agree that the tribunal applied the correct version of that regulation.
It is worth setting out cl.572.223, as it existed at the time of the tribunal’s decision, in full:
Subclass 572—Vocational Education and Training Sector
572.22—Criteria to be satisfied at time of decision
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.
There is no dispute that for the purposes of cl.572.223(2)(a) the applicant was required to satisfy the evidential requirements prescribed by cl.5A405(1)(c) of Schedule 5A to the Regulations. The version of cl.5A405 that was current at the time of the applicant’s visa application was the appropriate version to be applied by the tribunal: Migration Amendment Regulations2011 (No.6) cls.3 and 4. Clause 5A405(1), as it existed at the time of the applicant’s visa application (it is now cl.5A408 (1) in the Regulations), was in the following terms:
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.
The way in which this clause is phrased is curious. On a literal interpretation, all that is required by an applicant to meet its terms is to give…evidence of certain matters. Thus, to meet cl.572.223(1)(b) the first respondent must be satisfied that the applicant is a genuine applicant for entry and stay as a student because (by cl.572.223(2)(a)) the applicant gives evidence of the matters required by cl.5A405(1).
Neither cls.572.223(1)(b), 572.223(2)(a) nor cl.5A405(1) requires the tribunal to make any determination, or reach any particular level of satisfaction, about any of the matters set out in cl.5A405(1). Arguably, once evidence of a particular matter is given, irrespective of what the tribunal makes of that evidence, the obligation is satisfied. It might be that a more purposive approach to the clause requires that the tribunal be satisfied of the veracity of the evidence provided, but if that was the intention of the regulation, it is not clear why it does not say that expressly.
The text of cl.572.223(2) illustrates the point. Clause 572.223(2)(b) and (c) requires that the Minister be satisfied of the matters set out in those subclauses whereas cl.572.223(2)(a) requires something else – it requires the applicant to give the first respondent evidence in accordance with the Schedule 5A requirements.
Arguably, once an applicant has given evidence of the matters required by the relevant clauses of Schedule 5A, cl.572.223(2)(a) has been met. But this matter was not the subject of argument and I will not address it any further.
The tribunal’s decision
The tribunal embarked upon an examination of the matters required by cl.5A405(1) and the evidence provided by the applicant. It calculated the total funds to which the applicant needed to have access for the purposes of cl.5A405(1)(a). It concluded that the relevant amount was AU$51,700. There is no argument about that finding by the tribunal.
It was the applicant’s case that she had funds from an acceptable source because she had secured a loan from a financial institution which exceeded the amount assessed by the tribunal for the purposes of cl.5A405(1)(a). I have set out the definition of funds from an acceptable source later in these reasons, but it is sufficient to note that a loan from a financial institution that is made to, and held in the name of, the applicant is within that definition.
The tribunal noted evidence of an account held in the applicant’s name at the State Bank of Travancore with a balance, as at 18 January, 2014 of an amount equal to approximately AU$55,146. The tribunal accepted that the amount in that account had been approved by the bank as an education loan to the applicant.
It is not entirely clear that the tribunal made a finding that the applicant had access to funds from an acceptable source sufficient to cover the expenses assessed by the tribunal. As to this matter, the tribunal said:
15. The Tribunal has evidence from the State Bank of Travancore dated 18 January 2014 confirming a balance of INR 3,087,000 in an account held by the applicant, and also confirming that this amount had been approved as an education loan to the applicant. The amount is equivalent to AUD 55,146 at current exchange rates.
16. Although the evidence of funds may be sufficient to cover specified expenses outlined above, and may thus constitute funds from an acceptable source for the purposes of cl.5A405(1)(a), the Tribunal is not satisfied for the reasons below that the requirements of cl.5A405(1)(c) are met.
It might be argued that paragraph 16 of the tribunal’s reasons contains a finding that the funds constituted by the bank loan are funds from an acceptable source, but the use of the word may is apt to be ambiguous in the context in which it appears. If the tribunal did not make a finding about the acceptable source of the applicant’s funds, then it has not made a finding which was a necessary precursor to an examination of the issues that arise for consideration under cl.5A405(1)(c). If the tribunal has made a finding that the acceptable source of funds to which the applicant had access was the bank loan, then for reasons that will later appear, I do not think that any occasion arose for the tribunal to examine the matters that are called for consideration by cl.5A405(1)(c). However, for present purposes it is sufficient to note the ambiguity in the tribunal’s reasons.
After the paragraphs I have extracted above, the tribunal’s reasons provide:
17. At the hearing, when the Tribunal discussed the issue of financial evidence, the applicant stated she was still waiting for documents from the bank in India, and indicated she was seeking a loan in her own name. The Tribunal indicated that the applicant should provide evidence of her regular income to show it was sufficient to accumulate the level of funding being provided. The Tribunal also indicated that if fixed deposits were used to secure the loan, it was seeking evidence of the source of funds for those deposits. The applicant stated that her husband held fixed deposits, and that these would be used for the loan. The Tribunal explained that if that were the case, it was seeking evidence relating to those deposits, but overall it was seeking evidence that the applicant’s regular income was sufficient to obtain the level of funding being provided.
(my emphasis)
No evidence relating to the applicant’s husband’s fixed deposits was ever provided to the tribunal. The tribunal made no finding that the loan about which the applicant had given evidence was secured against fixed deposits from the applicant’s husband.
The tribunal went on to note an affidavit of the applicant’s father-in-law, K P Kurnvila, in which he deposed that he intended to give the applicant approximately AU$62,500 for the purpose of her studies in Australia, from the sale of certain real property. A copy of the agreement for sale, dated 17 January, 2014 was exhibited to the affidavit. The tribunal also noted evidence provided by the applicant of her employment in Australia as an assistant nurse for the period between June, 2010 and June, 2011 and accepted that it may constitute evidence of regular income for that period.
The tribunal considered the evidence provided to the first respondent’s department in relation to the requirements of cl.5A405, presumably when she made her initial application for the visa. In that respect, the tribunal’s reasons record:
21. The applicant provided evidence of her employment as an assistant nurse or nurse in the period from June 2010 to June 2011. This evidence was provided in response to matters raised by the Department as to whether the applicant may have breached work conditions of her previous student visa. The Tribunal accepts that this evidence might constitute evidence of the applicant’s regular income over those past periods, however the Tribunal is not satisfied, given this employment was over 2 years ago, and given that no further evidence of the applicants’ regular income has been provided, that this constitutes evidence of the applicant’s regular income for the purposes of assessing whether her regular income was sufficient to accumulate the level of funding being provided by her by way of the loan from the State Bank of Travancore.
(my emphasis)
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 ground of review
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.
Because the bank’s task is to assess the prospect of the loan being repaid, the fact that the bank approved the loan cannot of itself lead to a conclusion that the statutory requirement has been, or should be, satisfied. That is because the text of cl.5A405(1)(c) is concerned with historical events. Clause 5A405(1)(c) requires evidence that the income of the person providing the funds was sufficient to accumulate the level of funding being provided. Dissected, cl.5A405(1)(c) assumes at least three matters, namely:
a)that there is a level of funding that has been accumulated;
b)that the person providing the funding had a regular income; and
c)that regular income was sufficient to accumulate that level of funding.
The use of the verb was in cl.5A405(1)(c), rather than the use of the verb is demonstrates that the focus of the applicant’s evidence must be upon past regular income and a past accumulation of funds. The attitude of the bank to the applicant’s capacity to repay the funds was neither here nor there and the tribunal was correct to give it little weight.
Thus, leaving aside for the moment the issue of whether the tribunal was obliged to consider the applicant’s income within the context of cl.5A405(1)(c) at all in the circumstances of this case, the tribunal’s decision concerning the applicant’s income is otherwise unremarkable. The tribunal considered the evidence that was before it. It was not obliged to draw the inferences that the applicant now says ought to have been drawn from the fact that the bank had given her a loan sufficient to meet the costs assessed by the tribunal. Whatever inferences might be drawn from such material was a matter for the tribunal as the finder of fact, and in any event unlikely to be helpful to the applicant. The failure of the tribunal to draw inferences about the applicant’s regular income from the loan approval was the primary point argued in the applicant’s written submissions. However, the point has no merit.
However, in my view, the tribunal’s inquiries about the applicant’s income were entirely misdirected. I reach that conclusion for the following reasons.
The applicant was required by cl.5A405(1)(a) of the Regulations to give evidence that she had funds from an acceptable source that were sufficient to meet the amount calculated by the tribunal for the purposes of that clause. The phrase funds from an acceptable source is defined in cl.5A405(2) to mean (amongst other things) a loan from a financial institution that is made to, and held in the name of, an acceptable individual. The applicant is an acceptable individual: cl.5A405(2) of Schedule 5A of the Regulations. She gave evidence, and in my view, the tribunal found in paragraph 16 of its reasons that the applicant had a loan from a financial institution that was made to and held in her name.
To the extent that the tribunal failed to make a finding about the applicant giving evidence of funds from an acceptable source it fell into error. A finding about that was necessary to inform the next step of the process that the tribunal undertook, namely whether an examination of the matters identified by cl.5A405(1)(c) was required. The tribunal needed to understand the identity and nature of the acceptable source providing the funds to the applicant.
That is so because cl.5A405(1)(c) requires the applicant to provide 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. Thus, it will be appreciated that one of the foci of the enquiry directed by cl.5A405(1)(c) is upon the income of the individual who is providing funds to the applicant.
Individual is not defined in the Migration Act or the Regulations. It is, however, defined by the Acts Interpretation Act 1901 as follows:
2B Definitions
In any Act:
individual means a natural person.
Two matters arise from these observations. First, unless the applicant is providing funds to him or herself (for example, through savings accumulated over time), the regular income of the applicant is irrelevant for the purposes of cl.5A405(1)(c). Second, the question of regular income is only relevant if an individual is providing funds to the applicant.
Here, the provider of the funds to the applicant was not an individual. There is no evidence of the legal status of the State Bank of Travancore, but the tribunal seems to have accepted that it was financial institution. The first respondent’s written submission proceed in the basis that State Bank of Travancore is not a natural person. I think it safe to say that it is not a natural person.
To meet the obvious difficulty that these observations present, the first respondent argues that the applicant was providing funds to herself for the purposes of cl.5A405(1)(c). He argues that it is evident, since the introduction of cl.5A405 in 2001, that the Regulations have sought to distinguish between the provision of funds to an applicant (at cl.5A405(1)(c)) and the source of those funds (as defined separately in cl.5A405(2)). Having regard to the “mischief to which cl.5A405(1)(c) is clearly designed to target”, the first respondent argues that there is no reason why, “just because the Applicant obtained a loan in her own name, she should avoid the scrutiny of cl 5A405(l)(c)”.
However, cl.5A405(1)(a) is directed at the availability of funds to the applicant, not the use of the funds by the applicant after they have been provided to her or him. The phrase has funds from an acceptable source in cl.5A405(1)(a) directs attention to the applicant’s access to the relevant funds and the source of the funds to which the applicant has access. It is not concerned with what she does with them after she has access to them. To suggest that where an applicant obtains funds on loan from a bank and after the loan funds are placed in an account to which the applicant has access, the applicant should thereafter be considered as providing funds to him or herself for the purposes of cl.5A405(1)(c) strains the language of both cll.5A405(1)(a) and 5A405(1)(c). Such a construction renders unnecessary much of the definition of funds from an acceptable source. That definition provides:
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 6 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.
If the first respondent’s argument was correct, much of that definition would have no work to do. Any applicant who sought a visa and, irrespective of the source of the loan, relied upon funds provided on loan that had been paid to the applicant and which the applicant held in a bank account, would only be able to satisfy the definition of funds from an acceptable source if the money deposit (the loan funds held in the applicant’s account) had been made to the applicant at least six months earlier (see paragraph (aa) of the definition).
The argument pays no attention to the distinction drawn in the definition of funds from an acceptable source between a money deposit held by an acceptable individual (see paras (a) and (aa) of the definition) and a loan from a financial institution that is made to, and held in the name of [the applicant] (para (c) of the definition).
The first respondent argues that the applicant in this case approached the bank for a loan and presumably took steps to facilitate the loan. He argues that this means that there are identifiable steps taken to obtain a loan which, once approved, became a source of funds for the applicant. The first respondent’s submissions continue:
The bank was only ever merely a source of funds. It became a matter entirely for the Applicant as to whether she eventually used the funds she had provided to herself (by obtaining a loan from the bank) for their intended purpose (being to study in Australia). This shows why it is necessary for the Applicant to be tested to ensure she is intending to be a “genuine student”.
I reject that argument, primarily because it applies to any funds to which the applicant has access, irrespective of their source. If the argument was correct, then in any case in which the applicant has demonstrated access to funds under his or her control, an examination of the income position of the applicant and his or her ability to accumulate the level of funding provided will be required. In those cases where the funds have come by way of loans or deposits from others, the applicant is unlikely to be able to demonstrate his or her own ability to accumulate the level of funding provided. As pointed out above, an examination is usually undertaken of the income position of those providing the funds so as to determine their ability to accumulate the level of funding provided.
The first respondent’s argument equates the use of the funds after an applicant has access to the relevant funds with the provision of those funds to the applicant. According to the first respondent’s argument, having secured the relevant funds (irrespective of from where those funds are sourced) the applicant must be taken to provide those funds to him or herself for the purposes of cl.5A405(1). If that was so, the only inquiry required by cl.5A405(1)(c) would be an enquiry about the applicant’s regular income and whether that was sufficient to accumulate the relevant level of funding. Clearly, cl.5A405(1)(c) is designed to do more than that.
Moreover, the first respondent’s argument breaks down on further testing. As the first respondent’s written submissions point out:
19. But the First Respondent concedes this distinction becomes less ‘neat’ when, instead, the funding source is, for example, “the government of a foreign country” (see cl 5A405(2), definition of “funds from an acceptable source” at sub-paragraph (b )(iii)) and an applicant took no real steps to obtain his or her funding and, quite possibly, had no “regular income” to obtain the money (as it is unlikely the money was given by a “loan”). This point calls into question whether an applicant, in this hypothetical scenario, was providing funding to itself at all. This is because he or she did not have to evidence an ability to pay-back the money, when obtaining the money, as this was not necessary.
In my view, having obtained a loan sufficient to meet the funding requirements of cl.5A405(1)(a), it is artificial to consider that the applicant is providing those funds to herself or that she is the relevant acceptable source of those funds for the purposes of cl.5A405(1) and 5A405(2). On the facts of this case, the applicant was not an individual…providing funds to the applicant for the purposes of cl.5A405(1)(c).
Moreover, if paragraph 16 of the tribunal’s reasons for decision does contain a finding that the applicant had given evidence of funds from an acceptable source sufficient to cover the relevant costs, the first respondent cannot disturb that finding of fact in these proceedings. He cannot now argue that the source of the funds was the applicant.
Conclusion
The first respondent argues that in this case, the applicant did nothing to show satisfactory “regular income” or otherwise show how the loan from the bank was to be satisfied. But in my view, she was under no obligation to do so. That is so because she gave evidence of having funds from a loan provided to her by a financial institution for the purposes of the definition of funds from an acceptable source in cl.5A405(2) of the Regulations.
The enquiry directed by cl.5A405(1)(c) is focused upon the regular income of any individual providing funds to the applicant and the sufficiency of that regular income to accumulate the level of funding being provided by that individual.
Here, the provider of the funds to the applicant was not an individual.
No occasion arose to consider the applicant’s income at all as the tribunal purported to do. The applicant was not providing the relevant funds to herself. The funds were not provided by an individual. The funds were provided by the bank.
To the extent that the tribunal sought to enquire into the applicant’s income for the purposes of cl.5A405(1)(c), it misdirected itself as to the proper construction of that regulation. It took into account an irrelevant consideration and that irrelevant consideration was dispositive of the review application before the tribunal.
Expressed in terms of the issue I set out at the commencement of these reasons, a visa applicant need not 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 tribunal was in error to require the applicant to do so.
The tribunal’s decision was infected by jurisdictional error because it took into account an irrelevant consideration that was determinative of the review. The tribunal’s decision and should be set aside with costs.
I make the orders set out at the commencement of these reasons.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 May, 2015
Associate:
Date: 7 May 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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