Prajapati v Minister for Immigration

Case •

[2015] FCCA 231

•

6 February 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRAJAPATI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 231
Catchwords:
MIGRATION – Application for review of the decision of the Migration Review Tribunal – whether Tribunal constructively failed to exercise its jurisdiction – whether Tribunal failed to have regard to relevant evidence for the purposes of Sch.5A502 of the Migration Regulations 1994 (Cth) – whether Tribunal complied with s.359A of the Migration Act 1958 (Cth) – whether Tribunal denied applicant procedural fairness – jurisdictional error found – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.366, 357A, 359A, 368, 430, 476

Migration Regulations 1994 (Cth), Schedule 2, Schedule 5A
Minister for Immigration and Citizenship v SZLSP  [2010] FCAFC 108
Tonto Home Loans Australia Lty Ltd v Tavares [2011] NSWCA 389
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411
Minister for Immigration & Ethnic Affairs v Wu Shan  Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 (2006) 151 FCR 214
Saeed v Minister for Immigration and Citizenship [2010] HCA 23)
Applicant: NIRMAL PRAJAPATI
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 2308 of 2013
Judgment of: Judge Nicholls
Hearing date: 16 October 2014
Date of Last Submission: 16 October 2014
Delivered at: Sydney
Delivered on: 6 February 2015

REPRESENTATION

Counsel for the Applicant: Mr J Young
Solicitors for the Applicant: Shamser Thapa & Associates
Counsel for the Respondents: Mr P Knowles
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 5 September 2013.

  2. A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2308 of 2013

NIRMAL PRAJAPATI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 26 September 2013 and amended on 27 November 2013 and further amended on 12 August 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 September 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a Student (Temporary) (Class TU) visa (“the visa”) to the applicant.

Background

  1. The evidence before the Court is contained in a bundle of relevant documents filed by the Minister in these proceedings (“the Court Book” – “CB”). The following background is relevant to understanding the applicant’s case.

  2. The applicant is a citizen of Nepal. He applied for a student visa on 24 March 2011 (CB 1 to CB 7). The visa for which he applied contained a number of subclasses of visas. For current purposes the relevant subclass, at the time of the Tribunal’s decision, was subclass 573 (“Higher Education Sector”), of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). One of two criteria for the grant of the visa, as set out in cl.573.223(2)(a)(i) of the Regulations, was that the applicant was required to give the Minister certain evidence, as referred to in Sch.5A to the Regulations.

  3. This meant, relevant to the applicant’s case, that he was required by Sch.5A505(1) of the Regulations, to demonstrate that he had financial capacity to meet study and living needs, for the duration of the visa. He was required to show that he had sufficient “funds from an acceptable source”.

  4. That term is defined at Sch.5A505(2) of the Regulations (as at the relevant time) (relevantly):

    “5A505  Financial capacity

    (2)  In this clause:

    …

    funds from an acceptable source means one or more of the following:

    (aa) if paragraph (a) does not apply—a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

    (b) a loan from a financial institution made to, and held in the name of, an acceptable individual;”

  5. In support of his application, on 18 April 2011, the applicant provided a number of documents to the delegate. Relevant to the dispute before the Court now, one of those documents was a letter from the Nabil Bank (in Nepal), which on its face evidenced an educational loan by way of a line of credit, obtained by the applicant’s father, and which the Nabil Bank had approved on “7-4-2011” (CB 22 to CB 23) (“the first Nabil Bank letter”).

  6. The delegate refused the application for the visa on 16 May 2011 (CB 33 to CB 37). The reason for the decision was said to be that the applicant had not demonstrated “financial capacity”, as required by cl.573.223 of Schedule 2 to the Regulations. The delegate found that the letter from the Nabil Bank had been forged (at CB 34.7):

    “…Mr Vikas Shrestha, the Officer of Nabil Bank, had verified that the claimed educational loan was not sanctioned from the branch. The educational loan letter provided by you is completely forged, as per the Bank…”

  7. The applicant applied for review by the Tribunal on 30 May 2011 (CB 38 to CB 44). On 12 July 2013 the Tribunal sent an invitation to the applicant to appear at a hearing. That letter also invited the applicant to provide information, including, that he demonstrate that he met the financial capacity criterion, as set out in cl.573.223(2)(a)(iii) of the Regulations (CB 57 to CB 65 and see in particular CB 58).

  8. The applicant responded by providing various documents (CB 68 to CB 82). He attended the hearing before the Tribunal on 16 August 2013. The Tribunal’s decision record reports that the matter of financial capacity was discussed (see [34] – [39] at CB 161):

    “[34] As to the financial capacity evidence, which was a bank deposit, the Tribunal said that it did have some concerns as to the genuineness of the document, given the Department's previous finding. The Tribunal also noted that the applicant had not provided evidence of such deposits 6 months prior to the time of visa application, 24 March 2011. The Tribunal said it needed to see documentary evidence of this. He said it would not be a problem to provide this.

    [35] As to how the applicant's parents were able to have this financial capacity, and as to their available income, the applicant said that his father is a businessman who sells CDs and tea wholesale, and also has a cybercafé. The Tribunal said it needed documentary evidence of his father's source of income.

    [36] As to access to funds, the applicant said it was not via bank transfer. It was via a money agent and he would pick it up and put in the bank. As to the name of the money agent, he thought it was Thapas.

    [37] The Tribunal said that it needed documentary evidence of the money that had been sent to him by his parents from 2011 to now. It needed to see the money transfers and also the deposits into his bank account.

    [38] The Tribunal noted that the applicant has already provided documentary evidence to show he meets the English and Other requirements.

    [39] The Tribunal gave the applicant 2 weeks to provide all further documentary evidence.”

  9. On 30 August 2013 the applicant provided further documents in support of his application (CB 83 to CB 152). Relevant to the current dispute, this bundle of documents included another letter from the Nabil Bank, dated 23 August 2013 (“the second Nabil Bank letter”), which related to the education loan (line of credit) of 7 April 2011. That letter was in the following terms (CB 84):

    “…

    To Whom It May Concern

    This is to certify that Mr. Bijaya Prakash Prajapati resident of Bolachhen -12, Bhaktapur, Nepal had taken Education Loan of NRP 6,60,0000.00 ( NRP Six Million Six Hundred Thousand only) for Mr Nirmal Prajapati to study Diploma of Management and Bachelor of Professional Accounting at Advanced Academy Pty Ltd and Central Queensland University. This bank loan was approved on 07.04.2011 and with reference was EDU/DM/00045/2011.

    We would like to advise that Mr Bijaya Prajapati has settled this loan advising that Mr Nirmal Prajapati had access to alternative funds for this study. Nabil Bank Limited takes no responsibility for the payment of tuition fees, accommodation and travel expenses.

    ...”

    [Emphasis added.]

  10. Before the Court there was some difference between the parties as to the nature, or understanding, of some of the findings made by the Tribunal (or indeed whether it made relevant findings). The background to understanding the parties’ submissions to the Court is as follows.

  11. The Tribunal noted, that the delegate found, that the applicant failed to demonstrate financial capacity, and therefore, did not meet cl. 573.223(2)(a)(i)(B) of the Regulations. The Tribunal found that that subclass was not in existence as at the date of application, and that consequently the delegate’s decision was made under the “wrong subclass” ([41] at CB 161 to CB 162). The Tribunal found that the decision should have been made with reference to cl.573.223(2)(a)(i) of the Regulations. That is, and consequently, with reference to Sch.5A of the Regulations, concerning the requirements relating to financial capacity.

  12. Having determined the relevant “assessment level”, derived from the circumstances presented, the Tribunal considered the relevant Sch.5A requirements. In particular the requirement to give evidence of funds from an acceptable source, and, in relation to the total amount of the funds necessary in the applicant’s circumstances ([48] – [59] at CB 162 to CB 163). [The amount was said to be $75,000.]

  13. The Tribunal then addressed the question of whether the applicant had provided evidence of “funds from an acceptable source”, such as to meet this amount. The Tribunal found that the relevant parts of Sch.5A of the Regulations, for current purposes, was Sch.5A505(2)(aa) and (b) of the Regulations (see [5] above).

  14. The following paragraphs of the Tribunal’s subsequent analysis are relevant to understanding the submissions made to the Court ([61] – [62] at CB 164 and [65] – [70] at CB 164 to CB 165):

    “[61] The applicant has provided documentary evidence of a current money deposit in Nabil Bank, by way of letter dated 12 August 2013, which states that his father, Bijaya Prakash Prajapati, has a balance 7,000,803 NPR, and that he has been maintaining an account since 4 March 2011. This converts to $77,922 approximately (Xe.com, accessed 16 August 2013).

    [62] The Tribunal does have concerns as to the genuineness of these recent documents, given the Department's finding that fraudulent documents were provided in the past. However, for the purposes of argument the Tribunal will accept that they are genuine.

    …

    [65] The Tribunal thus finds that this bank is a 'financial institution' for the purposes of the regulations. The Tribunal finds that the applicant's father is an acceptable individual under the relevant definition, and the relationship is confirmed by the documentary evidence.

    [66] Whilst it appears the applicant has sufficient funds now, it is also a requirement under (aa) that such money deposit have been held for 6 months prior to the date of visa application.

    [67] The Tribunal notes that as the applicant provided evidence of a loan at the time of visa application, no savings history was provided at that time. Further, the evidence from the Nabil Bank before the Tribunal is that his father, Bijaya Prakash Prajapati, has had an account with the bank only since 4 March 2011. The date of visa application was 24 March 2011.

    [68] The applicant has provided documentary evidence of savings of his father with Param Saving & Credit, Nepal, but this is for the period from 30 January to 11 March 2013.

    [69] The applicant was advised at the hearing that he would need to provide documentary evidence to show a history of money deposits for 6 months prior to the time of visa application but he has not provided this. Thus he does not meet (aa) of the definition of 'funds from an acceptable source' and the Tribunal finds that he does not meet any of the other paragraphs either.

    [70] The Tribunal is therefore not satisfied that the applicant has 'funds from an acceptable source' that are sufficient to meet expenses for course fees, living costs for the first 36 months and travel costs.”

The Application before the Court

  1. The grounds of the application to the Court, as further amended, are in the following terms:

    “1. The Second Respondent made jurisdictional error by constructively failing to exercise jurisdiction concerning evidence of a loan from a financial institution made to and in the name of an acceptable individual.

    2. The Second Respondent made jurisdictional error in that it failed to carry out its statutory jurisdictional task to review the decision of the Departmental delegate that a letter from Nabil Bank dated 7 April 2011 in respect of an educational loan was ‘completely forged’.

    3. The Second Respondent made jurisdictional error by failing to have regard to critical relevant evidence being the document dated 23 August 2013 from Nabil Bank.

    4. The Second Respondent made jurisdiction error by failing to comply with section 359A of the Migration Act 1958 in relation to any information from Nabil Bank to the effect that a loan letter dated 23 April 2011 was forged and/or the claimed educational loan was not sanctioned by the Bank.

    5. The Second Respondent made jurisdiction error by denying the Applicant procedural fairness in that it informed him ( in effect or in terms) at the hearing that he could not succeed on his application in respect of a loan from Nabil Bank because the Department had found the relevant documents were fraudulent.”

    [Error in the original.]

The Submissions

  1. The applicant’s submissions identified the “critical” relevant “document” in the material before the Tribunal, as being the letter of 7 April 2011 from the Nabil Bank, reproduced at CB 22 and CB 23. That letter confirmed an offer made by the Nabil Bank to the applicant’s father of an “education loan”, in relation to the applicant’s study for a particular course in Australia. The letter also identified the education loan as being in the nature of a “line of credit” (CB 22.2). This letter was provided by the applicant in support of his application for the visa.

  2. The Minister’s delegate refused the grant of the visa on 16 May 2011 (CB 33 to CB 37). In her reasons for decision, the delegate, amongst other matters, and as set out above (at [7]), relied on information that the letter was “completely forged”.

  3. The Tribunal recorded this in its decision record ([19] from CB 159):

    “[19] The Department refused the visa application on 16 May 2011. The delegate found that the applicant had failed to demonstrate financial capacity and did not meet cl.573.223(2)(a)(i)(B). The delegate found that the Nabil Bank loan letter was forged, after officers had spoken to the Bank.”

  4. The applicant submitted that there did not appear to be any other information before the delegate, or the Tribunal, in relation to this matter. That is, the delegate relied on the statement, as reported, from the “officer” of the Nabil Bank.

  5. The applicant’s submissions ranged over a number of matters. First, that the Tribunal’s task was to review the delegate’s decision. While the Tribunal may, of course, record what was done by the delegate, it is obliged to (independently) conduct the review, and make its own findings of fact, on the evidence presented, and as relevant to the criteria for the grant of the visa.

  6. Second, in its report of what occurred at the hearing with the applicant the Tribunal stated ([29] at CB 160):

    “[29] The Tribunal then referred to the Department's finding that the applicant had provided fraudulent documents. He said he was surprised about this and was of the view that the loan and the documents were genuine. The Tribunal noted it had no documentary evidence from the bank to show this was the case.”

  7. Third, the Tribunal did not send any letter, pursuant to s.359A of the Act, to the applicant, concerning the “issue of the genuineness of the documents” (oral submissions).

  8. Fourth, these matters suggest that the Tribunal may have “adopted” the finding of the delegate in relation to the Nabil Bank documents. That is, that that document was forged. However, the applicant noted that before the Court, the respondent did not submit this to be the case.

  9. Fifth, after the Tribunal hearing, the applicant provided a number of documents to the Tribunal. Amongst these documents was a letter from the Nabil Bank dated 23 August 2013 (the terms of that letter are reproduced at [10] above) (“the second Nabil Bank letter”).

  10. In this regard, the applicant referred to [18] of the Tribunal’s decision (at CB 159), and particularly, the third dot point (at CB 159):

    “[18] On 24 March 2011 the applicant lodged the current student visa application. On 18 April 2011 the applicant provided documentary evidence to the Department. The following relevant documents are on the Department file:

    …

    - Nabil Bank, education loan facility, Bijaya Prakash Prajapati, 7 April 2011, 6,600,000 NPR, secured by mortgage

    …”

  11. Further, he referred to [40] (at CB 161) at the first dot point only:

    “[40] On 30 August 2013 the applicant provided the following documentary evidence:

    Nabil Bank, letter, 23 August 2013, stating that on 7 April 2011 the bank made an education loan to Bijaya Prakash Prajapati for 6,000,000 NPR, for the applicant's study in Australia, and that this loan has since been settled.

    …”

    [This refers to the document reproduced at [10] above. That is, the second Nabil Bank letter.]

  12. The applicant’s argument is that the Nabil Bank advised that the applicant’s father had “settled this loan” (in context, the loan to which the letter from the Nabil Bank of 7 April 2011 related, and which was subsequently found to be a forgery by the delegate).

  13. In short, the contention was that the Tribunal had before it in evidence that as at 7 April 2011, the applicant had access to certain funds, and the Tribunal did not deal with this matter in light of the second Nabil Bank letter. The argument was that the Tribunal should have dealt with this, given that one of the criteria for the grant of the visa, with reference to cl.573.222(2)(a)(iii) of the Regulations, and to which the Tribunal should have had regard in light of the Nabil Bank letter, was whether it could be satisfied that the applicant had access to funds, in accordance with Sch.5A of the Regulations.

  14. To support this proposition the applicant referred to Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (“SZLSP”) per Kenny J at [55]:

    “[55] In a case such as the present, it will always be possible to speculate that the Tribunal has relied on absent and unidentified probative material, but it will rarely be possible to establish that fact with any degree of confidence. In the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal’s written statement under s 430 sets out what were in fact the reasons for the Tribunal reaching the decision set forth in that statement; the findings set out therein are the findings the Tribunal actually made and considered material to its decision; and the evidence and other material referred to therein is in fact the evidence and material on which the Tribunal based those findings. To do otherwise would transform judicial review into an exercise in divination of the sort s 430 was designed to avoid. Considering the function of s 430, a reviewing court should not depart from this approach unless there is a sound reason to do so. I conclude that there is no such reason here.”

  1. As I understand the applicant’s case, there are two potential ways the applicant could have satisfied the criterion, relevant to funds from an acceptable source. As set out above, these were found at (aa) and (b) of Sch.5A505(2) of the Regulations (see [5] above and note Sch.5A505(1) of the Regulations). The applicant’s argument was that whatever the Tribunal did in relation to (aa), it did not consider the evidence in relation to whether the applicant may have satisfied (b). That is, the matter of the Nabil Bank loan to his father. It was obliged to do so. Its failure to do so, and make a finding in this regard, underpins the first three grounds of the application to the Court. (For the other grounds see further below).

  2. It is the case that at [60] (at CB 164) the Tribunal noted that “in this case”, “funds from an acceptable source” would have to arise from one of the two matters as set out at Sch.5A505(2)(aa) or (b) of the definition of that term, in the Regulations. The applicant submitted that the Tribunal considered and made findings as against (aa), and while it recognised the potential relevance of (b), and noted some of the evidence relevant to it, it gave no consideration, nor made findings relevant to, the question of whether the applicant satisfied Sch.5A505(2)(b) of the Regulations, in relation to funds from an acceptable source. If the applicant could show that he met at least one of these then he could meet the relevant part of the criteria at cl.573.223 (2)(a)(iii) of the Regulations for the grant of the visa.

  3. The Minister had two answers to this argument. First, and primarily, the Tribunal was not required to consider the issue of the education loan to the applicant’s father (that is “(b)”) because of the way the review developed. This was explained by the following.

  4. The first Nabil Bank letter related to the education loan. However, by the time the Tribunal had come to consider the applicant’s case, the education loan was not a “live” issue. This is because the applicant himself gave evidence that he was not relying on the education loan, and was reliant only on an alternate source of funding to meet the relevant criteria.

  5. The Minister referred to the only evidence before the Court, of what occurred at the Tribunal hearing. That is the Tribunal’s account, as set out it its decision record. The Tribunal reported on the following exchange ([29] at CB 160):

    “[29] The Tribunal then referred to the Department's finding that the applicant had provided fraudulent documents. He said he was surprised about this and was of the view that the loan and the documents were genuine.  The Tribunal noted it had no documentary evidence from the bank to show this was the case.”

  6. The Minister submitted that this exchange was important because, after the hearing, the applicant provided the second Nabil Bank letter of (23 August 2013) (CB 84) to the Tribunal. The reason for the provision of this letter was said to be important.

  7. The Minister’s view, was that the second Nabil Bank letter was not submitted for the purpose of establishing that the education loan was still available, but for the purpose of supporting the applicant’s credit, and to persuade the Tribunal that it could now rely on the set of documents he had submitted to it on 30 August 2013. That is, the applicant no longer relied on the education loan, but on funds held in bank deposits. (That is, relevant to (aa), and not (b), as they appear in the definition of “funds from an acceptable source”, as they are defined in Sch.5A505(2) of the Regulations).

  8. It appears that there were at least two matters about which the parties agreed before the Court.

  9. First, that in relation to the first letter, the Tribunal made no finding, either express or implied, that it was forged. That was the delegate’s finding. Where the parties disagree on this point is that the applicant says the Tribunal should have made a finding that either the letter was forged, or not, because it was relevant to the necessary consideration of the matter at (aa). The Minister says no such finding was necessary.

  10. Second, submissions before the Court focussed, in part, on [61] and [62] of the Tribunal’s analysis (at CB 164):

    “[61] The applicant has provided documentary evidence of a current money deposit in Nabil Bank, by way of letter dated 12 August 2013, which states that his father, Bijaya Prakash Prajapati, has a balance 7,000,803 NPR, and that he has been maintaining an account since 4 March 2011. This converts to $77,922 approximately (Xe.com, accessed 16 August 2013).

    [62] The Tribunal does have concerns as to the genuineness of these recent documents, given the Department's finding that fraudulent documents were provided in the past. However, for the purposes of argument the Tribunal will accept that they are genuine.”

  11. It appeared both parties agreed on the “construction” to be given to this analysis. That is, that the Tribunal’s reference at [62] (at CB 164) is a reference to documents (as referred to in [61] at CB 164) which were given in support of the claim of sufficient funds held on bank deposit, not relevant to the education loan.

  12. Further, that by the reference to “for the purposes of argument”, as it also appears in the last sentence of [62] (at CB 164), the Tribunal meant that it would proceed on the assumption that the same documents were genuine. The Minister’s position was that the Tribunal did not need to make a finding as to the genuineness of the documents because, even if they were taken as being genuine, they did not establish that the relevant funds were held for six months prior to the visa application being made, as was required by Sch.5A505(2)(aa) of the Regulations.

  13. The Minister agreed that the applicant was not restricted to seeking to meet only one of either (aa) or (b) (either as at Sch.5A505 (1) or (2) of the Regulations). Therefore, theoretically, the second Nabil Bank letter (CB 84) could have been provided to support a reliance on the continuing existence of the education loan, as well as the applicant’s credit in relation to the subsequent documents, relating to the disputed funds.

  14. However, the Minister submitted that the terms of the letter itself argue against such a proposition. I agree with the Minister. The second Nabil Bank letter has two paragraphs. The first asserts that the applicant’s father had taken out an education loan with the Nabil Bank. The letter confirms that this “bank loan” was approved on “07-04-2011”. This was the same date as the education loan, as referred to in the Nabil Bank letter reproduced at CB 22 to CB 23. Further, the first paragraph of the second Nabil Bank letter provides a reference number for this loan, which is identical to the reference number of the document of 7 April 2011 (see CB 22.2).

  15. That paragraph, on its own, does support the applicant’s contention that, in effect, the document on 7 April 2011 was genuine, and, therefore, should have been considered by the Tribunal.

  16. However, the second paragraph of the second Nabil Bank letter strongly supports the Minister’s position. The second paragraph advises the reader of the letter, that the applicant’s father had “settled” [in context, the education loan] on 7 April 2011, and that the applicant’s father had advised the Nabil Bank that his son had access to “alternative funds” for his study.

  17. The letter’s final statement that the Nabil Bank “takes no responsibility for the payment” of the applicant’s study expenses, in my view, and on balance, relates to the education loan.

  18. In light of the various support for each parties’ position, derived from the second Nabil Bank letter, the terms of the first Nabil Bank letter are, therefore, important. First, it was a letter of offer, as it plainly states, of an “EDUCATION LOAN facility”. That facility was in the guise of a “line of credit”, extended to the applicant’s father.

  19. Second, the “limit” (see for example item “B” at CB 22.6) of the line of credit was the “Loan Amount”, referred to at “A” at CB 22.3. That is, the applicant’s father was provided with a facility, by way of line of credit, limited to a particular amount, to enable the drawing of funds, to support the applicant’s study in the academic course, as also described at “A” at CB 22.3.

  20. The terms of this facility, consistent with the operation of a line of credit, contemplated that the applicant’s father could “demand” “payment” of funds from the Nabil Bank, to an amount within the line of credit limit, and that he did not have to “demand” the total amount up to that limit at any one time. (See for example the reference to “unutilized limit” at “A” – “Commitment Free” – CB 22.4, and item 1 at CB 23.7).

  21. There was a dispute between the parties, before the Court, as to the meaning of “settled this loan”, as it appears in the second paragraph of the second Nabil Bank letter.

Consideration

  1. The applicant argued that the use of the word “settled” did not mean to convey the idea that the loan was still not available. The applicant argued that the Tribunal’s “assumption” that this is what was meant, is a constructive failure to exercise its jurisdiction. The applicant relies on SZLSP to submit that the Tribunal was “bound”, under s.368 of the Act to provide a statement which sets out its reasons for affirming the delegate’s decision. This requires it to make findings on material questions of fact, with reference to the material on which those findings were based. In short, the Tribunal made no finding, or expressed no finding in its decision record, concerning the status of the education loan facility, as at the time of the making of it decision.

  2. The Minister’s answer was that in the circumstances as ultimately presented to the Tribunal, there was no obligation on the Tribunal to make any such finding. This is said to be because by the time of the Tribunal’s consideration, the applicant no longer relied on the education loan, as a basis for satisfying the requirement that he had available funds to meet his study and living needs (“funds from an acceptable source”). The proper meaning and understanding of the word “settled”, as it appears in the second Nabil Bank letter, is one element in revealing that the applicant no longer relied on the education loan.

  3. Dealing first with the word “settled”. The Minister argues that the word “settled” can be used in matters of commercial transactions as a description of the point in time when funds are “drawn down”, that is in effect, “paid” by a lender to a borrower (see the Minister’s reference to Tonto Home Loans Australia Lty Ltd v Tavares [2011] NSWCA 389 at [5], [67] and [68]).

  4. However, the Minister says that in the context of the relevant circumstances of this case, it is clear that what was meant by the letter was that the applicant’s father had “settled” (in the sense of “revoked”) the loan, because the applicant had, by that time, access to another source of funds. That is, the money deposits evidenced in the documents, otherwise submitted by the applicant, in support of the second Nabil Bank letter. The Tribunal plainly addressed these documents in its consideration of (aa) (“funds from an acceptable source” – see at [61] – [69] at CB 165 to CB 165).

  5. I agree with the Minister that this view of the material before the Tribunal is a reasonable view and one open to be taken on that material. Further, I also agree with the Minister that it is reasonably open to the take that view as arising from the context in which the second Nabil Bank letter was given to the Tribunal.

  6. In essence, the Minister’s argument is that an inference can be drawn from the terms of the letter itself, and the context in which it was given to the Tribunal, that the matter of the loan was no longer a live issue being pressed by the applicant, and, therefore, in that circumstance, the Tribunal had no obligation to deal with it.

  7. However, this, in my view, does not address the more nuanced argument advanced on behalf of the applicant before the Court.

  8. The applicant referred to SZLSP at [55] per Kenny J. Neither party referred to the context in which that paragraph appears, in the reasoning of Her Honour in that case. In this light, it is important to note that at [54] of SZLSP, it was made clear that a mere failure to comply with s.430 of the Act (and in the current case this also applied to the Tribunal’s obligation under s.368 of the Act) does not constitute jurisdictional error (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [41]-[46] per Gleeson CJ, Gummow and Heydon JJ; and Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at [70] per Tracey J).

  9. However, what I respectfully draw from [55] of SZLSP, is that it is not for the Court to speculate, or engage, in a process of speculation or “divination” as to the Tribunal’s reasoning and findings. In effect, the statement of reasons must, when read fairly, speak for itself.

  10. It is well settled, and trite to say, that the Court cannot substitute its findings of fact for those of the Tribunal. That, plainly, constitutes impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan  Liang [1996] HCA 6; (1996) 185 CLR 259). Nor is the Court able to make findings of fact about matters that properly should have been addressed by the Tribunal, in the proper exercise of its jurisdiction to review the delegate’s decision.

  11. In the current case there may well be matters (as set out at [55] - [57] above) where certain findings of fact may have been available to the Tribunal on the material before it. However, it is not for the Court to make those findings of fact for the Tribunal. Nor is it of assistance to speculate as to what may have been available, or possible, for the Tribunal to have found, such as to properly fulfil its obligation to review the delegate’s decision. It is here that regard must be had to the Tribunal’s decision record, as the primary evidence available, as to what the Tribunal actually reasoned and, therefore, as to whether the Tribunal properly discharged, or exercised, its jurisdiction.

  12. In this light, (that is the review by this Court of the Tribunal’s “decision”), and notwithstanding the inferences that the Minister says may be drawn from certain material there, I agree with the applicant, that as asserted in ground one, the Tribunal constructively failed to exercise its jurisdiction in relation to the evidence of the education loan from the Nabil Bank.

  13. Plainly the Tribunal was aware of the matter of the loan. It referred to it in its review of the claims and evidence before it (third dot point of [18] at CB 159), it set out that such a loan from a financial institution (such as the Nabil Bank) could potentially satisfy one of the criteria for the grant of the visa (see [15] –“funds from an acceptable source” at CB 158). It knew, because it noted, that the delegate’s decision turned on the delegate’s view of the letter notifying the offer of the education loan ([19] at CB 159).

  14. Importantly, the Tribunal’s own account of the hearing reveals there was reference to the first Nabil Bank letter (see [29] at CB 160). The context for this reference, was that the Tribunal noted with the applicant that he had provided fraudulent documents to the Minister’s department. That finding by the delegate was in relation to the first Nabil Bank letter (see CB 34.7).

  15. The Tribunal reports that the applicant expressed his surprise at this and said the “documents were genuine”. The Tribunal “noted” that it did not have documentary evidence from the Nabil Bank to show this to be the case. The only other reported reference to this letter at the hearing was the indirect, and subsequent, statement made by the Tribunal, that it had concerns about the genuineness of documents subsequently provided by the applicant to the Tribunal, in light of the delegate’s findings about the previous documents he had submitted to the delegate ([34] at CB 161).

  16. There was no dispute between the parties that at the time of the making his application for the visa, the applicant relied on the first Nabil Bank, to satisfy the financial capacity requirement for the visa. There is no doubt, arising from the Tribunal’s setting out of the claims and evidence, the reference to the delegate’s decision, and the parts of the hearing referred to above, that the Tribunal understood this.

  17. The following is of note. First, the applicant, on the Tribunal’s own account of the hearing at this time, made no express statement abandoning his reliance on the first Nabil Bank letter and the education loan matter. Given the Tribunal’s account, that option was available to the applicant. Instead, he pressed the genuineness of the letter.

  18. Second, there is nothing in the material submitted by the applicant to the Tribunal, either before, or after, the hearing, to show that he made any express abandonment of his reliance on the letter. Relevantly, the applicant’s letter of 30 August 2013 (CB 83) to the Tribunal, which accompanied the second Nabil Bank letter, made no express abandonment of the reliance on the first Nabil Bank letter.

  19. As set out above, the Minister says that the terms of the second Nabil Bank letter can be reasonably read as saying that the education loan was no longer available to the applicant, and therefore it was no longer necessary for the Tribunal to address it.

  20. As set out above, that may have been a view that the Tribunal could have taken of the terms of that letter. However, in my view, there is a distinction between a finding that the Tribunal may, or could have made, and a finding, that in fact, was made by the Tribunal. In the current case there is a lack of evidence that the Tribunal made any such finding. The Tribunal’s analysis, its “Findings and Reasons”, are silent as to any such finding. Further, the Tribunal’s analysis contains no reference, let alone relevant finding, concerning the second Nabil Bank letter.

  21. It may be, as the Minister submits, that the applicant had provided this letter in seeking to corroborate his credibility, as to the documents he provided, particularly where the Tribunal squarely raised this at the hearing. However, whatever the reason for the submission of the second Nabil Bank letter, this does not relieve the Tribunal of the obligation to consider, and make findings, in relation to material before it, which could, as it otherwise noted (with references to Sch.5A505(2)(b) of the Regulations), potentially have meant the applicant satisfied relevant criteria for the grant of the visa.

  22. It is of note, that in its analysis, the Tribunal did make reference to the first Nabil Bank letter (see at [67] at CB 164). However, this was in the context of seeking to distinguish the character of that letter, that is, its lack of relevance to the sole focus of its analysis, which was Sch.5A505(2)(aa) of the Regulations.

  23. The Minister submitted that the Tribunal did not overlook this letter because of the reference to it at [67] (at CB 164) and at [62] (at CB 164). However, those references were in the context of the consideration of the genuineness of the documents submitted after the hearing, and not referable to the question of whether the evidence of the education loan, which was a live issue at the time of the delegate’s decision, continued to be a live issue pressed by the applicant, and to consider whether that evidence satisfied the relevant statutory criteria.

  24. It is not for this Court to examine the material and evidence before the Tribunal and consider, and make factual findings, about matters which the Tribunal should make, given its relevance to its statutory task.

  25. The first three grounds of the application are made out. The Tribunal constructively failed to exercise its jurisdiction, in relation to the education loan, a claim made by the applicant. This reveals jurisdictional error.

  26. The Tribunal similarly made no findings in relation to whether the first Nabil Bank letter was not genuine. Its exclusive focus in its analysis on (aa), meant it ignored this question. If the Tribunal had found contrary to the delegate that, in light of subsequent evidence (the second Nabil Bank letter), the first Nabil Bank letter was genuine, this plainly would have affected the outcome of the decision. Jurisdictional error is revealed because it failed to consider this relevant question (ground two).

  1. Both the Nabil Bank letters of 7 April 2011 and 23 August 2013 were critical pieces of evidence before the Tribunal, which formed an important part of the applicant’s case before the Tribunal. Its failure to, at least, properly deal with the letter of 23 August 2011, which was critical to the matter of the education loan, and whether the applicant satisfied the relevant criterion because of it, is also revelatory of jurisdictional error. Although, not argued as such, this also falls into error in the manner explained by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (and see further Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [29]).

  2. I should note that grounds four and five were not abandoned by the applicant before the Court. However, they did not feature, or were not explained, in his submissions. In any event, as best as it was particularised, information concerning the genuineness of the letter of 7 April 2011, was information contained in the delegate’s decision (CB 34) which was provided to the Tribunal by the applicant (CB 43.2). As such it was given to the Tribunal for the purposes of the review and falls within the exception in s.359A(4)(b) of the Act, from the obligation in s.359A(1) of the Act. Ground four is not made out.

  3. I agree with the Minister’s submissions in relation to ground five. What appears to be a broader allegation of a failure of procedural fairness cannot succeed in the current case. The Tribunal’s relevant obligations did not extended beyond s.359A of the Act (s.357A of the Act and Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 (2006) 151 FCR 214 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23). In any event, the Tribunal did not find adversely to the applicant because of any finding that the Nabil Bank letters of 7 April 2011 or 23 August 2013 were not genuine. That failure, in relation to the first Nabil Bank letter, is one of the reasons why grounds one to three are made out.

Conclusion

  1. In any event, what is set out above in relation to grounds one to three is sufficient to justify the granting of the relief the applicant seeks. There is no reason not to make the orders sought by him. I will make the orders accordingly.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 February 2015

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
Kennedy v Australian Fisheries Management Authority [2009] FCA 1485