FEDERAL COURT OF AUSTRALIA Minister for Immigration and Border Protection v Kaur [2014] FCA 1384 Citation: Minister for Immigration and Border Protection v Kaur [2014] FCA 1384 Appeal from: Mandeep Kaur & Ors v Minister for Immigration & Anor [2014] FCCA 1002 Parties: MINISTER FOR IMMIGRATION AND BORDER PROTECTION v MANDEEP KAUR, JAGSIR SINGH DHALIWAL, PRABHJOT KAUR DHALIWAL and MIGRATION REVIEW TRIBUNAL File number(s): VID 361 of 2014 Judge(s): YATES J Date of judgment: 17 December 2014 Catchwords: MIGRATION - applications for student visas - whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review Legislation: Migration Regulations 1994 (Cth) cl 5A405, 572.223 Migration Act 1958 (Cth) s 65 Cases cited: Patel and Another v Minister for Immigration and Citizenship and Anor (2013) 211 FCR 35 Date of hearing: 12 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: Ms M Szydzik Solicitor for the Appellant: Sparke Helmore Lawyers Counsel for the Respondents: Mr G Hughnan Solicitor for the Respondents: Clothier Anderson & Associates Table of Corrections 13 May 2015 In paragraph 1, "second respondent" has been replaced with "fourth respondent" 13 May 2015 In paragraph 1, "the respondents" has been replaced with "the personal respondents" IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 361 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant AND: MANDEEP KAUR First Respondent JAGSIR SINGH DHALIWAL Second Respondent PRABHJOT KAUR DHALIWAL Third Respondent MIGRATION REVIEW TRIBUNAL Fourth Respondent JUDGE: YATES J DATE OF ORDER: 17 DECEMBER 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made in MLG 897/2013 on 13 June 2014 be set aside and in lieu thereof it be ordered that the application be dismissed. 3. The respondents file and serve written submissions on the question of costs by 4.00 pm on 30 January 2015. 4. The appellant file and serve written submissions on the question of costs by 4.00 pm on 6 February 2015. 5. The submissions referred to in Orders 3 and 4 be limited to 5 pages. 6. The question of costs be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 361 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant AND: MANDEEP KAUR First Respondent JAGSIR SINGH DHALIWAL Second Respondent PRABHJOT KAUR DHALIWAL Third Respondent MIGRATION REVIEW TRIBUNAL Fourth Respondent JUDGE: YATES J DATE: 17 DECEMBER 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which set aside a decision of the fourth respondent, the Migration Review Tribunal (the Tribunal), to affirm decisions not to grant the personal respondents Student (Temporary) (Class TU) visas (the visas or, where the context permits, visa). 2 The appeal raises a single question of construction – the meaning of cl 5A405(1)(c) of Sch 5A of the Migration Regulations 1994 (Cth) (the Regulations). Background 3 The first respondent, Ms Kaur, applied for her visa on 29 August 2011 under s 65 of the Migration Act 1958 (Cth) (the Act). The second and third respondents are family members of Ms Kaur, whose similar applications are dependent on the success of Ms Kaur's application. The applications were refused on 23 September 2011 by a delegate of the appellant, the Minister for Immigration and Border Protection (the Minister), on the ground that Ms Kaur did not meet the legal requirements of cl 572.223 of Sch 2 of the Regulations. 4 Clause 572.223 relevantly provides: 572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2). (2) An applicant meets the requirements of this subclause if: (a) for an applicant who is not a person designated under regulation 2.07AO: (i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and (ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: (A) the stated intention of the applicant to comply with any condition subject to which the visa is granted; and (B) any other relevant matter; and (iii) 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; or … 5 As can be seen, cl 572.223 directs attention to the requirements in Sch 5A of the Regulations. The relevant clause in Sch 5A is dictated by the assessment level to which the visa applicant is subject. It is not in dispute that Ms Kaur is subject to Assessment Level 4. The requirements for this assessment level are set out in cl 5A405 in Sch 5A. 6 Clause 5A405(1) provides: 5A405 (1) The applicant must give, in accordance with this clause: (a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months: (i) course fees: (ii) living costs: (iii) school costs, and (aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant's proposed stay in Australia after the first 36 months; and (b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs, and (c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual. 7 On 7 October 2011, the respondents applied to the Tribunal for a review of the Minister's decision. Following a hearing and the submission of further material on behalf of Ms Kaur, the Tribunal affirmed the decision under review. The Tribunal decision 8 The Tribunal made the following findings of fact. 9 Ms Kaur arrived in Australia in April 2009 as the holder of a student visa. She completed a short English course, a Certificate III in Hospitality, an Advanced Diploma of Hospitality, and stated that she was set to complete a Diploma of Management in March 2013. At the time of the hearing before the Tribunal, Ms Kaur was enrolled in an Advanced Diploma of Management with a course start date of 22 April 2013 and a course end date of 6 April 2014. The tuition fees were $4,500 less an initial prepaid tuition fee of $300, with non-tuition fees of $200. Ms Kaur claimed that her father and grandfather would provide financial support to her. 10 The Tribunal noted that Ms Kaur's father was said to have a fixed deposit in his name of 2,225,000 Indian rupees, which he used to secure a loan for that amount. The funds in the fixed deposit came from the sale of land. The Tribunal noted some uncertainty as to whether this land was Ms Kaur's father's land or her grandfather's land. In any event, the Tribunal was not satisfied on the evidence before it that Ms Kaur's father's regular income was sufficient to accumulate the level of funding provided by him. The Tribunal was not persuaded that proceeds from the sale of land constitute "regular income" for the purposes of cl 5A405(1)(c). 11 The Tribunal also considered Ms Kaur's grandfather's financial capacity. The Tribunal found that, although Ms Kaur's grandfather was "an acceptable individual" for the purposes of cl 5A405, there was no evidence of a money deposit or a loan in his name, and that the evidence as to his income was insufficient to meet the requirements of the clause. 12 Thus, the Tribunal found that Ms Kaur had not: … given evidence, in accordance with the requirements in Schedule 5A for subclass 572 and the assessment level to which she is subject, in relation to necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl. 572.223(2)(a)(i). 13 It followed that Ms Kaur could not be granted the visa for which she had applied. The Federal Circuit Court judgment 14 The respondents commenced proceedings for judicial review in the Federal Circuit Court on 24 June 2014. The sole ground was that the Tribunal misconstrued the requirements of cl 5A405: … by concluding that the sale of land by the first applicant's father could not be applied as evidence that the regular income of the first applicant's father was sufficient to accumulate the level of funding being provided to the first applicant, for the purposes of sub clause 5A405(1)(c) of Schedule 5A to the regulations. 15 The primary judge found that the Tribunal had not asked itself the correct question when applying cl 5A405(1)(c). His Honour therefore ordered that the Tribunal's decision be set aside and that the matter be remitted to the Tribunal for reconsideration according to law. 16 The primary judge saw the question as one relating to whether the accumulation to which cl 5A405(1)(c) refers can be sustained by "the regular income". His Honour reasoned that the level of this income would vary, depending on circumstances. His Honour said that a loan that cannot be supported by regular income would not satisfy the requirement. However, a very modest regular income would be sufficient to purchase a lottery ticket each week and that "the proceeds of a winning a lottery ticket could be accumulated from the regular income for even a person of a very low income": at [23]. The primary judge reasoned that "accumulate" refers to the accumulation of wealth generally. Therefore, lottery winnings or, say, a bequest or gift would be "part of a person's accumulation of funds or wealth over their lifetime": at [24]. 17 With respect to the present case, the primary judge held that the Tribunal's finding that the sale of property was not part of the regular income of Ms Kaur's father overlooked the requirement that his income only needed to be sufficient "to accumulate the level of funding being provided". Thus, the primary judge held (at [26]): 26. … If the land was genuinely gifted to the applicant's father, then his income, regardless of the amount of it, would have been sufficient to accumulate the funds that he intends to provide to the applicant. That is, the section focuses inquiry upon the provenance of the funds, not the ability to save the money. 18 Further, the primary judge said (at [27]) that this interpretation met the underlying purpose of the Regulations: 27. … [b]y focusing on the provenance of such funds to ascertain whether there is a legitimate provenance of the funds by the person who provides them, having regard to what they could be expected to accumulate on their regular income in the circumstances of the case. Thus in the case of a lottery win little income is needed but in the case of savings careful inquiry is needed of income amounts. The appeal in this Court 19 In this appeal, the Minister contends that the primary judge misconstrued "the regular income criteria" in cl 5A405(1)(c). The respondents, on the other hand, support the primary judge's conclusion and reasoning. 20 In my view, the primary judge did err, as the Minister contends. I accept the Minister's submission that cl 5A405(1)(c) requires a nexus between: the individual providing the funds; the individual's regular income, and the amount the individual is providing to the visa applicant by way of funding. 21 The relevant inquiry is, therefore, whether the funder's regular income is sufficient to accumulate the level of funding being provided. 22 I do not accept, as the primary judge did, that the "accumulation" with which cl 5A405(1)(c) is concerned is an accumulation of wealth generally, so as to include lottery winnings, bequests, gifts and the like, as well as regular income. The inquiry is directed to an accumulation of the funder's regular income and whether that accumulation would be sufficient to provide the level of funding which the funder is to provide to the visa applicant. This is not to say that an actual accumulation of the funder's regular income need be the direct source of the funding to be provided. The other provisions of cl 5A405(1) are specifically directed to the question of the source of the funding. In this connection, each of paragraphs (a), (aa) and (b) of cl 5A405(1) requires, variously, evidence or a declaration that the funds are "from an acceptable source". The expression "funds from an acceptable source" is defined in cl 5A405(2). To paraphrase the definition, an acceptable source means a money deposit held by "an acceptable individual" (also defined); financial support from various identified sources; a loan from a financial institution that is made to, and held in the name of, "an acceptable individual"; and a loan from the government of the visa applicant's home country. 23 The construction of cl 5A405(1)(c) adopted by the primary judge effectively sidesteps the real focus of the provision whose concern is the relationship between the regular income of the funder and the sufficiency of that regular income, of itself, to accumulate the level of funding being provided. The expression "regular income" speaks of an inflow of money that, in the normal course of events, is recurring and periodic. Whatever the limits of the expression "regular income" might be, I do not accept that the expression includes, in the present context, the proceeds of the one-off sale of an asset or a combination of "regular income" and the proceeds of the one-off sale of an asset. The primary judge's approach permitted the latter, in a way in which the focus shifted from the funder's "regular income" to the funder's accumulation of wealth generally. In this way, the funder's "regular income" played a subsidiary role which was dependent on other sources for a particular individual's wealth. These sources included bequests, other gifts and even the happenstance of lottery winnings from a ticket purchased from an individual's regular income. In my respectful view, this approach to construction effectively rewrites cl 5A405(1)(c) and is in error. 24 In Ms Kaur's submission, there is a lack of clarity in cl 5A405(1)(c) that requires "a purposive analysis" to construe the provision. She placed reliance on a statement by Bromberg J in Patel and Another v Minister for Immigration and Citizenship and Another (2013) 211 FCR 35 at [22] that the purpose of cl 5A405 is to provide some assurance that an applicant has access to funds or financial support sufficient to cover the basic expenses likely to be incurred during the applicant's stay in Australia. The Minister did not dispute Bromberg J's broad statement of purpose, but did submit that it provided little guidance in construing cl 5A405(1)(c). I accept that submission. 25 Ms Kaur also sought to draw support, analogously, from Bromberg J's reasoning in respect of the meaning of "loan" in para (c) of the definition of "funds from an acceptable source" in cl 5A405(2). The effect of the submission was that, if there had been a concern to restrict the nature of the accumulation of which cl 5A405(1)(c) speaks, then it might be expected that a more explicit approach would have been taken in the drafting of that paragraph. 26 In my view, cl 5A405(1)(c) does exhibit that concern by specifically requiring that the "regular income" of the funder be sufficient to accumulate the level of funding being provided. 27 For these reasons, I do not think that the Tribunal asked itself the wrong question. I am satisfied that it asked itself the correct question and came to a conclusion on that question that was open to it on the facts, as it found them to be. 28 Accordingly, the appeal should be allowed and the orders made by the Federal Circuit Court on 13 June 2014 should be set aside. In lieu thereof, it should be ordered that the application be dismissed. 29 At the hearing of the appeal, the respondents informed the Court that they would wish to be heard on the question of costs in the event that the appeal is allowed. I will give all parties the opportunity, by way of written submissions, to address the question of costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 17 December 2014