Sandhu v Minister for Immigration
[2014] FCCA 1129
•30 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDHU v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1129 |
| Catchwords: MIGRATION – Application for Student Visa – whether the applicant demonstrated that the regular income of the person providing funds for him was sufficient to accumulate the level of funding being provided by that person – where tribunal asked itself the wrong question – where tribunal gave no consideration to whether the regular income of the person providing funds for the applicant was sufficient to accumulate the level of funding being provided by that person. |
| Legislation: Migration Regulations 1994 (Cth), cls.5A405(1)(a), 5A405(1)(b), 5A405(1)(c) |
| Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Singh v Minister for Immigration [2013] FMCA 132 |
| Applicant: | ROOP KAMAL SINGH SANDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 453 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 13 December 2013 |
| Date of Last Submission: | 13 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 30 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brown |
| Solicitors for the Applicant: | directly instructed |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue to remove into this Court the record of the Migration Review Tribunal for the purpose of its decision dated 8 May, 2013 in respect of the applicant being quashed.
A writ of mandamus issue whereby the matter be remitted to a migration review tribunal requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent made on 8 June, 2011 according to law.
The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 453 of 2013
| ROOP KAMAL SINGH SANDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed on 4 June, 2013 and amended on 21 August, 2013 the applicant seeks orders in the nature of certiorari and mandamus in relation to a decision of the second respondent dated 8 May, 2013 which affirmed a decision of a delegate of the first respondent not to grant the applicant a student visa.
The applicant argues that the orders he seeks are appropriate because:
a)the tribunal failed to take into account the regular income of the applicant’s father when it determined that he did not satisfy the requirements of cl.5A405(1)(c) of Schedule 5A to the Migration Regulations1994;
b)the tribunal erred in its interpretation and application of the meaning of regular income as used in cl.5A405(1)(c) of Schedule 5A of the Regulations because, when it considered the applicant’s father’s income as it was obliged to do, it failed to draw a distinction between the repayment of capital and the payment of interest; and
c)more generally, the tribunal erred by misconstruing the meaning of regular income as used in cl.5A405(1)(c) of Schedule 5A of the Regulations.
In my view, the applicant does not make out his claims that the tribunal erred in the ways set out above. However, one matter was raised in the written submissions filed on behalf of the applicant that does have substance. That matter concerns the correct interpretation of cl.5A405(1)(c) of Schedule 5A of the Regulations as I have discussed below. In my view, the tribunal has misconstrued the task it was to perform for the purposes of that subclause. It has not undertaken the task required of it by that subclause and as a consequence the tribunal has not discharged its statutory function. It has fallen into jurisdictional error.
For the reasons that follow, the application must succeed.
Background
The applicant is a national of India. On 14 March, 2011 he applied for a subclass 572 student visa.
In order to be granted a subclass 572 student visa, it was necessary for the applicant to demonstrate that he met the financial capacity requirements prescribed by cl.572.223(2)(a)(i) of Schedule 2 to the Regulations. Relevantly, that subclause provided:
(2) An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07A
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; ...
For the purposes of cl.572.223(2)(a)(i), the applicant was given an assessment level of 4. Schedule 5A to the Regulations in turn specified the requirements for “assessment level 4” for subclass 572 visas in relation to language proficiency and financial capacity. Insofar as financial capacity is concerned, cl.5A405 of Schedule 5A provided as follows:
(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 terms acceptable individual, financial support and funds from an acceptable source are defined in cl.5A205(2) of Schedule 5A to the Regulations. In this case nothing turns upon those definitions.
On 8 June, 2011 a delegate of the first respondent refused to grant the applicant a subclass 572 visa. The delegate found that the applicant did not meet the requirements of cl.572.223(2)(a)(i), because the applicant did not give evidence in accordance with the requirements mentioned in Schedule 5A for the applicable assessment level for the applicant.
On 6 July, 2011 the applicant applied for a review of the delegate’s decision by a migration review tribunal.
By letter to the applicant dated 7 March, 2013 he was invited to appear at a hearing before the tribunal on 30 April, 2013. The applicant was also invited to provide evidence before the date of the tribunal hearing that the applicant satisfied the financial capacity requirements for the grant of the visa. The letter reminded the applicant of the need to show that he had “funds from an acceptable source”, and in the case of a money deposit, to demonstrate that such deposit had been held for at least six months before the visa application was made. The letter stated that the applicant was required to provide evidence that the regular income of any person providing funds to the applicant was sufficient to accumulate the level of funding provided by that person.
The applicant attended the hearing that took place on 30 April, 2013.
The applicant’s case before the tribunal was that his father had arranged an overdraft loan with a bank to fund the necessary financial assistance required by the applicant. The overdraft was secured on what is described as a “FDR account” held by the applicant’s father. That appears to be some form of deposit account. The applicant submitted to the tribunal a deposit receipt indicating that the funds in the FDR account were invested on 17 April, 2013 for a term of 1 year.
On 8 May, 2013 the tribunal affirmed the delegate’s decision.
The tribunal found that the applicant was required to demonstrate that he had access to funds totalling $8,875. The tribunal was satisfied that the overdraft funds were sufficient to meet the financial capacity requirements for the applicant’s proposed period of study for the purposes of cl.5A405(l)(a) and (b) of the Regulations. The tribunal was satisfied that the applicant’s father, who claimed to be providing financial assistance to the applicant, was an acceptable individual as required by cl.5A405(1)(a) and that through the assistance made available by his father, the applicant had sufficient funds available to him from an acceptable source.
However, the tribunal was not satisfied that the applicant’s father had a regular income that was sufficient to accumulate the level of funding being provided as required by cl.5A405(1)(c). The tribunal noted that the applicant had provided evidence that his father had income from dairy and taxi businesses of approximately AUD$4000 per annum. That evidence took the form of a document referred to as an “income tax acknowledgment”. The tribunal thought that the income revealed by that document was insufficient to permit the applicant’s father to accumulate the funds in the deposit account or to accumulate “the level of funding ... acquired by way of loan”.
However, the applicant also claimed at the hearing that his father earned other income from “unofficial money lending”. Neither he nor his father provided evidence to the tribunal of those activities at the hearing. The tribunal member pointed out to the applicant that unless he could provide evidence of his father’s income from that source, the tribunal would not be satisfied on the information that it had that his father had a sufficient regular income to accumulate the funds in the FDR account.
The applicant provided further information to the tribunal by way of a post-hearing submission received by the tribunal on 3 May, 2013. The applicant enclosed copies of a number of documents with that submission including four affidavits said to establish the existence of the unofficial money lending business and the fact that a regular income was received from it by his father. The affidavits relied upon by the applicant are summarised in the tribunal’s reasons for decision and were, more particularly:
a)an affidavit of Rajbir Kaur which stated that she has a loan of Rs9,00,000 from the applicant’s father, which she is repaying on 10 April, 2013;
b)an affidavit of Stujut Singh stating that he has taken a loan of Rsl0,00,000 from the applicant’s father and that Rs5,00,000 was repaid on 3 April, 2013 and the balance was to be repaid according to the terms of the loan (although the terms of the loan were not disclosed);
c)an affidavit of Sukwani Singh stating that she has taken a loan of Rs8,00,000 from the applicant’s father and that Rs4,00,000 was repaid on 13 April, 2013 and the balance was to be repaid according to the terms of the loan (although the terms of the loan were not disclosed); and
d)an affidavit of the applicant’s father stating that he has obtained an overdraft limit of INR16,50,000 which can be used to support the applicant. He swore that he derived his income from his dairy business and taxi business and was in a position to support the applicant as required.
Notwithstanding that additional material, the tribunal said:
70. The Tribunal has also considered the information provided by the applicant following the hearing about his father's unofficial money lending and the source of the funds used for this. The Tribunal finds that there is no information on which it can be satisfied that there is an additional amount of regular income of his father which can be verified from this source. Even if the Tribunal accepted that the original source of the funds which the applicant states that father uses for his unofficial money lending business was from the sale of land, the sale of land is not regular income of his father.
71. The Tribunal explained to the applicant at the hearing that it does not accept that the applicant has given evidence that the FDR account, upon which the Bank loan is secured, has been accumulated from the regular income of his father. The Tribunal said it appeared that the applicant's father's regular income as demonstrated by his taxation records is insufficient to have accumulated the level of funding his father has acquired by way of the loan which he states he will make available to him. The Tribunal has no basis on which to accept the applicant's father's other income as claimed by the applicant and there has been no information provided as to the amount of his father's other income. Accordingly, the Tribunal considers that the regular income of the applicant's father as an individual providing funds to the applicant is not sufficient to have accumulated the funds being provided and the requirements of cl.5A405(1)(c) have not been met.
The decision under review was affirmed.
This Application
The applicant, by an amendment to his application made on 21 August, 2013 specified three grounds of review in this application. However, he now only presses the first two grounds. The third is abandoned.
Ground One: The tribunal failed to take into account the regular income of the Applicant’s father
There seems to be two limbs to this ground as developed by the applicant’s Counsel’s written and oral submissions. The first limb takes issue with the weight given by the tribunal to certain evidence relied upon by the applicant as to his father’s income. The second limb suggests that the tribunal ought to have made its own enquiries about the applicant’s father’s income to supplement the evidence relied upon by the applicant, but it failed to do so.
It appears uncontroversial that the applicant depends upon his father to provide the funds to pay for his tuition fees, living expenses and travel costs during his stay in Australia. The applicant’s father earns an income, the applicant alleges, from dairy farming, taxi driving services and an “unofficial money lending service”.
As the applicant, by his Counsel, submits: “The tribunal stated that they needed to be satisfied that the father earned a regular income from the money lending service and found they were not satisfied to that fact as appropriate evidence had not been produced”.
As to the first limb of the this ground of review, the applicant submits that the tribunal failed to give the appropriate weight to the affidavits I have set out above and did not use them to make its decision about whether or not the applicant’s father earned a sufficient regular income for the purposes of the Regulations. Instead the tribunal, it is argued, relied only on the applicant father’s tax acknowledgment which did not reveal the required level of income.
There can be no argument but that the tribunal gave consideration to the evidence contained in the affidavits I have referred to above. It clearly did so. The applicant’s own arguments recognise that at issue is the weight given by the tribunal to that evidence. The tribunal was not satisfied by that evidence that the applicant’s father derived an income from any money lending service, which, when taken with his other income was of a sufficient level for the purposes of the Regulations.
The applicant was put squarely on notice at the tribunal’s hearing that the tribunal did not accept his assertions about the income that his father derived from his “unofficial money lending business”. The applicant provided further evidence to the tribunal on that point, but the tribunal was not obliged to accept it uncritically. As matters turned out, it was insufficient to satisfy the tribunal that the applicant’s father earned an income from his money lending, let alone the amount of that income. In that respect, I accept the first respondent’s submissions that:
a)the tribunal was correct when it observed that there was no information on which it could be satisfied that there was an additional amount of regular income of his father which could be verified from his money lending business. The evidence permitted of no other finding than that the principal which he had lent out (derived from the sale of a block of land) would be repaid;
b)even if the tribunal accepted that the original source of the funds which the applicant’s father used for his unofficial money lending business was from the sale of land, the lending out and repayment of that money was not regular “income”; and
c)there was no evidence provided as to the amount of the applicant father’s income by way of interest from his money lending business.
The only evidence of the amount of the applicant’s father’s income came from the income tax acknowledgment that the applicant put before the tribunal. That document indicated that his father earned income of approximately $4000 per annum from his diary and taxi businesses.
Above all else, the affidavit sworn by the applicant’s father, given by the applicant to the tribunal following the hearing and relied upon by the applicant does not mention any income from any money lending business. What the applicant’s father does swear is that:
4.I confirm that I am currently deriving income from Dairy Business and taxi Business.
The first limb of this ground of review cannot succeed because the tribunal considered the evidence placed before it by the applicant but remained unsatisfied about the matters of which satisfaction was required under the relevant subclause of the Regulations. The weight to be given to the evidence relied upon by the applicant was a matter for the tribunal. In any event, the evidence did not provide the answers to the questions raised by the tribunal.
As to the second limb of this ground of review, the applicant argues that the tribunal ought to have made “other enquiries”. In that respect, he argues “that it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]). The first respondent takes no issue with that statement of principle.
The applicant submits that the regularity of the applicant’s father’s income was a “critical fact”. And so it was. But the tribunal clearly made its concerns about that critical fact known to the applicant.
The applicant submits that “the tribunal ought to have enquired into the regularity of the loan and interest repayments and the specific terms and conditions of the loans, as those were significant facts in determining whether or not the applicant’s father received regular payments”. The applicant argues that these enquiries would have been obvious and the facts easily accessible and ascertainable.
However, in my view, having raised its concerns with the applicant, the tribunal was under no obligation to make the enquiries now suggested by the applicant. That is so given the sworn evidence placed before the tribunal by the applicant from both the borrowers of the relevant funds and from his father. None give evidence of the terms or the conditions of the loans, including terms as to the payment of interest. Neither does the applicant’s father. The evidence of the borrowers and the evidence of his father all pointed one way, and that was to a conclusion that his father derived no income from the “unofficial money lending business”, but rather was receiving repayments of principal.
It was for the applicant to make good his assertions to the tribunal. I reject the applicant’s submission that the failure of the tribunal, to make the enquiries he now suggests it should have made indicates a failure in the tribunal’s duty to carry out a review of the applicant’s claim for a visa.
Further, the applicant argues that in order to ascertain the applicant’s father’s regular income, the tribunal ought to have asked questions in relation to the income that the applicant’s father earned from his dairy farming and taxi business. However, as pointed out above, the tribunal relied on the applicant’s father’s annual income as stated in the income tax acknowledgment that the applicant had placed before the tribunal.
Additionally, the applicant now argues that the tribunal failed to take into account that India has a different tax system from Australia and the tribunal misunderstood the nature or content of the income tax acknowledgment. I reject that argument because:
a)having noted to the applicant that his father’s income as disclosed in the income tax acknowledgment was insufficient to meet the requirements of the Regulations, the applicant was thereafter able to put evidence before the tribunal explaining the income tax situation in India if he had wished to do so; and
b)there was no evidence before the tribunal of the tax system that operates in India.
The practical enquiry required by the principle derived from SZIAI set out above is directed to the link between the failure to make the relevant enquiries and the outcome of the review. If the two are sufficiently linked, there may be a failure to carry out the statutorily mandated review. However, in this case there is no sufficient link between the failure to make the enquiries identified by the applicant and the outcome of the review so as to constitute a failure to carry out the statutorily mandated review (see SZIAI at [25]).
This limb of the applicant’s first ground of review must fail and consequently, the first ground of review cannot succeed.
Ground Two: The tribunal erred in interpreting and applying the meaning of “regular income” under cl.5A405(1)(c) of the Regulations by failing to distinguish the difference between proceeds from sale of land and interest derived from the father’s money lending business, and by misconstruing the meaning of regular income.
The applicant submits that the tribunal erred in its interpretation of the phrase “regular income”. The applicant relies upon Singh v Minister for Immigration [2013] FMCA 132 where, it is said, that phrase was found to “...impl(y) both money coming in periodically and money that comes in over periods that themselves have a regular periodicity”.
The applicant further submits that in order to have fully complied with cl.5A405(1)(c) of Schedule 5A of the Regulations, there should have been some enquiries by the tribunal into the regularity of the applicant’s father’s income. The applicant develops this submission by suggesting that the tribunal erred in its duty to conduct a review by not examining whether the income earned by the applicant’s father was “regular”. It should have done this, it is argued, by asking questions in relation to the amount of interest earned from each loan and when the interest became payable. Further, the applicant argues that the tribunal failed to enquire into the regularity of income earned from the applicant’s father’s dairy farm and taxi service. The applicant repeats the arguments he made in relation to the first ground of review based upon SZIAI (above).
However, for the reasons I have given above in relation to ground one, this argument cannot succeed. The tribunal found that the applicant did not meet the financial capacity requirements of the Regulations given that there was no evidence before it that supported the applicant’s claim that his father derived income from unofficial money lending and that the only evidence provided by the applicant indicated that the applicant’s father’s income was $4000 per annum. The tribunal was correct to observe that the proceeds from a one-off sale of land did not constitute regular income notwithstanding that the capital derived from that sale had been lent to others and there was some evidence that some of that capital had been, or would be, repaid.
The applicant further submits that the tribunal erred in its application of cl.5A405(1)(c) of Schedule 5A of the Regulations because it misinterpreted the phrase “required funds” in that regulation. The applicant submits:
16. …The tribunal found that the Applicant’s proposed study in the Certificate IV course in Hospitality required a total sum of $8,875.00 which included Course fees, living costs and travel costs.
17. The Applicant proposed to pay for the required funds by using money funds the applicant’s father’s over-draft account, whereby the sum of AUD $29,996 was available.
18. The tribunal found that the funds in the Overdraft account were from an acceptable individual and source and were sufficient to meet the required funds of $8,875.00. However, the tribunal stated that Clause 5A405(1)(c) of the Regulations “requires evidence that the regular income of any individual providing funds to the applicant is sufficient to accumulate the level of funding being provided”. The tribunal was of the opinion that Clause 5A405(1)(c) of the Regulations was not satisfied because as the applicant’s father’s income was recorded as approximately AUD $4,000.00 per annum on a tax return and therefore the tribunal concluded it was not sufficient to have accumulated the funds being provided in an overdraft account to the sum of AUD $29,99613.
19. The Applicant submits that the tribunal erred in their application of Clause 5A405(1)(c) of the Regulations, as the question in relation to funding should have been whether or not the applicant’s father’s income was sufficient to accumulate the level of funding being provided to the applicant which as determined by the tribunal was $8,875.00. Instead the tribunal focused on the entire funds of the over-draft account, and made their decision based on Karanail’s income being regular enough to accumulate $29,996.00, instead the Applicant submits the tribunal should have focused on whether or not the applicant’s father’s income was sufficient to accumulate the required funds of $8,875.00. Therefore the Applicant submits that the tribunal made a jurisdictional error by not applying the correct facts to the relevant law.
(footnotes omitted, faithfully reproduced)
This is the point that has substance. The tribunal identified at paragraph 58 of the reasons for decision that the applicant’s total costs for his proposed course of study were $8,875. In paragraph 59 of the reasons the tribunal correctly identified that:
59. The applicant is therefore required to give evidence of funds sufficient to meet expenses totalling $8,875 for the applicant’s proposed course.
In paragraph 67 of the reasons for decision the tribunal expresses its satisfaction that the applicant had given evidence that he has funds from an acceptable source that are sufficient to meet his course fees and living costs for the period of his proposed course of study and his travel costs, i.e., the $8,875 previously assessed by the tribunal. Clearly, the tribunal’s conclusion about that was correct because the amount in the FDR account was almost twice that required by the applicant and the amount available via the overdraft account was more than three times as much.
The tribunal then moved to consider whether it was satisfied that the regular income of the applicant’s father was sufficient to accumulate the level of funding being provided by him. It was at this point, in my view, that the tribunal slipped into error.
At paragraph 71 of the reasons for decision the tribunal said:
71. The tribunal explained to the applicant at the hearing that it does not accept that the applicant has given evidence that the FDR account, upon which the Bank loan is secured, has been accumulated from the regular income of his father. The tribunal said it appeared that the applicant's father's regular income as demonstrated by his taxation records is insufficient to have accumulated the level of funding his father has acquired by way of the loan which he states he will make available to him. The tribunal has no basis on which to accept the applicant's father's other income as claimed by the applicant and there has been no information provided as to the amount of his father's other income. Accordingly, the tribunal considers that the regular income of the applicant's father as an individual providing funds to the applicant is not sufficient to have accumulated the funds being provided and the requirements of cl.5A405(1)(c) have not been met.
(my emphasis)
The first passage emphasised from the extract set out above reveals that the tribunal focused its attention on both the FDR account and the loan account that the applicant’s father had obtained and secured against the FDR account. The tribunal made an assessment of the applicant’s father’s capacity to accumulate each of the amounts in the FDR account and “the level of funding acquired by way of the loan”. Nowhere, however, does the tribunal assess the applicant’s father’s capacity to accumulate “the level of funding being provided” by the applicant’s father and as assessed by the tribunal.
The tribunal’s approach equates the level of funding being provided for the purposes of cl.5A405(1)(c) of Schedule 5A to the Regulations with the total amount held within the FDR account or the total amount of loan funds that were available to the applicant via his father.
But in my view, that is the wrong approach. The tribunal was required, by cl.5A405(1)(c) of Schedule 5A of the Regulations to consider whether the applicant had given evidence that the regular income of his father was sufficient to accumulate the level of funding being provided by that individual. The phrase the level of funding being provided could only refer to the level of funding required and as assessed by the tribunal for the purposes of cl.5A405(1)(a) and (b) of Schedule 5A of the Regulations.
In my view the phrase the level of funding being provided does not refer to the entire balance of the FDR account or the total facility available under the bank loan secured by the FDR account. The applicant’s father was providing funds to the amount assessed by the tribunal for the purposes of the Regulations. In doing so, the applicant and his father provided evidence of means well beyond that assessed as necessary by the tribunal. The level of funding being provided by the applicant’s father for the purposes of the Regulations, must be the amount assessed by the tribunal as necessary for the purposes of the Regulations.
To hold otherwise would have curious, and in my view unintended consequences. The funds in a deposit account might have a number of sources, only one of which might be the regular income of the deposit holder. That regular income may well be sufficient to accumulate the level of funding assessed by the tribunal for the purposes of cl.5A405(1)(a) and (b) of Schedule 5A of the Regulations, but insufficient to account for the entire balance of the deposit account. The balance of the deposit account might very well be made up of deposits of both regular income and receipts of capital, such as from the sale of an asset.
Paragraph 71 of the tribunal’s reasons makes it clear that the tribunal focussed its enquiry upon the ability of the applicant’s father to accumulate the balance of the FDR account and to “accumulate the level of finding acquired by way of loan. It was not focussed upon the level of funding assessed by the tribunal for the purposes of the regulations and in respect of which the applicant needed to satisfy the tribunal that he could access. The tribunal has, by misdirecting its attention to those matters and not the matter set out in the Regulations for its consideration, failed to carry out the necessary review and has thereby fallen into jurisdictional error.
The applicant is entitled to the relief that he seeks. I make the orders set out at the commencement of these reasons.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 30 May 2014
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