Younis v Minister for Immigration

[2015] FCCA 3

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUNIS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3

Catchwords:
MIGRATION – Judicial review – whether or not the Tribunal had a discretionary power in determining financial capacity or whether its enquiry is codified by statute – consideration of the adequateness of a loan from the applicant’s mother – whether the applicant was given a proper or real opportunity to respond to a section 360 invitation.  

Legislation:

Migration Act 1958 (Cth)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZMDS and Anor (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: USMAN YOUNIS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 249 of 2014

Judgment of: Judge McGuire

Hearing date: 10 September 2014

Date of Last Submission: 10 September 2014

Delivered at: Melbourne

Delivered on: 5 February 2015

REPRESENTATION

Counsel for the Applicant: Ms Latif

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Mr Brown

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The application filed 14 February 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 249 of 2014

USMAN YOUNIS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a determination of the Migration Review Tribunal (“the Tribunal”) dated 20 January 2014, affirming a decision of the Minister’s delegate not to grant the applicant a Student (Temporary) (Class TU) Visa (“the visa”). 

2. The applicant is a 22 year old citizen of Pakistan.  He lodged an application for a student visa on 9 March 2013 and was assessed as being enrolled in a Diploma of Nursing and in anticipation of a Bachelor of Nursing degree course.

3. By letter of 20 March 2013 the delegate wrote to the applicant requiring particular information, including as to the financial capacity requirements of the visa. 

4. The delegate refused the application on 23 March 2013.  The applicant lodged an application for a merits review by the Migration Review Tribunal on 5 June 2013. 

5. On 7 June 2013 the Tribunal wrote to the applicant inviting him to provide relevant material and submissions. 

6. On 15 October 2013 the Tribunal again wrote to the applicant, requesting at paragraph 5:

   ...documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

   ·    evidence of fees of current or proposed courses you have already paid, or still owe for past courses;

   ·    evidence of funds from an acceptable source:

   i)if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application; 

   ii)if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current.

   ·    evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you;

   ·    evidence that you have genuine access to the moneys that you declare while you hold a student visa, such as evidence of any money you have received or been given. 

7. The applicant appeared at the Tribunal hearing on 11 November 2013.  He gave evidence and made submissions in support of his application.

8. Further time was granted the applicant following the Tribunal to provide additional documents in support of his application, with the applicant being granted a period of one week.  Ultimately, however, the Tribunal’s decision was not handed down until 20 January 2014.

9. The applicant took up the invitation of the Tribunal and provided further documentation in respect of his financial capacity.

10. The Tribunal affirmed the decision of the delegate to refuse the visa and at (34) of its reasons the Tribunal concluded:

    On the basis of the above, the applicant has not given evidence in accordance with the Schedule 5A requirements for sub-class 573 and assessment level 4, and therefore does not satisfy cl.573.223(2)(a) (of the Migration Regulation 1994). 

11. The applicant’s evidence comprised a loan from the HBL Habib Bank of Pakistan to his mother (an acceptable person) of 7,200,000 rupees held against a lien on a separate account of the mother with a balance of 7,580,000 rupees. 

12. The Tribunal explored with the applicant the source of the mother’s funds used as security for the primary loan.  There was significant interest by the Tribunal in a purported sale of land by the mother, comprising a balance of her account, which offered the security for the loan.  It was in this respect that the applicant was offered further time in which to provide evidence. 

13. The Tribunal made findings of credit and disputed fact contrary to the applicant and at [28] found:

    The Tribunal does not accept that the funds in the HBL account have been sourced from the proceeds of the sale of land.  The applicant was unable to explain why there are a number of deposit transactions in July 2000 in the HBL account (folio 74) when the proceeds were said to have been transferred in June 2013.  Nor has the applicant shown at the hearing or subsequently that the funds, in fact, were transferred from the purchaser of the land as a result of the sale of land.  Significantly, the applicant has not adequately addressed the Tribunal’s substantial concerns as to the purported transfer of the entirety of the proceeds of sale without a sale being finally effected and the land transferred.  The Tribunal rejects the applicant’s claims that the funds in the HBL bank account (folio 118) were sourced from the proceeds of the sale of land.  The Tribunal does not accept that they are funds from an acceptable source as defined in the regulations.

14. At [29] the Tribunal also found that the funds in the mother’s savings account were not held for at least three months immediately before the date of the application.  The significant deposits were commenced on 13 July 2013.  The application was made on 9 March 2013. 

The application for judicial review

1. The applicant offers three grounds of complaint as follows:

   (1)The tribunal erred by asking itself asking the wrong question, having regard to irrelevant considerations or failing to have regard to relevant considerations.

   (2)Alternatively to ground 1, the tribunal erred by making a finding unsupported by evidence, or, alternatively, by making a finding of jurisdictional fact that no rational or logical decision-maker could have reached;  Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.  Namely, in failing to be satisfied funds in the Mother’s deposit account were not “funds from an acceptable source” because it was not satisfied the sale the funds were sourced from was registered, that title in the subject-matter of the sale had been transferred and that the proceeds of the sale had been provided in the absence of such registration and transfer.  And

   (3)Further or alternatively to ground 2, the tribunal acted in breach of s360 of the Act by failing to provide the applicant with an opportunity to give evidence or present argument on the land title system and relevant principles of property law operating in Pakistan.

2. The application is opposed on all three grounds.

Ground 1

1. The applicant argues that the tribunal fell into an error of law by way of a misconstruction of the requirements of subclause 5A505(2)(b) being a schedule to the regulations.  That clause states:

   5A505 Financial capacity

   (1)The applicant must give, in accordance with this clause:

   (a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 months;

   (i)course fees;

   (ii)living costs;

   (iii)school costs;  and

   1.a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 24 months;  and

   (b)evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs;  and

   (c)evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

2. The applicant’s counsel alleges some confusion in the tribunal as to the relationship between the applicant’s mother’s primary account and the loan account.  The issue is, however, whether such a mistake of fact or misunderstanding impacts on the tribunal’s determination or even its major line of enquiry and/or whether that error is relevant to the argument mounted by the applicant?

3. The applicant says that he met the requirements of clause 5A in that he was able to show funds from an acceptable source, namely evidence of a loan from HBL Bank made to and held in the name of the applicant’s mother.  It follows, on the applicant’s argument, that the tribunal erred by requiring the applicant to provide evidence regarding the sale of land (or any source for the loan funds) rather than simply satisfying itself that the loan evidence in itself was sufficient to satisfy cl 5A505(2)(1)(a).

4. The applicant says that the bank itself provided certification such to satisfy the applicant and found at (CB124) that certification particularises the loan made to the applicant’s mother as being “…to bear educational expenses for her son, Mr Usman Younis for higher studies in Australia, the finances being allowed against the lien on a/c 223379001015324Rs. 7,580,000 rupees.”  The applicant says that this, therefore, satisfies cl 5A505(b) as evidence that the applicant has funds from an acceptable source.

5. The applicant points to an alleged error in the tribunal in failing to consider this evidence or erring in its consideration of it.

6. This argument then turns on a strict construction and interpretation of regulation 5A.

7. The applicant’s argument continues that the tribunal erred in asking irrelevant questions and considering irrelevant material, namely an enquiry into the mother’s agreement to sell land and the nature of her relationship with the purchaser.  The evidence is that the mother entered into an agreement to sell land and that she received the total sale moneys prior to the settlement of the contract.  Ultimately the tribunal’s reasons show that it was not satisfied with this evidence and hence found that the applicant did not satisfy the requirements of the clause 5A505.  The applicant says simply that this was an irrelevant consideration given the other material provided by the applicant and the statutory requirement in regulation 5A.

8. The applicant’s counsel concedes that some confusion in the tribunal may have emanated from the applicant himself raising the mother’s sale of land.  However, counsel says that even if the applicant misdirected himself as to the relevant consideration, that is not an excuse for the tribunal misdirecting itself.  Rather the obligation of the tribunal is to properly construe the legislative requirements.

9. The applicant argues simply that the tribunal’s investigation should have been complete with evidence of the loan certificate with the applicant’s mother as an acceptable individual.

10. In support of this argument counsel refers to the explanatory statement to the 2001 amendments to the Regulations as follows:

    Specifically, the changes … codify, in new Schedule 5A, evidentiary requirements that must be met by an applicant seeking to satisfy primary criteria in the new student visa subclasses.  The criteria to be met by an applicant in order to demonstrate genuineness in the new subclasses is the same as under the old student visa regime.  These criteria deal with English, proficiency…

11. Counsel for the applicant says that the rationale of the amendments and the explanatory statement to regulation 5A makes it unnecessary or irrelevant for the Tribunal to go behind the basis upon which the loan was granted.  It is presumes that the bank has done due diligence.  The regulation itself codifies and, therefore, limits, if not removes, the discretion.  The Tribunal should, on this argument, have been satisfied by evidence as to an acceptable financial institution and acceptable individual.  It follows, therefore, that the “ticking of these boxes” negates the need for the Tribunal to address its departmental policy or, indeed, conduct further investigation as to the source of the funds.

Respondent’s Argument – Ground 1

1. Counsel for the respondent argues that the Tribunal retains a discretion, and particularly as to cl 5A505(c).  The argument continues that it was, therefore, proper for the Tribunal to consider the source of the funds in the mother’s account which provided security for the primary loan account.  The argument continues that the Tribunal having a discretion, it is proper that it refers to the policy guidelines. 

Consideration of Ground 1

1. It is clear that jurisdictional error is established where it is shown that a Tribunal misunderstands the nature of its statutory obligations or asks itself the wrong question.[1]

   [1] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41]

2. Similarly, a Tribunal taking into account an irrelevant consideration may lead to jurisdictional error.  In Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, Mason J in the High Court at page 39 states:

   What factors a decision‑maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statue expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors – and in this context, I use the expression to refer to the factors which the decision‑maker is bound to consider – are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

3. The explanatory statement to the 2001 amendment to schedule 5A clearly intends to codify “the evidentiary requirements that must be met by an applicant seeking to satisfy primary criteria ... ”.

4. The applicant here is seeking a subclass 573 visa.  The schedule to the regulations at 573.223 provides:

   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant’s circumstances;  and

   (ii) the applicant’s immigration history;  and

   (iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant;  and

   (iv) any other matter;  and

   (b) the applicant meets the requirements of subclause (1A) or (2).

   (1A) ...

   (2) if the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in schedule 5A for the highest assessment level for the applicant;  and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted;  and

   (ii) any other relevant matter;  and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in schedule 5A relating to the applicant’s financial capacity.

5. The relevant subsection of the regulation in respect of the applicant’s argument, in my view, is (c) being that the Minister is satisfied that the applicant will have access for funds for the duration of the study and the visa.  It is entirely consistent for the applicant’s argument to be valid in respect of clause (2)(a) in respect of schedule 5A in that the applicant provides evidence of the loan from an acceptable institution to an acceptable individual but with the Tribunal entering into the gathering and consideration of evidence in respect of (2)(c). 

6. That is, in my view, the applicant’s argument overlooks the requirement in (c) for the Minster to be satisfied as to the duration of the loan as against the mere fact of the loan.  The argument as to “codification” cannot extend to the consideration under (2)(c) of 573.223.  Consequently, the onus sits squarely with the applicant to provide the evidence to satisfy the Tribunal that he will have access to the funds for the duration of the visa.  It follows that the codification of schedule 5A does not prevent the inquiry by the Tribunal into evidence and including reference to the policy guidelines. 

7. If the applicant’s statutory requirement was limited to evidence as to the funds from an acceptable source to an acceptable individual then the Tribunal would not find it necessary or be able to inquire back into antecedents of the loan and hence address the policy guidelines.[2] I am satisfied, therefore, that the Tribunal maintains a discretion in respect of being satisfied as to clause 573-223 (2)(c). 

   [2] Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634

8. The Tribunal’s inquiry was in respect of the source of the funds of the mother’s loan and is relevant in it being available for the duration of the visa.  It is clear that the primary loan was secured by another account.  It follows that the inquiry into the durability of that collateral account must be relevant.  The applicant himself volunteered the source of funds of that security account.  The inquiry into that source of funds was relevant.  Consequently I do not find that the Tribunal considered irrelevant material. 

9. I find no merit in ground 1 of the amended application. 

Ground 2

1. The applicant argues that the Tribunal reached a finding that no rational or logical decision-maker could have reached or, alternatively, made a finding unsupported by evidence with the relevant finding being that it was not satisfied that the funds in the mother’s bank account came from “an acceptable source”.  The applicant attacks the Tribunal’s reasoning in relying on the sale of land in Pakistan or the receipt of proceeds requiring a registered transfer of title as would be the case in Australia. 

2. A Tribunal will fall into error if it makes a finding that is critical to the ultimate conclusion and where there is no evidence to support that finding.[3] 

   [3] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-7

3. The applicant says that the Tribunal’s critical finding in its course of reasoning was that the funds in the mother’s security account were not obtained from the sale of land because there was no evidence that the sale was registered and that the title had been transferred to the purchaser.  The Tribunal found this situation to be incongruous with that which would occur in Australia.  The applicant says that there is no evidence that the nature of Australian property law and Pakistan property law is or should be the same. 

4. Secondly, the applicant says that such a finding is one that no rational or logical decision-maker could have reached on the evidence.  The applicant relies on the judgment of Crennan and Bell JJ in the High Court in Minister for Immigration and Citizenship v SZMDS and Anor (2010) 240 CLR 611 where their Honours at [130] say:

   In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision-maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

1. Put simply, whilst the tribunal is exercising a discretion and a court should not lightly interfere with such discretionary findings, a finding that is so obviously illogical and/or unreasonable on the evidence and the course of consideration falls into jurisdictional error.

Respondent’s Argument – Ground 2

1. The respondent counters that the tribunal did not find, as argued by the applicant, that a sale of land in Pakistan required registration of title or that there was a necessary analogy to the Australian system of land transfer.  Counsel argues, therefore, that the very premise of the applicant’s argument is false.

2. At paragraph 28 is the relevant part of the tribunal’s decision.  It bears close examination and says in full:

   The applicant has provided evidence that the loan of 7,200,000 Pakistani rupees to his mother was sanctioned with a lien against a deposit account in his mother’s name (the last four digits of that account are “1403” – folio 73).  He claims that the funds in that deposit account constitute the proceeds of the sale of land previously owned by his mother.  In support of that claim the applicant has provided an agreement to sell (at folio 126).  As was pointed out to the applicant at the hearing the tribunal has difficulty accepting that as sufficient evidence of the source of the funds given that the agreement to sell did not appear to be a registered sale deed.  Importantly the evidence does not establish to the satisfaction of the tribunal that the land has in fact been sold and the title transferred.  The applicant asserted that the transfer of land would happen at some later point but could not be specific as to when that occurred, or will occur.  It is now more than two months since the tribunal hearing and some seven months since the purported sale agreement.  The applicant after the hearing provided an interpreted document which he claimed to be a sale deed however it does not establish to the tribunal’s satisfaction that the deed has in fact been registered and that the title has been transferred.  The applicant was clearly aware at the hearing of that particular concern of the tribunal.  The applicant’s evidence (at hearing) was that the sale proceeds in their entirety were given to the applicant's mother despite the land not having been formally transferred or subject to a sale deed.  After the hearing the applicant provided a translated document stated to be a sale deed.  The applicant has not established that the sale deed has now been registered despite he and his agent being aware of the tribunal's concerns.  The tribunal does not accept that the funds in the HBL account have been sourced from the proceeds of the sale  land.  The applicant was unable to explain why there are a number of deposit transactions in July 2013 in the HBL account (folio 74) when the proceeds were said to have been transferred in June 2013.  Nor has the applicant shown at hearing or subsequently that the funds in fact were transferred from the purchaser of the land or as a result of the sale of land.  Significantly the applicant has not adequately addressed the tribunal's substantial concerns as to the purported transfer of the entirety of the proceeds of sale without a sale being finally affected and the land transferred.  The tribunal rejects the applicant's claims that the funds in the HBL Bank account (folio 118) were sourced from the proceeds of the sale of the land.  The tribunal does not accept that they are funds from an acceptable source as defined in the regulations.

3. And at paragraph 20 of the reasons the tribunal says:

   The tribunal sought to clarify the applicant’s evidence concerning the sale of land;  that there was an agreement in June 2013 to sell the land (which the applicant agreed was correct), that all of the proceeds of sale were paid immediately (which the applicant agreed was correct) but that the title to the land was not transferred at that time…The tribunal put to the applicant that the agreement to sell appeared extraordinary when all of the money was paid over but that there was no transfer of the ownership until some (unstated) stage later.  The applicant said that he only had been sent the agreement to sell…The tribunal indicated to the applicant that the absence of such evidence raised the question as to whether the funds existed in the form claimed by the applicant…

4. The tribunal was entitled to explore with the applicant the source of the funds in the mother’s security account where the applicant gave the evidence to the tribunal that the account was funded with proceeds of sale of land.  The tribunal was entitled to consider the probity of that evidence.  The exploration of the evidence was considerable, including an invitation to the applicant to provide further evidence.  The tribunal exercised its discretion and, after making it clear as to its concerns in respect of the applicant’s evidence, and then rejected the applicant’s assertion that the funds in the mother’s security account were sourced from the proceeds of sale of land.  It is clear that the tribunal’s decision was influenced by the payment of the total purchase price prior to the settlement and transfer of the land.  The tribunal did not expressly or implicitly impose a standard of satisfaction with Australian property law.  There was evidence before the tribunal and it considered it to be insufficient evidence, to ground the applicant’s claim that the account was sourced by funds from the proceeds of sale of land.  I am satisfied that this was a finding that was open to the tribunal within its discretion.  It is not a finding that suffers through want of evidence or illogicality/unreasonableness.

5. I find no merit in ground 2 of the application.

Ground 3

1. The applicant argues that the tribunal did not discharge its obligations pursuant to s 360 of the Act and, after raising its concerns, did not give the applicant proper or real opportunity to respond to those concerns and that it did not properly identify the issues for the applicant at the hearing.

2. Whilst the applicant concedes that the tribunal’s concerns about the source of funds for the mother’s account was raised with the applicant, counsel argues it did not explain to the applicant or sufficiently explain to the applicant the particulars of those concerns.

3. The applicant’s amended application under ground 3 is particularised as:

   That the tribunal was operating under the assumption that the land title system and relevant principles of property law operating in Pakistan were the same or substantially similar to those that operate in Australia.  It was not exposed by the tribunal in the merits review process.

4. Whilst I do not agree that the tribunal had made such an assumption as to the relative Australian and Pakistani property law systems, the tribunal did, in any event, quite obviously raise its concerns with the applicant.  The applicant was given an opportunity to adduce evidence in relation to the Pakistani system of land transfer.  At paragraph 20 of its reasons, the tribunal says, “The tribunal took time to ensure that the applicant was aware of the concerns it had”.  The tribunal deferred its decision to allow the applicant to obtain and lodge any further documents to satisfy the concerns of the applicant.

5. In my view, the requirements of s.360 of the Act were complied with.  The Tribunal’s reasons disclosed it explaining in detail the basis of its concerns.  The applicant attempted to address those concerns at the hearing and was given opportunity to provide further documents. I find no merit in this argument.

6. I am not satisfied therefore as to any of the three grounds of complaint. The application will be dismissed with an order for costs in favour of the first respondent.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 5 February 2015