Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 130
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 130
File number(s): MLG 1501 of 2017 Judgment of: JUDGE FORBES Date of judgment: 4 March 2022 Catchwords: MIGRATION – application for Student (Class TU) Subclass 573 Visa – criteria under clause 573.223 of Schedule 2 of Migration Regulations – requirement for Applicant to give evidence of funds from an acceptable source – requirement for Applicant to give evidence of the regular income of any individual providing funds – Tribunal miscalculation of sufficiency of funds to meet course fees and living expenses for first 12 months – whether Tribunal error material and therefore jurisdictional – whether evidence of loan repayable in instalments is evidence of regular income of borrower – relevance of Departmental Policy to construction of loan document and inferences to be drawn – whether Tribunal fundamentally misconstrued loan document such as to deprive Applicant the benefit of Departmental Policy – whether there exists a common practice of Tribunal to extend Applicants an opportunity to provide further evidence if another criterion satisfied – Applicant’s submissions based on impermissible conjecture – no jurisdictional error – application dismissed Legislation: Migration Regulations 1994 (Cth), cl 573.223
Migration Act 1958 (Cth), s 360
Cases cited: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for immigration and Border Protection (2021) 95 ALJR 441
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Saji v MIBP [2015] FCCA 1170
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 28 October 2021 Place: Melbourne Counsel for the First Applicant: Mr Angel Aleksov Counsel for the First Respondent: Mr Nick Wood Solicitor for the First Applicant: WLW Migration Lawyers Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 1501 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAWAN PREET KAUR SANDHU
First Applicant
AJIT PAL SINGH SANDHU
Second Applicant
MEHARPREET KAUR SANDHU
Third Applicant
REHAMPREET KAUR SANDHU
Fourth ApplicantAND: MINISTER FOR IMMIGRATION, MIGRANT SERVICES, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS THAT:
1.The Application filed on 12 July 2017 is dismissed.
2.The Applicants shall pay the First Respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
The Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 13 June 2017, which affirmed a decision of a delegate of the Minister (“the delegate”) not to grant the Applicants Student (Temporary)(Class TU) visas.
Having heard and considered detailed written and oral submissions from the Applicants and the Minister, I have determined that the Tribunal’s decision is not affected by jurisdictional error.
For the following reasons I have decided that the Application should be dismissed and that the Applicants should pay the Minister’s costs.
BACKGROUND
On 12 February 2016, the first-named Applicant (the Applicant) submitted a combined application for a student (Class TU) (Subclass 573) visa. The Applicant has three dependents who also made applications for visas based upon their membership of the Applicant’s family unit.
At the time of lodgement, the Regulations relevantly prescribed:
(a)Student (Temporary) (Class TU) as a class of visa;
(b)various subclasses, including Subclass 573 (Higher Education and Training Sector); and
(c)certain criteria for the grant of a Subclass 573 visa.
The requirements for a Subclass 573 visa are contained in cl 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
A criterion for the grant of a Subclass 573 visa was that the Minister must be satisfied that the Applicant is a genuine applicant for entry and stay as a student, because, inter alia, the Applicant meets the requirements of subclause 573.223(1A) or (2) to the Regulations. It is not contested that subclause (1A) did not apply. Subclause (2) provided that, in those circumstances, the Applicant was required to give the Minister evidence in accordance with the requirements of Schedule 5A for the highest assessment level for the Applicant. The Applicant, being the holder of an Indian passport, was required to provide evidence of financial capacity at the “highest assessment level”, namely assessment level 3.
The evidentiary requirements for this assessment level for a Subclass 573 student visa are set out in Part 5 of Schedule 5A. Relevantly, the applicable evidentiary requirements in Schedule 5A included:
(a)a requirement that the Applicant give, in accordance with clause 5A508(1)(a), evidence that she has “funds from an acceptable source”, that are sufficient to meet “course fees” and “living costs” for the “first 12 months” (the “acceptable source criterion”); and
(b)a requirement that the Applicant give, in accordance with clause 5A508(1)(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 “regular income criterion”).
A delegate of the first respondent (the Minister) assessed the Applicant against the criteria for a Subclass 573 visa on the basis of her enrolment in a Bachelor of Business course.
By a decision dated 26 May 2016, the delegate refused the visa application on the basis that the Applicant had failed to satisfy clause 573.223 of Schedule 2, specifically that she had not provided evidence which satisfied the Schedule 5A requirement to satisfy the Minister that she had access to sufficient funds to meet the costs and expenses required to support her and each member of the family unit during a stay in Australia.
APPLICATION FOR REVIEW
In June 2016 the Applicant sought review of the delegate’s decision before the Second Respondent (the Tribunal).
On 22 February 2017 the Applicant was invited to a hearing before the Tribunal to be held on 21 March 2017 and she was specifically asked to provide all documents she intended to rely on to establish that she met the criteria for the visa. The correspondence from the Tribunal[1] to the Applicants specified that the information required to be provided included evidence of funds from an acceptable source and evidence of the regular income of any person providing the Applicant with funds. The hearing scheduled for 21 March 2017 was adjourned to 3 May 2017.
[1] Court book [117]-[119]
On 3 May 2017, the Tribunal convened a hearing in relation to the review as required by s 360 of the Migration Act 1958 (Cth) (the Act). On the date of the hearing the Applicants’ then migration agent failed to appear as a consequence of which the Tribunal provided the Applicants a further period to provide evidence addressing clause 573.223 and particularly, the financial requirements of Schedule 5A.
Shortly thereafter the Applicants appointed a new representative and the Tribunal allowed the Applicant until 24 May 2017[2] to furnish the relevant evidence.
[2] A later extension was granted until 31 May 2017, CB [166]
In correspondence dated 19 May 2017, the Applicant provided the Tribunal with
a “confirmation of enrolment” in respect of her Bachelor of Business degree.
In further correspondence to the Tribunal dated 26 May 2017, the Applicant provided additional documents as evidence of her financial capacity, including:
(a)A document dated 23 May 2017 entitled “Sub-Sanction Letter for Loan against Property” on the letterhead of Punjab National Bank addressed to “Balwinder Kaur W/O Harinder Singh” the substance of which reads:
“We are pleased to Sanction a Loan Against Property of Rs24,00,000/- (Twenty Four Lacs Only) for any lawful purpose. Following terms and conditions.
Loan Amount
Rs24,00,000/- (Twenty Four Lacs Only)
Rate of Interest
MCLR (9.40) + 3.25 = 12.65%
Repayment
Monthly Instalment (10 Years)
Borrower name
Balwinder Kaur W/O Harinder Singh
Security
EM of Property bearing No. 212/44 Situated at Ajnala Road, Amritsar in the Name of Balwinder Kaur W/O Harinder Singh
Disbursement
As per Bank Norms
(b)
A document entitled “Confirmation of Deposit” showing an amount of
INR 1,19,191.00, also in the name of Balwinder Kaur.
It is not contested in these proceedings that Mrs Balwinder Kaur is the Applicant’s mother. It is also common ground that the expression “W/O” when used in relation to Mr Harinder Singh means “wife of”.
In the covering letter to the Tribunal on 26 May 2017, the Applicant’s representative stated that the Applicant relied on her mother’s funds for her financial support. An “affidavit in support” jointly signed by the applicant’s mother and father deposed, inter alia, that “We are having sufficient funds and Income to support [the Applicant] while she is in Australia”. The Applicant’s representative submitted to the Tribunal that the documents referred to above indicated that the Applicant’s mother had sourced loans from the Punjab National Bank equating to approximately AUD $51,780, an amount which exceeded the level of financial support required from an “acceptable source” to meet the Applicant’s assessed expenses for the first 12 months.
Contextually, at the time the visa application fell to be considered there existed a Department of Home Affairs Procedures Advice Manual 3 entitled “Student Visa assessment” (the Departmental policy). It is common ground that this policy operated, at the very least as a guideline, in relation to the assessment of visa applications including Class TU573 Higher Education visas. Relevantly, the Departmental Policy includes the following statement:
“Bank loans and income stream
Generally, it should be unnecessary to verify the regular income of the individual providing funds if the source of funding is a bank loan, as the bank would have verified the income of the borrower before sanctioning the loan. However, should there be:
•any doubt as to the bona fides of the evidence provided by the applicant or the individual providing the funds; or
•doubt as to the person’s capacity to maintain access to these funds by maintaining the loan
Officers may wish to apply further scrutiny to the application. This could include further consideration of the “genuine temporary entrant” and “genuine student” criteria ….”
For reasons which are plain on the face of its decision, it appears that the Departmental Policy was before the Tribunal and formed part of the material it considered when determining the Applicant’s review Application.
TRIBUNAL DECISION
In a decision dated 13 June 2017, the Tribunal affirmed the delegate’s decision to refuse the visa, on the basis that the Applicants had failed to demonstrate financial capacity in accordance with Schedule 5A of the Regulations and accordingly had failed to meet the requirements of clause 573.223(2)(a).
First, in considering the requirement that the Applicant give evidence of funds from
an acceptable source that are sufficient to meet her course fees and living costs for the first 12 months (i.e. the acceptable source criterion), the Tribunal found that the Applicant’s total course fees, living costs and travel costs for the first 12 months required her to meet expenses totalling $68,838[3]. Then, having regard to the documentation relied upon to evidence financial support from the Applicant’s mother, the Tribunal found that the evidence demonstrated, at best, financial support of AUD $51,785.18, an amount which fell substantially short of the required assessed financial capacity. On that basis, the Tribunal was not satisfied that the Applicant had provided evidence that she had funds from an acceptable source sufficient to meet her assessed expenses for the first 12 months. Accordingly, the Tribunal found that the Applicant did not satisfy the evidentiary requirements of clauses 5A508(1)(a) or (b)[4].
[3] Tribunal reasons at [26]-[34]
[4] Reasons at [43]
Secondly, the Tribunal was also not satisfied that the Applicant had given “evidence that the regular income of any individual … providing funds to the Applicant was sufficient to accumulate the level of funding being provided by that individual” for the purpose of clause 5A508(1)(c) of Schedule 5A (ie the regular income criterion). Specifically, the Tribunal reasoned (omitting footnotes):
[44] … The applicant has provided no evidence of her mother’s regular income.
[45] In this context, the Tribunal notes that the Department’s guidelines in relation to loans, and the assessment whether the regular income is sufficient to accumulate the funds, state that ‘[g]enerally, it should be unnecessary to verify the regular income of the individual providing the funds if the source of funding is a bank loan, as the bank would have verified the income of the borrower before sanctioning the loan’. In this application the Tribunal notes that the loan has been secured against property and on this basis it does not accept that the fact of the loan is proof of a regular income as required by cl.5A508(1)(c). This is because the bank is satisfied of the applicant’s mother’s capacity to repay a loan on the basis of her assets, not her regular income. Therefore, the fact of a loan, of itself, is not evidence of regular income and this aspect of the Department’s guidelines is not relevant in this factual context. On this basis, the tribunal is not satisfied that the applicant has given evidence as required by cl.5A508(1)(c).
Based on the above findings, the Tribunal found that relevant criteria for the grant of a Subclass 573 visa were not met and that the delegate’s decision should be affirmed. The Tribunal found that the secondary Applicants similarly did not meet criteria for the grant of visas.
APPLICATION FOR JUDICIAL REVIEW
By an Application filed on 13 July 2017 the Applicants’ seek judicial review of the Tribunal’s decision. In her Application the primary Applicant advanced three grounds of review.
Ground 1 of the application contends that the Tribunal fell into error in respect of a jurisdictional fact by incorrectly assessing the quantum of “funds from an acceptable source” that the Applicant was required to demonstrate for the purposes of clause 5A508(1)(a) of Schedule 5A of the Regulations. In substance, the Applicant contends that the Tribunal incorrectly calculated her expenses for the “first 12 months” on the mistaken basis that the “course fees” for the Bachelor of Business course for that period amounted to $33,200, when in fact that fee represented the cost for two years tuition. Furthermore, by this ground the Applicant contends that the Tribunal also fell into error in respect of its calculation by overlooking the Applicant’s evidence that she had prepaid course tuition fees in the amount of $4,150 - evidence which should have been apparent from the “Confirmation of Enrolment” document provided to the Tribunal.
By reason of the above, the gravamen of Ground 1 is that the Tribunal failed to consider important evidence when assessing the requirement for “funds from an acceptable source”. The Tribunal failed to appreciate that the course fees had been paid for a course of two years duration and the Tribunal failed to properly take into account the certificate of enrolment which recorded that the Applicant had already prepaid an amount in excess of $4000. It is contended that had the Tribunal properly considered the documents provided by the Applicant, the Tribunal should have found that for the purposes of clause 5A508(1)(a) of Schedule 5 the Applicant was required to provide evidence of “funds from an acceptable source” in the order of approximately $49,000, not $68,838.
Ground 2 of the application for review contends that the Tribunal failed to afford the Applicant procedural fairness in connection with its finding that it was not satisfied that the Applicant had given “evidence that the regular income of any individual (including the Applicant) providing funds to the Applicant was sufficient to accumulate the level of funding provided by that individual” for the purposes of clause 5A508(1)(c) of Schedule 5A.
However, in her written submissions and at trial, Ground 2 was reconfigured and advanced in a more nuanced fashion which abandoned any contention of procedural unfairness. Rather, as is set out in more detail later in these reasons, Ground 2 was advanced on the basis that the Tribunal had fallen into error by seriously misconstruing the Punjab National Bank loan document, thereby failing to appreciate that it, in the context of the prevailing departmental policy, constituted sufficient evidence of regular income of the Applicant’s mother for the purposes of clause 5A508(1)(c). In short, it is contended that by misconstruing the loan document and finding that the loan was “secured by property” rather than one that was repayable by instalments over a 10 year period, the Tribunal effectively denied the Applicant the benefit of the Departmental Policy which, if it had been applied, would have resulted in a different outcome for the Applicant.
Ground 3 of the Application contends that the Tribunal failed to comply with section 360 of the Act by failing to afford the Applicants a hearing “to give evidence and present arguments relating to the issues in relation to the decision under review”. The substance of this ground is that the Tribunal failed to properly comprehend or interpret the evidence regarding the Applicant’s access to funds from an acceptable source as a consequence of which the Tribunal departed from applicable departmental policy without giving notice to the Applicant that it might do so. This ground appears to have been advanced on the premise that if the Tribunal had properly understood the import of the available evidence, including the bank loan document, that evidence gave rise to “further issues arising in relation to the decision under review” such that the Tribunal should have called a further hearing to afford the Applicant an opportunity to address any concerns about those issues.
In written submissions filed with the Tribunal in support of the application[5], the Applicant somewhat departed from the grounds as they had been articulated in the application for judicial review. Counsel for the Applicant further refined his attack on the Tribunal’s decision in oral submissions at the hearing before me on 28 October 2021 and expressly abandoned any contention that the Applicant had been denied procedural fairness. I will come to the nuanced arguments advanced by the Applicant later in these reasons.
[5] Applicant's written submissions dated 15 July 2021 and consolidated submissions dated 10 September 2021
PROCEDURAL HISTORY
This matter was first listed for hearing before me on 11 August 2021. Prior to that hearing the Applicant had filed an outline of submissions dated 16 July 2021. An outline of submissions was filed in response by the Minister on 2 August 2021.
In its outline of submissions filed on 2 August 2021, the Minister conceded, in relation to Ground 1, that the Tribunal had erred in calculating the quantity of “funds from an acceptable source” for which the Applicant was required to give evidence for the purpose of clause 5A508(1)(a). The Minister accepted that the Tribunal had misconstrued the evidence relating to the tuition fees payable by the Applicant and had failed to apportion those fees across the two-year duration of the course in which the Applicant was enrolled. Had the Tribunal properly done so, it would have concluded that only half the total tuition fee of $33,200 should have been taken into account in determining the quantity of funds required by the Applicant to cover expenses for the “first 12 months”.
However, the Minister submitted that this error was not material because the Tribunal was satisfied that a separate requirement in clause 5A508(1)(c) (i.e. the regular income criterion) was not met, such that any error with respect to clause 5A508(1)(a) (i.e. the acceptable source criterion) was not jurisdictional. The Minister submitted, correctly, that the onus is on the Applicant to demonstrate materiality[6].
[6] Hossain (2018) 264 CLR 123; SZTMA (2019) 264 CLR 421; MZAPC (2021) 95 ALJR 441
The Minister’s written submissions, which I will deal with in more detail later, otherwise contended that Ground 2 should be rejected, primarily on the basis that the Departmental Policy was a “guideline” and not binding on the Tribunal. Further, and in any event, the Minister contends that the Tribunal did not misconstrue either the loan document or the Departmental Policy.
As to Ground 3, the Minister submitted that the procedural fairness argument should be rejected on the basis that no new “issue” arose in respect of which the Tribunal was required to afford the Applicant a further hearing. It was submitted that the Tribunal had specifically invited the Applicant to “give evidence of the regular income of any person who is providing funds to you”[7] and therefore there was no tenable basis to contend that the Tribunal had not identified that as a relevant issue. The fact that the Applicant had provided new or different evidence bearing on financial capacity after the delegate’s decision did not mean that a new “issue” had arisen within the meaning of section 360.
[7] Court Book 117-118
On 10 August 2021, the Applicant filed an application in a case in which she sought an order for the hearing on 11 August 2021 to be vacated and an order that she be permitted to file and serve a further amended application and further submissions.
The matter came before me for hearing on 11 August 2021. On that occasion the Applicant sought an adjournment of the hearing to enable her to adduce further evidence regarding a purported practice of the Tribunal whereby it routinely makes further enquiries when presented with additional documentation by an applicant. I granted leave to the Applicant to file and serve any further interlocutory application and affidavits in support by 27 August 2021. The hearing was adjourned to 3 September 2021 and subsequently, by consent[8], the Applicant agreed to pay the Minister’s costs thrown away by reason of that adjournment.
[8] Order by consent dated 2 September 2021
On 2 September 2021 the Applicant’s new solicitor, Mr James Wardlaw of WLW Migration Lawyers, filed an affidavit in which he deposed that his firm had engaged another immigration lawyer, Mr Jordan Tew of the firm Hannan Tew, to provide an expert report in the matter relevant to the question of materiality. Another application in a case was filed whereby the Applicant sought leave to file an affidavit from Mr Tew and to rely upon his expert opinion.
When the matter came back before me on 3 September 2021, counsel for the Applicant elaborated on the relevance of Mr Tew’s expert opinion. Counsel contended that Mr Tew’s expert opinion was evidence of a practice in the Tribunal whereby the Tribunal ordinarily and of its own volition invites a visa applicant to provide further information about “secondary criteria” in circumstances where it is otherwise satisfied that the Applicant has met the “primary criteria” for grant of a visa. Counsel submitted for the purposes of assessing the “materiality” of any error, the Applicant must prove the historical facts from which the counterfactual is constructed and in this case the existence of a practice within the Tribunal to make additional enquiries is itself a relevant historical fact. Counsel for the Minister opposed the application, principally on the basis that Mr Tew’s evidence could not be regarded as an expert opinion and in any event the evidence did not engage with the grounds advanced in support of the application for review.
I granted leave to the Applicant to file an affidavit from her solicitor and the expert opinion from Mr Tew and adjourned the final hearing of the matter to 28 October 2021. I expressed no view about the admissibility of those affidavits and indicated that would be a matter to be dealt with at trial. I also granted leave for each of the Applicant and the Minister to file further written submissions prior to hearing. Finally, I ordered that the Applicant should pay the Minister’s costs thrown away by reason of this second adjournment.
Each of the Applicant and the Minister filed further written submissions on 10 September 2021 and 14 October 2021 respectively. Counsel further developed those submissions orally at the hearing on 28 October 2021.
FINAL HEARING
At the hearing on 28 October 2021 the Applicant sought to introduce Mr Tew’s evidence. The Minister’s counsel, Mr Wood, objected to the admission of Mr Tew’s report on various grounds. The Minister submitted, among other things, that Mr Tew is not a person who possessed “specialised knowledge”[9] of the existence of any general practice of the Tribunal. It was submitted that Mr Tew’s experience as a representative in approximately 200 cases before the Tribunal did not enable him to give expert evidence as to the existence of any “common practice” that the Tribunal would adopt in any particular case. The Minister submitted that for the evidence to be remotely meaningful and of any assistance to the Court, Mr Tew would have to be cross-examined about the circumstances of each one of the 200 cases in which he had represented a party before the Tribunal. Further, it was submitted that the manner in which Mr Tew’s opinion was expressed was so decontextualized, vague, qualified and was presented at such a level of generality, that it was ultimately of no probative value.
[9] Evidence Act 1995 (Cth), s.79
The Applicant’s counsel, Mr Aleksov, sought to defend the admission of Mr Tew’s opinion into evidence on the basis that the Minister could cross-examine him and make closing submissions to the Court about the weight which should be accorded to it. Secondly, the Applicant’s counsel submitted that the probative value of the report should be regarded as high, given that Mr Tew’s evidence, if accepted, would give the Applicant a significant prospect of success in the proceeding. It was submitted that Mr Tew’s evidence was centrally relevant to the “materiality” of the Tribunal’s error because it informed the question of whether there was a realistic likelihood of something occurring (the Tribunal exercising power to afford the Applicant another indulgence to provide further information) such that as a matter of reasonable conjecture, if that course had been followed, the Tribunal might conceivably have arrived at a different outcome. Mr Aleksov conceded that his argument based on such conjecture was novel and contrary to the approach of the High Court in Hossain[10], but he submitted nonetheless that it would not be appropriate for the Court to exclude Mr Tew’s evidence and essentially shut the Applicant out of an appeal.
[10] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
After considering the Minister’s objections, I ruled that a number of paragraphs of the affidavit would be struck out[11] but I otherwise allowed Mr Tew’s affidavit and report to be read into evidence.
[11] Paragraphs [15] and [19]-[22]
Mr Tew was then cross-examined by the Minister’s counsel Mr Wood, a process which demonstrably reinforced the Minister’s submission that Mr Tew’s opinion about practices within the Tribunal would be of very limited probative value and provide little assistance to the Court. My reservations about the probative value of Mr Tew’s evidence about Tribunal practice was informed by his concessions that, in any given set of circumstances:
(a) whether the Tribunal would or would not tend to give an applicant another opportunity to meet a visa criterion may, in part, depend on whether the delegate had already found, in the decision under review, that the applicant had not met that criterion;
(b) whether the Tribunal would or would not tend to give an applicant yet another chance to provide evidence might depend on whether the Tribunal had written to the applicant and previously specifically identified the need to provide evidence bearing on the particular criterion;
(c) whether or not the Tribunal had already conducted a hearing in relation to the review might also be a matter that would affect whether the Tribunal would or would not tend to give an applicant another opportunity to provide evidence;
(d) whether the Tribunal would or would not tend to give an Applicant yet another chance, might also depend on whether the Applicant, after a hearing, had been given and had exercised an opportunity to provide further evidence to meet that particular visa criterion;
(e) whether the Tribunal would afford an Applicant a further opportunity to meet visa criterion “… would depend on the circumstances of the case, but there is no such guaranteed practice”; and
(f) there is no consistent practice that could possibly be described as “a practice”.
SUBMISSIONS
By the time the application for judicial review came on for hearing, the Applicants’ submissions were framed by two central propositions.
First, it was contended that the Tribunal had fallen into jurisdictional error because it incorrectly concluded that the Punjab National Bank loan document was not itself evidence of “regular income” as required by clause 5A508(1)(c). The asserted error here lies in the fact that the Tribunal misconstrued the loan document by finding that the loan was secured by property but failing to recognise that it was repayable in instalments. The Applicant submits that if the Tribunal had properly construed the evidence it would have found that the loan document fell squarely within the “teeth” of the Departmental Policy such that the Applicant would have benefited from the presumption (set out in the policy) that where the source of funding is a bank loan, it is generally unnecessary to verify the regular income of the individual providing the funds. It is contended that this error is material because had the Tribunal properly construed the loan document and if the Departmental Policy had been applied, the Tribunal would have arrived at a different outcome favourable to the Applicant.
Secondly, the Applicant contends that the Tribunal’s error in respect of the acceptable source criterion in clause 5A508(1)(a), which error is conceded by the Minister, was “material” and therefore jurisdictional. The submission relies somewhat on the purported general practice of the Tribunal to exercise leniency in favour of applicants by affording them an opportunity to provide further information in relation to one criterion, where they have met other substantial criterion for the grant of the visa.
The proposition here is that if the Tribunal had (counterfactually) not misapplied clause 5A508(1)(a), which the Applicant describes as the “primary criterion”, the Tribunal might realistically have notified the Applicant of the deficiency in her evidence in relation to clause 5A508(1)(c), which is described as a “secondary criterion”, and afforded her a further opportunity to satisfy the Tribunal before a decision was made. If that further opportunity had been extended in accordance with what the Applicant contends is the Tribunal’s common practice, a submission explaining the loan document or a copy of tax returns evidencing the borrower’s past income might have been supplied and the Tribunal might have reached a different outcome. In this sense the Tribunal’s error in relation to the acceptable source criterion in 5A508(1)(a) is said to be material because of the cascading impact it had on the assessment of the regular income criterion in 5A508(1)(c).
CONSIDERATION
The regular income criterion and the consequences of alleged misconstruction of the loan document
Clause 5A508(1)(c) required an 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” (the “regular income criterion”).
The loan document was the evidence provided by the Applicant to meet the regular income criterion. The Applicant contends that the Tribunal fundamentally misconstrued that document. It is submitted that a decision based on a misunderstanding or misconstruction of evidence is tantamount to the Tribunal having failed to consider the evidence on its correct import.
The Applicant submits that it is plain from paragraph 45 of the Tribunal’s decision that its finding that the loan was “secured by property” was the basis for the Tribunal’s non-acceptance of the loan as proof of regular income as required by clause 5A508(1)(c). The Applicant submits that the Tribunal’s construction of the loan as being one secured by property, and by inference not being repayable by instalments, was not a proper construction of the document and therefore not a proper basis on which to find that the loan fell outside the Departmental Policy. It is submitted that the Tribunal fundamentally misinterpreted the loan document when it found that “the bank is satisfied of the mother’s capacity to repay on the basis of her assets, not her regular income.”
The Applicant’s submission is that if the Tribunal had not fundamentally misunderstood the true import of the loan document she would have had the benefit of the Departmental Policy and no further verification of the borrower’s regular income would have been required.
The Applicant argued that the loan document on its face identifies the three elements one would expect to see in such a financial arrangement, namely the amount of the loan, the required repayments and the security. The applicant contends that on a proper construction of the loan document, the reference to “security” is a reference to the underlying asset which is available to settle the loan in the event the borrower does not comply with the repayment schedule. In simple terms, the Applicant says that the Tribunal ought to have construed the document as a loan which must be repaid by cash on monthly instalments, failing which the security will be called in. The Applicant argues that it was blatantly obvious that the repayment of the loan was to be by way of monthly instalments of cash or money and not, as the Tribunal found, on the basis of the mother’s assets.
Mr Aleksov submitted that on a proper reading of the loan document, the Applicant’s mother had taken a loan for a sum of money that was to be repaid by monthly instalments in cash. Accordingly, in the context of the relevant Departmental Policy, the Applicant submits that one can infer, from the requirement that the loan be repaid in instalments, that the lending bank would have verified the income of the borrower before sanctioning the loan.
The Applicant contends that the Tribunal’s error in the construction of the loan document is therefore jurisdictional. The Applicant submits that where the Tribunal bases its conclusion in whole or in part on a misunderstanding or misconstruction of the evidence, the error is tantamount to a failure to consider the Applicant’s evidence and on that basis can constitute jurisdictional error[12].
[12] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63]
The Applicant concedes that it is for the Tribunal to decide the facts and for the Tribunal to interpret documents, but she says that it must do so within lawful parameters, such that any interpretation of the evidence must be tenable. Counsel for the Applicant submits that no tenable interpretation of the loan document permits the Tribunal’s conclusion that the loan has been secured against property and is not proof of regular income as required by clause 5A508(1)(c).
Counsel for the Minister submits that on its proper construction, the loan document reveals that the borrower was the Applicant mother, the repayments were to be monthly over the course of 10 years and that the loan itself was to be secured against property. However, crucially the document itself contains no evidence of the mother’s regular income. Based on those attributes of the loan document, the Minister submits that the Tribunal’s findings that “the loan has been secured against property” and “the fact of a loan, of itself, is not evidence of regular income” were findings that were rationally available to it and not based on any misinterpretation.
The Minister submitted that the proper construction and application of a clause[13] equivalent to clause 5A508(1)(c) was considered by this Court in Sajiv Minister for Immigration and Border Protection [2015] FCCA 1170. The Minister says that once the regular income criterion is properly understood, it is clear that Tribunal did not misconstrue the evidence. Furthermore, the Minister submits that contrary to the Applicant’s submissions, the Departmental Policy was not binding on the Tribunal and there is no proper basis for the submission that any misconstruction of the loan document denied the Applicant the benefit of that policy.
[13] Clause 5A504(1)(c)
In Saji, the visa applicant was required to provide satisfactory evidence of the borrower’s “regular income” similar to that required by clause 5A508(1)(c). The applicant in that case argued that it was “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”[14]. The applicant further argued that “[i]f the bank assesses the applicant’s financial situation, or that of her backers, and has decided to advance the funds, then the only reasonable inference is that the applicant’s income is sufficient to accumulate the level of funding provided on the basis that the funds have been provided.”[15]
[14] Saji at [27]
[15] Saji at [29]
Judge Jarrett rejected the applicant’s argument, holding that it wrongly 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 clause 5A504(1)(c) of the regulations. His Honour emphasised that the two tasks are quite different and ought not be conflated:
“[31] 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. 5A504(1)(c) is concerned with historical events. Clause 5A504(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. 5A504(1)(c) assumes at least 3 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 the regular income was sufficient to accumulate that level of funding.
[32] The use of the verb was in cl. 5A504(1)(c), rather than use of the verb is, demonstrates that the focus of the applicant’s evidence must be upon regular past income and a past accumulation of funds. The attitude of the applicant’s capacity to repay the funds was neither here nor there and the Tribunal was correct to give it little weight.”
His Honour went on to hold that upon consideration of the evidence before it the Tribunal was not obliged to draw the inferences that the Applicant says ought to have been drawn from the fact that the bank had advanced a loan sufficient to meet the costs assessed by the Tribunal. Whatever inferences might be drawn from the evidence was a matter for the Tribunal as a finder of fact.
In this case the Minister submits, correctly in my opinion, that the focus of clause 5A508(1)(c) is on historical events (i.e. evidence of regular income of the mother prior to obtaining the loan), rather than the mother’s capacity to repay the loan.
Evidence is a matter for interpretation by the Tribunal and what findings or states of satisfaction or otherwise it draws from the evidence is capable of different interpretation by different people, each acting rationally. It is not the Court’s task to set aside the Tribunal’s forensic approach to interpret the loan document for itself, and thereby attribute jurisdictional error to the decision-maker who may have come to a different view. There is no error if 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. The bar that sets the boundary between judicial and merits review is rationality, not whether the evidence was open to a different interpretation. A court reviewing a decision must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision[16].
[16] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
Even if the Applicant is correct in submitting that the Tribunal failed to properly appreciate that the loan was repayable in monthly instalments, and not “on the basis of [the mother’s] assets”, that misconstruction of the loan document is not jurisdictional because it does not materially bear upon the requirement for the Applicant demonstrate “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 focus of the Tribunal’s enquiry is upon the past regular income of the individual who is providing the funds to the Applicant – here, the mother. The relevant criterion in clause 5A508(1)(c) requires evidence that the past regular income of the borrower was sufficient to accumulate the level of funding being provided. The requirement in clause 5A508(1)(c) engages an examination of historical events, rather than a forecast of a future capacity to pay. A repayment schedule might give rise to an inference that the bank has some comfort in the borrower’s future income and capacity to repay the debt, but it is not of itself evidence of past regular income or accumulation of wealth.
Properly understood, the Tribunal’s reasons therefore reveal no fundamental misunderstanding of the evidence. It was rationally open to the Tribunal to find that the fact of the loan in and of itself was insufficient proof of a regular income as required by clause 5A508(1)(c). The finding is not infected with error.
As to the non-application of the Departmental Policy, the Minister makes two points. First, it is submitted that the policy is not mandatory and that there was no requirement for the Tribunal to apply it. Citing relevant authority[17] the Minister submitted that the policy was not therefore a mandatory relevant consideration, nor does the policy, in its terms, impose any definitive or prescriptive rule. Secondly, the fact that the relevant part of the policy is introduced with the express qualifier “generally”, accommodates the possibility that the decision-maker might in any particular case not regard the mere fact of the loan as evidence of the historic “regular income” of the relevant individual at the relevant time. It is a policy capable of admitting exceptions and should be read as such.
[17] El Ess (2004) 142 FCR 43 at [45]; Shi (2015) 251 FCR 354 at [31]; Fernandez (2015) 238 FCR 251 at [60], [80]-[82]; COT15 (2015) 236 FCR 148 at [31]
The Minister submits that it was open to the Tribunal in the circumstances of this particular case, not to adopt the presumption in the Departmental Policy that the Punjab National Bank would have verified the regular historic income of the Applicant’s mother where it is otherwise satisfied that the loan was secured by property. I agree.
The Applicant’s case assumes that evidence of a bank facility which is repayable in instalments leads to a necessary inference that the recipient of the funds thereby satisfies the requirement of demonstrating that the borrower has a history of past regular income which was sufficient to accumulate the level of funding being provided. I do not accept that premise. The Applicant’s case also assumes that the departmental policy is a mandatory consideration (which it is not) which has the effect of locking in that inference in favour of the applicant. It does not.
Was the error in relation to the acceptable source criterion in clause 5A508(1)(a) “material”?
It will be recalled that the Applicant’s argument goes along the following lines. It is submitted that the Tribunal plainly erred in its consideration of the criterion in clause 5A508(1)(a) by incorrectly calculating the quantity of “funds from an acceptable source” for which the Applicant was required to give evidence for the purpose of the criterion. This error has been conceded by the Minister. It is then submitted that the error was material because it had a cascading implication for the overall decision-making process, including the Tribunal’s consideration of the criterion in clause 5A508(1)(c).
It is submitted that if the error in relation to the application of clause 5A508(1)(a) had not occurred and if the Tribunal had properly determined that the Applicant had given evidence of funds from an acceptable source that were sufficient to meet her course fees and living costs for the first 12 months, the Tribunal might conceivably have taken a different approach to its consideration of the criterion in clause 5A508(1)(c), including by giving the Applicant a further opportunity to address any residual concerns that the Tribunal may have had about the adequacy of evidence regarding the regular income of the person providing those funds. It is in that sense, that the Applicant submits that the error in relation to criterion (a) was “material”.
The Minister rejects the Applicant’s argument regarding the “materiality” of the Tribunal’s conceded error in relation to the application of clause 5A508(1)(a). The Minister submits that the Applicant’s submission is built on “conjecture” as to whether the Tribunal might have allowed the Applicant another opportunity to satisfy the regular income criterion in clause 5A508(1)(c) if it had not misconstrued and misapplied the acceptable source criterion in clause 5A508(1)(a). The Minister submits that in an assessment of whether an error was material, conjecture of the kind posited by the Applicant has been specifically criticised and rejected by the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [36] (plurality) and [77]-[78] (Edelman J).
“Materiality” was explained in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision made in fact could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The jurisdiction of a court to engage in judicial review of an administrative decision made by an executive officer whose decision-making authority is conferred by statute was also discussed in MZAPC v Minister for immigration and Border Protection (2021) 95 ALJR 441. In MZACP at [3], the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) held that the explanation in SZMTA is sound in principle and consistent with precedent SZMTA ought not to be revisited.
Further, in MZAPC the plurality held at [38] that “[W]hether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”[18].
[18] MZAPC v Minister for immigration and Border Protection (2021) 95 ALJR 441 at [38]
In the present case, the Minister submits, consistent with the observations of Edelman J in Hossain, that the assessment of whether an error was material, in the sense that it affected the exercise of power by depriving a person of the possibility of a successful outcome, does not take place in a “universe of hypothetical facts”. Citing the plurality in MZAPC, the Minister submits that the necessary enquiry is backward looking and concerns what the decision-maker did in the particular case[19]. The materiality of any error is to be assessed against the existing facts before the Tribunal.
[19] MZAPC at [37]
The Minister submits, and I accept, the Applicant’s “materiality” ground is advanced at the level of impermissible conjecture that exceeds the bounds of permissible inference from the material that was before the Tribunal.
The Applicants “materiality” ground is in my view based on two flawed premises. First, the Minister rightly rejects the Applicants submission that clause 5A508(1)(a) should be regarded as the primary criterion and that clause 5A508(1)(c) should be regarded as secondary. The Minister submits that both are equal criterion and the evidentiary requirements for the grant of a student visa demands that both be met. There is in my opinion no proper basis for the subordination of one criterion to the other.
Secondly, and relatedly, the Minister also rightly rejects the proposition that there exists some common practice in the Tribunal whereby it will exercise leniency and afford a further opportunity to an Applicant to provide additional information in relation to a secondary criterion when it has found the primary criterion to have been satisfied. Whilst the Tribunal undoubtedly has power to extend such an indulgence to an Applicant, there is no foundation for the proposition that it does so as a common practice. Indeed, as Mr Tew conceded, the exercise of the Tribunal’s powers will always depend on the circumstances of the particular case and that there is no practice which could be regarded as a common practice. Accordingly, it is no more than an expression of conjecture to suggest that the Tribunal will always allow an applicant another chance.
The assessment of whether an error is material must be assessed against the existing facts before the Tribunal. The existing facts before the Tribunal on this occasion were that the Applicant had been afforded opportunities to provide evidence to meet the requisite criterion. Further, the Court cannot be satisfied, based on Mr Tew’s evidence, that there existed a common practice which would have extended to the Applicant yet a further opportunity to satisfy the regular income criterion if the Tribunal had correctly been satisfied as to the acceptable source criterion. The Applicant has not proved the existence of such a practice and it is not a fact against which the materiality of any error should be assessed.
Notwithstanding the Minister’s concession that the evidentiary requirement in clause 5A508(1)(a) was misapplied, the Applicant has failed to discharge the onus of satisfying the court that the error was material in the sense that if the error had not been made there was a realistic possibility that a different decision would have been made.
Accordingly, I do not find this ground is made out.
CONCLUSION
Neither the grounds advanced in the application for judicial review nor the Applicant’s written or oral submissions persuade me that there is any jurisdictional error in the Tribunal’s decision.
Accordingly, the application for judicial review filed on 12 July 2017 will be dismissed.
The Applicants should pay the Minister’s costs of the Application.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 4 March 2022
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