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Immigration Daily News Important Decision: Policy Cannot Require More Than The Legislation!Australian Immigration Daily News
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Important Decision: Policy Cannot Require More Than The Legislation!
Can the Administrative Appeals Tribunal rely on a Departmental policy (PAM3) that is more stringent than the regulations to affirm the refusal of an application?
What if the purpose of the policy is to prevent applicants from “subverting” the “purpose” of a regulation?
These issues came before the Federal Circuit Court in a case that was decided late last week, He v Minister for Immigration & Anor (2015) FCCA 2915 (29 October 2015).
The answer that was given by the Court is that policy cannot go “beyond” what the law itself actually requires.
Consequently, when the Tribunal relies on a policy that is “stricter” than the Act or the Regulations, it will “fall into jurisdictional error”. A Tribunal decision that is “infected” by jurisdictional error is liable to be overturned by the Courts.
The principle that policy cannot “go beyond” what is specified in the Act or the Regulations was confirmed in the decision of the Federal Court in the case of Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459 (11 December 2002).
And the decision in the recent case, He, illustrates that even if a policy is intended to prevent a regulation from being “subverted” or “circumvented”, if the policy does require more than the legislation, it cannot lawfully be relied on (either by the Department or the Tribunal) as the basis for a decision on a visa application.
The facts in the He case were pretty complicated! What is most important about this decision is the “re-affirmation” of the principle that “law trumps policy”. But here is a summary of what the He case was all about.
The case involved an application for a “Business Owner” visa (Subclass 890). As many business visas do, the applicable criteria for the Subclass 890 visa imposed an “asset test”. Specifically, the criterion affecting this visa application required that the applicant demonstrate that she/he had held assets with a net value of at least $100,000 in the “main business” throughout the 12 month period prior to the lodging of the application.
The situation in He was that the applicant was the part owner (49%) of a business known as “Australian Mirror News Media Group Pty Ltd”. The evidence was that the business had a net asset position of $41,903 as at 31 December 2012 and $78,618 as at 31 December 2013. In other words, the company’s asset position fell below the net asset value threshold of $100,000.
However, the applicant sought to rely on a “financial arrangement” that she had made which would have brought the value of her net assets in the business above the threshold. This arrangement was that she had purchased a bank cheque payable to the business in the amount of $104,000 on 25 May 2012. On the same day, the business opened a “term deposit” in the amount of the bank cheque, $104,000. The applicant and the business also entered into a loan agreement under which the applicant agreed to loan the business the $104,000 on an “interest free” basis, and the business agreed to repay the loan within 5 years.
When the “loan” was included in the calculation of the applicant’s net assets held in the business, it brought the amount of the assets above the $100,000 threshold necessary to qualify for the grant of the visa.
The difficulty for the applicant was that the $104,000 “loan” that was made by the applicant to the business was never actually used by the business. It simply sat “unused” in a term deposit. The loan was repaid to the applicant at the end of the 2-year term deposit, and was thus repaid 3 years earlier than was required by the loan agreement.
The Tribunal took the view that the loan transactions were “shams” that had only occurred to put the applicant in a better position in respect to her visa application.
The Tribunal was not prepared to allow the $104,000 “loan” to be counted towards the applicant’s assets in the business for the purpose of determining whether she satisfied the asset threshold. The Tribunal relied on Department policy that stated that a “term deposit” could not be “counted” towards an applicant’s assets because it is not an “active asset”. The policy guidelines that were referred to by the Tribunal also specified that “…it is intended that loans made to a business by an applicant should have been used to fund the activities of the business (as opposed to inactive investments held in a business bank account”.
The problem, as far as the Court was concerned, was that the actual wording of the criterion for the visa, as stated in the Regulations, did not qualify the term “assets”. The criterion did not itself require that the assets be “genuinely” held in the business by the applicant. Nor did the Regulations say that “term deposits” could not be used to satisfy the asset threshold, or that the assets had to have been used to fund the activities of the business (as PAM3 required).
Therefore, the Court concluded that even though the transactions surrounding the “104,000” loan had been merely a “device” to get around the spirit of the Regulations, the Tribunal had nonetheless committed jurisdictional error by relying on policy guidance that required more than the actual Regulation. Again, all that the Regulation required was that the assets be held by the applicant in the main business; there was no requirement in the regulation that the assets be “genuinely” or "actively” used by the business.
So the result in this case was that the Federal Circuit Court “quashed” the decision of the Tribunal that had affirmed the refusal of the visa application.
The lesson of this case is that RMAs and their clients need to be very alert to situations where the Department or the Tribunal seeks to apply policy requirements from PAM3 that are more stringent than the legislation. Policy that goes beyond what is specified in the legislation cannot be relied upon as the basis for a decision on a visa application. So if the Department or the Tribunal’s reliance on a policy that is not consistent with the legislation results in a refusal, then there may very well be a meaningful opportunity to get that decision reversed and to “win” the case for the client!!!!
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
, Tel: (02) 8068 8837
Comments
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Monday, 02 November 2015DIBP has often sought to so constrain a regulation through the use of policy that it crosses the line into creating a policy which is ultra vires the Act and the Regs. The most blatant example of this function creep has been the April 2014 rejig of the policy underpinning the schedule 3, criterion 3001 for the visa subclass 820/801. That "new" policy is so restrictive that it crosses the line into ultra vires because what it seeks to do is frustrate the clear intention of Parliament in the September 2009 amendments to the migration Act at Section 48 which permitted persons to apply on spouse grounds even if they had been previously refused a visa. The visa subclass 820/801 prior to the amendment of section 48 only allowed persons who did not have a section 48 problem to apply even if they failed to hold a substantive visa. DIBP now construes "compelling circumstances" through a lens of policy which undermines the relevant concession to such an extent that it becomes unavailable to the vast majority of the people it was intended to benefit. The AAT/MRT and the members doing these cases no longer make any reference to the new policy in their decisions but I think it is fair to say that the new polcy continues to infect the decision making process at review. This I believe is part of a wider policy to wage administrative war on the applicants for spouse visas as part of some "integrity" agenda. The stats of set aside rates at the AAT/ MRT is a clear indication of a "trend".
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Tuesday, 03 November 2015Interesting notion Chris, 801/820 Partner Visa, in particular "Legally Married" partners, if a couple can provide a "legally binding" document such as a marriage certificate which is acknowledged and upheld in our court of legal system, why does policy trump our own legislation that the applicant must provide a plethora of other documentation to prove that they are a genuinely married couple?
For any Australian, if you are married, you cannot legally marry another person, unless you cease to be married to the person you are currently married to. If you are legally married, Centrelink will generally not allow you to get a sole parent pension, it is also enough for the ATO to tax you based on your household income with your spouse, and of course, it is enough for you to make a claim on your spouse's estate in family law, to name a few examples.
Why must applicants show for the sake of policy, evidence such as joint bank accounts, joint assets, wills, statutory declarations, receipts, letters sent to the joint names of the couple, sometimes staged photographs, to name a few just for the sake of policy to prove that they are married? Is a legally binding marriage certificate not enough? I can understand, defacto applications but marriage in Australia is legally binding, there are many married couples who like to have separate bank accounts, who don't socialise and publicly photobomb themselves in every social setting to prove they are married and who cannot afford to buy major assets so they can put their joint names on it just to please policy.
For the 801/820 visa, we need to cut the red tape and respect our own laws, marriage celebrants have to abide by laws to conduct marriages in a lawful manner congruent with our legislation, departments such as Births, Deaths and Marriages need to review and evaluate Marriage registrations submitted to their department, they are held accountable in their profession, if our laws recognise a couple to be married, why does immigration law require a couple to prove above and beyond our own legislation? In a nut shell, may I question whether DIBP believe they are above our laws, thus they do not respect our laws that they write their own policy to trump our laws and undermine other areas of law which recognise a couple as legally married?
If I put in an 820/801 visa application with the applicant and sponsor's identification information to prove that they are who they are and of an appropriate age acceptable by Australian law to be married, (I.e. birth certificate and passport), their marriage certificate, criminal history checks to prove they are people of integrity and medical check to prove they are not a burden to our Australian community, I would bet this application would be refused, but I would ask why? Is it that DIBP has deemed a marriage certificate is "not sufficient" evidence enough?
In addition, as a married person myself, I believe it is unconscionable for DIBP to make applicants wait up to 12 mths (or more) for an application to be reviewed, in this time the couple may have to live apart for this period (particularly for offshore applicants), couples depend on each other for emotional and physical support, where is our compassion to separate loving married couples? If a partner visa application has been lodged, and the applicant can provide documentation that they are legally married, the DIBP should issue at least a temporary visa so the couple can be together while they take their sweet time to review the application.
I welcome this latest decision by the courts to "grow some" and put right that policy is not law and should never trump law. It's still a far step to making our legal system more consistent and logical, but at least it's one step in the right direction. Well that's my rant for the day, thanks Chris for bringing this up, I would love one day to work with you on making things right, if you're ever in Brisbane please feel free to drop by for a coffee (my shout), keep up the good work. -
Wednesday, 04 November 2015
Dear Colleague,
Thanks for the very helpful commentary and questions. The problem as i see it lies at the heart of how DIBP conducts its business. DIBP takes the view that persons seeking to migrate to Australia will resort to any "trick" no matter how complex or unlikely, including marriage and having a child in the context of a spouse visa application. The statutory scheme carries within in a presumption of regularity but DIBP sees, as does the AAT/MRT, a conspiracy at every turn to fool DIBP into thinking that the couple claiming a relationship are not telling the truth. Who in their right mind would contrive a relationship and have a child as a vehicle for migration to Australia? It is hard enough to maintain a relationship when you love someone...imagine entering into that arrangement for PR! Wayyyyyy too hard. -
Thursday, 05 November 2015
My clients often complain to me about why I need to request so much evidence from them for an 820/801 visa.
** With tongue in cheek so as not to offend
I often tell them, well... you know when you watch those court shows and the criminal is innocent until proven guilty, just remember that is Hollywood and in real life it's always quite the opposite, so think of it as guilty until proven innocent, you will have a better chance of a positive outcome if you can prove you are innocent.
Legislation, regulations and policy was originally developed by people, to protect people, it's quite saddening that DIBP has moved towards building and supporting a culture of distrust which can cause unnecessary hurt and hardship towards the very people that are paying their wages to serve and protect them, yes DIBP officers are public servants. Whilst the applicant is a not an Australian citizen for now, they are in a relationship with an Australian Citizen, people that are genuinely good people, paying taxes and contributing to society and in return are having their lives punished, hindered and often pushed into hardship just for falling in love and marrying a person that is not an Australian Citizen.
If there are any DIBP people that are monitoring these forums, I would propose you think about putting yourselves in the shoes of our Australian Citizens, it may not be you, but one day this could be your son, your daughter, your friends that will be subject to these conditions.
and yes Chris, I can say I have travelled around the world far and wide and whilst I will do a shout out for tourism Australia to say this is a beautiful country, I would most certainly agree that there would not be many people of sound mind that would bring a child into this world just for the sake of getting an Australian visa. -
Friday, 06 November 2015
My question is why is the Tribunal even looking at the PAMS
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Friday, 06 November 2015
I have just had a Subclass 300 visa refused, ( lodged in South Africa in December 2012), on 23 October 2015, reason: I find that the applicant and sponsor have created a contrived relationship in order for the applicant to pursue permanent residence in Australia.
Criteria of reg 1.15A (financial aspects, nature of household, social aspects, nature of commitment, plus more, identity of sponsor, credibility of applicant regarding course and nature of relationship, evidence of communication, photographs of couple and evidence that they have met in person, lack of knowledge of the sponsor and other relevant issues) were used for the purposes of Section 5F ( spouse) ) and applied indiscriminately without regards to circumstances of applicant and sponsor at time that they met as refugees in Guinea, separated by visa applicant's father because of religious differences, visa applicant had a child by sponsor, etc. ,to make a value judgement that the relationship was not genuine and continuing.
The decision maker did not have information provided to the Department between lodgement and decision making, so inaccurate information formed part of bases for the decision.
All this, after we were advised in October 2014 that the visa was going to be granted after ban on visa processing in Ebola affected countries was lifted.
So, after 2 complaints to Global Unit, and one to Commonwealth Ombudsman ( this was the one which made the difference), about relocating the visa applicants to a second country so that they would be granted their visa, the Department agreed. But first, they must be interviewed, apparently when they rang the number provided with visa application, was not connected. A new number for the visa applicant was provided in about May 2013 for this very activity, but no interview took place.
The first complaint to Global Unit over lengthy processing time obtained us the promise of a visa grant after the ban was lifted, and further promise of priority processing.
Our visa applicants have been treated appallingly by the Department. On the day of the interview, held in Accra, the visa applicants arrived and were not allowed into the compound.
She rang the sponsor ( who came to Australia in 2009 as a refugee) and he in turn contacted me, so I emailed our case officer and she in turn told me that the Australian High Commission in Accra, will open up for her.
When the visa applicants were finally allowed in, the security took her mobile off her before she was allowed in for the interview. When the issue of communication was raised by the decision maker, the visa applicant advised her that her phone which had recent communication between the visa applicants and the sponsor was taken off her. No attempt was made to retrieve her phone and use those messages, as part of the evidence. Instead, on issue of evidence of communication, the decision maker said, limited evidence was provided.
Before the interview, we were advised that DNA testing on sponsor and dependant applicant was required. We agreed, but the decision maker did not pursue this, only to state, on issue of other relevant issues:
"I have strong concerns about the credibility of information provided about the identity of the dependant applicant. .....I am of the view that the true details of the dependant applicant name and date of birth have not been provided to the Department. This goes to the overall credibility of the visa applicant."
When we made the application, the visa applicants were in Guinea. Because they were not citizens of Guinea, they had no passports. We provided UNHR & Red Cross documents as their ID documents.
The visa applicants moved to Sierra Leone some time after we were advised by the Department that it was safe to move back as this would also make it easier for Department staff to interview them in Sierra Leone. But because this information was missing from the file, identity was another issue that did not satisfy the genuine and continuing criterion.
The decision is unfair, inhumane and highly damaging to the visa applicants and the sponsor. The sponsor is the person supporting the visa applicants so he can not visit the visa applicants. He needs to work.
If we apply for a review, where are the visa applicants going to stay, while waiting for the review process to be completed? They can not afford to stay in the hotel where they have been staying In Accra waiting for the interview and the decision, for another 12 to 14 months. If they return to Sierra Leone, there is the ban to consider.
I have asked the decision maker politely to set the refusal decision aside and grant the visa applicants the visa. She has replied that no further decision can be taken at Pretoria. I then sent her a submission, citing jurisdictional error, etc. and she has not responded.
I have complained again to Global Unit and will consider taking the matter to the Australian Human Right Commissioner. The dependant applicant is a 12 year old girl so the Rights of a Child is an issue.
Any helpful suggestions would be very welcome. My client, the sponsor is now suicidal and he is not at all helpful. -
Friday, 06 November 2015
I hope you have lodged an appeal!
Can you email me the decision record?
christopher@levingston.com.au
Immigration blog
But what I do not understand is that the business would also need to show a liability in the balance sheet for $104,000, therefore the net assets (Assets minus Liabilities) would still be the same.