Singh v Minister for Immigration
[2015] FCCA 132
•22 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 132 |
| Catchwords: MIGRATION – Application for judicial review of Migration Review Tribunal decision – whether applicant satisfied financial criteria for student visa – whether the fact of a bank loan can be proof of a ‘regular income’ for purposes of Migration Regulations. |
| Legislation: Migration Regulations 1994, cl.5A 4052 of Schedule 5A |
| Singh v Minister for Immigration & Anor [2013] FMCA 132 |
| Applicant: | SATNAM SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 558 of 2013 |
| Judgment of: | Judge Demack |
| Hearing date: | 28 October 2013 |
| Date of Last Submission: | 28 October 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 22 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burrows |
| Solicitors for the Applicant: | Gopal and Chand Lawyers |
| Counsel for the First Respondent: | Mr Smith |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
The Second Respondent entered a submitting appearance.
ORDERS
That the First Respondent’s name be changed to Minister of Immigration and Border Protection.
That the Amended Application filed 16 October 2013 be dismissed.
That the Applicant pay the First Respondent’s costs of an incidental to these proceedings fixed in the sum of six thousand, eight hundred and twenty five dollars ($6,825).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 558 of 2013
| SATNAM SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his amended application filed on 16 October 2013, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 14 June 2013. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a student (temporary) (class TU) visa.
Although this decision has taken some time to produce, the point raised by this case is a narrow point of construction only and is concerned with Schedule 5A of the Migration Regulations 1994.
The applicant submits that the Tribunal fell into jurisdictional error in the way it assessed various forms of financial resource available to the applicant in support of his student visa application. The respondent says that none of the matters advanced by the applicant have any merit.
For the reasons that follow, I agree with the first respondent’s submissions and the application will, therefore, be dismissed.
The relevant materials in the Court Book (“CB”)
The applicant’s application for a subclass 572 visa is at CB1-17. Correspondence from the Department to the applicant raised a number of issues (CB29-37), but none of these turned on the financial capacity, matters with which the Court is now concerned.
At CB65-70 the Decision Record of the delegate is set out. The delegate found, correctly as things were at the time, that the applicant did not meet the English language requirement. The delegate accordingly did not consider financial matters.
Following the applicant’s application to the Tribunal, the Tribunal forwarded to the applicant an invitation to appear before it dated 6 May 2013 (CB83-85). That letter relevantly invited the applicant to provide evidence before the hearing of:
Current evidence that you satisfy the financial capacity requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A of the Migration Regulations 1994 (Cth) (the Regulations) as at the date of your visa application. This includes:
·Evidence to show that you have funds from an acceptable source as defined in the Regulations.
·…
·If you are relying on a money deposit, in most cases, this must have been held for at least 6 months immediately before the date of the visa application.
·Evidence that the regular income of any person (including yourself) providing funds to you was sufficient to accumulate the level of funding being provided by that person.
Copies of the relevant extracts of the Regulation were sent with the letter and are at CB86-90.
The applicant in the meantime passed his IELTS test and the result is at CB91. Accordingly, the basis upon which the delegate dealt with the matter was removed.
The applicant provided to the Tribunal a number of financial records. At CB98 there is confirmation of what is agreed to be an overdraft loan in the name of the applicant’s father. The loan is in the sum of 900,000 rupees. I note that an overdraft limit of 800,000 rupees was expressly to be utilised for the education of the applicant in Australia.
At CB105, 107 and 109 there are records of money deposits in the name of the applicant’s maternal grandfather and maternal grandmother. At CB105 there is a letter, To Whom It May Concern, confirming that Mrs Inderjeet Kaur has a deposit within an effective date of 12 November 2012 of 883,000 rupees. At CB107 there is a further deposit record on the part of Ms Kaur with an effective date of 28 October 2012 in the sum of 500,000 rupees and at CB109 there is a similar deposit record in relation to Ms Kaur’s husband, Mr Gurwant Singh, in the sum of 383,000 rupees.
At CB113 there is an income certificate certifying that Mr Gurwant Singh’s monthly income was 50,000 rupees, but no similar document was provided in respect of the applicant’s father, Mr Anokh Singh.
The decision of the Tribunal
The Tribunal set out the application and the relevant law at CB126-131. At CB131-135 the Tribunal recorded the Evidence and Findings.
At paragraph 11 (CB131) the Tribunal recorded, correctly, that:
By letter dated 6 May 2013, the Tribunal informed the applicant that it had considered the material before it but was unable to make a favourable decision on the basis of that material alone. The applicant was invited to attend a hearing on 14 June 2013 to give evidence and present arguments in relation to the issues arising in the review. A copy of the Schedule 5A requirements for subclass 572 assessment level 4 was provided to the applicant with the Tribunal’s invitation to ensure he was aware of the relevant requirements.
The Tribunal noted that the applicant’s agent had forwarded documentary evidence to the Tribunal before the hearing which took place on 14 June 2013. The Tribunal also noted at paragraph 13 CB132 that the applicant had met the English language requirement.
At paragraphs 14-15, the Tribunal said:
The tribunal calculates the current financial requirements for the applicant at $26,900. The Tribunal calculated the course fees, living costs and travel costs during the hearing the applicant agreed with the calculation.
At the hearing, the applicant said he relied upon four sources of funds to meet the requirements in Schedule 5A of the Regulations. He stated that he did not wish to rely on any other sources of funds. The Tribunal asked the applicant about a National Australia Bank statement for an account in the applicant’s name that had been submitted to the Tribunal before the hearing. The applicant said that statement was submitted to show that the applicant had been receiving money from his father while living in Australia and that statement was not submitted for consideration as evidence of a source of funds for Schedule 5A.
The Tribunal went on to consider each of the sources of funds upon which the applicant relied.
The loan in the name of the applicant’s father was described by the Tribunal at paragraph 16 as:
The applicant’s first source of funds is an overdraft loan in the name of Mr Anokh Singh that is secured by a fixed deposit…
No criticism of that characterisation is advanced in the materials before the Court.
Counsel for the applicant submitted (see the transcript at page 4, line 13 onwards:
…The applicant’s submission is that there was and that was the evidence given by the applicant. That is, the father had a certain occupation, being a farmer. That is to be taken into account also in consideration when your Honour looks to the document from the bank which is at page 98 of the court book
…which provides more than – this is merely a general overdraft, but rather is an overdraft that was specifically granted to the applicant’s father for the purposes of the applicant’s study.
The submissions continued at line 30:
…there’s no specific requirement as to how evidence must be given of a person’s regular income or occupation. There’s no requirement for tax statements or for bank statements to prove that. There’s merely a requirement that some evidence be put before the Tribunal and then the Tribunal gives some consideration to that evidence that is given. The applicant gave evidence, primarily in the form of his father’s application. The Tribunal, in my submission, ought to have considered whether giving evidence of an occupation can amount to evidence of a person obtaining a regular income.
The fact of an occupation, yes, and then taking into account the fact that a bank also – that a bank not another institution or building society or other type of institution, then saw fit to grant a loan for specific educational purposes. There must be some inference able to be drawn there with respect to whether that occupation supported the making of a loan in that amount.
The difficulty with this line of argument is that it ignores the wording of the regulation itself. Schedule 5A of the Regulations define a number of phrases but not the phrase “regular income”. It is clear, as the first respondent submits, that there was no particular evidence given by the applicant to the Tribunal that his father had any particular income and as to whether or not it was regular. Rather, it was submitted that since his father was a farmer and had taken out a loan, the Tribunal erred in not inferring that he had a regular income sufficient to support the loan that was taken out.
In Singh v Minister for Immigration & Anor [2013] FMCA 132, Judge Burchardt considered the meaning of “regular income” in Schedule 5A. Relevantly for these purposes he said at [62]:
I think that regular income implies both money coming in periodically and money that comes in over periods that themselves have a regular periodicity. That seems to me what the words mean.
So far as I am aware, Singh has not been overruled. I agree that regular income means both money coming in periodically and money that comes in over periods that themselves have a regular periodicity.
It is clear on any view that the applicant did not produce any such evidence, and while I inclined to agree that the fact that the bank was prepared to loan the applicant’s father money suggests that the bank was then satisfied as to a capacity to repay the money, the fact is, the fact of a loan is not proof of a regular income within the meaning of the Regulations. The tribunal, therefore, did not fall into jurisdictional error in the way it dealt with that matter.
So far as the three deposits are concerned, the transcript of the proceedings shows quite clearly that this point was scarcely pressed. The fact is that all the money deposits upon which the applicant relied were not held for at least six months immediately before the visa application as required to satisfy the definition of funds from an acceptable source in clause 5A 4052 of Schedule 5A to the Regulations.
The matter can be stated shortly. The Tribunal was correct to reach that conclusion and no jurisdictional error is shown thereby.
Conclusion
It follows from these matters the criticisms advanced are not made out and the application must be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Demack
Date: 22 January 2015
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