Hamal v Minister for Immigration
[2019] FCCA 205
•19 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAMAL v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 205 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – student (temporary) (class TU) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Kaur & Anor v Minister for Immigration and Border Protection & Anor [2013] FCA 1333 |
| Applicant: | SUNIL HAMAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1615 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 6 September 2018 |
| Date of Last Submission: | 6 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondents: | Ms He |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The applicant’s application for judicial review filed on 28 July 2016 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1615 of 2016
| SUNIL HAMAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this court on 28 July 2016 under the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks judicial review against the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 24 June 2016.
In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection
(“the Minister”) made on 21 July 2015 refusing to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”).
The tribunal’s decision is found in the court book at pages 103 to 109.
Summary
For the reasons that follow, this application for judicial review fails.
I make orders dismissing the proceedings and order the applicant to pay the first respondent’s costs.
Background
The applicant is a citizen of Nepal who applied for a student
(subclass 573) visa on 2 April 2015 based on his enrolment in a Masters of Business Administration with Holmes Institute.On 8 April 2015, the applicant was requested to provide further information within 28 days, including evidence of financial capacity. The documents requested included proof of financial capacity in the form of funds held by the applicant/acceptable support person for a minimum of three months prior to the date of visa application lodgement. The request further stated that if the funds were held in an account owned by another person, evidence of the relationship between the applicant and the owner of the funds was to be provided together with a signed letter from that person stating that the money was released to the applicant for the purpose of the applicant’s study and the copy of identification for that support person. The letter also specified that “only certain people are acceptable in terms of providing (the applicant) financial support” and provided additional online resources in this regard.[1]
[1] Court book page 40.
On 6 May 2015, the applicant sought an extension of time in which to provide this additional information by email. His request was approved on 14 May 2015 and he was given until 4 June 2015 to provide the further information.
The applicant did not provide any additional information within the extended time period. On 29 June 2015, the delegate for the Minister sent a reminder to the applicant and provided a further extension until
7 July 2015.
On 7 July 2015, the applicant provided the delegate for the Minister with a certificate of enrolment (“COE”) and a receipt for the required medical examinations. The applicant, however, did not provide any evidence of financial capacity criteria or health insurance. The applicant requested a further week’s extension in order to provide the ‘financial documents’.[2]
[2] Court book page 47.
Two weeks later on 21 July 2015, the applicant was advised in writing that the delegate had refused to grant the applicant the visa.[3]
[3] The decision record of the delegate’s decision is set out at court book at pages 56 to 62.
On 11 August 2015, the applicant applied for a review of the delegate’s decision. In its correspondence acknowledging receipt of this application, the tribunal invited the applicant to provide any further material or arguments for the tribunal to have regard to “as soon as possible”[4].
[4] Court book page 70.
On 14 March 2016, the tribunal invited the applicant to a hearing before it on 12 April 2016. In this correspondence the tribunal again invited the applicant to provide “all documents you intend to rely on to establish that you meet the criteria for the visa.”[5] In addition to this general invitation, the tribunal also specifically requested that the applicant provide, among other things, financial capacity documents, including:
a)proof of sufficient funds in order to meet course fees;
b)living costs and travel costs relevant to the applicant’s period of study in Australia;
c)evidence of regular income of any person funding/supporting the applicant; and
d)evidence of any such support person’s relationship with the applicant.
[5] Court book page 73.
On 30 March 2016, the tribunal rescheduled the hearing with the applicant to 10 May 2016 and repeated its request for the financial capacity documents referred to above.
The applicant attended the hearing on 10 May 2016 and provided a number of documents on this day including a letter dated 7 May 2016 entitled “Sponsor Letter”. The letter was signed by Mr Majoj Hamal, the applicant’s “cousin brother” who undertook to pay the full cost of the applicant’s tuition fees and other expenses. An additional relationship certificate (with handwritten alterations) revealed that the relationship between the applicant and Mr Manoj Hamal was that of a cousin. The term “cousin brother” was determined at the hearing to mean that he was the applicant’s father’s brother’s son.
After the hearing on 27 May 2016, the tribunal received the following additional documents:
a)a statement for Mr Manoj Hamal’s Nabil bank account;
b)
documents relating to an international funds transfer from
Mr Manoj Hamal’s bank account to the applicant’s Australian bank account; and
c)
a statement on letterhead of Nabil bank account dated
27 May 2016 certifying that Mr Manoj Hamal held an account at the bank with a balance equivalent to $50,081 Australian dollars.
Tribunal decision
On 23 June 2016, the tribunal affirmed the delegate’s decision to refuse the applicant the visa on the basis that the applicant did not satisfy the financial capacity criteria in Schedule 5A, clause 5A508(1) for the purposes of clause 573.223(2) of the Migration Regulations 1994 (Cth) (“the Regulations”).[6]
[6] Court book page 108 at paragraphs [29] to [30].
The tribunal found that the applicant was not an “eligible higher degree student” and therefore clause 573.223(1A) of the Regulations did not apply.[7] Therefore the applicant needed to meet clause 573.223 of the Regulations which required evidence in accordance with the requirements set out in schedule 5A of the Regulations for the highest assessment level for the applicant.[8] As he held a passport from Nepal, the applicant was subject to Assessment Level 3[9] and was therefore required to give evidence of funds from an ‘acceptable source’ sufficient to meet course fees and living costs for the first 12 months.
[7] Court book page 106 at paragraph [18].
[8] Court book page 106 at paragraph [18].
[9] Court book page 107 at paragraph [20].
The tribunal found that the applicant’s total costs amounted to $34,998 (NPR 2,841,586) comprising course fees for the first 12 months, living costs and travel costs to return to Nepal.[10]
[10] Court book page 107 at paragraphs [24] to [25].
In the applicant’s circumstances, funds from an ‘acceptable source’ included a money deposit that an ‘acceptable individual’ has held for at least three months immediately prior to the date of the visa application.[11]
[11] Clause 5A508 of the Migration Regulations 1994 (Cth).
The applicant provided evidence of funds (including bank statements) from Mr Manoj Hamal, who he described as his ‘cousin brother’.
At paragraph 26 of the tribunal’s decision record, the tribunal member noted that although they accepted, “that the applicant has provided documentary evidence of the availability of these funds, I consider that the nature of that evidence, provided to the Tribunal on 27 May 2016 after the hearing, raises doubts as to its reliability”.[12]
[12] Court book page 107 at paragraph [26].
The tribunal member also made reference to the fact that the bank statements show that only one transaction is shown on that bank statement which evidences that the sum of NPR 4,006,017 was deposited into the account on 23 May 2016, and that prior to that, as at 1 January 2016, the account only had a balance of NPR 529. Moreover, the applicant did not explain the origin of that amount, nor did the applicant provide any evidence that those funds were used to support him in his studies in Australia.
The tribunal member concluded that the “only plausible inference to be drawn is that the money in the Nabil Bank account was deposited purely to provide evidence of a stable source of funds”.[13]
[13] Court book page 108 at paragraph [26].
Having regard to all of the available information, the tribunal member concluded that they were:
…unable to be satisfied that any weight can be placed on the evidence the applicant has provided regarding the availability of funds from his sponsor, either at Nabil Bank or Sunrise Bank, for the amount which is required to cover his tuition fees, living costs and travel for the first twelve months.[14]
[14] Court book page 108 at paragraph [27].
Moreover, the tribunal found that the applicant’s financial sponsor,
Mr Manoj Hamal was the applicant’s ‘cousin’. That is, although the applicant referred to Mr Hamal as the applicant’s ‘cousin brother’, the evidence provided to the tribunal by the applicant establishes thatMr Hamal is the applicant’s father’s nephew. On this basis, the tribunal member was not satisfied that the applicant’s financial sponsor comes within the definition of an ‘acceptable individual’ in clause 5A501.[15][15] Court book page 108 at paragraph [28].
The tribunal concluded therefore that the applicant did not satisfy the financial capacity requirements of clause 5A508 and therefore does not meet the requirements of clause 573.223(2) and on that basis affirmed the decision of the delegate not to grant the applicant the visa.[16]
[16] Court book page 108 at paragraphs [29] to [31].
Application for judicial review
The applicant’s application filed 18 July 2016 raised two grounds of review, which are set out in more detail below.
By orders made on 18 January 2017, the applicant was given leave to file an amended application any further affidavit and submissions. The applicant did not file any such material.
At the commencement of the hearing before me, when asked what submissions he wanted to make in support of his application, the applicant referred to the fact that he had been asked to provide financial information regarding his capacity to support himself whilst studying in Australia and that he provided his cousin’s business accounts. He said that at the hearing he was asked various questions about why his cousin would support his studies, but he:
…didn’t have enough time to provide more evidence saying … why my cousin was interested to support my study in Australia and the decision was made … before I get a chance to submit the document again…[17]
Grounds for review
[17] Transcript page 10 at line 18 to 26.
Ground one
The first ground of review is:
The Second Respondent made jurisdictional error by taking into irrelevant considerations and misleading the Applicant in relation to the requirements to satisfy financial capacity and acceptable individual” in clause 5A501.(sic)
Particulars
(a)At [10] and [11], the Second Respondent considered and raised the doubts as to why the Applicant’s cousin would financially support him for his study.
(b)At [28] the Second Respondent found that the Applicant’s cousin is not an acceptable person.[18]
[18] Initiating application filed 28 July 2016.
Notwithstanding the orders made by Registrar Allaway in January 2017, the applicant did not file any written submissions in this matter. At the hearing, when asked what he wanted to say in support of his application, the applicant confirmed that he had a copy of his application, the written submissions filed on behalf of the Minister and the court books and said that in relation to the financial capacity issue, he was not given enough time to present the evidence he needed to present.
In response to ground one, it was submitted on behalf of the first respondent that it proceeds on the basis:
The gravaman of this complaint is that the Tribunal failed to comply with section 360(1), by failing to put the applicant on notice of the determinative issue of whether his sponsor was an ‘acceptable individual’ for the purposes of cl 5A101.[19]
[19] First respondent’s outline of submissions page 5 at paragraph [24].
Section 360(1) of the Act requires the tribunal 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 review.
The first respondent quite rightly points out that no transcript evidence was put before this court.
Moreover, the first respondent also points to the fact that the applicant was on notice of the need to demonstrate access to funds from an ‘acceptable source’. So much was clear from the tribunal’s invitation to hearing letter in which it expressly requested that the applicant provide:
…documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant) and travel costs … including:
·evidence of funds from an acceptable source;
…
·evidence of the regular income of any person who is providing funds to you (including yourself) and their relationship to you; (emphasis added).[20]
[20] Court book pages 74 and 78.
It was further submitted on behalf of the Minister that the fact that the applicant had not provided any evidence to the delegate regarding the question of financial capacity and that the delegate had found that he did not meet this requirement was also relevant to the question of whether the applicant was aware that this was a relevant issue on review.
In addition, it was submitted on behalf of the Minister that there was no obligation on the tribunal to inform or advise the applicant about the definition of ‘acceptable individual’ and it was not required to give the applicant a running commentary on what it thought about the evidence submitted by the application in response to the need to demonstrate financial capacity.
The first respondent referred to SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [48] in support of this proposition. In SZBEL, the question before the court was whether the tribunal had failed to notify the appellant adequately of the issues to which its reasoning processes were directed. In that case which concerned an application for a protection visa, the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) after summarising the applicable statutory scheme, noted at [36]:
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, he applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The court went on to say:
[47]… there may well be cases, … where either the delegates’ decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. … The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
[48]Secondly, as Lord Diplock said in F Hoffmann-La Roche &Co AG v Secretary of State for Trade and Industry:
The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it things about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgement (emphasis added).[21]
[21] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [47]-[48].
In this instance, the applicant was on notice from the outset that one of the requirements that he needed to satisfy related to his financial capacity. Moreover, he was also on notice, at least from the time he received the initial correspondence from the Department on 8 April 2015, that he was required to provide documentation relating to the question of financial capacity.
As noted above, that correspondence expressly made clear that he was required to provide:
a)evidence of funds to support himself for the first 12 months of his proposed study; and
b)if funds in the form of a money deposit are held by another person, evidence of the relationship between the applicant and that other person.
Moreover, the letter of 8 April 2015 also contained the following:
Please note that only certain people are acceptable in terms of providing you with financial support. Please refer to the Application Document Checklist for your associated subclass and assessment level for more details, which is available at
[22] Court book page 40.
The applicant was aware of the need to provide the relevant documents dealing with the issue of financial capacity as noted in his email of 7 July 2015 under cover of which he provided some of the required documentation and requested further time to provide “financial document”.[23] In addition, it was clear from the delegate’s decision that the applicant’s failure to provide any evidence in support of his financial capacity was a relevant factor in the delegate’s decision to refuse to grant the visa.
[23] Court book page 47.
In those circumstances, it cannot be said that the tribunal had not put the applicant on notice of the need to provide evidence of the applicant’s financial capacity.
As there was no transcript before this court of the proceedings before the tribunal, the only evidence of what was discussed before the tribunal is the tribunal’s decision record. It is evident from the decision record that the tribunal member discussed with the applicant his relationship with Mr Manoj Hamal, and the problems with the documentary evidence submitted about Mr Manoj Hamal’s financial situation.
In these circumstances, the applicant was on notice of the information which was required to establish financial capacity, that he was required to identify the relationship between any financial sponsor and the applicant and that only certain people are acceptable in terms of providing the applicant with financial support. In those circumstances, there is no basis for a finding that the tribunal failed to comply with its obligations under section 360.
Nor is there any other basis on which it could be said that the tribunal took into account irrelevant considerations or mislead the applicant in relation to the requirements to satisfy financial capacity and acceptable individual.
For these reasons, ground one is not made out.
Ground two
The second ground of review is:
The Second Respondent made jurisdictional error by failing to provide an opportunity to the Applicant under section 359AA of the Migration Act 1958 whether the person who is providing him financial support is an acceptable person.
Particulars
(a)The Second Respondent failed to give particulars that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review in relation to acceptable person.
(b)At [26], the Second Respondent accepted the documentary evidence of the availability of the funds, but raised doubts as to its reliability without providing procedural fairness to the applicant.[24]
[24] Initiating application filed 28 July 2016.
Section 359AA of the Act relevantly provides:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)If the Tribunal does so – the Tribunal must:
(i) ensure, that as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information;
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
As stated, the applicant represented himself in these proceedings, and given that the applicant did not file any written submissions nor make any substantial oral submissions in support of this ground, the court has not been assisted by any explanation of the basis on which this ground is put.
It seems from the way in which the ground is articulated and the oral submissions made by the applicant, such as they were, that this ground seeks to establish that there was some obligation on the tribunal to put the applicant on notice of concerns it had about whether he satisfied the financial capacity requirement and in particular whether the financial sponsor he nominated met the requirements of an acceptable person.
In response, counsel for the minister put the following propositions:
a)section 359AA is merely facultative and non-compliance with the provision in circumstances where there was no duty imposed by section 359AA is of no legal consequence;[25] and
b)whether or not the applicant’s cousin was an “acceptable individual” was not “information” for the purposes of section 59A as it constituted the tribunal’s thought processes[26], including how the applicant’s evidence, as presented and accepted, met with the prescribed legal criteria.
[25] SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [2] and [79].
[26] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 09 at [18]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [9].
As noted by the majority in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [74]-[75] and [83]-[91], a failure to comply with section 424AA (which is the equivalent provision under Part 7) does not constitute jurisdictional error. Rather, non-compliance with section 359AA will require the tribunal to comply with section 359A. A failure to do so would amount to a jurisdictional error.
It is argued on behalf of the Minister that, in this case, section 359A did not itself impose an obligation to raise with the applicant the question of whether his cousin was an ‘acceptable individual’ for the purposes of clause 5A501 and therefore the failure to expressly raise this with the applicant does not give rise to a jurisdictional error.
There is some merit to this submission.
The applicant provided evidence in support of his application for a student visa which addressed the question of financial capacity including a sponsor letter[27] in which Mr Manoj Hamal stated that he would like to sponsor the applicant’s studies, a bank statement from Nabil Bank,[28] documents relating to a money transfer[29] correspondence from the Nabil Bank[30] and bank statements from Sunrise Bank Limited.[31] The applicant also provided evidence of the relationship between himself and
Mr Manoj Hamal dated 5 May 2016.
[27] Court book page 87.
[28] Court book page 88.
[29] Court book page 89 and 91.
[30] Court book page 90.
[31] Supplementary court book pages 2 to 17.
It is evident from the decision record that the nature of the applicant’s relationship with Mr Manoj Hamal was discussed with him at the hearing and that he confirmed that although the relationship letter referred to Mr Manoj Hamal as his cousin brother, Mr Manoj Hamal was in fact his ‘father’s brother’s son’.[32]
[32] Court book page 105 at paragraph [10].
As noted in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18], the term ‘information’ in section 424A (which is the equivalent provision to section 359A of the Act) does not extend to the tribunal’s “subjective appraisals, thought processes or determinations”. In particular, their Honours noted:
… However broadly ‘information be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[33]
[33] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
This approach was noted with approval by the High Court in
Minister for Immigration and Citizenship v SZGUR & Anor(2011) 241 CLR 594 where French CJ and Kiefel J (with whom Hayden and Crennan JJ agreed) said:
The exclusion of this class of information from the obligation imposed by s424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obliviously be open on the known material. However, a decision maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.[34]
[34] Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 at [9].
Counsel for the Minister also referred the court to the decision of Mortimer J in Kaur & Anor v Minister for Immigration and Border Protection & Anor [2013] FCA 1333 (“Kaur”). In that case, which also involved an application for a student visa, the court had to consider whether there was a jurisdictional error in circumstances where the applicant was unaware that material she has submitted relating the financial capacity requirement, was fundamentally defective and could not satisfy those requirements.
In Kaur, Mortimer J said:
[52]The resolution of the appellants’ sole ground of appeal turns on what is to be characterised as ‘the information’ the Tribunal was required to give the appellants under s 359A. …
[53]… for s 359A to be breached in these circumstances, “the information” would need to be characterised as the fact that the material presented by the appellants was incapable of meeting the relevant visa criteria in cl 5A405, because the term deposits showed on their face that the funds had not been held for the requisite six months prior to the visa application being made.[35]
[35] Kaur & Anor v Minister for Immigration and Border Protection & Anor [2013] FCA 1333 at [52]-[53].
Similarly, in this case, the applicant seems to be arguing that it was evident from the relationship certificate submitted by the applicant that the person put forward as providing the applicant financial support did not fall within the definition of an ‘acceptable individual’ in clause 5A101.
Mortimer J went on to say:
[54] …this is not ‘information’ for the purposes of s 395A: it is the conclusion of the Tribunal on the material before it, on application of the visa criterion. It is, in that sense, the product of the Tribunal’s reasoning process…
[55]The conclusion that the material produced did not meet the applicable visa criterion was adverse to the appellants, and indeed fatal to their student visa application. It was nevertheless the product of the Tribunal’s reasoning process and not therefore within s359A. Nor would it be within any broader procedural fairness obligation because it was an adverse conclusion obviously open on the known material…[36]
[36] Kaur & Anor v Minister for Immigration and Border Protection & Anor [2013] FCA 1333 at [54]-[55].
Similar reasoning applies here. In this case, it was apparent from the outset that one of the conditions which the applicant needed to satisfy in order to be issued with a student visa related to financial capacity. It was also evident from the outset that if the applicant were to rely upon financial support from another person, he would need to provide evidence of his relationship to that other person and that only a limited class of persons are acceptable in terms of providing that support.
I accept and agree with the submission made on behalf of the Minister that the conclusion reached by the tribunal that the applicant did not demonstrate that he had financial support from an acceptable individual was not ‘information’ for the purposes of either section 359AA or section 359A. Rather it was a conclusion reached by the Tribunal on the basis of the evidence put on behalf of the applicant to support his application for a visa.
For these reasons ground two is not made out.
Conclusion
For the reasons set out above, I am not satisfied that the tribunal has made a jurisdictional error as alleged.
As neither of the applicant’s grounds of judicial review are made out, the application is dismissed with costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 19 February 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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