Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2019] FCCA 3161

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2019] FCCA 3161

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal misconstrued Public Interest Criterion 4020 – whether the Administrative Appeals Tribunal denied procedural fairness to the applicant in relation to a certificate issued un s.375A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.375A, 474

Migration Regulations 1994 (Cth), sch.2, cls.500.217, Sch.4, cl.4020

Cases cited:

Aarya Kalpeshkumar Patel v Minister for Immigration, Citizenship, Migrant

Services and Multicultural Affairs [2019] FCCA 3160

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

VEAL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] HCA 72

Kaur & Ors v Minister for Immigration and Border Protection and Anor [2014]

FCA 281

Le v Minister for Immigration & Anor [2019] FCAFC 187

First Applicant:

KALPESHKUMAR JAYANTHIBHAI PATEL

Second Applicant:

FALGUNIBAHEN KALPESHKUMAR PATEL

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1104 of 2018

Judgment of:

Judge Emmett

Hearing date:

28 October 2019

Date of Last Submission:

28 October 2019

Delivered at:

Sydney

Delivered on:

6 November 2019

REPRESENTATION

Solicitors for the Applicants:

Mr Michael Jones
(Parish Patience Immigration Lawyers)

Solicitors for the Respondents:

Mr Karwan Eskerie
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1104 of 2018

KALPESHKUMAR JAYANTHIBHAI PATEL

First Applicant

FALGUNIBAHEN KALPESHKUMAR PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application filed on 13 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 26 March 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 21 November 2016 refusing the applicants a Student (Temporary) (Class TU) (Subclass 500) visa.
The application is in the name of the first applicant (“the Applicant”) and his wife, the second applicant, whose claims depend on those of the Applicant. There is another proceeding commenced by the infant daughter of the applicants, Aarya Kalpeshkumar Patel (Aarya Kalpeshkumar Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3160), and the outcome of that application also depends on that of the Applicant.
The Applicant applied for the visa on 7 August 2016. His application was refused on the basis that the Applicant did not satisfy the requirements of cl.500.217 of sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because the Delegate of the first respondent determined that the Applicant had given or caused to be given a bogus document and therefore the requirements of cl.4020(1) of sch.4 to the Regulations were not met.
On 7 December 2017, the Applicant appeared before the Tribunal to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who attended the Tribunal hearing.
The background and the Tribunal’s decision are accurately summarised in the submissions of the first respondent as follows:
“Background
2. The applicants, who are citizens of India, first entered Australia in February 2014 (Court Book (CB) 218). The first applicant (applicant) is the primary applicant, and the second applicant is his wife. These proceedings are linked to those of the applicants’ infant daughter, Aarya Kalpeshkumar Patel (SYG1106/2018) and the two matters are being heard concurrently.
3. On 7 August 2016, the applicants applied for the visas on the basis of the applicant’s enrolment in a Bachelor of Business (CB 1-49). As evidence of funding, the applicant provided a letter from Canara Bank stating that he had obtained a loan of 19,35,000 rupees (CB 65). On 25 October 2016, the Minister’s Department invited the applicant to comment on adverse information in relation to the evidence of financial support provided by the applicant (CB 79). In particular, it was put to the applicant that in his visa application, the applicant had declared access to sufficient funds but recent debits may have indicated that the documentation was prepared for the purpose of obtaining the visa (CB 79). The applicant responded to this letter on 10 November 2016 (CB 85). On 22 November 2016, a delegate of the Minister refused to grant the visa on the basis that the applicants had given, or caused to be given, a bogus document as part of their application, and that therefore the requirements of Public Interest Criterion 4020 (PIC 4020) were not met (CB 90-102).
4. On 1 December 2016, the applicants applied to the Tribunal for review of the delegate’s decision (which was attached to the application) (CB 103-114). On 7 December 2017, the applicants appeared before the Tribunal to give evidence and present arguments (CB 198).
5. On 9 March 2018, the Tribunal wrote to the applicants pursuant to s 359A of the Migration Act 1958 (Cth) (Act) (s 359A letter), inviting them to comment on or respond to information that a certificate had been issued under s 375A of the Act over documents concerning the provision of false information in their visa application (CB 209). On 23 March 2018, the applicants responded to the s 359A letter (CB 211-213). On 26 March 2018, the Tribunal affirmed the decision under review (CB 217).
Tribunal decision
6. The Tribunal noted that the issue on review was whether the applicant met PIC 4020 as required by cl.500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) for the grant of the visa. This required that there was no evidence that the applicant had given, or caused to be given, a bogus document or information that was false or misleading in particular in relation to the application for the visa (PIC 4020(1)) (CB 219, [14]). It noted that the requirements in PIC 4020(1) could be waived if there were certain compelling or compassionate reasons justifying the grant of the visa (CB 220, [15]). It further noted that while PIC 4020 referred to information that was false, in the sense of purposely untrue, it was not necessary for the Tribunal to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, it acknowledged that an element of fraud or deception by some person was necessary to attract the operation of the provision (referring to Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42) (CB 220, [18]).
7. The Tribunal noted that a loan document from Canara Bank was provided as evidence of funds to support the applicant and his family during the first 12 months of their stay in Australia (CB 220, [19]). On 21 October 2016, the Department conducted checks to confirm the information provided, and received unfavourable information as follows (CB 220-221, [20]):
7.1 On 19 September 2016, a fixed deposit was funded from a savings bank of the applicant's father with a balance of 1,000 rupees.
7.2 On 22 September 2016, the fixed deposit received funds from an unidentified third party in the amount of 2,150,000 rupees.
7.3 On 23 September 2016, a loan was sanctioned against the security of the fixed deposit in the name of the applicant's father for 1,935,000 rupees.
7.4 Also on 23 September 2016, the entire loan amount was disbursed back to the savings account.
7.5 On 21 October 2016, being the date of the Department's checks, the account had a balance of 1,000 rupees.
8. The Department concluded, following the above checks, that the funds were not available at the time of application and the loan was only provided to meet the requirements of the visa application. For this reason, the evidence was found by the delegate to be false and misleading (CB 221, [21]).
9. The Tribunal had regard to the applicant's evidence that his father withdrew the Canara Bank loan funds for use in his business, as it was attracting interest without being utilised, and his father needed to keep money in circulation to prevent cash flow problems. The applicant also declared he had maintained sufficient funds in his own account in Australia to fund his studies and was not aware the loan funds had to be kept in an account (CB 221, [22]).
10. The Tribunal recorded that on 14 November 2016, the applicants replied to the Department's invitation to comment on the adverse information, by providing a receipt for $500 paid to the applicant's education provider, a letter in response and a letter from Canara Bank stating that a loan had been sanctioned with $500 remitted to the education provider, and further funds would be remitted subject to the balance in the account (CB 221, [23]).
11. The Tribunal also noted that pursuant to the s 359A letter, the applicants were given particulars of information, that on 20 December 2016 the Department had issued a certificate under s 375A of the Act, and that the information covered by the certificate could not be released but it related to the Department's reasons for refusing the visa application, as set out in the decision record. The applicants were provided with a copy of the certificate and invited to comment on its validity. They were advised that it was relevant to the review because it concerned the provision of false information in his visa application (CB 219, [11]). The applicant's response restated his claims about the bank loan obtained by his father and declared that the he had not provided false or misleading information (CB 219, [12]).
12. The Tribunal recorded that it had considered the applicant's evidence, but found that he had provided information that was false or misleading in a material particular as defined in PIC 4020(5); that is, information that was false or misleading at the time it was given and was in relation to the visa application (CB 221, [24]). The applicant was required to demonstrate access to funds, and according to the Department's investigations, he did not have access to the bank loan funds as claimed, as they had been disbursed back into another account and the relevant account then had a balance that did not meet the financial requirements for the grant of the visa (CB 221, [24]).
13. The Tribunal was not satisfied that the applicant's father arranged the bank loan with the intention of it being available to support the applicant and his family in the first 12 months of their stay (CB 221, [25]). On the applicant's own evidence, the funds were removed in order to avoid having to pay interest on the loan. The Tribunal found that it appeared the loan was in fact obtained only to give the appearance of funds being available for the applicant's education. For this reason, the Tribunal was satisfied that there was an element of deception in the provision of the information (CB 221, [25]).
14. Accordingly, the Tribunal found that the applicant did not meet PIC 4020(1) (CB 221, [26]). As to any compelling or compassionate circumstances for waiving the requirements of PIC 4020(1), the Tribunal noted that no evidence was submitted on this issue (CB 222, [30]). Further, as the applicant did not satisfy the primary criteria, the Tribunal found that the second applicant was unable to meet cl.500.317 of the Regulations as she was not a member of the family unit of a person who satisfied the primary criteria (CB 222, [34]). Accordingly, the Tribunal affirmed the decision under review (CB 222, [36]).”
The Applicant was represented before this Court by his solicitors, Mr Michael Jones. Mr Jones confirmed that the Applicant relied on the Amended Application. The grounds of the Amended Application are as follows:
“1. The Tribunal erred in its interpretation of Public Interest Criterion 4020.
Particulars
The Tribunal found that an isolated piece of information was false or misleading in a material particular. If it had correctly interpreted the criterion it should have considered that piece of information in the context of all of the information provided in relation to the application.
2. The Tribunal denied procedural fairness to the Applicants in relation to a purported certificate under s 375A of the Act.
Particulars
(a) The Tribunal did not provide the Applicants with a copy of the certificate.
(b) The Tribunal did not provide sufficient particulars of the information said to be contained in the documents referred to in the certificate to enable the Applicants to challenge its validity or to respond to any adverse information.”

Ground 1

Mr Jones referred to the following finding made by the Tribunal:
“24. The Tribunal has considered the applicant’s evidence but finds the applicant provided information that is false or misleading in a material particular as defined in PIC 4020(5), that is, information that is false or misleading at the time it is given and was in relation to the visa application. He was required to demonstrate access to funds and according to the Department’s investigations, he did not have access to the bank loan funds because they had been disbursed back into another account that then had a balance that did not meet the financial requirements for the grant of the visa.”
Mr Jones submitted that the false or misleading information was not clearly identified but that it could be inferred that it was concerned with the same “bank loan funds”.
The criteria relating to funds is set out in cl.500.214 of sch.2 to the Regulations as follows:
“500.214
(1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2) While the applicant holds the visa, sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant's intended stay in Australia; and
(b) the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.
(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).”
In relation to cl.500.214(3), legislative instrument IMMI16/018 registered as F2016L00639 specifies that the relevant amount should be sufficient to meet travel expenses and the Applicant’s living costs and the annual course fees for the first 12 months of the Applicant’s stay in Australia. The legislative instrument stated that the funding could be evidenced by:
a. Money deposit with a financial institution;
b. Loan with a financial institution;
c. Government loans; and
d. Scholarship or financial support.
The application for a Student Visa dated 20 August 2016 contained the following answers by the Applicant in relation to questions on ‘Funding for stay’ and ‘Financial support from an individual’ as follows:
“Funding for stay
Do all applicants in this application confirm that they each have access to sufficient funds to support themselves for the total period of stay in Australia and understand that further evidence of funds may also be requested?
Yes
Show how each applicant included in the application will support themselves in Australia to meet living, tuition and school costs. Select any that apply.
Give details:
Financial support from an individual
Other financial support
Bank Loan against the property mortgage
Financial support from an individual
Will the funds be provided by an individual other than the applicant?
Yes
Relationship to the applicant: Parent
Funding type: Loan from financial institution
Approximate value in Australian Dollars (AUD) 45000
Financial institution: PUBLIC SECTOR BANK”
On 16 September 2016, the Department requested further information on the Applicant’s financial capacity. That letter stated that in order to meet expenses for course fees, living costs, school costs and travel costs the Applicant needed to demonstrate that he had access to $37,240. The letter stated as follows:
“The funds shown in the visa application must be available for use to financially support you and any accompanying family members during your stay in Australia. If the funds are held in an account owned by another person, you should provide a signed letter from that person stating that the money is released to you to spend on your studies. You should also provide a copy of identification for that person showing their full name and signature, such as a passport or national identity card.”
On 6 October 2016, the Applicant responded to that request stating “I have got the education loan worth 37,240 AUD sanctioned to meet my expenditure incurred on my study and accommodation.” The Applicant attached a letter dated 26 September 2016 from the Canara Bank in India confirming a “Loan sanction for the purpose of Higher Education”. The purpose of the loan was expressed to be “for financing studies abroad of (the applicant) for pursuing course of Bachelor of Business, Group Colleges Australia Pty Ltd, Australia”.
The nature of the loan was said to be for education purposes against a security deposit. The letter referred to the granting of a loan for education purposes of approximately $35,000 on a security of a little more than that in the name of the Applicant’s father. Under the heading ‘Other Terms and Conditions’, the letter from the Bank stated “Even though the facility is granted to you, Bank reserves the right to recall the facility or alter the terms and conditions at any time, during the currency of the facility.” The letter was addressed to the Applicant’s father.
On 25 October 2016, the Department wrote to the Applicant in relation to adverse information that it had received. The letter stated that the Department had received unfavourable information which did not support the Applicant’s application. The letter stated that the Department had subsequently conducted checks to confirm the information provided in the Applicant’s application with regard to his genuine intention as a student. The letter stated that serious concerns had been raised in relation to the financial support in relation to the application. The letter stated as follows:
“The Department subsequently conducted checks to confirm the information that you provided in your application in regards to your ability to meet the financial criteria for this visa. During this process the Department received unfavorable information which did not support your application. Serious concerns have been raised in relation to evidence of financial support claimed. In your Student Application you have declared access to sufficient funds; however, the recent debits may indicate that the documentation was prepared for the significant purpose of obtaining a Student Visa.”
On 14 November 2016, the Applicant’s migration agent sent a reply from the Applicant dated 10 November 2016 in which the Applicant stated the following:
“I was told at the time of loan sanction that I will be able to access the fund anytime I wish since it has been sanctioned for my study purpose. Till date, I had paid my fees from my sources and I was in the impression that I will approach the bank for money anytime the need arises.
…
I requested manager to remit the loan into my father's account which manager said that we can't do that but we can definitely remit the money to your education provider's bank account. I requested the manager to do so in order to establish the fact that my loan has been genuinely availed by providing all the required documents and by adhering due process of availing the loan.
Yesterday when my father contacted the bank manager to further support us if department of immigration has any further doubts or need more evidence. Bank manager has assured us to support us but he said that the banking sector has stupendous task ahead in the wake of the announcement of Indian Prime Minister to withdraw all the currency of the denomination of 500 and 1000. This move of Indian Prime Minister to curb the black and unaccounted wealth is going to keep banking sector really busy for next fifty days which is the deadline to deposit all the cash in the currency notes of 500 and 1000 denominations. Still he has assured my father to provide all the support. I am here attaching the letter given by the bank manager.
To support the submission I provide the following documents:
1) The remittance evidence of 500 AUP
2) Letter from the bank manager confirming the same”

The Applicant also attached a further letter from the Bank, dated 12 November 2016, which stated as follows:
“We have sanctioned the loan for the higher education for Mr. Kalpeshkumar Jayantibhai Patel against which we have remitted $500 AUD to his education provider (GCA MANAGEMENT SERVICES PTY LTD).
We are pleased to remit further amount upon the request of Mr Kalpeshkumar Jayantibhai Patel for his tuition fees payment subject to the the availability of the balance in his account and his consent as per FEMA guideline.”
On 21 November 2016, the Delegate handed down its reasons for refusing the applicants visa application. The Delegate’s decision record stated that upon receiving unfavourable information in relation to the applicants’ visa application on 21 October 2016, the Department’s New Delhi office had undertaken checks to verify the Applicant’s sponsor’s financial advice being a loan sanction letter from the Canara Bank issued on 26 September 2016 to the Applicant’s father to sponsor the Applicant’s education in Australia. The Applicant’s sponsor was his father.
The Delegate’s decision then recorded the following information having been obtained:
19 September 2016 – fixed deposit funded from a savings bank of sponsor.
22 September 2016 – fixed deposit opened with a balance of INR 2,150,000 “This was a RTGS bank transfer of INR 2,150,000 from a 3rd party details of which cannot be identified.”
23 September 2016 - Loan was sanctioned in the name of sponsor in the amount of INR 1,935,000. The loan was provided against the security of fixed deposit as owned by sponsor.
23 September 2016 – After the loan was sanctioned entire amount was disbursed back into the above saving bank account which currently has an INR of 1,000.
21 October 2016 - Current balance in the account is INR 1,000.
The Delegate found that the above dates indicated that funds were not available at the time of application and that a loan was only initiated after the request for financial evidence was received. The funds having been transferred on 22 September 2016 were then removed on 23 September 2016. Whilst the Delegate’s decision record referred to “August”, that would appear to be a typing error, the correct month being September.
The Delegate found that there were no funds available in the loan account and that the loan was provided only to meet the fund requirements of the application.
Based on that information, the Delegate found that the Applicant had provided misleading documents which brought into question his character. The Delegate found that the documentation was prepared for the significant purpose of obtaining a Student Visa and that the Applicant had provided misleading documents to mislead the Department during the assessment of his claim. The Delegate concluded that the Applicant had provided false and misleading information. The Delegate noted the correspondence between the Applicant and the Department and noted that it had considered the Applicant’s responses.
However, the Delegate found that the Applicant had given information that is false or misleading in a material particular and was therefore not satisfied that the Applicant met the Public Interest Criteria (“PIC”) 4020(1). Accordingly, the Delegate found that the mandatory requirements for the Applicant’s visa, as disclosed in cl.500.217, had not been met and the visa application was therefore refused.
On 1 December 2016, the Applicant lodged an application for review of the Delegate’s’ decision.
On 21 March 2018, the Applicant sent a letter to the Tribunal stating that when funds for his Student Visa were required the Applicant’s father took a loan from the bank which was sanctioned against a fixed deposit in the father’s name. The Applicant stated that his father put money into the fixed deposit to provide the security for the loan withdrawing cash from his business. The Applicant’s letter stated that the loan was sanctioned and acknowledged that the funds and deposit were dispersed into the savings account. The Applicant stated that once the loan was dispersed into the father’s savings account the father withdrew the funds to be used in the business because it was attracting interest without being utilised. The Applicant stated that the loan amount was much smaller than the fixed deposit.
At the end of the letter, the Applicant stated that he was not aware that it was a requirement that the money from the bank loan had to be kept in the same account throughout the visa processing period.
The Tribunal considered in some detail whether the Applicant met the requirements in PIC 4020(1). It noted that PIC 4020 applies whether or not the document or information was provided by the Applicant knowingly or unwittingly.
The Tribunal found that the documents provided by the Applicant to the Department were determined to be “none genuine”. The Tribunal then recounted the transactional history referred to above. The Tribunal noted that the Delegate concluded that the funds were not available at the time of application and that the loan was only provided to meet the requirements of the visa application and for that reason the evidence was found to be false and misleading.
The Tribunal referred to the Applicant’s evidence that it was his father who was his sponsor and who withdrew the loan funds for use in his business as it was attracting interest without being utilised.
Ultimately, the Tribunal found that the Applicant had provided information that is false or misleading in a material particular as defined in PIC 4020(5), being information that is false or misleading at the time it was given and was in relation to the visa application. The Tribunal stated that the Applicant was required to access funds and according to the Department’s enquiries, the Applicant did not have access to the bank loan funds because they had been dispersed back into another account and that the balance did not meet the financial requirements for the grant of the visa.
The Tribunal was not satisfied that the Applicant’s sponsor arranged the bank loan with the intention of it being available to support the Applicant and his family in the first 12 months of study and stay in Australia. The Tribunal again referred to the Applicant’s own evidence that the funds were removed in order to avoid paying interest on the loan.
The Tribunal found that the loan was in fact obtained to give the appearance of funds being available for the Applicant’s education and for this reason there was an element of deception in the information.
The Applicant’s solicitor submitted that the Tribunal’s finding that the movement of money from the fixed deposit to the savings account of the father being intentionally misleading, failed to take account of the context in which the loan itself had not actually been dispersed and that the Applicant was actually able to carry on with his studies. The Applicant’s solicitor also referred to the fact that the amount held in a fixed deposit at 19 September 2019 was at that time approximately equal to $43,000, being more than the $37,240 that the Applicant was required to evidence.
The first respondent’s solicitor submitted that the intent of PIC 4020 is to maintain the integrity of the visa system by ensuring that a visa can be refused if false or misleading information relevant to the visa criteria is given by an applicant and, the question of whether information is false or misleading in a material particular for the purposes of PIC 4020, is a question that may be determined at any time during the visa application process. The first respondent’s solicitor submitted that the Tribunal considered all of the Applicant’s relevant circumstances, including the Applicant’s submission that the funds had been removed from the loan account during the visa application process. The first respondent submitted that in the circumstances it was open to the Tribunal to conclude that there was an element of deception in the information given by the Applicant regarding his financial circumstances.
The first respondent contends that because the loans are expressed to be for the education purposes of the Applicant, it was misleading for the funds to be provided to the Applicant by his father and then be removed by his father the following day for use in the father’s business. That was what the evidence before the Tribunal indicated.
In those circumstances, it was misleading to suggest that the funds had been provided for educational purposes as required by cl.500.214 of the Regulations because as at 23 September 2016, following the withdrawal of funds for use in the Applicant’s fathers business, the Applicant no longer had funds to demonstrate evidence of financial capacity available for use to financially support the Applicant and members of his family. In his visa application the Applicant stated that he would have access to funds for the total period to stay in Australia. The Applicant did not have access to funds on 23 September 2016.
Moreover, the Applicant was informed by the Department’s letter on 16 September 2016 that if the funds were held in an account owned by another person, which in this case was the Applicant’s father, the Applicant should provide a signed letter from the father stating that the money is released to the Applicant for use in his studies. However, the only evidence before the Tribunal was the transaction recorded in the Delegate’s decision and the Tribunal’s decision. That evidence clearly demonstrates that whilst there were sufficient funds by way of fixed deposit on the 22 September 2016, those funds were transferred back to the father’s savings bank account on 23 September 2016.
The timeline demonstrates that funds were not available at the time of application; that a loan was only initiated after the request for financial evidence was received and, the funds were transferred in on 22 September 2016 and removed on 23 September 2016. As the Tribunal found, on the Applicant’s own evidence, the funds were removed in order to avoid having to pay interest on the loan. In those circumstances, the Tribunal found that the loan was in fact obtained only to give the appearance of funds being available for the Applicant’s education. Yet the day after the funds were deposited they were withdrawn for the business purposes of the father. In those circumstances, it was open to the Tribunal to find that there was an element of deception in the provision of the information that the bank loan guaranteed by the deposit was able to support the applicant and his family in the first 12 months of his study and stay in Australia.
In the circumstances, the Tribunal found the Applicant did not meet PIC4020(1). There is no requirement as to the time the information is given. As Wigney J stated in Kaur & Ors v Minister for Immigration and Border Protection and Anor [2014] FCA 281 at [42]:
“42. In any event, criterion 4020 should not be construed in the narrow and restrictive way contended by Ms Kaur. Information can be false or misleading in a material particular within the meaning of criterion 4020 even if its relevance to criteria the Minister may consider when making a decision on the application only arises or becomes apparent when the Minister makes the decision. There is no requirement that the relevance and materiality of the information to the criteria must be tested at the time the information is given by the visa applicant and at no later time. Rather, relevance and materiality may be considered at any time up to the time the Minister makes his decision. This construction of criterion 4020 is supported by the text of criterion 4020, as well as the subject matter, scope and purpose of the relevant provisions: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320.”
Contrary to the allegation in Ground 1, the Tribunal considered the information in relation to the Applicant’s financial capacity in the context of all the information provided in relation to the application.
The Tribunal’s findings were not such that no reasonable decision maker could have made them (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) and, accordingly, did not lack an evident and intelligible justification. That justification is as recited above. The matters considered by the Tribunal in relation to those findings were logically probative of the issue, namely whether the Applicant had provided false or misleading information in relation to a material particular. The Applicant himself conceded that the funds had been transferred out of the account, as evidenced by the Applicant’s oral and written evidence that the Applicant’s father, being his sponsor, withdrew the loan funds for use in his business as it was attracting interest without being utilised.
The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal’s findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issues. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496, 507-9, [36]-[38]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 130-131 [83]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, [30]).
In such circumstances, to provide documents from the bank stating that the funds were for “financing studies abroad” of the Applicant and for education purposes, it is misleading to provide evidence of funds that were able to be transferred were, in fact, transferred at the will of the Applicant’s father for his business interests.
Accordingly, Ground 1 is not made out.

Ground 2

The Applicant’s solicitor withdrew reliance on Ground 2(a).
Ground 2(b) contends that the Applicant was denied procedural fairness in relation to a certificate issued under s.375A of the Migration Act 1958 (Cth) (“the Act”) in that the Tribunal did not provide sufficient particulars of the information said to be contained in the documents referred to in the certificate to enable the Applicant to challenge the validity of the certificate or to respond to any adverse information.
On 20 December 2016, the Department issued a certificate under s.375A of the Act in which it was stated that disclosure would be contrary to the public interest because “folio 01 – 04: contains departmental case-notes which refer to information provided in confidence by informant (s) disclosure of which may lead the review applicant to identify the informant (s) and may lead to injury or danger to that person.”
On 9 March 2018, the Tribunal wrote to the Applicant referring to the particulars of the information covered by the s.375A certificate and advising the Applicant that the information “relates to the departments reasons for refusing your visa application, as set out in the decision record dated 22 November 2016.” The Tribunal attached a copy of the certificate and invited the Applicant to comment on its validity. The Tribunal then identified the information as relevant to the review “because it concerns the provision of false information in your application for a visa. If the Tribunal relies on this information in making a decision, it may lead to the decision under review being affirmed. However, as the information covered by the certificate relates to the reasoning in the department’s decision, the Tribunal does not intend to rely on it.”
In its decision record the Tribunal noted that it wrote to the Applicant on 9 March 2018 inviting him to comment on information, the particulars of which were that, on 20 December 2016, the Department issued a certificate under s.375A of the Act regarding the disclosure of certain information. The Tribunal noted that the Applicant was informed that information covered by the certificate could not be released but that the information related to the Department’s reasons for refusing the visa application, as set out in the decision record dated 22 November 2016. The Tribunal noted that the Applicant had been provided with a copy of the certificate and had been invited to comment on its validity. The Tribunal also noted that the Department’s decision record, dated 22 November 2016, had also been provided to the Applicant. The Tribunal further noted that the Applicant was advised that the information was relevant to the review because it concerned the provision of false information in the Applicant’s application for a visa.
In particular, the Tribunal noted that the Applicant was told that the Tribunal would not be relying on the information covered by the certificate but because it was before the Tribunal it was provided to the Applicant and he was invited to comment on it.
The Tribunal noted that on 23 March 2018 it received a further statement from the Applicant in which he restated his claims about the bank loan obtained from his father which the Applicant stated was sanctioned against a fixed deposit of a greater amount. The Tribunal noted that the Applicant had declared that he had not provided false or misleading information and had not been aware that the bank loan had to be kept in the same account during the visa processing period. The Applicant otherwise did not address the Tribunal’s letter inviting him to comment on or respond to the information. That is the only reference to the s.375A letter in the Tribunal’s reasons. The reasons plainly confirm what the Applicant was told by the Tribunal on 9 March 2018 that the Tribunal would not be relying on the information contained in the certificate which was again repeated in the Tribunal’s decision record.
The Applicant’s solicitor submitted that the fact that the Tribunal said it did not give consideration to the information did not absolve the Tribunal from affording procedural fairness to the Applicant to the fullest extent possible within the constraints of the legislation. In support, Mr Jones referred to VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72.
Mr Jones submitted that the Tribunal should have specified to what extent the information corroborated the reasoning of the Delegate.
However, as submitted by the first respondent, in the absence of any evidence to the contrary the Court is entitled to take the Tribunal at its word that it did not rely on the information covered by the certificate (see Le v Minister for Immigration & Anor [2019] FCAFC 187 at [38]).
Further, I agree with the first respondent’s submission that in circumstances where the Tribunal confirmed that it did not have regard to the information covered by the certificate any breach of procedural fairness arising in respect of the certificate could not be said to be material to the decision. A fair reading of the Tribunal’s decision does not suggest otherwise.
Accordingly, Ground 2(b) is not made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant and had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 6 November 2019