Dhakal v Minister for Immigration
[2017] FCCA 770
•21 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHAKAL v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 770 |
| Catchwords: MIGRATION – Judicial review application – decision of former Migration Review Tribunal – Student (Temporary) (Class TU) subclass 572 visa – whether genuine access to funds – whether decision unreasonable – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 476 Migration Regulations 1994 (Cth), Sch.2, cl.572.223, Sch.5A, cl.5A405 |
| Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 CZBH v Minister for Immigration & Border Protection [2014] FCA 1023 |
| Applicant: | SANJEEV DHAKAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 195 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 July 2015 |
| Date of Last Submission: | 1 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 21 April 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: For the Second Respondent: | Mr PJ Hannan Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 195 of 2014
| SANJEEV DHAKAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) the applicant, Sanjeev Dhakal (“Mr Dhakal”), has filed an application for judicial review (“Judicial Review Application”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”) made orally on 18 June 2014, with written reasons delivered on 27 June 2014 (“Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), dated 15 June 2012 to refuse to grant Mr Dhakal a Student (Temporary) (Class TU) subclass 572 visa (“Student Visa”).
Background prior to the Tribunal Decision
The background to this matter prior to the Tribunal Decision is as follows:
a)Mr Dhakal:
i)is a citizen of Nepal: CB 1 and 184-185;
ii)has a wife, Sajana Dhakal (“Mrs Dhakal”): CB 2, 119, 131, 165 and 167-169;
iii)has a very young child: CB 164; and
iv)has a brother, Sabin Dhakal: CB 49-50,
b)Sabin Dhakal owns a fashion business in Nepal under the name “S & S Fashion Center”: CB 52-59 and 163;
c)on 12 March 2012 Mr Dhakal applied to the former Department of Immigration and Citizenship (“Department”) for the Student Visa: CB 1-8, 42, 68, 73 and 78;
d)on 19 March 2012 Mr Dhakal sent an e-mail to the Department with attachments in support of his Student Visa application: CB 26;
e)on 20 March 2012 an officer of the Department sent an e-mail to Mr Dhakal (at CB 40) requesting further information, including financial information, with the request for financial information relevantly being in the following terms:
· FINANCES
Evidence that you have sufficient funds to support yourself and all family unit members to meet the total costs of your proposed study and stay and that those funds have been held for three months prior to the date of application lodgement (from 12 December 2011 to 1 March 2012). According to our assessment of your financial requirements, you will need to provide proof of AUD 67,048.25
If your funds are provided by any other person, you are required also to include:· a signed letter of support from that person; and
· evidence of your family tie (e.g. birth certificate/s or family registers); and
· copy of identification in order to validate the signature of that person (e.g. bio data page of passport or id card showing bio data details and signature)
f)on 16 April 2012 Mr Dhakal sent an e-mail to the Department attaching amongst other things “[c]omprehensive details of finances and sources of income from sponsor”: CB 42. One of the attachments was a letter dated 11 April 2012 from the Nabil Bank in Nepal concerning an account said to be in the name of Sabin Dhakal together with a bank statement for the period 7 September 2011 to 10 April 2012: CB 45-47 (“Nabil Bank Account” and “Nabil Bank Statement” respectively). Another attachment was a letter dated 11 April 2012 from Sabin Dhakal which stated he would financially sponsor Mr Dhakal, and that there was an amount of cash in the Nabil Bank to assist him: CB 48;
g)on 7 May 2012 an enquiry was made of the Nabil Bank on behalf of the Department. That enquiry revealed that the Nabil Bank Account had only been opened on 1 February 2012 (despite the dates referred to in [2(f)] above) and that a significant withdrawal was made from that account on 4 May 2012: CB 67;
h)on 8 May 2012 an officer of the Department sent an e-mail to Mr Dhakal requesting comment on the information the Department had received concerning the Nabil Bank Account. Mr Dhakal was invited to comment on the lack of funds in the Nabil Bank Account rather than the date discrepancy referred to in [2(g)] above: CB 68;
i)on 9 May 2012 Mr Dhakal sent an e-mail to the Department in response to the Department’s e-mail of 8 May 2012. Mr Dhakal’s e-mail said that he was shocked to learn that the Nabil Bank Account lacked funds. Mr Dhakal’s e-mail said that Sabin Dhakal had withdrawn funds from the Nabil Bank Account to deal with a business emergency and attached a “balance confirmation” from the Nabil Bank showing a balance in Nepalese Rupiah (“NPR”) equivalent to an Australian Dollar amount of $AU67,479.99 in the Nabil Bank Account: CB 71-72;
j)on 15 June 2012 the Delegate refused the Student Visa application: CB 74 and 78-83. In so doing the Delegate set out the requirement under cl.572.223(2)(a)(iii) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) that the Minister be satisfied that whilst Mr Dhakal held a Student Visa he have access to funds demonstrated or declared in accordance with the financial capacity requirements in Sch.5A of the Migration Regulations, and the definition of “funds from an acceptable source” in cl.5A405(2) of the Migration Regulations including, relevantly, the provision that such funds included a money deposit from an acceptable individual “held for at least the 3 months immediately before the date of the application”: CB 79 and 82 respectively. The Delegate was “not satisfied” that the funds in the Nabil Bank Account were “genuinely accessible and available to you and that the funds were created for visa purposes”: CB 83;
k)on 5 July 2012 Mr Dhakal applied to the Tribunal for a review of the Delegate’s Decision: CB 90. That application was accompanied by a letter dated 5 July 2012 from Mr Dhakal (“5 July 2012 Letter”) which made no mention of financial matters: CB 102;
l)by a letter dated 19 March 2014 the Tribunal invited Mr Dhakal to attend (via telephone) a hearing on 23 April 2014: CB 134 (“First Tribunal Hearing Invitation Letter” and “First Tribunal Hearing” respectively), and requested that Mr Dhakal “provide all documents you intend to rely on to establish that you meet the criteria for the … [Student Visa]”: CB 134, and additionally specifically requested (at CB 135) the following:
5.Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:
· evidence of fees of current or proposed course/s you have already paid, or still owe for past courses
· evidence of funds from an acceptable source
oif you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application
oif you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current
· evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you
· evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given.
m)on 17 April 2014 Mr Dhakal applied to the Tribunal for an adjournment of the First Tribunal Hearing on two grounds, firstly, to give Mr Dhakal “additional time to prepare for hearing and to submit the related documents. I am having difficulties to organise documents on time”, and, secondly, illness: CB 146, and see also 147, 150 and 151;
n)on 22 April 2014 an officer of the Tribunal informed Mr Dhakal that the Tribunal would adjourn the First Tribunal Hearing: CB 152;
o)by a letter dated 23 April 2014 the Tribunal again invited Mr Dhakal to attend (via telephone) a hearing on 18 June 2014: CB 153 (“Second Tribunal Hearing Invitation Letter” and “Second Tribunal Hearing” respectively) and again requested Mr Dhakal provide the documents set out at [2(l)] above: CB 154;
p)Mr Dhakal sent a letter to the Tribunal, received on 12 June 2014, in support of his application for review (“Tribunal Submissions Letter”): CB 163-166;
q)the Tribunal Submissions Letter included the following attachments:
i)a letter dated 8 June 2014 from Mrs Dhakal which stated that she would like to sponsor Mr Dhakal: CB 167.
ii)a letter dated 6 June 2014 from the Drop Fusion Saving & Credit Co-operative Ltd (“DFSCC”) stating that the Mrs Dhakal had an account with DFSCC (“DFSCC Account”) with a balance of the NPR equivalent in United States dollars of $US43,441.01: CB 191; and
iii)a DFSCC statement in respect of an account in the name of Mrs Dhakal for the period 23 March 2012 to 5 June 2014: CB 192-193 (“DFSCC Account Statement”);
r)the Tribunal Submissions Letter at CB 163 and 165:
i)proffered an explanation concerning the Nabil Bank Account, asserting that Sabin Dhakal had a business account with “Saving and Credit Co-Operative Ltd” (“Saving and Credit Co-Operative Account”), and admitting that Sabin Dhakal had withdrawn money from the Nabil Bank Account even though that money was supposed to be used for the purposes of Mr Dhakal’s Student Visa sponsorship; and
ii)said that Mrs Dhakal was now Mr Dhakal’s financial sponsor;
s)the June 2014 Tribunal Hearing was conducted on 18 June 2014: CB 202-203; and
t)on 18 June 2014 the Tribunal made an oral decision affirming the Delegate’s Decision: CB 205, 209 and 210, and the Tribunal Decision was published on 27 June 2014: CB 209 and 210-223.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)noted Mr Dhakal said that he was no longer relying on Sabin Dhakal as his financial sponsor: CB 212 at [10], and he was now relying on Mrs Dhakal as his financial sponsor and the funds held by her in the DFSCC Account: CB 212 at [10];
b)put to Mr Dhakal that it would reject Mrs Dhakal as a financial sponsor because the funds in the DFSCC Account had only been there since 23 March 2012 whereas the legislation (in effect) required the funds to have been there since 12 December 2011: CB 212 at [11]-[12];
c)noted that Mr Dhakal indicated he wished to revert to Sabin Dhakal as his financial sponsor: CB 212 at [14], and that he then applied for an adjournment, or an extension of time, (“Adjournment Application”) so that he could obtain further financial documentation from Sabin Dhakal: CB 212 at [14];
d)considered the Adjournment Application: CB 212 at [15] and 217 at [38]; and
e)refused the Adjournment Application: CB 216 at [28]-[30]. The Tribunal gave detailed reasons for refusing the Adjournment Application at CB 215-216 at [27]-[28] as follows:
27.In deciding whether to grant the applicant an extension of time, the Tribunal noted that:
· He initially provided a bank statement from his brother but the delegate subsequently discovered that the bank statement pre-dated the opening of the bank account and, on that basis, it was obviously a false document;
· The applicant was now claiming that the bank statement was provided by an agent, but he had never previously made this claim and this was of concern to the Tribunal;
· He had been aware since March 2012 that any funds being relied on needed to have been held for 3 months prior to the date of application because in her letter the delegate explicitly spelled out that the funds needed to have been held since 12 December 2011. This requirement is also referred to in the delegate’s decision;
· This matter was originally listed for hearing in April 2014 but was subsequently postponed at the applicant’s request. The hearing invitations sent to the applicant in March 2014 and April 2014 specifically invited him to provide evidence that he has genuine access to the declared funds, such as evidence of any money he had received or been given;
· The applicant had not provided any such evidence claiming, for the reasons stated earlier, that he cannot give it. However, the tribunal may not accept this because it does not accord with the Tribunal’s extensive experience of having decided many similar cases.
28.In summary, the Tribunal noted that on the evidence before it, it could not be satisfied the applicant would have access to the funds he demonstrated for the purposes of Schedule 5A and, therefore, he would not meet cl.572.223(2)(a)(iii). The Tribunal observed that it did not wish to give the applicant false hope of a favourable outcome by granting him an extension of time to get a further set of financial documents. On that basis, the Tribunal refused the applicant’s request for an extension of time to provide further documents.
The reference in the final dot point of CB 215-216 at [27] to the “reasons stated earlier” relates to what the Tribunal said concerning Mr Dhakal’s claim that Nepalese banks would not send money to Australia unless he had the Student Visa. In that regard, the Tribunal at CB 215 at [25] said that:
25.The Tribunal noted that:
· It only decides student cases and, having decided hundreds of such cases from India and Nepal, many students from Nepal had provided evidence of funds that had been sent to them from the Nabil Bank, which is one of the biggest banks in Nepal;
· The Tribunal was aware from experience that the Nabil Bank does not have a requirement that a student must hold a visa in order to transmit funds to Australia and no Nepalese student had ever made this claim to the Tribunal or claimed that they could not arrange for funds to be sent to them in Australia;
· On that basis, the Tribunal may not accept that the Nabil Bank refused to send the applicant money in Australia because he did not hold a student visa.
The Tribunal, having determined the Adjournment Application, then proceeded to deal with the substantive application for review of the Delegate’s Decision: CB 216 at [29]-[32], and to give detailed reasons for affirming the Delegate’s Decision: CB 216-219 at [31]-[47] as follows:
a)noted that Mr Dhakal had to meet the financial capacity requirements of Sch.5A to the Migration Regulations including the requirement that Mr Dhakal have access to the funds relied upon whilst holding the Student Visa: CB 216 at [32];
b)noted that Mr Dhakal’s financial capacity requirement was $AU35,630, with which Mr Dhakal agreed: CB 217 at [35];
c)said that Mr Dhakal initially sought to rely on funds in the DFSCC Account (held by Mrs Dhakal), but which gave an initial account balance as at 23 March 2012, and therefore did not meet the requirement that the monies in the DFSCC Account needed to have been held by Mrs Dhakal since 12 December 2011, and therefore did not meet the definition of “funds from an acceptable source” (as to which see cl.5A405(2) of Sch.5A of the Migration Regulations): CB 217 at [36]-[37];
d)noted that having explained to Mr Dhakal that the DFSCC Account did not meet the requirement referred to in the preceding subparagraph, that Mr Dhakal then sought to revert to Sabin Dhakal as his sponsor, and made the Adjournment Application to provide time to obtain evidence of funds held in one of Sabin Dhakal’s other bank accounts: CB 217 at [38];
e)considered (before deciding the Adjournment Application) whether Mr Dhakal would have access whilst holding the Student Visa to the funds demonstrated or declared for the purposes of meeting the financial capacity requirements of Sch.5A to the Migration Regulations, and in that regard had regard to Mr Dhakal’s history in relation to declared funds, which it indicated was of concern to it, specifically the history of the Nabil Bank Account and the Nabil Bank Statement: CB 217 at [38]-[39];
f)had regard to the fact that by the time Mr Dhakal sought review by the Tribunal, Mr Dhakal was aware of the Delegate’s Decision concerning the Nabil Bank Statement predating the opening of the Nabil Bank Account, but that in the 5 July 2012 Letter, Mr Dhakal had said nothing about a rogue agent having been involved in the procurement of the Nabil Bank Statement, which the Tribunal considered Mr Dhakal would have mentioned had a rogue agent actually been involved, as he now alleged. By contrast, in the 5 July 2012 Letter Mr Dhakal merely complained that the Delegate’s Decision was unfortunate and unfair: CB 217-218 at [40]-[41];
g)went on to deal with Mr Dhakal’s account of the activities of the alleged rogue agent at CB 218 at [42] in the following terms:
42.Further, and notwithstanding this, the Tribunal found the applicant’s narrative about the alleged agent to be far-fetched and unpersuasive and the Tribunal does not accept it. In particular, the Tribunal considers the following claims to be inherently implausible:
· That the applicant’s brother, who is allegedly a successful businessman, was incapable of obtaining a bank statement from his bank without the intervention of an agent on his behalf;
· That the applicant’s brother only opened the Nabil Bank account in February 2012 at an agent’s suggestion;
· That the alleged agent made a false bank statement, even though the applicant’s brother really had the funds available in another bank account, and provided this to the applicant in the last hour before the end of the delegate’s 28 day deadline for the provision of documents;
· That the applicant submitted this documentation without reading it because he only had minutes to spare because of the expiration of the delegate’s deadline.
h)noted that its concerns about Mr Dhakal’s access to funds was compounded by the fact that he had been on notice since June 2012 that the Student Visa application had been refused because the Delegate was not satisfied he had access to sufficient funds to support his stay in Australia, and that on Mr Dhakal’s evidence neither of his sponsors (Sabin Dhakal and Mrs Dhakal) had ever transferred any money to Mr Dhakal from Nepal in the almost two years since the Delegate’s Decision was made: CB 218 at [43];
i)did not accept Mr Dhakal’s explanation that before banks in Nepal would transfer funds they needed to be satisfied that the Student Visa was held (as to which see CB 215 at [25], and [4] above): CB 218 at [43];
j)found that Mr Dhakal and his financial evidence was not credible and that no weight could be placed upon it, and therefore went on to find that Mr Dhakal did not meet the financial capacity requirements, in particular that he did not demonstrate access to the funds demonstrated or declared: CB 218 at [44]-[47]; and
k)on the above bases, affirmed the Delegate’s Decision: CB 219 at [48].
Judicial Review Application – grounds of review
Mr Dhakal’s grounds of review in the Judicial Review Application allege the Tribunal Decision was affected by jurisdictional error as follows:
1. At the time of application of my student visa lodged 12 March 2012, I did have access to enough funds to cover my expenses.
a) My brother had a bank account Nabil Bank and the funds were going to be used to sponsor me while in Australia. I provided bank details to Department of Immigration and Border Protection as evidence of access of those funds. The Department then contacted me after the lodgement of my application and invited to comment on the fact that upon research, it was found that the claimed funds of NPR 6 million were longer present and there was only a balance of approximately NPR 4000 left in the account. At that time, I explained to the Case Officer that I was unaware of the limited funds and when I contacted my brother, I was told that an urgent business matter came up and he had to use the money but hereafter, he deposited similar amount of money back into the account. My brother was unaware that the money had to remain in the account. He genuinely thought that he could use the money, and then deposit it again. I can ascertain that there were, hereafter, enough funds for my sponsorship in Nabil Bank under my brother’s name.
b) The Tribunal refused acceptance of the above funds. Henceforth, I affirmed at the Tribunal that I also have access to my brother’s funds held in the Savings & Credit Co-Operative Bank, a second bank account. My brother is ready to provide documentation as the funds held but retrieval of such documents will require time. I requested an extension of time to arrange documents but the Tribunal refused to grant me time to prove that I did have access to those funds and that the money was there three months before and even at the time the application was made.
c) I submitted documents to the Tribunal indicating that I also had access to my wife’s bank account of funds totalling approximately $ 43,441 USD. The condition for access to such funds is that I needed to prove I hold a certain visa. The funds were only accessible if any visa is granted. I explained this condition to the Tribunal which rejected my argument. I wish to affirm that such condition is real and genuine and that the funds are indeed present.
(Copied from the Judicial Review Application without amendment).
The grounds of review are styled as a single ground of review, namely that Mr Dhakal had sufficient relevant funds available and therefore satisfied the relevant legislation. The Minister argued the case on the basis that the particulars were three grounds of review as per paragraphs (a), (b) and (c) of the single ground of review. The Court considers that this is an appropriate characterisation of the grounds of review, and has dealt with them on that basis, that is, that there are the following three grounds of review:
a)that Sabin Dhakal was unaware that the money in the Nabil Bank Account had to remain there, and that sufficient funds were later placed in that account and are still there (ground 1);
b)that the Tribunal refused the Adjournment Application which would have enabled Mr Dhakal to obtain from Sabin Dhakal documents relating to the Saving and Credit Co-Operative Account (ground 2); and
c)that the Tribunal rejected Mr Dhakal’s assertion that the funds in the DFSCC Account were only accessible upon proof of the Student Visa (ground 3).
On 20 August 2014 a Registrar of this Court made orders, which included the following orders:
2.Other than the Court Book, all evidence relied upon by the parties must be presented by way of affidavit and in the event that a party seeks to rely on evidence of the contents of any sound recording, the party must file and serve a transcript verified by affidavit.
3.The applicant shall file and serve on or before 26 November 2014;
3.1 an amended application giving particulars of the grounds of review; and
3.2any further affidavits upon which he intends to rely at the hearing of the matter.
(“Registrar’s Orders”).
Consideration
Jurisdictional error required
The Tribunal Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the AAT, will only constitute jurisdictional error if the AAT:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: 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 at [82] per McHugh, Gummow and Hayne JJ.
Relevant criteria
The relevant criteria for the grant of a Student Visa at the relevant time was set out in cl.572.223 of Sch.2 to the Migration Regulations which relevantly provided that the Minister must be satisfied that Mr Dhakal is a genuine applicant for entry and stay as a student, and that Mr Dhakal meets a number of specified requirements, including that the Minister is satisfied that, while Mr Dhakal 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.
The relevant financial requirements are in cl.5A405 of Sch.5A to the Migration Regulations, and for present purposes relevantly provide that either Mr Dhakal, Mrs Dhakal or Sabin Dhakal have funds sufficient to meet Mr Dhakal’s expenses for a relevant period, and that they had been held for at least the three months immediately before the date of the Student Visa application (made on 12 March 2012: see [2(c)] above).
Grounds 1 and 3
Mr Dhakal’s claim that Sabin Dhakal was unaware that the money in the Nabil Bank Account had to remain there and that sufficient funds were later placed in that account and are still there, is an attempt to seek merits review of the Tribunal Decision. This is the same claim made by Mr Dhakal to the Delegate: CB 71 and 83. Before the Tribunal Mr Dhakal changed the nature of his claim with respect to the Nabil Bank Account. Mr Dhakal alleged that Sabin Dhakal had instructed an agent to open the Nabil Bank Account, but that that agent had in fact created a false bank statement, the Nabil Bank Statement, in Sabin Dhakal’s name and provided that to Mr Dhakal who subsequently supplied it to the Department: CB 163 and CB 212-213 at [15]-[16]. The Tribunal put to Mr Dhakal that he had changed his claim. In response, he submitted that he had found out about the false Nabil Bank Statement after the hearing before the Delegate. The Tribunal did not accept this, and foreshadowed an adverse credibility finding because of the change to Mr Dhakal’s claim: CB 214 at [19] and [21]-[22]. The Tribunal considered both the claims made by Mr Dhakal with respect to the Nabil Bank Account and Nabil Bank Statement, and ultimately found that Mr Dhakal’s financial evidence was not credible, and that no weight should be placed on it: CB 217-218 at [40]-[44].
Credibility findings are essentially a matter for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67]-[68] per McHugh J. This does not mean credibility findings are not susceptible to judicial review: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J; see now CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [37]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ. It was open to the Tribunal to make an adverse credibility finding concerning Mr Dhakal’s financial evidence in circumstances where:
a)there was an admission that the Nabil Bank Statement was false: CB 213 at [16];
b)the Tribunal considered Mr Dhakal had changed his financial evidence from that given to the Delegate, and that if the claims concerning the financial evidence then made to the Tribunal were credible, they would have been raised before the Delegate; and
c)Mr Dhakal had been afforded procedural fairness as the credibility issue had been put to him: Migration Act, s.359AA.
The Tribunal placed no weight on Mr Dhakal’s assertion that he was unable to access the funds from either Sabin Dhakal or Mrs Dhakal because the banks in Nepal would not (or could not) send money to Australia unless Mr Dhakal had the Student Visa: CB 215 at [24]-[26] and CB 218 at [43]. The Tribunal did so because through extensive experience it was aware that Nabil Bank (at least) did not have that requirement and that no Nepalese student had ever made a claim that they required a visa to access funds from Nepal: CB 215 at [25]. Having regard to the “apparent logic of events”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 77 ALJR 989; (2003) 197 ALR 201 at [30]-[31] per Gleeson CJ, and the previous history of false bank documentation in relation to the Nabil Bank Account, the Tribunal was entitled to make that finding on the basis that it was inherently unlikely: SZKOK v Minister for Immigration & Anor [2010] FMCA 90 at [30] per Smith FM; WZAPP v Minister for Immigration & Anor [2013] FCCA 270 at [21(f)] per Judge Lucev. The Tribunal was also entitled to use information and ideas which have been accumulated or formed through deciding other applications: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [180] per Hayne J. Ultimately, the Tribunal made a legitimate finding as to the weight it placed on Mr Dhakal’s claim as to his ability to access claimed funds, and therefore this ground seeks impermissible merits review of the Tribunal Decision: see the cases cited at [16] below.
Irrespective of the Tribunal’s other conclusions it would also have been able to reject Mrs Dhakal as Mr Dhakal’s financial sponsor because the funds in the DFSCC Account were, at best, only available from 23 March 2012, but were required to be available since 12 December 2011: Migration Regulations, Sch.5A, cl.5A405(2); CB 212 at [11]-[12]. Rather, the Tribunal’s approach with respect to the funds in the DFSCC Account constituted an independent and separate basis for affirming the Delegate’s Decision insofar as it related to the funds in the DFSCC Account: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [117]-[124] per Tracey and Foster JJ (with whom Moore J relevantly agreed); SZSRI & Ors v Minister for Immigration & Anor [2013] FCCA 1473 at [28] per Judge Manousaridis. Further, the Court notes that any allegation of jurisdictional error on the basis of Mrs Dhakal’s funds held in the DFSCC Account cannot be sustained because Mr Dhakal elected to change sponsors back to Sabin Dhakal after the Tribunal had, quite properly, raised the issue as to the time of the availability of the funds held in the DFSCC Account. Therefore, any consideration by the Tribunal of the issue of the availability of the DFSCC Account funds was unnecessary to its ultimate conclusion, but if it were necessary it was correct in any event.
Grounds 1 and 3 essentially invite the Court to engage in merits review. It is well established that it is impermissible for the Court to do so: 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 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ.
For the above reasons grounds 1 and 3 are not made out, and do not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 alleges that the Tribunal unreasonably exercised its discretion to refuse the Adjournment Application, which would have provided Mr Dhakal more time to provide financial evidence in support of the Student Visa application: Minister for Immigration & Citizenship vLi [2013] HCA 18; (2013) 249 CLR 232; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [22] per French CJ (“Li”). A finding that the Tribunal unreasonably exercised discretion requires the Court to carefully evaluate the evidence before it, including any inferences which may be drawn from that evidence: Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [42] per Allsop CJ, Robertson and Mortimer JJ.
Whether the Tribunal’s exercise of discretion in relation to the Adjournment Application was unreasonable depends on the particular circumstances of Mr Dhakal’s case: SZTHQ v Minister for Immigration & Border Protection [2014] FCA 1231 at [42] per Murphy J. The Tribunal was not under an obligation to afford every opportunity to Mr Dhakal to present his best possible case, 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 circumstances where:
a)Mr Dhakal had been made aware of the financial capacity requirements:
i)in the Delegate’s letter of 20 March 2012: CB 40 and [2(e)] above;
ii)in the Delegate’s Decision: CB 83 and [2(j)] above; and
iii)in the Tribunal’s letters of 19 March 2014 and 23 April 2014, which are specifically drafted to include reference to the relevant financial requirements: CB 134 and 153, and [2(1) and (o)] above;
b)Mr Dhakal had the benefit of a two month adjournment of the Tribunal hearing from 17 April 2014 to 18 June 2014, which was sought, in part, to enable him to obtain relevant financial evidence: CB 146;
c)false documentation had in the Tribunal’s view been submitted by Mr Dhakal in relation to the Nabil Bank Account and Nabil Bank Statement; and
d)the Tribunal had understandable doubts about the credibility of Mr Dhakal’s existing financial evidence,
it cannot be said that the Tribunal Decision with respect to the Adjournment Application lacked a reasonable and intelligible justification or was not within a reasonable range of the exercise of the relevant discretion.
The Tribunal’s reasoning provided evident and intelligible justification for refusing the Adjournment Application: Li at [76] per Hayne, Kiefel and Bell JJ; CZBH v Minister for Immigration & Border Protection [2014] FCA 1023 at [61] per Rangiah J. Credibility findings are generally a matter for the Tribunal, but can be reviewed: see above at [12]. In this case however, Mr Dhakal had poisoned the well with respect to his credibility as on Mr Dhakal’s own version of events the documents he provided to the Department concerning the Nabil Bank Statement were false: CB 163: and see above at [12]-[15] and Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [49] per Gleeson CJ.
In any event, Mr Dhakal cannot point to any “practical unfairness” because he has filed no affidavit as to the financial documentation he would have obtained if the Adjournment Application had been granted: Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427; (2009) 110 ALD 15 at [66] per Emmett, Kenny and Jacobson JJ; Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 at [34]; Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [18]-[25] per Gleeson CJ. That is particularly so in circumstances where:
a)the Adjournment Application was expressly sought on the basis that Mr Dhakal would obtain further financial documentation: CB 212 at [14]; and
b)ground 2 asserts that Mr Dhakal would have had access to Sabin Dhakal’s funds held in the Saving and Credit Co-Operative Account, and that Sabin Dhakal was ready to provide documentation as to those funds.
Unlike the applicant in Li where there was good reason to expect that the relevant visa criterion would be met: Li at [21] and fn.72 per French CJ, there was in this case, both on the evidence available to the Tribunal and on the Tribunal’s assessment, no good reason to expect that the relevant Student Visa criterion would be met, and in the absence of any further evidence as to:
a)what financial documentation was available, or might have been obtained; and
b)any documentation showing funds as at 11 December 2011 on deposit from an acceptable source,
and which might have been put before the Court pursuant to the Registrar’s Orders, there is no cause to doubt the Tribunal’s justification for refusing the Adjournment Application.
For the above reasons ground 2 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
Mr Dhakal has failed to establish that the Tribunal Decision was affected by jurisdictional error. Accordingly, there must be an order dismissing the Judicial Review Application.
The name of the Tribunal should formally be amended to “Administrative Appeals Tribunal”: Tribunal Amalgamation Act 2013 (Cth), s.3, Sch.2. There will be an order accordingly.
The Court will hear the parties with respect to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 21 April 2017
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