Singh v Minister for Immigration
[2013] FMCA 132
•15 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 132 |
| MIGRATION – Application for judicial review of Migration Review Tribunal decision – whether applicant satisfied financial criteria for student visa – whether proceeds of sale of land can be part ‘regular income’ for purposes of Migration Regulations – whether Tribunal had evidence from which it could make the conclusions made – whether Tribunal imposed impossible evidentiary onus on the applicant. |
| Migration Regulations 1994 (Cth), cl. 5A405, 5A405(c), 5A405(1)(c), 5A405(2)(aa) |
| Singh v Minister for Immigration and Citizenship [2011] FMCA 923 Bhatia v Minister for Immigration and Citizenship [2011] FMCA 796 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Butterworths Australian Legal Dictionary Macquarie Dictionary |
| Applicant: | KULWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 110 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 21 December 2012 |
| Date of Last Submission: | 21 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gipp |
| Solicitors for the Applicant: | JK Legal |
| Counsel for the Respondent: | Ms Szydzik |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 110 of 2012
| KULWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REIVEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his amended application filed on 27 August 2012, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 30 December 2011.
The two grounds upon which the applicant seeks to rely (paraphrased slightly) are:
1)It was not reasonably open to the Tribunal to conclude on the evidence before it that the regular income providing funds to the applicant was not sufficient to accumulate the level of funding as required by clause 5A405(c) of the Migration Regulations 1994 (“the Regulations”); and
2)The Tribunal erred in law in concluding that the sale of land by the applicant's father could not be applied as “regular income” as required by clause 5A405(1)(c) of the Regulations.
For the reasons that follow, I do not think that these criticisms are made out and it follows that the application must be dismissed.
Background Facts
The following background facts are not controversial and are taken from the Tribunal's decision.
The applicant is a citizen of India who arrived in Australia on a student visa on 21 June 2008. His temporary visa expired and he applied on 24 June 2009 for the visa which has given rise to these proceedings.
Together with his application, the applicant submitted relevantly:
a)an income certificate dated 11 June 2009 which indicated that Parshotam Singh derives 30,000 rupees per acre on his land with an aggregate of 2,50,500 rupees (which the Tribunal converted at the time of decision as $4,667); and
b)a bank statement dated 10 June 2009 for an account in the name of Shamsher Singh showing a balance of 9,33,815 (the Tribunal's conversion at the time of decision was $17,434); and
c)an affidavit of support dated 30 May 2009 from Shamsher Singh in which the deponent swore he was the applicant's father and would bear all his living expenses during his study in Australia.
On 30 September 2009, the delegate made a decision in relation to the application and refused it. He was not satisfied that the applicant met the relevant requirements in relation to secondary visa applicants.
An application was lodged with the Tribunal on 7 October 2009 and, for whatever reason, nothing appears to have happened until 2 September 2011 when the applicant's agent lodged the documents already referred to together with, relevantly:
a)the applicant's birth certificate showing that his father is Shamsher Singh and his grandfather is Parshotam Singh;
b)
a bank statement dated 6 August 2011 for an account held by the applicant's father which runs from 1 January 2011 to 18 May 2011 and records three withdrawals and three deposits
(see Court Book (“CB”) 77). The applicant’s migration agent submitted that the amount of 10,04,980 rupees equalled $24,512.14 (the Tribunal's conversion at the time of decision was $18,763) and that that amount had been in the account for more than six months; and
c)a letter dated 6 August 2011 from the Punjab National Bank to Shamsher Singh certifying that he holds 10,04,998 rupees at the bank.
The Tribunal, in due course, satisfied itself that the delegate's decision was wrong because the applicant was a primary applicant, not a secondary applicant.
The applicant's agent lodged further submissions on 16 November 2011 and a hearing was held on 17 November of 2011. The applicant gave sworn oral evidence and was represented by his agent.
The Tribunal's Decision
The Tribunal set out jurisdictional issues, the legislation and policy in terms that have not been the subject of criticism. The Tribunal went on to refer to evidence paraphrased above (at paragraphs 7 to 17 (CB 75-78)).
The Tribunal went on to record the matters that had been said at the hearing at paragraphs 18 to 38 (CB 78-81).
The Tribunal recorded that the applicant asserted that his father is a farmer, the farm being 25 acres and producing wheat, oats and sugar (paragraph 24 CB 78).
The applicant asserted that the costs of his studies were $6,500 in fees (paragraph 26 CB 79). The applicant asserted that he had paid $3,000 of those fees and could provide receipts (he later did so).
When asked about his financial capacity, the applicant stated that he relied upon the documents his agent had lodged, in particular the document evidencing the 10,04,980 rupees in account number 3508000106031841.
The Tribunal asked about the funds in the account and the applicant stated that his father lodged the funds in the account because he and his family were advised by an agent in India that for the applicant to be eligible for a visa to Australia, they would be required to prove that he had funds in a fixed deposit. The applicant said that there was no need to make any withdrawal from the funds for their day-to-day living expenses because they could rely on the income from their farm
(paragraph 29 CB 79).
The Tribunal raised with the applicant the fact that 25 acres did not seem sufficient land for his father to both support his wife and children and accrue savings. The Tribunal suggested that 25 acres of growing wheat would not produce much income. The applicant asserted that the annual income generated by his father on the farm is 2.5 Lakhs ($4,666) per annum. The Tribunal noted that the funds in the bank account (10 Lakhs) would have been hard to save on an income of 2.5 Lakhs per annum (paragraph 30 CB 79).
Paragraph 31 (CB 79) is worth setting out in full:
“The Tribunal asked the visa applicant if there was any other source of household income. He stated that, prior to his arrival in Australia in 2008 his father had sold some land. Asked if the funds were constituted from the proceeds of that sale of land, he stated that they were not. Asked about the source of the funds, he stated the funds were saved by his grandfather. His grandfather had started saving a long time ago; before his father started the farm. Asked what his grandfather was saving for, he stated that he had started saving for future expenses such as dowries for his (the visa applicant's) sisters. His father also had milking cows and sold the milk (and this contributed to the household income).”
At paragraph 32 following some exchanges about his sisters:
“He confirmed that the funds he was relying on were sourced from his father's income. The Tribunal suggested again that the farm income did not seem enough. He stated that the sale of milk from their cows (they own 15 or 16 cows) also helps the family pay for daily expenses. Asked how much income the family received from the sale of milk, he stated that he did not know.”
At paragraphs 33 and 34, the Tribunal returned to the question of where the funds were derived from. The applicant at paragraph 33:
“stated sales of his father's wheat. His father accumulated savings at home and, two years before he (the visa applicant) came to Australia, deposited the funds into the account. The funds are from “the old money” and were not deposited to meet the visa criteria.”
34. The Tribunal asked the visa applicant if his father would be in a position to produce evidence of the accumulation of the funds from his farm income. He stated that he did not think he could because in India the practice is to conduct transactions in cash. His father just kept cash from the sales of farm produce in a box in their living room and then, from time to time, put it in the bank.”
At paragraph 36 (CB 80), the Tribunal noted:
“The agent submitted five bank statements dating from 2008 to address a requirement that the funds be held in a money deposit for six months prior to the time of application (24 June 2009).”
Those are recorded at paragraph 38 (CB 80-81).
The Tribunal wrote to the applicant on 5 December 2011 inviting the applicant to provide evidence addressing clause 5A405 of the Regulations. On 20 December 2011 the agent's documentation was received by the Tribunal.
The documentation relevantly comprised:
a)Evidence that the applicant had, in fact, paid $4,000 of a total $6,000 of fees;
b)an affidavit sworn by the applicant's father in May 2009 in which he deposed that he would financially support the applicant;
c)an affidavit in support sworn by the applicant's grandfather dated 20 December 2011 declaring that in addition to his agricultural income, he earns approximately 3,49,620 rupees per annum from his dairy-farming activities. The agent stated that that equated to $7,600 per annum, but the Tribunal's conversion at the time of decision was $6,526;
d)an income certificate from the applicant's father confirming that he receives 2,50,500 rupees from agricultural activities said by the agent to be $5,445 per annum, but the Tribunal’s conversion at the time of decision was $4,675. The agent stated that “the father’s total income is therefore approximately $13,045 per annum”.
e)A bank statement for an account in the name of the applicant’s father for the period during 28 November 2008 and 4 September 2011 and a statement dated by a bank official on 20 December 2011 confirming that as at 19 December 2011 the applicant’s father had 10,24,502 rupees in the bank which the agent said equated to $22,273, but the Tribunal’s conversion at the time of decision was $19,122.
Having summarised the submissions made by the agent, the Tribunal came to its discussion and findings (see CB 82).
Having set out the relevant legislation, the Tribunal paraphrased the matters required and the applicant’s submissions at paragraphs 50 to 52. Having noted discrepancies as to calculations of the relevant rupee amounts into dollars, the Tribunal continued at paragraph 52, (see CB 86):
“… the Tribunal is not satisfied that the evidentiary requirements have been made out. For reasons explained below, the Tribunal is not satisfied that the parties have presented satisfactory evidence that they have a regular income sufficient to have accumulated the level of funding required.”
This requirement arises from clause 5A405 which relevantly reads:
“(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
…
(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.”
At paragraph 53 (CB 86), the Tribunal noted that while the funds from an acceptable source to meet expenses for six months must be held in the name of an acceptable individual (see clause 5A405(2)(aa)), the requirement that there be evidence of any individual providing funds to the applicant (clause 5A405(1)(c)) sufficient to accumulate the level of funding provided by the individual was not so circumscribed. Nonetheless, the Tribunal found at paragraph 54 that looked at in the light of some practical problems identified in paragraph 53 (CB 86):
“… the Tribunal considers that the most sensible construction of Clause 5A405(2)(aa) and Clause 5A405(c) is that the reference to “any individual” for the purposes of (c) is a reference to the individual in whose name the money deposit is held (the acceptable individual) and “level of funding” is a reference to the money deposit.”
The Tribunal went on to say at paragraph 55 (CB 87):
“In this case the evidence in relation to the identity of a person providing funds and the source of funds was confusing.”
The Tribunal continued at paragraphs 56-58 (CB 87-88):
“56. In relation to the visa applicant’s grandfather, the evidence was as follows. In pre-hearing submissions the visa applicant’s agent submitted an income certificate certifying that the visa applicant’s grandfather generated income of 2.5 Lakhs per annum. In oral evidence at the hearing before the Tribunal the visa applicant told the Tribunal that his father generated 2.5 Lakhs per annum and did not suggest that there was another 2.5 Lakhs per annum separate from the figure referred to in the (grandfather’s) income certificate. In post hearing submissions the visa applicant’s agent submitted an affidavit from the visa applicant’s grandfather to the effect that he also generated 3.49 Lakhs from dairy farming activities whereas at the hearing the visa applicant stated that his father (as distinct from his grandfather) derived some income from selling milk.
57. In relation to the visa applicant’s father the evidence was as follows. In a pre-hearing submission the visa applicant, through his agent, submitted a bank account statement in his father’s name, but no evidence in relation to the source of funds or the means by which or rate at which his father generated the funds represented in the account statement. The claimed 3.49 lakhs from dairy-farm activities was not mentioned in the pre-hearing submission. As indicated above, at the hearing the visa applicant stated that his father derived some unspecified income from selling milk and in the post-hearing submission that income was quantified and referred to as the visa applicant’s grandfather’s income but then also conflated with the visa applicant’s father’s income.
58. The Tribunal considers that the amount of 3.49 Lakhs from dairy farming activities is implausibly high for the sale of milk from 15 or 16 cows (according to the visa applicant at the hearing) or five buffaloes and three cows (according to the grandfather in his affidavit). In any event, the Tribunal considers that there is no logical reason why, if that income existed, it was not included in the original income certificate and considers that this income was added to the visa applicant’s claims in an attempt to counter the Tribunal’s suggestion at the hearing that 2.5 Lakhs would have been insufficient to accumulate the required funds. The Tribunal also notes that whilst an affidavit by the grandfather has been submitted no supporting documentation has been provided in relation to the sale of dairy products. For these reasons the Tribunal attaches more weight to the original income certificate indicating income of 2.5 Lakhs per annum and rejects the claimed additional income of 3.49 lakhs per annum.”
In paragraphs 60 and 61 (CB 88), the Tribunal said:
“60. On 20 December 2011 the visa applicant’s agent submitted the “father’s total income is therefore approximately $13,045 pa”. This appears to be the sum of $7,600 (the amount claimed to be the income derived by his father i.e. the visa applicant’s grandfather, from dairy farming) and his own income of $5,445. For the reasons explained at paragraph 58 the Tribunal does not accept the evidence in relation to the claimed dairy income. This finding leaves the income certificate showing the annual income of 2.5 Lakhs as the evidence of income.
61. On the evidence before it, the Tribunal is not satisfied that the visa applicant’s father’s regular income is sufficient to generate the level of funding required. Having regard to the fact that his father was also supporting himself, his wife and at least one dependent child in India, it is improbable that his father would have had the capacity to accumulate (as distinct from obtain from a one off transaction) the level of funding required. For example to accumulate the 10 Lakhs (approximately $19,000) it would have taken four years assuming zero expenditure of farm income on living expenses or eight years assuming 50% expenditure on those expenses.”
The Tribunal then went on to consider whether the funds that the applicant’s father had available to him were derived from “regular income”. Stated at paragraphs 63-65 (see CB 89):
“63. Whilst there is evidence of moneys being deposited into the account there is no cogent evidence of the father’s “regular income”. The parties ask the Tribunal to draw an inference from the above documents and evidence that the funds were accumulated from the visa applicant’s father’s income from his work as a farmer. The Tribunal understands that the farm to which the income certificate relates may be a communal or collective enterprise and shared between grandfather and father (and possibly other family members) and the income may be distributed throughout various family members. Although the income certificate refers to the farm of Parshotam (the grandfather), if the visa applicant’s father works on the land, he would presumably be receiving a share of its income. However, no evidence has been presented on the extent of the father’s share of the income and how any excess might have been applied towards accumulating the funds. Nor is there evidence such as a breakdown in the ownership of the farm, an indication of the income after operating costs of the farm or an analysis of the father’s income/living expenses ratio. Without that sort of evidence it is not possible to ascertain the visa applicant’s father’s capacity to save. It appears that any endeavour to locate documents verifying farm income would be futile in any event given the visa applicant’s indication at the hearing that everything was done informally in cash. Whilst it may be true that the farm operates in a cash economy which makes it more difficult for the visa applicant to obtain documentary evidence the Tribunal does not accept that it should make positive findings in the absence of some cogent evidence.
64. In addition, the Tribunal notes that, in oral evidence at the hearing, the visa applicant stated that the funds were also partially derived from the sale of land. While he later stated that the proceeds from the sale of land did not form part of the funds, his initial answer fortifies the Tribunal’s view that the funds were generated from an irregular transaction such as the sale of land rather than “regular income”.
65. The Tribunal notes in passing that the visa applicant’s evidence at the hearing about the origins of the funds was a little difficult to follow. He stated that they (he and his family) were advised by a migration agent in India that in order to apply for successive visas in Australia they would be required to prove that he had funds in a fixed deposit which suggests that the account was open to meet the financial capacity criteria for his visa application/s. However, he later referred to his grandfather starting saving a long time ago, for future expenses such as dowries for his sisters and that the funds are from “the old money” and were not deposited to meet the visa criteria. Asked about the source of the funds, he stated the funds were saved by his grandfather and that his grandfather had started saving a long time ago before his father started the farm whereas the income certificate dated 11 June 2009 indicates that his grandfather owned the farm, at least as at 11 June 2009.”
The Tribunal went on at paragraph 66 to analyse the financial documentation and concluded that the amounts shown as deposits from time-to-time did not:
“provide cogent evidence of the capacity of the regular income of the person providing support to generate the level of funding required.”
The Tribunal went on to say at paragraph 67:
“Having regard to:
· the relatively low income yield of just over 2.5 Lakhs generated by the farm
· the absence of any documentary link between the farm income and the funds in the account
the Tribunal considers that a strong inference arises that the (funds)… are not the product of regular income but are rather derived from a source/s other than an acceptable individual/s regular income. In light of the visa applicant’s spontaneous reference to the sale of land (albeit later retracted), the Tribunal considers in passing that the most likely source of the funds was the sale of some land prior to the visa applicant’s application.”
The Tribunal went on to consider whether the proceeds from the sale of land could constitute “regular income”. The Tribunal asserted in paragraph 68:
“… The Tribunal considers that the intent behind the evidentiary requirements in relation to Assessment Level 4 applicants is to act as a form of due diligence on the provenance of the funds to ensure that the funds that the visa applicant will require will be available. If there were no such due diligence moneys could be created out of one off transactions or moved from one account to another merely to satisfy the evidentiary criteria. To that end the legislation calls upon decision makers to consider if the regular income of person providing support to the visa applicant is sufficiently high for them to have accumulated the funds naturally. The Tribunal considers that the requirement that the funds be held in a money deposit for six months prior to the time of application reflects the intention that the donor has been able to accumulate and set aside that amount and does not need it for their own living expenses. This evidence would give confidence to decision makers that, whilst there is no obligation for the donor to keep the funds in the deposit after the grant of the visa or for the duration of the visa, the donor’s capacity to accumulate the funds from regular income and set it aside in a money deposit for six months indicates that they have the capacity to provide funding to the visa holder during their studies in Australia. With these observations in mind, the Tribunal does not accept that the sale of some land prior to visa applicant’s application constitutes regular income as there is no evidence that the parties derive their regular income from selling land – they are farmers who derive their income from selling wheat and other farm produce.”
The Tribunal then went on to deal with issues relating to the visa applicant’s grandfather and indeed the applicant’s father and grandfather as a joint project, so to speak, providing funds to the applicant. These findings are not material to the matters advanced on this review application. The Tribunal’s conclusion is set out in paragraph 73 and 74. The Tribunal said:
“73. In conclusion the Tribunal found that the evidence in relation to regular income did not meet the evidentiary requirements. Although there is no evidentiary requirement that the sources of funds in a money deposit be demonstrated, that evidence (if it was evidence that the funds in a money deposit were from regular income) would be the most cogent evidence that the regular income of the individual providing funds to the student was sufficient to accumulate the level of funding required to be shown by the student. In this case the source of funds was said to be the father and grandfather’s farm income but the Tribunal considered that the income was extremely low, the evidence hazy (how many individuals were entitled to a share of what was left after living expenses?) and not capable of generating the level of funding required, leaving the only conclusion that the funds in the account came from the sale of an asset or some other source and not regular income.
74. The Tribunal is not satisfied that “the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding” for the purposes of Clause 5A405(c). Accordingly the Tribunal is not satisfied that the visa applicant meet the evidentiary requirements in relation to financial capacity in Clause 5A405(c).” (sic)
Accordingly, the applicant was deemed not entitled to the grant of a visa.
The Applicant’s Submissions
Ground 1: Whether the Tribunal’s conclusion that there was insufficient regular income was open on the evidence
Both the applicant’s written and oral submissions strongly put that the Tribunal concluded without any reasonable evidence before it that the applicant’s father could not have generated $19,000 from the farming of 25 acres of land. It was submitted that in reaching that conclusion the Tribunal erred in law by:
a)making determinations of fact on mere supposition without proper foundation,
b)improperly making adverse findings against the applicant by determining that the evidence lacked cogency whilst at the same time acknowledging that it was difficult for the applicant to obtain it, and
c)making errors of fact on the evidence as to the source of some income.
Criticism was made of the Tribunal’s language. The 25 acres “did not seem” sufficient land for the applicant’s father to accrue savings.
Ten lakhs “would have been hard” to save on an income of 2.5 lakhs pa. The farm “may” be a communal or collective enterprise shared between the father and grandfather and “possibly” other family members. Income generated from the farm “may” be distributed throughout various family members, and 3.49 lakhs from dairy farming was “implausibly high” for the sale of milk on the farm.
The submissions pointed to the fact that the Tribunal acknowledged that the farm operated on a cash economy in India and this provided obvious difficulties in obtaining evidence.
It was further submitted that the applicant had tendered affidavit material and an income certificate on the issue of financial capacity.
Particular criticism was made of the Tribunal’s failure to take into account the 3.49 lakhs derived from the sale of milk because, it was submitted, the Tribunal wrongly concluded on the evidence that this was income from the applicant’s grandfather rather than the applicant’s father.
It was submitted that these matters taken together gave rise to an error of law and that the Tribunal’s adverse findings were made without any evidentiary foundation.
Ground 2: Whether funds from the sale of land is “regular income”
Here it was submitted that:
a)PAM3 is in terms that suggest that income that does not originate from a regular income stream may, nonetheless, be acceptable (including sale of assets) (see written submissions at paragraph 15)); and
b)there was implicit recognition of this approach to sale of land in the decisions of Reithmuller FM in Singh v Minister for Immigration and Citizenship [2011] FMCA 923 and Lloyd-Jones FM in Bhatia v Minister for Immigration and Citizenship [2011] FMCA 796.
In further written submissions on the question of what constitutes regular income, the applicant submitted that the Court should take a purposive approach to the meaning of regular income, even though “it would appear at first blush that the term does not cover “one-off” transactions such as the sale of property”.
It was submitted that the Tribunal failed to consider that the primary purpose of the capacity requirements in clause 5A405 is to ensure that the applicant intends to be a genuine student. This was said to be evidenced, first, by the fact that the moneys from the acceptable source may be removed. There is no requirement to keep them in trust. Second, it was submitted that so much could be taken from the explanatory memorandum to the relevant amendment that introduced the regulation in its current form.
This latter point was said to be illustrated by the fact that the explanatory memorandum relevantly said that “evidence of non-monetary funding relating to property (such as the presentation of valuations of property) is not permissible.” In other words, it was submitted that evidence of the sale of property to produce funds was implicitly accepted as being acceptable. Examples were given of how this could occur in ordinary circumstances.
Finally, reference was further made to PAM3 which clearly asserts that assets other than cash assets may be liquidated or used as collateral on a loan.
The First Respondent’s Submissions
Ground 1
The first respondent’s submissions assert, in essence, that there was evidence sufficient to ground the Tribunal’s findings. It was submitted (at paragraph 26 of the submissions) that it is well-established that an applicant must show that there was no evidence at all upon which the relevant finding of the Tribunal could have been based. Although, the submissions went into some detail to refute the various submissions made by the applicant, the essence of the submission was that:
“it is not sufficient for the applicant to point to a more favourable interpretation of the evidence – that invites impermissible merits review.”
(See paragraph 26 of the first respondent’s submissions and Abebe v Commonwealth of Australia (1999) 197 CLR 510).
Ground 2
Here the submissions point out that PAM3 is advisory only and there is no obligation on the Tribunal to follow it.
Further it is submitted that Bhatia and Singh do not stand for the proposition that it is implicit that proceeds from sale of land may constitute regular income pursuant to clause 5A405 of the Regulations.
In the additional written submissions filed, emphasis was placed upon the fact that “regular income” is not defined in the Regulations but is defined by the Butterworths Australian Legal Dictionary relevantly as:
“Income according to ordinary concepts is money, or something capable of being turned into money, received periodically, derived from rendering personal service, or from property, or the carrying on of an organised activity and depended upon to provide for the regular expenditure of the taxpayer.”
Reference was then made to the Macquarie Dictionary definition of “regular”. It was submitted that the Tribunal’s reasoning implicitly adopted the proposition that funds must be periodic such that a sum accumulates naturally over time, and that this was the correct outcome.
Consideration
Whilst the Tribunal erred in at least one respect (the identity of a deponent), it is well-established that errors of fact do not of themselves constitute jurisdictional error.
Whilst the Tribunal’s decision did from time-to-time use the language of speculation, looked at fairly, I think the Tribunal did indeed make findings that went beyond speculation.
The reality is that it is for an applicant to make his case and the Tribunal does not need rebutting evidence in order to not believe him.
I think for what it is worth, the Tribunal was correct to describe the evidence as hazy and difficult to understand. The story changed from time-to-time in material respects. There was no mention of the money from sales of milk until after the first hearing. The Tribunal’s conclusion that the evidence as to this matter was produced to satisfy a lack of income seems to me to be an inference well-open to it. The criticisms advanced by the applicant in this regard are in my view misplaced.
The Tribunal did not, in my view, impermissibly create an impossibly high bar for the applicant to overcome. The Tribunal acknowledged that it might be difficult for the applicant to provide relevant documentation given that the farm operated in a cash economy but the Tribunal was still required to form a view as to whether or not the applicant’s claims should be accepted.
Whilst minds might differ as to whether the Tribunal’s decision was correct, it cannot be said to have been arrived at on the basis of no evidence.
So far as the question of regular income is concerned, I have already set out earlier the passage in which the Tribunal considered what the Regulations are designed to do. I respectfully agree with the Tribunal’s analysis of the purpose of the Regulations and the requirement to show regular income.
It is certainly anomalous that parts of PAM3 appear to suggest that in some circumstances, one-off sales can provide an acceptable source of funds when the first respondent argues that that is not what the Regulation means. Nonetheless, it is certainly correct to say that the Tribunal is not obliged to follow the PAM3 guidelines and accordingly, this point is not decisive.
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.
I do not think that the two decisions of Federal Magistrates Reithmuller and Lloyd-Jones are to the opposite effect.
The decision of Federal Magistrate Riethmuller in Singh arose in circumstances where the agent of an applicant provided a copy of an agreement described as ‘the sale of land and equipment’ and an email from the agent claiming that the applicant’s father said that the balance of the funds belonged to his father and had not been borrowed.
The difficulty the applicant faced was enquiries from post in India which revealed that this was not the case. At paragraph [6] Riethmuller FM said:
“In the absence of evidence in person from the applicant, or a better explanation of the financial affairs of his father, it does not appear to me to be surprising that the Tribunal came to the view that it did on the documents before it.”
The relevant finding of the Tribunal was set out at [4] which was:
“The Tribunal therefore finds that these funds were borrowed from a source that may demand repayment at any time. The source of funds is not acceptable and the Tribunal cannot be satisfied that the applicant will have access to the funds required.”
In that case, it is clear that nothing was raised as to whether or not sale of land was of itself regular income. The case proceeded as a factual dispute only, although I would accept that Riethmuller FM appears to have proceeded on the footing that sale of land might satisfy the financial requirements of the Regulations. I note particularly at [10] his Honour said:
“The mere fact that money is in a bank account will not always satisfy a Tribunal that the money belongs to a person or has come from an appropriate source such as savings or the sale of an asset.”
While this passage supports the proposition for which the applicant contends, the fact is that the question as to whether or not the sale of land could constitute regular income was clearly not a matter in issue before his Honour and I approach his Honour’s decision with that qualification in mind.
The decision of Lloyd-Jones FM in Bhatia involved an even more straight-forward set of facts. The applicant sought to rely upon his grandfather, Ram Chand, who roundly denied any relationship to the applicant and had denied that he sponsored any relative to study in Australia. In due course, the applicant was ultimately driven to admit that the documents purporting to be from Ram Chand were false documents. There were other evidentiary difficulties in the applicant’s case also.
Further documents were submitted in support of the applicant including a document for the sale of land. The Tribunal, however, did not accept that the sale of land document was satisfactory.
The Tribunal found that the applicant was not a reliable witness and that led to the failure of his case.
The matter before Federal Magistrate Lloyd-Jones was whether that decision was affected by jurisdictional error. The first two grounds put in support of the applicant’s case related to procedural fairness issues, which are not relevant here. The third ground was held to be misconceived entirely.
The most that could be said in support of the applicant in this case, arising from the decision in Bhatia, is that the Tribunal and Federal Magistrate Lloyd-Jones did not comment on whether or not the sale of land document could properly be relied on if it were genuine.
As in Federal Magistrate Riethmuller’s decision in Singh, but even more so, it is absolutely clear that the question of whether the sale of land could give rise to regular income within the meaning of the Regulations was clearly not before the Court.
In these circumstances, as I have indicated, I do not think that any general point of principle supporting the applicant’s contention arises from those two decisions.
Conclusion
Accordingly, as I indicated at the commencement of this proceeding, despite the skill with which the applicant’s arguments were presented, the Tribunal did not fall into jurisdictional error in the manner asserted and the application must be dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 15 March 2013
3
3
1