Patel v Minister for Immigration

[2015] FCCA 2439

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2439

Catchwords:
MIGRATION – Student (Temporary) (class TU) visa – applicant provided documents to support his visa application found to be bogus – where applicant did not satisfy public interest criteria 4020(1) – tribunal’s decision free from jurisdictional error – application dismissed.

Legislation:
Migration Regulations 1994, schedule 2, cl.573.224, public interest criteria 4020

First Applicant: BIPIN RAMANBHAI PATEL

Second Applicant: SMITABEN AMURTBHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 461 of 2015

Judgment of: Judge Jarrett

Hearing date: 18 August 2015

Date of Last Submission: 18 August 2015

Delivered at: Brisbane

Delivered on: 18 August 2015

REPRESENTATION

The First Applicant appeared in person

No appearance by the Second Applicant

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.00.

3. The Second Respondent’s name be amended to the “Administrative Appeals Tribunal” (formerly known as the “Migration Review Tribunal”).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 461 of 2015

BIPIN RAMANBHAI PATEL

First Applicant

SMITABEN AMURTBHAI PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. By this application the applicant seeks an order that a decision of a migration review tribunal that affirmed a decision of the delegate of the first respondent to refuse to grant to him a Student (Temporary) (class TU) visa be set aside.  The applicant seeks that his application for review be remitted to another migration review tribunal to be determined according to law. 

2. The second applicant was also a visa applicant although the second applicant’s application was made as part of the first applicant’s family unit.  No separate grounds for the grant of a visa were advanced by the second applicant.  The second applicant has not appeared in these proceedings. 

3. The first respondent opposes the application and seeks that it be dismissed with costs.  The second respondent enters a submitting appearance.  Despite directions having been made in these proceedings some time ago now – in fact on 15 June, 2015 – the applicant has not filed any written submissions in support of his case.  The first respondent has filed written submissions.  I have paid regard to those. 

4. The material in the court book reveals that the applicant is a citizen of India.  On 19 May, 2014 he applied for the student visa that is now in question.  On 21 May, 2014 the first respondent requested more information from the applicant and in particular information about the funds that he needed to demonstrate that he had access to so as to comply with the relevant criteria that were applicable to the visa for which he had applied. 

5. In response to the first respondent’s delegate’s request he provided some documents.  The first was a letter dated 3 June, 2014 that confirmed that a loan had been sanctioned by the Bank of Punjab for the purpose of the applicant’s education expenses and that the loan had been secured against an amount that was held on deposit with the bank.  The document suggested the loan would be paid to an account which ended with the figures 2159 in the names of the applicant and his father. 

6. There was also a document which purported to confirm a deposit from an account with a number that ended in 16054 said to be held by the applicant’s father.  The first respondent’s delegate, on 14 August, 2014 invited the applicant to comment on some information that the delegate had received to the effect that the loan document and the fixed deposit were non-existent and had been fabricated. 

7. On 26 August, 2014 the applicant replied and provided some further documents to show that the account which ended with 2159 had been closed; that a loan had been sanctioned for the purposes of the applicant’s education expenses secured against a fixed deposit; that the loan would be funded into an account which ended with the figures 26587 in the name of the applicant and his father; that an amount had been deposited from an account which ended with the number 1893B and had been received from his father and that a further amount had been deposited into an account which ended with the numbers 26587 on 20 August, 2014. 

8. On 17 October, 2014 the Minister refused to grant the applicant the visa. The refusal was on the basis that the applicant had provided “bogus documents” and in particular the certificate of deposit that referred to a non-existent bank account in the name of the applicant’s father and the loan document which purported to record a loan and the disbursement of funds to an account which had been demonstrated by subsequent evidence to have been closed in June, 2013. It was necessary for the applicant to demonstrate compliance with public interest criteria 4020 and clause 573.224 of the Migration Regulations 1994 and because he had provided the bogus documents, the first respondent’s delegate determined that he was unable to satisfy those requirements. Accordingly his visa application was refused.

9. The applicant sought a review of that decision by a migration review tribunal. On 9 March, 2015 he was invited to attend a hearing and to give evidence. The hearing took place on 1 April, 2015. The applicant attended at the hearing.

10. The tribunal determined to refuse the application and to affirm the decision under review.  The tribunal recorded in its reasons for decision the documents that had originally been given to the Minister’s delegate.  It recorded the delegate’s findings about those documents and in particular said this:

    3.  The applicant submitted a copy of the delegate’s decision with the review application.  The delegate commented that the applicant had provided documents to demonstrate that he met the financial capacity requirements for the visa and when those documents were presented to the relevant bank for verification it was found they were bogus.  The delegate commented that the Punjab National Bank told the department that a loan and two bank accounts which the applicant had submitted as evidence of funds for his study in Australia did not exist.  The accounts referred to were 670200DP00016054 and 6702000100012159.  The applicant was approached to comment and he responded that there was a misunderstanding. 

    4.  The applicant attended a hearing with the tribunal on 1 April 2015.  The tribunal commented that the information provided to the department by the Punjab National Bank indicted that he had submitted bogus documents in support of his application.  It commented that the applicant’s response to the issue did not adequately address the Bank’s statement that the accounts and loan he was referring to did not exist.  The tribunal commented that it required evidence from the bank to support his claim that the issue arose because of a misunderstanding.  It commented that otherwise it may find that the applicant knowingly supplied bogus documents to the Department with a view of obtaining the visa by deception. 

    5.  The applicant stated that the Punjab National Bank made a mistake when it told the Department that the two accounts and the loan did not exist.  He was asked to approach the bank and get evidence to support his claims.  That applicant stated that the bank had not been cooperating.  The tribunal commented that he should be able to get the bank to verify that the two accounts referred to in his submissions did exist and that a loan had been obtained for his study costs in Australia.  The applicant stated that he would try.  He was asked to provide his response by 1 May 2015. 

11. The tribunal records the response that was received from the applicant.  The tribunal says:

    7.  The tribunal received a response from the applicant on 26 April 2015.  He stated that the bank would not provide him with written confirmation but if “Australian Immigration” want details regarding accounts they could telephone the branch in India.  He stated that the bank had issued one letter relating to the applicant’s case and he was submitting that letter and they did not intend issuing any other letters on the matter.  The applicant submitted a letter from the Punjab National Bank dated 15 April 2015 and signed by the manager of the Patan Branch.  The author states that the applicant’s father had a fixed deposit with the bank which was used to secure a loan.  The author refers to a bank account held by the applicant’s father in which the loan funds were disbursed and held from 20 August 2014 to 31 October 2014.  The bank account number is 6702000100026587. 

12. The tribunal found that the applicant had provided bogus documents to the first respondent when he applied for the visa. The tribunal identified that the issue with which it needed to concern itself was whether the applicant met public interest criteria 4020 a required by clause 573.224 of the Regulations. The tribunal recorded that the requirements of public interest criteria 4020(1) could be waived if there were certain compelling or compassionate reasons justifying the granting of the visa.

13. Because of the tribunal’s finding that the applicant had provided bogus documents to the Department in support of his student visa application (see paragraph 13 of the tribunal’s reasons) the tribunal determined correctly, in my view, that the applicant did not satisfy public interest criteria 4020.  The tribunal went on to consider whether there were reasons for waiving public interest criteria 4020(1) and determined that there were neither compelling circumstances not compassionate reasons for excusing the applicant from compliance with that criteria.  Consequently the delegate’s decision was affirmed. 

14. By these proceedings the applicant suggests that the tribunal’s decision is infected by jurisdictional error.  He must establish jurisdictional error to succeed in this Court otherwise the tribunal’s decision is unable to be interfered with by this Court.  In his application, which has not been amended since it was filed, he sets out two grounds: the first is that the tribunal constructively failed to exercise its jurisdiction.  He says that he provided a letter from the Punjab National Bank to the tribunal but that the tribunal “failed to engage in an active intellectual process of the document”.  He argues that the tribunal ultimately gave “the document no weight on the basis of credit findings”.  He says that it was an error for the tribunal to place no weight on the document without “engaging to the contents of these documents”.  He says that it was an error for the tribunal to assess the applicant’s credit without first assessing whether the substance of the document corroborated his claims. 

15. By the second ground the applicant argues that the tribunal failed to accord “procedural fairness” to the applicant “because of the little weight that it gave to the applicants because of the applicant’s financial statement in the application for a student visa”. 

16. As to the first ground it is clear from the tribunal’s reasons that in fact the tribunal did engage with the letter that the applicant now says the tribunal ignored.  The tribunal considered before it all of the evidence.  It considered the original evidence, the letters, the purported loan document and other documents from the bank and the subsequent evidence provided by the applicant. 

17. The tribunal’s reasons for decision indicate a thorough examination of those issues.  The findings that the tribunal ultimately reached on the authenticity of the original documents were findings that were clearly open to it on the evidence.  Rather than make findings about the credit of the applicant himself the tribunal concerned itself with the authenticity of the documents that were originally provided to the first respondent in support of the applicant’s visa application.  That was the correct focus of the tribunal’s inquiries. 

18. Having made a finding that the applicant had provided bogus documents to the first respondent when he made his visa application the tribunal was bound, subject to waiving the requirements of public interest criteria 4020(1) to affirm the decision under review.  Ground 1 of the applicant’s application to this court reveals no error. 

19. As to ground 2, in my view, the material before me contained within the court book and the tribunal’s reasons for decision reveal that there has been no want of procedural fairness. 

20. The applicant was made aware of the relevant issue arising in the application.  He was given an invitation to comment by the delegate on 14 August, 2014.  The delegate’s decision put him on notice of the issue that caused the failure of his visa application. 

21. He was – once proceedings were commenced in the tribunal – provided with the opportunity to give further evidence to the tribunal.  He was invited to appear before the tribunal to give evidence and present arguments and he took up that invitation.  He provided additional documents and he was provided by the tribunal with additional time to provide those documents. 

22. As I have already indicated, in my view, the record does not reveal any lack of procedural fairness on the part of the tribunal. 

23. For all of those reasons I am satisfied that the tribunal’s decision is not infected by jurisdictional error.  My own consideration of the tribunal’s reasons does not reveal any jurisdictional error on its part.  In the circumstances, therefore, the application filed on 27 May, 2015 must be dismissed. 

RECORDED:  NOT TRANSCRIBED

1. Ordinarily in proceedings of this nature costs follow the event.  That is to say the unsuccessful party it generally ordered to pay the successful party’s costs of the application.  That rule is not applied where there are special circumstances which might tend to suggest that application of the rule is inappropriate. 

2. Here the respondent argues, first, that he didn’t know there was a cost involved and, secondly, he has no money to pay the costs in any event.  Neither of those matters, however, amount to special circumstances.  In his response the first respondent quite clearly sets out that the orders that he seeks in these proceedings are that the application be dismissed and that the applicant pay his costs.  The applicant was clearly on notice that if his application was dismissed the first respondent would ask for an order for costs. 

3. As to the second matter, impecuniosity has generally never been treated as a reason not to make an order for costs.  In those circumstances costs should follow the event. 

4. I order that the first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $5800. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 18 August, 2015.

Associate: 

Date: 10 September 2015