Abbas v Minister for Immigration
[2019] FCCA 2577
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABBAS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2577 |
| Catchwords: MIGRATION – Judicial review application – decision of former Migration Review Tribunal – Student (Temporary) (Class TU) subclass 572 visa – whether genuine access to funds – procedural fairness – refusal by Tribunal to adjourn hearing for applicant to provide documents - whether decision unreasonable – whether jurisdictional error. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 6 Migration Act 1958 (Cth), ss.6, 65, 359, 360, 476 Migration Regulations 1994 (Cth), sch.2, cl.572.223, Sch.5A |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Dainford Ltd v Independent Commission Against Corruption (1990) 20 ALD 207 FAI Insurance Ltd v Winneke (1982) 151 CLR 342; (1982) 56 ALJR 388; (1982) 41 ALR 1 Foster v Minister for Customs & Justice [1999] FCA 687; (1999) 164 ALR 357 Johns v Release on Licence Board (1987) 9 NSWLR 103; (1987) 27 A Crim R 445 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41; (1980) 31 ALR 666; (1980) 4 ALD 139 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration, Local Government & Ethnic Affairs v Dhillon [1990] FCA 200 Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; (1976) 50 ALJR 570; (1976) 9 ALR 199 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; (1980) 54 ALJR 314; (1980) 29 ALR 289 R v Trebilco & Ors; Ex parte F S Falkiner & Sons Ltd (1936) 56 CLR 20; (1937) ALR 45 Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113 Saji v Minister for Immigration & Anor [2015] FCCA 1170 Singh v Minister for Immigration [2014] FCCA 703 Singh v Minister for Immigration & Border Protection [2014] FCA 538 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 |
| Applicant: | MOHSIN ABBAS |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 185 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 June 2015 |
| Date of Last Submission: | 26 June 2015 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Hemachandra |
| Solicitors for the Applicant: | Four Lion Legal |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the originating application, as amended by leave on 26 June 2015, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 185 of 2014
| MOHSIN ABBAS |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal, (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, the then Minister for Immigration & Border Protection (“Minister”), now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, affirming the Delegate’s Decision to refuse to grant the applicant a Student (Temporary) (Class TU) visa (“Student Visa”) under s.65 of the Migration Act.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Judicial Review Application filed on 1 July 2014, and as amended by leave on 26 June 2015 (“Amended Judicial Review Application”);
b)the applicants’ affidavits in support of the Amended Judicial Review Application filed 1 July 2014 (“Applicant’s July 2014 Affidavit”) and 25 November 2014 (“Applicant’s November 2014 Affidavit”);
c)outlines of submissions filed by the applicant on 17 June 2015 and the Minister on 24 June 2015;
d)the Court Book (“CB”), in which appears the Tribunal Decision dated 5 June 2014: CB 179-183; and
e)the transcript of the hearing before the Court on 26 June 2015.
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by telephone, by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background
The background to the matter is as follows:
a)on 4 December 2012 the applicant, a citizen of Pakistan, lodged an application with the Department of Immigration and Citizenship (as it then was) (“Department”) for a Student Visa: CB 1-7;
b)on 5 December 2012 the Department requested that the applicant provide evidence that he had access to AUD$58,700 that had been held in an acceptable account for a period of 3 months immediately prior to the date he lodged his application and also for “evidence of income”: CB 12-16;
c)on 7 December 2012 the applicant provided various finance related documents to the Department. These included letters from a bank regarding the account balance of the applicant’s father and an “affidavit of support” from the applicant’s father: CB 17, 30 and 36-38;
d)on 23 January 2013 the Delegate refused the Student Visa application because the Delegate was not satisfied that the applicant would have genuine access to the funds required to be demonstrated in accordance with the requirements in Sch.5A (“Sch.5A”) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) for the applicant’s whole proposed period of study in Australia. Accordingly, the Delegate found that the applicant did not meet the criteria for any relevant subclass of Student Visa: CB 46-51;
e)on 29 January 2013 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 70-80;
f)a letter dated 8 April 2014 from the Tribunal invited the applicant to attend a hearing on 12 May 2014 to give evidence and present arguments relating to the issues in his case. The letter also requested that the applicant provide all documents he intended to rely on to establish that he met the criteria for the Student Visa, and information as to various matters, including documents that demonstrated that he had sufficient funds, or access to funds, to pay course fees, living costs and travel costs over the relevant period, including evidence that he had genuine access to the funds that he declared for the period of the proposed Student Visa: CB 102-104;
g)on 8 May 2014 the applicant requested a postponement of his Tribunal hearing. The Tribunal agreed to postpone the hearing until 5 June 2014 and advised the applicant by letter dated 8 May 2014. This letter also sought the information and documents previously requested: CB 112-116 and 119-122;
h)on 8 May 2014 the applicant’s migration agent advised the Tribunal that they would be submitting documents for the applicant’s case by 9 May 2014. The migration agent provided some documents to the Tribunal on 9 May 2014 and advised that the applicant would “provide the remaining documents i.e. the Financials soon”: CB 117, 126 and 128-156;
i)on 29 May 2014 the applicant’s migration agent provided the Tribunal with additional documents, “including the Financial Capacity documents”: CB 157 and 160-165;
j)on 5 June 2014 the applicant appeared before the Tribunal to give evidence and present arguments and was represented by his migration agent. The applicant requested that the Tribunal give him a further two weeks to provide further financial information, but the Tribunal declined that request. At the conclusion of the Tribunal hearing, the Tribunal Decision was made affirming the Delegate’s Decision: CB 171-176 and 181-182;
k)on 6 June 2014 the Tribunal published the Tribunal Decision which was posted to the applicant’s migration agent and authorised recipient on 10 June 2014: CB 178-189;
l)on 1 July 2014 the applicant filed the Judicial Review Application, together with the Applicant’s First Affidavit;
m)on 6 August 2014 a Registrar of the Court made orders listing the Judicial Review Application for hearing on 26 June 2015, including orders that the applicant file and serve any amended Judicial Review Application and further affidavits by 22 October 2014. Pursuant to a consent order made by the Court on 22 October 2014, the time for the applicant to file any amended Judicial Review Application and further affidavits was extended to 24 November 2014;
n)the Applicant’s Second Affidavit was filed on 25 November 2014;
o)the applicant and the Minister filed written submissions on 17 and 25 June 2015 respectively; and
p)on 25 June 2015 the applicant served a proposed “Further Amended Application”, which is in fact the Amended Judicial Review Application (“Amended Judicial Review Application”) which the Minister having consented to the making of an order granting leave to the applicant to file the Amended Judicial Review Application.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)considered the evidence of the applicant regarding his access to funds for the purposes of cl.572.223(2) of Sch.2 of the Migration Regulations (“cl.572.223(2)”), and in particular paragraph (c) thereof, which was in the form of a loan from a financial institution, the Allied Bank, provided to and in the name of the applicant’s father together with an undated statement from the applicant’s father declaring, that he owned his own “cloth business”, was getting “handsome income” from the business and was “financially very sound to support [his] son educational expenses in Australia…”: CB 180-181 at [18]-[19];
b)found that the undated statement from the applicant’s father alone did not demonstrate the level of income or savings sufficient to support that the applicant’s father had approximately 2 million rupees to provide as security for the loan: CB 181 at [20]. This was due to the discrepancy in the amount of money the applicant’s father received for selling a parcel of land and the amount of the credit facility from the bank: CB 181 at [19]-[20];
c)stated that on this basis there was no evidence to demonstrate the source of the funds that acted as security for the loan and that it had explained to the applicant the relevance of demonstrating the source of the funds securing the loan to satisfy the Tribunal that the applicant would have access to the loan he was relying on whilst holding the Student Visa: CB 181 at [20];
d)in response to the applicant’s request for more time to provide additional evidence, stated that the applicant was aware that the Delegate had refused to grant a Student Visa because of the same issue regarding the source of funds securing the loan, that he had been notified by the Tribunal of the specific types of evidence that was required, and that both Tribunal letters inviting him to provide evidence also indicated that the Tribunal may make a decision on the review at the conclusion of the Tribunal hearing: CB 181-182 at [21]-[24]. Given all of those matters and noting also that the applicant had the presence of mind to appoint a registered migration agent to assist him, the Tribunal declined the applicant’s request for additional time: CB 182 at [25];
e)was not satisfied that the applicant would have access to the relevant funds and found that he did not meet the requirements of cl.572.223(2)(c): CB 182 at [26];
f)also considered the applicant’s academic achievements in relation to cl.572.223(2)(b). Having reviewed the applicant’s evidence about why he did not undertake any study for approximately 18 months, the Tribunal was not satisfied the applicant was a genuine applicant for entry and stay as a student: CB 182-183 at [27]-[30]; and
g)found that the criteria for the grant of the Student Visa were not met, and affirmed the Delegate’s Decision not to grant the applicant a Student Visa: CB 183 at [31]-[32].
Grounds of the Amended Judicial Review Application
The Amended Judicial Review Application asserts that the Tribunal made a jurisdictional error in determining that the applicant was not a genuine student and did not have sufficient funds from an acceptable source to be granted a Student Vista, and contains the following grounds of review and particulars:
1. Failing to provide the Applicant procedural fairness.
(a) the Tribunal failed to give the Applicant notice that it would be considering his study history in Australia;
(b) the Tribunal made an error in interpreting cl.5A405 of the Migration Regulations in finding that the applicant was required not only to have a loan but also was required to show the source of the funds securing the loan; and
(c) the Tribunal failed to give the applicant time to obtain evidence of the source of the funds required to secure the loan, evidence of Allied Bank’s banking practices and advice regarding the agreement with respect to the sale of the property owned by his father.
2. Failing to take into account relevant considerations.
(a) the Tribunal failed to give consideration to a loan facility with adequate security provided by Allied Bank;
(b) the Tribunal failed to interpret the contract for the sale of the land correctly to the effect that the entire purchase price was paid to the applicant’s father;
(c) the Tribunal failed to consider the applicant’s good academic record and attendance prior to the refusal of his Student Visa in January 2013; and
(d) the Tribunal failed to take into account the reasons advanced by the applicant as to why he had not been enrolled to study after the refusal of his Student Visa.
3. Taking into account irrelevant considerations.
(a) the Tribunal took into account its own view on banking practices in general and the evidence of Allied Bank’s banking practices;
(b) the Tribunal made its own interpretation of the contract of sale of the applicant’s father’s land without giving the applicant the opportunity to obtain evidence as to its meaning;
(c) the Tribunal made its own assessment as to the adequacy of the security without considering any evidence from Allied Bank;
(d) the Tribunal gave too much weight to the issues of the source of the funds securing the loan; and
(e) the Tribunal gave too much weight to the applicant’s failure to study whilst he was on a bridging visa awaiting the outcome of the Tribunal review.
4. Unreasonableness.
(a) the Tribunal’s failure to grant an adjournment to the applicant to obtain further information with respect to funds securing the loan facility was unreasonable according to the standard articulated in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”).
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside on the basis of jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may unreasonableness: as to which see Li, and the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (“NADR”) at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Relevant criteria
The relevant criteria for the grant of a Student Visa at the relevant time were set out in cl.572.223 of Sch. 2 to the Migration Regulations which provided that the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, and that the applicant meets a number of specific requirements, including that the Minister is satisfied that, while the applicant holds the Student Visa, he will have access to the funds demonstrated or declared in accordance with the requirements in Sch.5A to the Migration Regulations relating to his financial capacity.
Clause 572.223(2) of Sch.2 of the Migration Regulations (“cl.572.223”) states:
(2) An applicant meets the requirements of this subclause if:
(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.
Clause 5A405 of Sch.5A of the Migration Regulations (“cl.5A405”) states with respect to 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
(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 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) In this clause:
Acceptable individual means one or more of the following:
(c) the applicant's parents;
funds from an acceptable source means one of the following:
(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual.
Ground 1
The applicant claims that the Tribunal made a jurisdictional error by failing to provide the applicant procedural fairness.
Applicant’s submissions
The applicant submits that the Tribunal failed to give notice to the applicant that it would be considering his study history as the letters sent to the applicant by the Tribunal requested an explanation as to 'study gaps' but failed to explain that any such study gaps would be construed against him.
The Tribunal Decision considered the applicant’s study history in Australia: CB 182-183 at [27]-[29].
The applicant further submits that:
a)as a general rule a person must be given a summary of the case against them and must be informed of the 'general scope and purpose of the hearing': Dainford Ltd v Independent Commission Against Corruption (1990) 20 ALD 207 at [208] per Young J;
b)if specific allegations are made against an applicant, they have the right to be informed of them so they can respond to each specific allegation. In this case, it was alleged that the applicant was not a genuine student because he did not study for a period of 18 months prior to the Tribunal hearing. The applicant gave a sufficient explanation as to the reason why did not study which was not accepted by the Tribunal: CB 182-183 at [27]-[28];
c)in Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113 it was held that the applicant was denied natural justice because he was not advised of some of the allegations made against him beforehand;
d)between 9 May 2014 and the date of the Tribunal hearing, the Tribunal had a substantial amount of time in which to raise the issue of the study gaps and to notify the applicant that in the absence of a satisfactory explanation any such gaps may lead to a determination that he is not a genuine applicant for entry and stay as a student for the purposes of cl.572.223(2)(b);
e)he spent a significant amount of money to travel to Australia to further his education and the decision to deny him a Student Visa to continue his studies meant that he would be deported and such a decision, which affects a person's future and livelihood, ought to be one that requires “a high measure of care” as set out in Johns v Release on Licence Board (1987) 9 NSWLR 103; (1987) 27 A Crim R 445 in which it was held that the applicant ought to be given adequate notice of the new hearing, notice of the material it would be considering and permission to make both written and oral submission;
f)a person who will be adversely affected by a decision is deemed to have a legitimate expectation that they will be afforded procedural fairness by the decision maker: FAI Insurance Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; (1982) 56 ALJR 388; (1982) 41 ALR 1; and
g)he had a legitimate expectation he would be given the opportunity to respond to an allegation that he was not a genuine student due to study gaps with respect to his application for review of the Delegate's Decision, and that he was denied the opportunity to provide written submissions with respect to his study gaps.
The applicant submits that the Tribunal interpreted cl.5A405 incorrectly: CB 180 at [20] and therefore subsequently found the applicant did not meet the requirements of cl.572.223(2)(c): CB 182 at [26].
The applicant relies on Saji v Minister for Immigration and & Anor [2015] FCCA 1170 (“Saji”), where it was found that:
a)the applicant was under no obligation to show satisfactory "regular income" or otherwise show how the loan from the bank was to be satisfied because she gave evidence of having funds from a loan provided to her by a financial institution for the purpose of the definition of funds from an acceptable source in cl.5A405(2): at [51] per Judge Jarrett;
b)the enquiry directed by cl.5A405(1)(c) is focused upon the regular income of any individual providing funds to the applicant and the sufficiency of that regular income to accumulate the level of funding being provided by that individual: at [52] per Judge Jarrett;
c)the provider of the funds to the applicant was not an individual: at [53] per Judge Jarrett;
d)no occasion arose to consider the applicant's income at all as the Tribunal purported to do. The applicant was not providing the relevant funds to herself. The funds were not provided by an individual. The funds were provided by a bank: at [54] per Judge Jarrett;
e)to the extent that the Tribunal sought to enquire into the applicant's income for the purposes of cl.5A405(1)(c), it misdirected itself as to the proper interpretation of the regulation. It took into account an irrelevant consideration and that irrelevant consideration was dispositive of the review application before the Tribunal: at [55] per Judge Jarrett;
f)a visa applicant need not provide evidence that their regular income was sufficient to accumulate the amount of a loan from a bank raised by the applicant to meet the expenses specified in cl.5A405(1)(a). The Tribunal was in error to require the applicant to do so: at [56] per Judge Jarrett; and
g)jurisdictional error arose because the Tribunal took into account an irrelevant consideration that was determinative of the review: at [57] per Judge Jarrett.
The applicant further submitted that:
a)the Tribunal erred in coming to the conclusion that the applicant was required to not only have a loan but also was required to show the source of the funds securing the loan and that he had already had sufficient time to obtain information requested with respect to the source of funds;
b)the applicant’s source of funds were from a financial institution and not an individual; and
c)cl.5A405(l)(c) only required the applicant to adduce evidence required by sub-cl.1(c) in circumstances where his "acceptable source" of funds was an individual. The applicant’s source of funds, was a loan from a financial institution made to and held in the name of an acceptable individual, being the applicant’s father. There was no requirement for the Tribunal to seek evidence with respect to the source of the term deposit used as security for the running facility or take into consideration the lack of evidence presented by the applicant in this regard.
The applicant submits that the above errors in the interpretation of cl.5A405 ought to be sufficient for the Amended Judicial Review Application to succeed. However, if this Court is not so satisfied, then the applicant makes the following submissions.
The applicant submitted that the Tribunal failed to provide procedural fairness by not giving the applicant more time to obtain evidence and information from his father, and that:
a)a decision maker must make a decision based on actual evidence as opposed to making it on the basis of a whim or speculation: Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41; (1980) 31 ALR 666; (1980) 4 ALD 139 at 62 per Deane J, where it was said that a decision maker was required to base a decision to deport on '...some rationally probative evidence and not merely [on material] raised before it as a matter of suspicion or speculation';
b)decisions need to be made on rationally probative evidence: see Minister for Immigration, Local Government & Ethnic Affairs v Dhillon [1990] FCA 200 at [10] per Northorp, Wilcox and French JJ, where the Full Court of the Federal Court said that "A person affected by a decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence. Only if this is done is it possible for the affected person to understand precisely why the decision went as it did. Only if this is done is it possible for a judicial reviewer to determine whether there was evidence before the decision maker to support the finding'';
c)wholly without any basis, and without giving the applicant the opportunity to obtain further information and evidence, the Tribunal concluded that:
i)Allied Bank' s banking practices would require security in an amount a little higher than the credit limit: CB 181 at [19]; and
ii)the statement from Mr Abbas' father alone did not demonstrate the level of income or savings sufficient to support that he had around 2 million rupees to provide as security for the loan: CB 181 at [20].
d)the conclusion with respect to Allied Bank's banking practices was arrived at by the Tribunal on the basis of a whim or speculation and was not based on actual evidence or in reference to found facts.
The applicant sought to rely on Li where the High Court held that the failure to provide an adjournment in circumstances the Applicant was expecting further information was unreasonable. In that regard the applicant further submitted that:
a)he had requested that he be given additional time to obtain further information with respect to the source of fund securing the running facility but the request was refused, and that the refusal to grant an adjournment, or alternatively, the refusal to allow 2 weeks to provide the further evidence sought by the Tribunal, although it was sought as a result of the Tribunal's misinterpretation of the relevant law, was in all of the circumstances unreasonable; and
b)the statement of account of the Term Deposit at page 28 of the Applicant’s November 2014 Affidavit could easily have been obtained within a 2 week period, and if necessary any additional information to satisfy financial capacity and access to funds from an acceptable source could have been provided if a short adjournment for a short period of time was granted.
Minister’s submissions
The Minister submitted that ground 1 is not made out.
The Minister submitted that the Tribunal did not fail to give the applicant notice that it would be considering his study history in Australia, and in particular:
a)in the Tribunal’s letters to the applicant dated 8 April 2014 and 8 May 2014: CB 103 and 121, the Tribunal expressly requested the following documents:
3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion.
4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
b)the Tribunal also discussed with the applicant, at the Tribunal hearing, the requirement in cl.572.223(2)(b) that he be a genuine applicant for entry and stay as a student: CB 182 at [27] and pages 19-21 of the Tribunal Hearing transcript at Annexure "MA15" (“Tribunal Transcript”) to the Applicant's November 2014 Affidavit.
The Minister contends that, in these circumstances, the applicant was given sufficient notice and opportunity to address whether he met the requirement in cl.572.223(2)(b).
The Minister submits that the applicant did not allege any failure to accord procedural fairness to him but, in any event, the Tribunal did not misconstrue cl.5A405 by requiring the applicant to show the source of the funds securing the loan.
The Minister contends that:
a)the Tribunal found that the applicant satisfied the evidentiary requirements of cl.5A405 and other Sch.5A requirements and therefore satisfied cl.572.223(2)(a): CB 180 at [15];
b)the Tribunal sought evidence of the source of funds securing the loan in order to be satisfied that the applicant would have access to the funds and meet the requirements of cl.572.223(2)(c). There was no error in the Tribunal's approach;
c)to the extent that the applicant relies upon this Court's decision in Saji in support of his contentions that the Tribunal misinterpreted clause 5A405 of Sch.5A, that reliance is misplaced; and
d)the issue in Saji was the proper construction of cl.5A405(1)(c), the Tribunal not being satisfied that the evidential requirements of cl.5A405(1)(c) had been met. By contrast, here, the Tribunal found that the applicant had satisfied the evidentiary requirements of cl.5A405.
The Minister submitted there was no denial of procedural fairness as alleged by the applicant because the Tribunal failed to give him time to obtain evidence of the source of the funds required to secure the loan, evidence of Allied Bank's banking practices and advice regarding the agreement with respect to the sale of the property owned by his father, and contended that:
a)the applicant was aware from the Delegate's Decision that he had been refused a Student Visa because he did not satisfy cl. 572.223(2)(c) because the documents he had supplied to the Delegate were not sufficient to demonstrate that he had genuine access to the funds demonstrated in accordance with the requirements in Sch.5A (the funds to be provided by his father pursuant to the Allied Bank loan facility): CB 50-51;
b)it was incumbent upon the applicant to provide whatever additional documents he wished to place before the Tribunal to satisfy the Tribunal, in accordance with cl.572.223(2)(c), that for the period of the Student Visa he would have access to the funds from his father's account with the Allied Bank. Given that the Delegate's Decision was made on 23 January 2013 and the Tribunal did not conduct a hearing and make its decision until 5 June 2014, the applicant had ample opportunity to do so;
c)the applicant was twice invited to provide evidence prior to the Tribunal hearing and was sent a list of the types of evidence that were required relating to his financial capacity including "evidence that you have genuine access to the funds that you declare while you hold a student visa": CB 102-103. The applicant's first request for the Tribunal hearing to be postponed was granted, and he was notified (for a second time) of the request to provide certain types of evidence, including genuine access to the funds he had declared: CB 120-121; and
d)the applicant was represented by a registered migration agent in the review proceedings before the Tribunal and should have been aware that further sufficient evidence was required if the Tribunal was to be satisfied that the applicant met the requirements of cl.572.223(2)(c).
In these circumstances, the Minister contends that there was no denial of procedural fairness to the applicant. The circumstances are very similar to the circumstances in Singh v Minister for Immigration & Border Protection [2014] FCA 538 (“Singh”) at [12] per Pagone J, where the Federal Court held that this Court was correct to conclude that Mr Singh had not been deprived of an opportunity to present his case when he had also been refused an adjournment requested at the Tribunal hearing.
Consideration – ground 1
The Tribunal is required to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under the review: Migration Act, s.360(1); SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Tribunal must put the applicant on notice of the determinative issues in the review in order for the applicant to have an opportunity to present arguments or evidence on those issues. In circumstances where specific aspects of an applicant’s account may be important to the Tribunal Decision and may be open to doubt, the Tribunal must at least ask the applicant to explain and expand upon those aspects and why the Tribunal should accept their account: SZBEL at [47] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
With regard to the applicant’s claim that the Tribunal failed to give notice that it would be considering his study history the applicant was sent two letters, dated 8 April 2014 and 8 May 2014 which clearly stated that the applicant was required to provide to the Tribunal the following documents: CB 103 and 121:
3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion.
4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
At the Tribunal hearing, the Tribunal discussed with the applicant the requirement in cl.572.223(2)(b) that he must be a genuine applicant for entry and stay as a student. The Tribunal verified with the applicant that he had failed to proceed with his Diploma of Hospitality, but, enrolled in a Diploma of Marketing, and upon completion of that course in 2012, did not enrol to study for some 18 months due to his alleged confusion at not having the Tribunal Decision. When asked to explain then why the applicant had now enrolled in two new courses the applicant gave no response: CB 182 at [27]; Tribunal Transcript pages 20-22.
In the circumstances, it cannot be said that the Tribunal failed to give notice to the applicant that his study history would be considered when determining whether he met the requirement in cl.572.223(2)(b). Further, the Tribunal specially raised the applicant’s study history with him at the Tribunal hearing, and invited a response.
With regard to the applicant’s claim that the Tribunal was in error of its interpretation of cl. 5A405, the Tribunal found that the applicant did meet the applicable evidentiary requirements in Sch.5A, and therefore the applicant satisfied cl.572.223(2)(a): CB 180 at [15].
The Tribunal then dealt with whether the applicant had access to these funds in order to satisfy cl.572.223(2)(c) and be considered a genuine applicant for entry and stay as a student: CB 180-181 at [16]-[20]. Clause 572.223(2)(c ) states:
(2) An applicant meets the requirements of this subclause if:
(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.
The applicant relied on Saji, in which this Court concluded that:
24. Having considered the evidence provided, the Tribunal is not satisfied that the applicant meets the requirements of cl.5A405(1)(c).
25. On the basis of the above, the applicant has not given evidence in accordance with Schedule 5A requirements for Subclass 572 and assessment level 4, and therefore does not satisfy cl.572.223(2)(a)(i) the applicant accordingly does not satisfy cl.572.223.
The Court in Saji was therefore concerned with the fact that the Tribunal had failed to make a finding about the applicant giving evidence of funds from an acceptable source which was necessary in determining whether an examination of the matters identified by cl.5A405(1)(c) was required: Saji at [36] per Judge Jarrett.
The Tribunal in this case found that the applicant did satisfy the evidentiary requirements of cl.5A405, and therefore Saji has no material application to this case.
The Court finds that the Tribunal correctly interpreted cl. 5A405, and after the Tribunal found that the applicant met the applicable evidentiary requirements in Sch.5A in relation to cl.572.223(2)(a) the Tribunal then correctly proceeded to determine whether the applicant had access to the declared funds in order to satisfy cl.572.223(2)(c): CB 180-181 at [15]-[20].
With regard to the applicant’s claim that the Tribunal failed to provide the applicant with procedural fairness by refusing to grant an adjournment to allow the applicant more time to provide further financial evidence in support of his Student Visa application, the Tribunal was not under an obligation to afford every opportunity to the applicant to present his best possible case: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 (“SZNVW”) at [36] and [49] per Keane CJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”) at [202] per Black CJ, Sundberg and Bennett JJ, and may decide that “enough is enough”: Li at [82] per Hayne, Kiefel and Bell JJ; Minister for Immigration & Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41(i )] per Wigney J.
In Singh at [12] per Pagone J, the Federal Court said:
None of the material…[in] Mr Singh’s application shows error in his Honour’s judgment. His Honour considered Mr Singh’s case and found that the Tribunal had not failed to give Mr Singh an opportunity to present his case. The material before his Honour established that Mr Singh was given the opportunity to present his case but that he failed to do so to the satisfaction of the Tribunal and had failed to show to the satisfaction of his Honour that the Tribunal had not given him an opportunity to present his case. The Tribunal acted upon the evidence before it and had expressly indicated to Mr Singh the specific task Mr Singh needed to undertake to satisfy the matters required by the Regulations. Mr Singh was asked about those matters at the Tribunal hearing but was not able to provide the evidence he had previously been told was required. Mr Singh was not denied any opportunity to present material he had or which he sought to submit.
In circumstances where:
a)the applicant had been made aware of the financial capacity requirement not only in the Delegate’s Decision at CB 52, but also in the Tribunal’s letters of 8 April 2014 and 8 May 2014, which are specifically drafted to include reference to the relevant financial requirements and types of evidence required: CB 102-104 and 120-122;
b)the applicant had ample opportunity to provide whatever additional documentation he wished to place before the Tribunal given the time lapse between the Delegate’s Decision on 23 January 2013 and the Tribunal Hearing on 5 June 2014;
c)the applicant was represented by a registered migration agent who should have been aware that further evidence would be required at the Tribunal Hearing in order to meet the requirements in cl.572.223(2)(c );
d)the applicant did provide some, but not all, of the necessary financial documentation prior to the adjourned Tribunal hearing; and
e)the applicant had already had the benefit of an adjournment of the Tribunal hearing from 12 May 2014 to 5 June 2014 at a time when the applicant was on notice of the evidence and materials required by the Tribunal;
it cannot be said that the Tribunal Decision with respect to refusing the applicant further time to obtain further evidence amounted to a denial of procedural fairness. The applicant was given ample opportunity to present his case.
For the above reasons the applicant was not denied procedural fairness and ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
The applicant claims that the Tribunal made a jurisdictional error by failing to take into account relevant considerations.
Applicant’s submissions
The applicant submits that a decision may be invalid where the decision maker has failed to consider a relevant consideration: R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; (1980) 54 ALJR 314; (1980) 29 ALR 289.
The applicant submits that the grounds of review are contained in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) in ss.5(l)(e), 5(2)(b), 6(l)(e) and 6(2)(b) and in order to establish the ground of review of relevant considerations the applicant must establish:
a)that a relevant matter was not considered by the decision maker; and
b)that the failure to consider a relevant matter is significant enough to invalidate the Decision Maker's decision.
The applicant makes the following submissions in relation to the funds of the applicant:
a)the determination of whether or not a matter is a relevant consideration is a question of law requiring statutory interpretation. As with irrelevant matters, relevant matters can be express or implied from the enabling act through examination of the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 (“Peko-Wallsend”);
b)the subject matter of the relevant statute or regulation in relation to the applicants’ appeal to the Tribunal were:
i)whether he had sufficient funds from an acceptable source; and
ii)matters pertaining to whether the applicant was a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(b);
c)the applicant presented to the Tribunal a copy of a letter from Allied Bank stating that Mr Ali had an approved running facility of 3,325,000 PR dated 23 May 2014: CB 160 and this letter is relevant to whether Mr Abbas had sufficient funds;
d)a number of issues were raised by the Tribunal with respect to the loan facility provided by the Allied Bank and in particular the Tribunal was not satisfied that the applicant will have access to the relevant funds: CB 181-182 at [20] and [26]: Tribunal Transcript at page 13 line 25;
e)when the applicant asked for further time to submit further evidence, he was denied the opportunity to do so;
f)a statement of account from the Allied Bank can be found for the Term Deposit in Mr Ali's name at page 28 of the Applicant’s November 2014 Affidavit, showing that cash deposits were made from 21 to 23 May 2014, which secured the running finance facility;
g)a further letter from the Allied Bank dated 4 August 2014 at page 27 of the Applicant’s November 2014 Affidavit show that the running finance facility which the Tribunal was not satisfied with: CB 181-182 at [20] and [26], was still in existence some 3 months after the decision;
h)if the Tribunal’s concern was that "the bank reserves the right to withdraw (the credit facility) limit without prior notice thereby asking or repayment" then the Tribunal ought to have considered the banking practices and policies which would not permit the release of any security for a loan or finance facility until such time as that facility is fully satisfied. So it is further difficult to reconcile why the Tribunal was not satisfied that the applicant would not have access to the loan that he was relying on while he holds the visa in circumstances where normal banking practice would not permit the release of a term deposit security prior to full repayment of the loan facility;
i)the Tribunal failed to give sufficient consideration to the loan facility with adequate security provided by way of a Term Deposit required by Allied Bank and approved in the name of Mr Ali;
j)the translated Agreement to Sell at CB 164-165 is dated 5 May 2014 (“Agreement”) reads " ..deliver the absolute possession to the purchaser and receive entire amount Rupees Thirty Lac (30,000,000) and its half became Rupees Fifteen Lac (15,00,000) from the purchaser and now the purchaser is the absolute owner in possession of the aforesaid property". This clearly indicates that the whole PR 30,000,000 will be paid;
k)if this Court finds that applicant was required to show the source of the Term Deposit, then the Tribunal failed to give sufficient weight to the Agreement and the terms contained therein;
l)if the Tribunal was minded to give the additional time requested to provide evidence, it would have been clear and evident that that the whole of the monies payable pursuant to the Agreement were deposited into the Term Deposit on 23 May 2014: page 28 of the Applicant’s November 2014 Affidavit;
The applicant made the following submissions in relation to the applicant’s study:
a)he had good attendance and good academic record with respect to studies completed: CB 142-149;
b)the Tribunal made no reference to the applicants’ academic attendance and performance until the refusal of the Student Visa in January 2013 and therefore the Tribunal failed to take into account relevant considerations as to the applicants' academic record and attendance whilst he was on a Student Visa;
c)upon making an application to review the Delegate's Decision, the applicant obtained a bridging visa. There was no legal or other requirement for the applicant to study whilst he was on a bridging visa. However, what is relevant and what ought to have been considered by the Tribunal was that whilst the applicant was on a Student Visa he complied with all of the requirements of his visa including the requirement to study full time;
d)the applicant gave evidence at the Tribunal Hearing that he did not want to continue his studies in circumstances where he did not know how long the Tribunal would take to hand down a decision. He was advised by his migration agent whom he trusted that it could be as quick as 2 months: Applicant’s June 2014 Affidavit at [29];
e)international student fees are significant, therefore the applicant did not want to find himself in a situation where he pays for his studies and has to leave because of an unfavourable decision in the middle of the semester without completing the course. He wanted to have the security of a Student Visa where no one could deport him or force him to leave Australia: Applicant’s June 2014 Affidavit at [29]-[30];
f)each new semester the applicant faced the same issue, whether if he commenced studying and the Tribunal Hearing was unsuccessful, then he would have to return having paid tuition fees without completing his course: Applicant’s June 2014 Affidavit at [31]-[32];
g)the cost of education, the uncertainty as to the time of a decision and the requirement to leave prior to completing if the Tribunal review process was unsuccessful are relevant factors as to why the applicant did not undertake studies while he was awaiting the Tribunal Hearing;
h)a decision which is infected by the failure to consider a relevant consideration must 'deprive [the applicant] of the possibility of a successful outcome by the decision maker's failure to observe the requirements of the statute': Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 at [67] per Sackville, J; and
i)if the Tribunal properly considered the relevant material and information before him with respect to the applicants' study history, he would not have been deprived of the possibility of a successful outcome.
Minister’s submissions
The Minister submitted that ground 2 is not made out, and that the Tribunal did not fail to take into consideration the security provided by Allied Bank for the loan facility and the Tribunal expressly considered and addressed the loan facility from the Allied Bank to the applicant's father: CB 180-181 at [18]-[20]. The Tribunal was not obliged to conclude that there was adequate security for the loan facility and this ground of review invites the Court to engage in impermissible merits review.
The Minister submitted that the Tribunal did clearly consider the Agreement: CB 180-181 at [18]-[19], and:
a)even if the Tribunal erred in its interpretation of the Agreement, this would not amount to a failure to take into account a relevant consideration; and
b)in any event, it was open to the Tribunal, having sought and received clarification from the applicant and his representative, to conclude that the applicant's father had received PKR 1,500,000 or half of the sale price of PKR 3,000,000.
The Minister submitted that the Tribunal clearly considered his good academic record and attendance prior to the refusal of his Student Visa in January 2013 and the reasons advanced by the applicant as to why he had not been enrolled to study after the refusal of his visa: CB 182-183 at [27]-[29].
Consideration – ground 2
In conducting a review, the Tribunal may get any information that it considers relevant, and the weight that it gives such information is a matter for the Tribunal as part of its fact finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J. That is part of the Tribunal’s fact-finding function: Wu Shan Liang, CLR at [280]-[282] per Brennan CJ, Toohey, McHugh and Gummon JJ.
Relevantly, the Tribunal considered all the evidence put before it including:
a)the loan from Allied Bank given to and held in the name of his father and when asked to elaborate on the security referred to in the bank’s letter the applicant replied that it was “hard cash”: CB 180 at [18]; Tribunal Hearing Transcript at page 10;
b)the applicant said the hard cash came from the sale of land and provided the Tribunal with the Agreement which described a parcel of land the applicant’s father owned and had agreed to sell for PKR 3,000.000: CB 180-181 at [18]-[19];
c)an undated statement on a letterhead of “Farhan Weaving Factory” was provided in relation to his father’s business: CB 181 at [19]; and
d)the applicant’s academic record and attendance prior to the refusal of his Student Visa in January 2013 and the reasons advanced by the applicant as to why he had not been enrolled to study after the refusal of his the Student Visa: CB 182-183 at [27]-[29].
The Tribunal found that the undated statement provided by the applicant’s father alone does not demonstrate the level of income or savings which would be sufficient to support that he had around 2 million rupees around 23 May 2014 to provide for security for the loan. Therefore the Tribunal found that there was no evidence to show the source of funds of the balance of security that act as security for the loan and was not satisfied that the applicant will have access to the funds demonstrated for the purposes of the Student Visa in accordance with Sch.5A: CB 181 at [20] and CB 182 at [26].
Where the applicant is simply not satisfied with the findings made by the Tribunal after considering the evidence put before it then the applicant is seeking that this Court conduct a merits review. This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Student Visa: Wu Shan Liang, CLR 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. To the extent if at all, the Tribunal misinterpreted the Agreement that is an error of law, but not a jurisdictional error.
For the above reasons the Tribunal did not fail to take into account relevant considerations and ground 2 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
The applicant claims that the Tribunal made a jurisdictional error by taking into account irrelevant considerations.
Applicant’s submissions
The applicant submitted that a decision may be invalid where an irrelevant consideration has been taken into account by a decision maker: R v Trebilco; Ex parte FS Falkiner & Sons Ltd; (1936) 56 CLR 20; (1937) ALR 45 and Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; (1976) 50 ALJR 570; (1976) 9 ALR 199.
The applicant submitted that the grounds of review are contained in the ADJR Act in ss.5(l)(e), 5(2)(a), 6(l)(e) and 6(2)(a), and where s.6(2)(a) states that 'taking an irrelevant consideration into account in the exercise of a power' is a ground for review and in order to establish the ground of review of irrelevant considerations the applicant must establish:
a)that an irrelevant matter was considered by the decision maker; and
b)that the consideration of this irrelevant matter is significant enough to invalidate the Tribunal Decision.
The applicant made the following further submissions:
a)the determination of whether or not a matter is an irrelevant consideration is a question of law that requires statutory interpretation. This means that the enabling Act giving the decision maker the power to make the decision in question must be interpreted to determine what may amount to an irrelevant consideration;
b)where legislation does not expressly state the irrelevant considerations then they must be determined by reference to 'the subject matter, scope and purpose of the Act': Peko-Wallsend at [40] per Mason J;
c)the banking practices in general are irrelevant in considering whether Mr Abbas had sufficient funds from an acceptable source: CB 181 at [19];
d)banking practices in general are an irrelevant consideration with respect to the running facility which the Allied Bank approved after carefully taking into account its own banking practices;
e)the Tribunal commented, see Tribunal Transcript at page 10 line 25, that:
Agreement to sell isn't hard cash. It's not the sale of property. Agreement to sell is just words between parties. Its not actually a concluded sale of property. A concluded sale of property has a deed of sale.
see Tribunal Hearing Transcript page 10 line 25.
In making this statement, the Tribunal interpreted the Agreement to be ''just words between parties" and he came to this conclusion without any investigation as to the relevant laws in Pakistan and without seeking from the applicant an explanation with regards to the process of sale of land in Pakistan;
f)the Tribunal made its own assessment of the adequacy of the security without considering any evidence from the Allied Bank or banking practice which would not allow a Term Deposit security to be released until the monies owed pursuant to a loan facility was repaid in full; and
g)the Tribunal gave too much weight to the issue of the source of funds securing the credit facility and the applicant’s failure to study whilst he was on a Student Visa. Mr Abbas was not required to study and he was not in breach of his visa conditions by deferring his studies. In giving too much weight the Tribunal erred by taking into account an irrelevant consideration.
Minister’s submissions
The Minister submitted that ground 3 is not made out, and that it was open to the Tribunal to apply its own knowledge of banking practice as to the requiring of security for a loan or credit facility provided by a bank to its customer. The Tribunal was also not obliged to seek evidence from the applicant or any other person with respect to the practices of the Allied Bank: Migration Act, s.359.
The Minister further submitted that:
a)the Tribunal’s interpretation of the Agreement was not an irrelevant consideration. The Tribunal sought some clarification of the Agreement from the applicant and his representative at the Tribunal hearing: CB 180 at [18]. Further, it was open to the Tribunal to conclude that the applicant’s father had received half of the sale price of PKR3,000,000;
b)it was also open to the Tribunal to conclude that there was insufficient security for the loan facility provided to the applicant’s father. The Tribunal’s assessment of the adequacy of the security in the absence of the applicant having provided any evidence from Allied Bank does not amount to the taking into account of an irrelevant consideration; and
c)the applicant is inviting the Court to engage in an impermissible merits review by contending that the Tribunal gave too much weight to:
i)the issue of the source of the funds securing the loan. The source of the funds securing the loan was not an irrelevant consideration, and matters of weight are for the Tribunal and do not give rise to reviewable error: Foster v Minister for Customs & Justice at [1999] FCA 687; (1999) 164 ALR 35, 376 at [73] (“Foster”); Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 (“Indatissa”) at [32] per Sunberg, Emmett & Conti; and
ii)the applicant’s failure to study while he was on a bridging visa pending the outcome of his application to the Tribunal for review of the Delegate’s Decision was a matter for the Tribunal: Foster and Indatissa.
Consideration – ground 3
The Tribunal may obtain any information that it considers relevant, and the weight that it gives such information is a matter for the Tribunal as part of its fact finding function: see [52] above.
It was open for the Tribunal to apply its own knowledge of banking practice when considering the amount of security required for the amount of the loan extended by Allied Bank. The Tribunal was under no obligation to ask the applicant to provide information in relation to Allied Banking practices: Migration Act, s.359.
The Tribunal at the hearing sought clarification as to how an “Agreement to Sell” can amount to a concluded sale which would have a deed of sale and was informed by the applicant that half of the sale price had been given to his father and the other half would be paid at settlement in November. Therefore it was open to the Tribunal to conclude that the applicant’s father had received half of the sale price of PKR3,000,000: CB 180-181 at [18] and [20]; Tribunal Hearing Transcript at pages 10-11.
The Tribunal found that there was insufficient security for the loan facility provided to the applicant’s father: CB 181 at [20]. This finding was open to the Tribunal based on its assessment of the evidence provided to the applicant in the form of Bank Letter, a document headed “Agreement to Sell” and an undated statement from his father: CB 181 at [19]-[20].
The weight given to information put before a Tribunal is a matter for the Tribunal: Indatissa at [32] per Sundberg, Emmett & Conti JJ;
It is not permissible, in order to establish the ground in s 476(1)(g) to adduce evidence to contradict evidence or other material that was before the Tribunal. The weight to be attached to such evidence and material is a matter entirely for the Tribunal. If it were permissible to adduce further evidence before the Court whenever the evidence and material before the Tribunal did not point strongly to the conclusion that the decision was justified, the Court would be called upon to reassess the weight afforded to evidence or other material by the Tribunal. That was clearly not Parliament's intention.
The applicant contends that the Tribunal gave too much weight to the issue of the source of funds securing the loan and the gaps in the applicant’s studies. The Tribunal is entitled to accept or reject or give such weight to the evidence before it as it thinks appropriate in all the circumstances, and the applicant is simply inviting this Court to conduct an impermissible merits review. As discussed above at [9] and [52] this Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Student Visa: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR at [9] per Heerey, RD Nicholson and Selway JJ: Lee at [27] per French J.
For the above reasons the Tribunal did not take into account irrelevant considerations and ground 3 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 4
The applicant claims that the Tribunal made a jurisdictional error in determining unreasonably that the applicant should be refused an adjournment.
Applicant’s submissions
The applicant submitted that it was unreasonable in all of the circumstances for the Tribunal to refuse to allow time for the applicant to provide further documents and information that the Tribunal sought clarification of at the Tribunal Hearing in respect of the Term Deposit securing the running facility: Li.
Minister’s submissions
The Minister submits that the circumstances in Li, which led the High Court to conclude that a decision not to allow Ms Li further time to obtain a further skills assessment was unreasonable, are very different to the circumstances in this case which caused the Tribunal to decline the applicant’s request for additional time to provide further evidence regarding the loan facility to his father.
The Minister submitted that the circumstances in this case are much more akin to those in Singh. Singh also concerned the refusal of an application for a Student Visa and the refusal by the Tribunal of a request made at the Tribunal hearing by Mr Singh for further time to ask his father to provide evidence of the source of funds available to him. The substance of Mr Singh’s complaint to this Court was that the Tribunal had not given him an adequate opportunity to provide evidence of the source of the funds in a fixed deposit: Singh at [11] per Pagone J.
In relation to Singh v Minister for Immigration [2014] FCCA 703 (“Singh FCC”) per Judge Riethmuller, the Minister submitted that:
a)the Federal Court noted in Singh at [11] per Pagone J this Court had rejected the applicant’s contentions, and in doing so the Court had stated that the Tribunal had told the applicant that it was reviewing a decision made to refuse his visa application because he had not provided evidence of financial capacity, the invitation sent 10 weeks before the Tribunal hearing had detailed the evidence required, and that the Tribunal had told the applicant it believed he had been granted ample time to provide the evidence required but had failed to do so;
b)the Court stated in Singh FCC at [20] per Judge Riethmuller that:
On the facts of this case, it does not seem to me that this is a decision by the tribunal that could be characterised as so unreasonable that no reasonable decision-maker could make it in the sense described in Wednesbury’s case, nor so unreasonable as to amount to a failure to afford procedural fairness as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225; (2013) 87 ALJR 618.
c)the Federal Court in Singh at [12] per Pagone J found that in the circumstances the Court was correct to conclude that Mr Singh had not been deprived of an opportunity to present his case on the only matter about which he had said that he could request his father to provide evidence about the source of funds, the Tribunal having put him on notice of the need to deal with that matter by its letter of 19 February 2013 and having informed him at the hearing that he had not satisfied them about the very matter which he had been asked to establish.
The Minister submitted that likewise, the Court should conclude that in the circumstances here the applicant was not deprived of the opportunity to present his case, and that the Tribunal’s decision not to grant a further adjournment was not unreasonable in Li, or in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
The Minister further submitted that:
a)there can be no jurisdictional error unless jurisdictional error is found in relation to both paragraphs of cl.572.233(2)(b) and (c). Even if, contrary to the Minister’s contentions, one or more ground of review is made out, the Court should not allow the application unless it finds jurisdictional error in relation to both conclusions of the Tribunal that the applicant failed to meet the requirements of paragraphs (b) and (c) of cl.572.223(2). A finding of error in relation to only paragraph (b) or only paragraph (c) of cl.572.223(2) will not vitiate the Tribunal Decision, because it will not amount to jurisdictional error;
b)jurisdictional error will only arise in relation to a finding of error by the Tribunal that has affected the Tribunal’s exercise or purported exercise of power: Yusuf at [82] and [84] per McHugh, Gummow and Hayne JJ;
c)the Tribunal was bound to affirm the Delegate’s Decision under review if it was not satisfied of either of the matters set out in cl.572.223(2)(b) and (c). Accordingly, a finding of error in relation to the Tribunal’s decision in respect of its conclusion in relation to only one of paragraphs 572.233(2)(b) and (c) will not amount to jurisdictional error.
Consideration – ground 4
Whether the Tribunal’s exercise of discretion in relation to the adjournment was unreasonable depends on the particular circumstances of the applicant’s case: SZTHQ v Minister for Immigration & Border Protection [2014] FCA 1231 at [42] per Murphy J.
The Tribunal considered the applicants request for an extension of time to provide additional evidence in relation to the issue of access to funds and noted:
a)the applicant was aware that the reason the Delegate refused the Student Visa related specifically to the same issue which was before the Tribunal and prior to the Delegate’s interview the applicant had also been invited to provide evidence regarding the source of funds: CB 181 at [22];
b)the applicant had been sent a letter from the Tribunal dated 8 April 2014 inviting him to provide evidence relating to issues arising in the review, specifically documents that demonstrate sufficient funds and access to funds: CB 182 at [23];
c)the hearing was scheduled for 12 May 2014 however at the request of the applicant it was postponed to 5 June 2014 and a further letter sent to the applicant which repeated the invitation to provide evidence in the same terms as described in the letter dated 8 April 2014; and
d)the applicant was represented by a migration agent from January 2013,
and for those reasons found it difficult to accept justification for an extension of time and declined the applicant’s request.
The circumstances in Li which led to the Court’s finding that the Tribunal had acted unreasonably by refusing to allow the applicant an adjournment was premised upon the Tribunal’s decision lacking an evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ. In this case the Tribunal evidently and intelligibly considered the applicant’s request for an adjournment, not simply based on the numerous opportunities he had to provide further information but also on the basis that the applicant fully understood what information was being sought and the relevance of the information being sought by the Tribunal: CB 181-182 at [22] of the Tribunal Transcript, pages 14-16.
Further, in Li at [30] per French CJ, it was said that:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.
The Tribunal actively considered the applicant’s adjournment request on its merits and in the context of the request being made during the Tribunal Hearing itself: CB 181-182 at [21]-[25], and therefore it was legally reasonable not to grant the applicant the adjournment. The applicant was not denied the opportunity to present his case and as set out in [42] above had ample opportunity to present his case to the Tribunal.
For the above reasons, the Court finds that it was not unreasonable for the Tribunal to refuse the applicant more time to provide further documents and information. Ground four is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
For the reasons set out above none of the applicant’s grounds of review are made out and the Amended Judicial Review Application should be dismissed. There will also be orders amending the name of the Minister to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”, and the Tribunal to “Administrative Appeals Tribunal”.
The Court will hear the parties as to costs.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 13 September 2019
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