BETHANABHOTLA v Minister for Immigration

Case •

[2012] FMCA 1145

•

19 November 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETHANABHOTLA v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1145
MIGRATION – Refusal to grant student (Temporary) (Class TU) visa – Tribunal not satisfied that Applicant had necessary financial capacity – finding that bank documents not genuine – compliance of Tribunal with s.359A raised – application lodged out of time – leave to extend time under s.477(2) not granted.
Migration Act 1958 (Cth), s.65(1), s.351, s.359A, s.424A, s.477
Migration Regulations 1994, cl.573.223(2)(a)(i) Sch.2, Sch.5A
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 225 CLR 88
Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344
Kioa v West (1985) 159 CLR 550
Ling Kid Wong v Minister for Immigration and Citizenship [2009] FMCA 747
Minister for Immigration and Citizenship v Maman and Another (2012) 200 FCR 30
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196
SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56
Applicant: SANDEEP BETHANABHOTLA
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: MLG 725 of 2012
Judgment of: Whelan FM
Hearing date: 19 November 2012
Date of Last Submission: 19 November 2012
Delivered at: Melbourne
Delivered on: 19 November 2012

REPRESENTATION

Counsel for the Applicant: Ms Costello
Solicitors for the Applicant: Da Gama Pereira and Associates
Counsel for the Respondents: Ms Holt
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. That the Application for an extension of time pursuant to s.477(2) of the Migration Act 1958 is dismissed.

  2. That the Further Amended Application filed 16 October 2012 is dismissed as incompetent pursuant to s.477(1) of the Migration Act 1958.

  3. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 725 of 2012

SANDEEP BETHANABHOTLA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

Introduction

  1. This is an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) of 14 February 2012 to affirm a decision of the Minister’s delegate to refuse to grant a student (Temporary) (Class TU) visa to the applicant. As the decision of the Tribunal was made on 14 February 2012 and the application for review was not lodged until 18 June 2012, the provisions of s.477 of the Migration Act 1958 (“the Act”) require that the Applicant be granted an extension of time if he is to proceed with his application.

Background

  1. The Applicant is a citizen of India. He first arrived in Australia on 1 January 2007 on a subclass 573 student visa. On 15 March 2010 he filed an application with the Department of Immigration and Citizenship for a student (Temporary) (Class TU) visa. On 4 May 2012 a delegate of the First Respondent made a decision to refuse to grant the visa to the Applicant on the basis that the Applicant did not satisfy cl.573.223 in Schedule 2 of the Migration Regulations 1994 (“the Regulations”), as a loan document from the Canara Bank provided by the Applicant was found to be non-genuine by the Australian High Commission in New Delhi.

  2. On 27 May 2010, the Applicant applied to the Tribunal for a review of the delegate’s decision. On 8 September 2011, the Tribunal sent a letter to the Applicant inviting him to appear before the Tribunal on 6 October 2011. On 3 October 2011, the Applicant requested the hearing before the Tribunal be postponed and the hearing was postponed until 22 November 2011. On 16 November 2011, the Applicant’s authorised representative provided the Tribunal with documents in support of the application for review including two loan documents from the Bank of India. On 22 November 2011, the Applicant appeared in the hearing before the Tribunal.

  3. Around 25 November 2011, the Tribunal initiated a request for a referral to the Australian High Commission in New Delhi to make enquiries with the Bank of India as to:

    ·the authenticity of loan documents provided by the Applicant;

    ·whether the loans had been made to the persons named; and

    ·the amounts specified in the loan documents.

    On 15 December 2011, the Tribunal received the results of the referral undertaken by the Australian High Commission in New Delhi. On 6 January 2012, the Tribunal wrote to the Applicant inviting him to comment or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reasons for affirming the decision under review. On 7 February 2012, the Applicant responded to that invitation and on 14 February 2012, the Tribunal made a decision affirming the delegate’s decision under review.

  4. The Tribunal essentially was not satisfied that a letter provided by the Applicant from the Bank of India, asserting that the loan documents were genuine, was itself genuine as it had identical features to the loan documents which the representative of the bank had confirmed were not genuine. The Tribunal was, therefore, not satisfied that the Bank of India documents provided by the Applicant were genuine. The Tribunal was therefore not satisfied that the Applicant had met the requirements of Sch.5A of the Regulations with respect to the Applicant’s financial capacity and therefore did not meet the requirements of cl.573.223(2)(a)(i). As the prescribed criteria for the granting of a visa were not satisfied the Tribunal affirmed the delegate’s decision.

  5. On 18 June 2012 this application for review was lodged.

Grounds for review

  1. The Applicant, in his application, provided the following grounds for review:

    Ground 1.

    In breach of s.359A of the Migration Act 1958, the Migration Review Tribunal fell into jurisdictional error in failing to provide clear particulars of information that was the reason, or part of the reason, for affirming the decision.

    The particulars provided state:

    The Tribunal obtained information from an officer of the Australian Government in New Delhi about bank loans from the Bank of India to the applicant’s father. 

    The Tribunal did not provide the applicant with clear particulars of that information in that:

    (a)The Tribunal disclosed the gist of the information rather     than the information itself; and

    (b)The Tribunal did not disclose the name and designation of the Bank representative at the Bank of India had provided the information to the Australian Government Officer; and

    (c)The Tribunal did not disclose how the Australian Government Officer obtained the information and

    (d)The Tribunal did not disclose what questions were asked of the Bank of India to illicit (sic) the information.

    Ground 2.

    In breach of s.359A of the Migration Act 1958, the Migration Review Tribunal fell into jurisdictional error in failing to provide clear particulars of information that was the reason or part of the reason, for affirming the decision, namely, information from an officer of the Australian Government in South Australia about bank loans from the Bank of India to the applicant’s father.

  2. The particulars being:

    Particulars that the Tribunal failed to provide in relation to the information:

    (a)The phone number mentioned on the applicant’s loan letter is [and a number is inserted], while internet searches revealed the contact number for the bank as [a different number].

    (b)Someone named Christine Williams from South Australia … had verified the information (rather than “an officer of the Australian government in New Delhi” as stated in the 359A letter).

    (c)The Bank of India documents had been verified as not issued by the Bank of India with [a particular member of staff of the Bank of India], who is a assistant branch manager…

    (d)[Another officer], Senior Manager at the Bank of India stated that both loan letters provided by the applicant are fraudulent and have not been issued from their branch.

    (e)The branch at which [this officer] works is not stated.[1]

    [1] Further Amended Application filed 18 October 2012 at pages 2-3.

The Applicant’s submissions

  1. The Applicant in written submissions, referred firstly to the Tribunal’s stated reasons at paragraph 32 of the judgment which sets out that:

    The applicant’s response to information resulting from the integrity check of the Bank of India documents was to produce a further document asserting that the loans were genuine. The further document that he produced does nothing more than assert that the first mentioned documents are genuine. The document has identical features to the documents that representatives of the relevant branch of the Bank have confirmed not to be genuine. The Tribunal prefers evidence of what the Bank representatives reportedly confirmed to the documents themselves. The Tribunal is therefore not satisfied that the Bank of India documents, including the most recent one, are genuine.[2]

    [2] Court Book, page 134, paragraph 32.

  2. In written submissions, the Applicant then referred to the process whereby a letter was sent on 6 January 2012 where the Tribunal invited the Applicant to comment on information regarding the Bank of India loan documents. The Applicant submits that the Tribunal purported to set out particulars of the information obtained from the Bank of India and quotes the part of the letter of 6 January where the Tribunal says:

    The particulars of the information are:

    ·    In respect to inquiries made by an officer of the Australian Government in New Delhi, representatives of Bank of India, Pedavadlapudi, Guntur, have stated, first, that the bank has not issued an education loan of INR 2,000,000 to you or a personal loan of INR 450,000 to your father and, secondly, that the loan documents dated 10 November 2011 that you provided to the Tribunal were not issued by the bank.[3]

    [3] Court Book, page 121.

  3. The Applicant submits that in breach of s.359A of the Act, the Tribunal failed to provide clear particulars of the information that was the reason, or part of the reason, for affirming their decision. In fact on 15 December 2011, the Tribunal obtained information from an officer of the Department of Immigration and Citizenship in South Australia, regarding bank loans from the Bank of India to the Applicant’s father. The information provided to the Tribunal included the following particulars of verified information from the South Australian official:

    Overview:

    As evidence of funds, the client has presented to the MRT with the following documents: 

    1) A letter from the Bank of India, Pedavadlapudi, Guntur stating that an education loan of INR 2,000,000 has been sanctioned to the applicant, Mr Bathanabhotla (sic), Sandeep against the property held in his father’s name.

    2) A letter from the Bank of India, Pedavadlapudi, Guntur stating that a personal loan of INR 450,000 has been sanctioned to the applicant’s father…[4]

    and then it contains a note in relation to the telephone numbers.

    [4] Further Supplementary Court Book, page 6.

  4. The Applicant submitted that in its letter to the Applicant dated 6 January 2012, the Tribunal did not provide the Applicant with clear particulars within the meaning of the Act. In particular, the Tribunal did not state the following particulars and the Applicant then sets out the particulars as contained in ground 2. The Applicant submitted the Tribunal failed to determine whether the information complied with the requirements, and there were two authorities cited in the written submissions.[5]

    [5] Kioa v West (1985) 159 CLR 550; Minister for Immigration and Citizenship v Maman and Another (2002) 200 FCR 30

  5. In relation to the extension of time, the Applicant relied on the fact that in March 2012, he wrote to the Minister under s.351 of the Act and received a negative response on 24 May 2012. He also relied on the merit of the application. I will refer later to the particular submissions made in oral submissions this morning in relation to the impact of various decisions on the approach that the Court should take in considering this matter.

The First Respondent’s submissions

  1. The First Respondent’s written submissions referred to the provisions of s.477(2) of the Act in relation to the requirements for dealing with an application where an application is made outside of the statutory time provided by s.477(1) of the Act. Section 477(2) of the Act provides that the Court may extend the 35 day time period if an application for that order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make such an order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

  2. The First Respondent refers to the fact that the Applicant in the application gives only one reason as to why it is in the interests of the administration of justice to make such an order, and that is that the original decision was unlawful and invalid. The First Respondent submits that the application has failed to specify, either in the affidavit of 18 June or in the outlines of submissions, why it is necessary in the administration of justice to grant the application.

  3. The First Respondent refers to the cases of Ling Kid Wong v Minister for Immigration and Citizenship[6] (“Wong”) and SZMNO v Minister for Immigration and Citizenship[7] (“SZMNO”), where the Court, in dealing with such applications, has followed the decision of Wilcox J in Hunter Valley Developments Proprietary Limited v Cohen[8] (“Hunter Valley Developments”), where Wilcox J found that there were five factors which should be considered in determining whether extension of time should be granted:

    (1) an application for an extension of time is not to be granted unless it is proper to do so and the legislative time limits are not to be ignored; 

    (2) there must be some acceptable explanation for the delay; 

    (3) any prejudice to the respondent in defending the proceedings caused by the delay is a material factor mitigating against the grant of an extension; 

    (4) the mere absence of prejudice to the respondent is not enough to justify the grant of the extension; and

    (5) the merits of the substantive application are to be taken into account in considering whether an extension is to be granted.

    [6] Ling KidWong v the Minister for Immigration and Citizenship [2009] FMCA 747.

    [7] SZMNO v the Minister for Immigration and Citizenship [2009] FCA 797.

    [8] Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344.

  4. The First Respondent submits in this case that it is not proper to grant the application for an extension of time in the present circumstances, first, because the Applicant has failed to provide any explanation for the delay. The fact that an application has been made to the Minister pursuant to s.351 of the Act is not an adequate explanation. Second, in relation to the merits of the substantive application, it is submitted that there is not an arguable case to be heard, and there is therefore no utility in granting the extension. The First Respondent, therefore, submits that the Court should not exercise the discretion available pursuant to s.477(2)(b) and should refuse the application.

  5. Dealing with the substantive application, the First Respondent refers to the provisions of s.359A of the Act and to the decision of the Court in VAF v the Minister for Immigration and Multicultural and Indigenous Affairs[9] (“VAF”).

    [9] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123.

  6. That case dealt with s.424A of the Act, which is the comparable section under the Act in dealing with decisions of the Refugee Review Tribunal. It has two relevant requirements: “First, the Tribunal must possess ‘information’; secondly, the Tribunal must consider that information ‘would be the reason or part of the reason’ for affirming the decision under review”.[10] 

    [10] Ibid at [23].

  7. The First Respondent also refers to the decisions in Win v Minister for Immigration and Multicultural Affairs[11] (“Win”) and Paul v Minister for Immigration and Multicultural Affairs[12] (“Paul”). In relation to the facts of this case, the First Respondent says that the Tribunal initiated a request for a referral to the Australian High Commission in New Delhi to make inquiries of the Bank of India as to the authenticity of the loan documents provided by the Applicant and whether the loans had been made to the persons named.

    [11] Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56.

    [12] Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196.

  8. The Tribunal received the results of the referral undertaken by the Australian High Commission. The Tribunal sent a letter to the Applicant inviting him to comment or respond on the information it had received and that it considered would be the reason or part of the reasons for affirming the decision under review and the Applicant responded to that invitation. The First Respondent submits that the Tribunal did not breach s.359A of the Act as it is clear that the information relied upon by the Tribunal was information that was given for the purposes of the application under review.

  9. The First Respondent submits that the Tribunal complied with s.359A(1) of the Act as it provided the Applicant by way of the letter dated 6 January 2012, clear particulars of the information it considered would be the reason or part of the reason for affirming the decision. In relation to ground 1 the First Respondent submits the Tribunal did not breach s.359A(1) of the Act, because it had provided clear particulars and in relation to particulars (b), (c) and (d) of ground 1, the First Respondent submits that the Tribunal was not required to provide this information as it did not consider that it formed the reason or part of the reasons for affirming the decision.

  10. In relation to ground 2, the First Respondent submits the Tribunal did not breach s.359A(1) of the Act, as it provided to the Applicant by way of the letter of 6 January 2012, the clear particulars which it considered would be the reason or part of the reason for affirming the decision under review. It was not information from an officer of the Australian Government in South Australia about bank loans from the Bank of India to the Applicant’s father as contended by the Applicant. The information that the Tribunal considered would be the reason or part of the reasons for affirming the decision under review was information received from the Australian High Commission in New Delhi and this particular information was provided to the Applicant in the letter dated 6 January 2012.

  11. In relation to particular (b), of ground 2, the information was not from the officer in South Australia but rather from the High Commission. In relation to particulars (a), (c), (d), (e) of ground 2, the First Respondent submits that the Tribunal was not required to provide that information as it did not consider it to be the reason or part of the reasons for affirming the decision under the review. 

The legislative framework

  1. Section 477 of the Act provides that an application for review to the Court must be made within 35 days of the date of a decision. Section 477(3)(b) of the Act provides that the date of the decision is the date that the Tribunal made a written statement of the decision. Section 477(2) of the Act provides that the time period may be extended, but only if the Court considers it to be in the interests of the administration of justice to do so.

  1. Section 65(1) of the Act provides that a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. The relevant regulation in this case is cl.572.223 of Sch.2 of the Regulations. This requires that at the time of the decision the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

  2. Subclause (2)(a)(i) provides that the applicant meets the requirements of the subclause if they give evidence in accordance with the requirements of Sch.5A of the Regulations and the assessment level to which they are subject in relation to their financial capacity to undertake the course of study without contravening any condition of the visa.

  3. Evidence of financial capacity, for the purposes of the Regulation, which the applicant must give in accordance with this clause is evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for their first 36 months, that is course fees, living costs and school costs. An acceptable individual includes the applicant’s parents and funds from an acceptable source include a loan from a financial institution made to and held in the name of an acceptable individual.

  4. Section 359A(1) of the Act requires that the Tribunal give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and to invite the applicant to comment on or respond to it. In this case, the decision of the Tribunal was based on its conclusion that the Applicant could not meet the requirements of cl.573.223 of the Regulations. The Applicant in his application to have that decision set aside relies on s.359A(1) and the requirements on the Tribunal in relation to that section.

  5. The Applicant referred the Court to three decisions in particular which it submitted were relevant for the determination of the grounds of review. I refer first, to the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (“VEAL”).[13]  That matter concerned a decision by the Refugee Review Tribunal. In that case the Department had received an unsolicited letter in which the author made certain allegations against the husband who was one of the applicants.

    [13] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 225 CLR 88.

  6. The Department sent the letter to the Tribunal. The Tribunal did not tell the husband that it had received the letter or ask him about the substance of the allegations made in it. The Tribunal affirmed the delegate’s decision not to grant protection visas to the husband and wife. In its reasons for decision, the Tribunal stated that it had been unable to test the claims made in the letter and accordingly gave it no weight. 

  7. The High Court held in relation to the husband’s application for judicial review that procedural fairness required the Tribunal to inform the husband of the substance of the allegations made in the letter before reaching its decision. However, the Tribunal was not required to provide a copy of the letter to the husband or to disclose any information that might have revealed the identity of its author and, second, that the information in the letter could not be dismissed from further consideration by the Tribunal as not credible or not relevant or of little or no significance to the decision.

  8. The Tribunal’s statement that it had given no weight to the letter in reaching its decision did not demonstrate there was no obligation to reveal the information to the husband and to give him an opportunity to respond to it. As the Court noted at paragraphs [11] and [12], neither party contended that the provisions of s.424A of the Act had been engaged in that particular matter. The decision goes on to deal with the common law requirements of procedural fairness and the right of an applicant to be given the opportunity to deal with adverse information which is credible, relevant and significant.

  9. It is notable that the Court was of the view in that case that the Tribunal should have provided the applicant with the substance of what was said against him in the letter, although not necessarily being obliged to identify the author or to provide him with a copy of the letter.

  10. The Applicant also referred the Court to a judgment of the Federal Court in SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (“SAAP”).[14] SAAP is a leading authority on s.424A of the Act, which is the equivalent provision to s.359A of the Act, with respect to proceedings in the Refugee Review Tribunal. That case gives emphasis to the mandatory nature of s.359A of the Act. Failure to comply therefore means that the Tribunal has not discharged its statutory function. SAAP further notes that the obligation does not apply to information that the applicant gives nor does it apply to all information the Tribunal receives. It is a statutory obligation to alert the applicant to the material the Tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment upon it. The First Respondent did not quibble with the fact that SAAP accurately sets out the requirements. 

    [14] SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.

  11. The third matter which the Applicant referred to was the matter of Maman.[15]

    [15] Minister for Immigration and Citizenship v Maman and Another (2012) 200 FCR 30.

  12. Again, that matter did not concern s.359A of the Act, although it was a matter concerning migration provisions and an appeal from the Migration Review Tribunal. In that case, the first respondent had applied for a partner residence visa. In denying the application, the decision-maker had first obtained their own independent expert report in relation to the matter. There were two reports, both of which had referred to an undisclosed, unfavourable letter written by the first respondent’s former wife before concluding that the first respondent did not satisfy the claim that was made in this case which was generally referred to as the domestic violence exception.

  13. The central issue was whether the former wife’s letter contained new information that was credible, relevant and significant to the giving of the independent expert’s opinions such that it should have been disclosed to the first respondent at that time as a matter of procedural fairness. The trial judge held that it should have been. The Full Bench of the Federal Court also was of the view that as the letter contained information that was relevant and significant in relation to the visa application the Tribunal was required to disclose it to the applicant and the failure to disclose the letter, or at least the gist of it, had the consequence that neither the Minister nor the Tribunal had obtained any opinion that was taken to be correct and they could therefore not make a decision in accordance with the requirements of the law.

  14. That decision also deals with general principles in relation to procedural fairness and it sets out five such principles, first, that there are no universal rules as to the content of the rules of natural justice applicable to all factual or statutory situations and in this case, as I note, it was not dealing with s.359A of the Act or the equivalent provisions in relation to s.424A of the Act.

  15. Second, fairness generally requires the disclosure of relevant adverse information that is credible, relevant and significant.

  16. Third, that there are limitations upon the duty to disclose information which is credible, relevant and significant and one arises where there is an interface between questions of national security and general principles of procedural fairness. There remains no universal rule as to whether confidential information itself needs to be disclosed in its entirety or whether some limited disclosure may suffice. 

  17. Fourth, an adequate opportunity to be heard may be satisfied in some cases if the gist of any adverse information is disclosed without the entire text or document in which that information is contained necessarily also being disclosed.

  18. Fifth, if information is credible, relevant and significant, it may not be a sufficient compliance with the requirement of procedural fairness for a decision-maker to assert that he has placed such information to one side or given it no weight, that is a reference back to the decision in VEAL, and finally a breach of the requirements of procedural fairness may deny effectiveness to a step in a decision-making process.

  19. Those are general provisions in relation to procedural fairness and I doubt that there is any quibble with them as general principles. What the First Respondent says is that the decisions in the cases of VEAL and Maman should be distinguished on the basis that they did not deal with the statutory obligations as set out in s.359A of the Act. As s.357A of the Act states, the provisions in Division 5 of Part 5 are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule to the matters dealt with by the particular statutory provisions.

  20. The language of the provision is therefore significant in terms of determining what the Tribunal is required to disclose. The First Respondent, as indicated previously, referred to the decision in VAF which, although it is a 2004 judgment, has, in my view, ongoing application.

  21. The First Respondent referred in particular to paragraph [24] of that decision, which says:

    [T]here is now a considerable body of case law concerned with the compass of the term "information" in its s424A(1) setting.  The following propositions emerge from it:

    (i)the purpose of s424A is to provide in part a statutory procedural analogue to the common law of procedural fairness. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice.

    (ii)the word "information" in s424A(1) has the same meaning as in section 424, and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal irrespective of whether it is reliable or has a sound factual basis.

    (iii)the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps.[16]

    [16] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24].

  22. VAF also refers to previous decisions of the Federal Court in the matters of Win and Paul and the First Respondent refers in particular to paragraphs [104] and [105] of the decision in Paul, where the Court said:

    The evident purpose of s.424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s.424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant (cf Tin, supra at [52] to [54]).

    However, at the risk of repetition, it should not be forgotten that the applicant is to be given particulars of information that the Tribunal considers would be the reason or a part of the reason for affirming the decision.  Assistance as to the meaning of the word “reason” can, perhaps, be obtained from s.430.[17]

    [17] Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [104] and [105].

  23. As the First Respondent quite rightly points out, the nature of the information which needs to be provided needs to be drawn from the specific situation in each particular case. 

Conclusions

  1. Dealing, first, with the requirements of s.477(2) of the Act, I accept the submission of the First Respondent that the applicable principles to be applied in determining whether an extension of time should be granted are those set out by Wilcox J in Hunter Valley Developments.[18]

    [18] Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344.

  2. The Applicant does not set out why it is necessary in the administration of justice to extend the time period in this case save for the assertion that the decision of the Tribunal was unlawful and invalid. There is no acceptable explanation for the delay in my view. The decision of the Applicant in March 2012 to pursue another course of action is not an acceptable explanation, and even if it were, it does not explain the time between 24 May 2012 when he was advised that that course was unsuccessful, and 18 June 2012 when the application was made. While the Applicant suggested that that in itself was not a long time, I refer back to the first of the principles set out in Hunter Valley Developments, which is that applications for an extension of time are not to be granted unless it is proper to do so. The legislative time limits are not to be ignored for a day or two days or two weeks or a month. 

  3. The issue of prejudice caused by the delay was not raised or relied upon by the First Respondent, although the absence of such prejudice is not enough in itself to justify granting the extension. I turn, therefore, to the substantive merits of the application. 

  4. The Applicant’s contention, in essence, is that the Tribunal in its letter to the Applicant of 6 January 2012, failed to provide clear particulars of information which it, the Tribunal, considered would be the reason or part of the reasons for affirming the decision under review. The letter of 6 January 2012 provides as follows:

    In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or to respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason or a part of the reason for affirming the decision under review.

    Please note, however, that the Tribunal has not made up its mind about the information.

    The particulars of the information are: 

    ·    In response to inquiries made by an officer of the Australian Government in New Delhi, representatives of Bank of India, Pedavadlapudi, Guntur, have stated, first, that the bank has not issued an education loan of INR 2,000,000 to you or a personal loan of INR 450,000 to your father and, secondly, that the loan documents dated 10 November 2011 that you provided to the Tribunal were not issued by the bank.

    This information is relevant to the review because the criteria for the grant of a subclass 573 visa include that the applicant gives evidence in accordance with the relevant requirements in schedule 5A to the regulations in relation to his or her financial capacity to undertake a relevant course without contravening any condition of the visa relating to work. 

    If the Tribunal relies on this information in making its decision, it may find that you do not meet one or more of the criteria for the grant of a student visa and so the Tribunal may affirm the decision of the delegate to refuse to grant the visa. 

    You are invited to give comments on or to respond to the above information in writing.[19]

    [19] Court Book, page 121.

  5. The Applicant contends that the Tribunal disclosed the gist of the information rather than the information itself, did not disclose the name and designation of the bank representatives at the Bank of India, did not disclose how the information was obtained, did not disclose what questions were asked to obtain the information, did not disclose the variation in the phone numbers cited, did not disclose the role of an officer of the Department based in South Australia, did not disclose the name, designation and phone number of the officer of the Bank of India who gave the advice, and did not identify the senior officer of the Bank of India and what he said or the branch in which he worked.

  6. First, it would appear from the Supplementary Court Book and the Further Supplementary Court Book that the Applicant has misconstrued the role of the departmental officer from South Australia who provided the report to the Tribunal of the verification undertaken by the Australian High Commission in New Delhi. Second, the information which is required to be provided to the Applicant is that information which the Tribunal considers would be the reason or part of the reason for affirming the delegate’s decision.

  7. The information that the Tribunal considered was information that would be the reason or part of the reasons for affirming the decision of the delegate was the information of which it was obliged to give particulars. The information given to the Applicant consisted of the following: 

    ·an officer of the Australian Government in New Delhi had made inquiries about the loans, details of which were contained in documents provided by the Applicant;

    ·representatives of the Bank of India in Pedavadlapudi, Guntur, stated that the bank had not issued either of the loans; and

    ·the loan documents dated 10 November 2011 provided to the Tribunal were not issued by the bank, according to representatives of the Bank of India in that location.

  8. The Applicant responded to that information by providing a letter, purportedly from the bank, confirming that the loans had been obtained. The Tribunal conclusions are at paragraph 32 of its finding and reasons. The Tribunal says:

    The applicant’s response to information resulting from the integrity check of the Bank of India documents was to produce a further document asserting that the loans were genuine. The further document that he produced does nothing more than assert that the first-mentioned documents are genuine. The document has identical features to the documents that representatives of the relevant branch Bank have confirmed not to be genuine. The Tribunal prefers the evidence of what the Bank representatives reportedly confirmed to the documents themselves. The Tribunal is therefore not satisfied that the Bank of India documents, including the most recent one, are genuine.[20]

    [20] Court Book, page 134 at paragraph 32.

  9. Essentially, the Tribunal accepted the information provided by the Australian High Commission in New Delhi that its inquiries had found that the documents relied upon by the Applicant were not genuine. In paragraph 27 of the decision, the Tribunal refers to the information provided by the Applicant in response to the letter of 6 January 2012. It is that information, information supplied by the Applicant, which appears to form the basis for the conclusions at paragraph 32 with respect to the genuineness of the documents provided by the applicant in his response. The Tribunal clearly states its reasons for decision at paragraph 32 as being:

    The Tribunal prefers the evidence of what the Bank representatives reportedly confirmed to the documents themselves.[21]

    [21] Court Book, page 134 at paragraph 32.

  10. What the bank representatives reportedly confirmed is set out at page 6 of the Further Supplementary Court Book, and that is that:

    [An official of the bank, named] verbally verified that the bank had not issued an education loan of INR 2,000,000 to the [applicant]. He further verified that the branch had not issued a personal loan of INR 450,000 rupee to the applicant’s father ... either. 

    [He] requested that a copy of the loan letters be emailed to him.

    A written response received via email from [name], Senior Manager at Bank of India, stating that both the loan letters provided by the applicant are fraudulent and have not been issued from their branch.

    Conclusion: 

    A written response (via email) has been received from the bank stating that the loan letters (for INR 2,000,000 and INR 450,000) provided by the applicant are fraudulent and have not been issued by the Bank. 

    Based on the information received from the bank, I am led to believe that the applicant has provided fraudulent loan letters from Bank of India.[22]

    [22] Further Supplementary Court Book, pages 6-7.

  1. That is the information provided to the Applicant in the letter of 6 January 2012.

  2. There is no substance to ground 1(a) in the Applicant’s grounds. Providing the gist of the information may be an acceptable way of complying with the requirements of s.359A of the Act, and the gist of the information was certainly provided to the Applicant in this case. The information about which the Applicant contends clear information was not provided, as set out in grounds 1(b), (c) and (d) and grounds (2)(a), (c), (d) and (e), was not information that in the Tribunal’s consideration was information which formed part of the reasons for its decision.

  3. The information in ground 2(b) is neither correct nor could it form part of the reason for decision to affirm the delegate’s decision. With the exception of identifying the bank officers who provided the information, the information contained in the letter to the Applicant, is the information obtained by the Australian High Commission from the Bank of India. I am therefore not satisfied that there is merit in this substantive application.

  4. As the Applicant has not provided an acceptable explanation for the delay in lodging his claim, and nor am I satisfied that he has established that the application has merit, I am therefore not satisfied that it is necessary in the interest of the administration of justice to make orders extending the time limit under s.477(1) of the Act. The application for an extension of time pursuant to s.477(2) of the Act is, therefore, dismissed, and the application filed on 18 June 2012 is dismissed as incompetent pursuant to s.477(1) of the Act.

  5. The application having been entirely unsuccessful, the First Respondent is entitled to costs, and an order shall therefore be made that the Applicant pay the First Respondent’s costs in the sum $6,471.00.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  29 November 2012


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