Prajapati v Minister for Immigration

[2014] FCCA 2035

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRAJAPATI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2035

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal –whether Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 424A, 425, 476

Migration Regulations 1994 (Cth), Sch.2, Sch.5A

SZBEL v Minister for Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; 297 ALR 225; [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Singh v Minister for Immigration and Citizenship [2013] FCA 669

Applicant: SURENDER MAN PRAJAPATI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 966 of 2013

Judgment of: Judge Nicholls

Hearing date: 6 March 2014

Date of Last Submission: 6 March 2014

Delivered at: Sydney

Delivered on: 4 September 2014

REPRESENTATION

Appearing for the Applicant: Mr M Newman

Solicitors for the Applicant: Newman & Associates

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 7 May 2013 and amended on 25 February 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 966 of 2013

SURENDER MAN 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 7 May 2013, and amended on 25 February 2014, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate of the Minister to refuse a Student (Temporary) (Class TU) visa (“the visa”) to the applicant.

Background

1. The applicant is a citizen of Nepal. He applied for the student visa on 10 September 2010 (“Court Book” – “CB” – CB 1 to CB 8). He was assisted by a registered migration agent (CB 3).

2. The delegate refused the application for the student visa on 4 November 2010 (CB 20 to CB 26). The delegate found that the applicant did not satisfy cl.572.223(2)(a)(i)(B) of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 23). The delegate took the view that this required the applicant to provide evidence of funds held in an account for a certain period and to be available to him for his support in Australia while studying.

3. The delegate found that the applicant had provided evidence of funds. However, the applicant had not provided evidence of “how these funds [were] to be accessed by the applicant” and that there was “nothing to indicate that the applicant [had] received money from this source in the past” (CB 23.7). Therefore, the delegate found that the applicant had not demonstrated that he had access “to the funds declared in accordance with schedule 5A” (CB 23.7).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 19 November 2010 (CB 27 to CB 40). He was again assisted by a registered migration agent (CB 31). By letter dated 12 March 2013, the applicant was invited to appear at a hearing before the Tribunal (CB 46 to CB 48). Relevantly, the letter also asked him to provide the following:

   “…

   3. Current evidence that you satisfy English language, financial capacity and ‘Other’ requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A for the purposes of cl.572.223(2)(a)(i)…

   …”

   [Emphasis in the original.]

2. On 2 April 2013, the Tribunal received a completed “Response to Hearing Invitation” form, indicating the applicant would attend the hearing, and a “Change of Contact Details” in which the applicant nominated his own address to receive correspondence, and not that of the registered migration agent, and a Confirmation of Enrolment (CB 49 to CB 53). The applicant attended the hearing on 4 April 2014 (CB 71). He did not provide any further documents.

3. The Tribunal affirmed the delegate’s decision on 9 April 2013. The Tribunal had regard to the applicant’s enrolment at an educational institution as at the time of the making of its decision. In this light, it found that the relevant visa subclass in the matter before it was subclass 570 ([6] at CB 76). It found that the issue for consideration was whether the applicant met cl.572.223 of the Regulations ([7] at CB 76). It noted that the delegate had referred to cl.572.223(2)(a)(i)(B) in error as that clause did not exist at the time of the application ([20] at CB 80).

4. The Tribunal’s record of the hearing in its decision record indicates that it explained to the applicant the requirement to provide evidence that “he had funds from an acceptable source sufficient to meet his course fees, living costs and school costs for the first 24 months and his travel costs” ([23] at CB 80). Further, that it put to him the amount it had estimated to be his “total costs” (“$26,720”), and the definition of “funds from an acceptable source” under cl.5A405(2) of Sch.5A to the Regulations ([23] at CB 80).

5. The Tribunal’s decision record indicates that it explained to the applicant that it had “concerns” regarding the “money deposit” that had been provided with his application, as the deposit had not been held for at least three months immediately before the date of the visa application pursuant to Sch.5A to the Regulations ([24] at CB 80). At [24] (at CB 80) the Tribunal stated that the “money deposit”, which was in the applicant’s wife’s name, had been made on 16 September 2010. [I note that this appears to be a typographical error. It appears the relevant date was 6 September 2010 (see CB 14). However, in its subsequent analysis the Tribunal relied on the “correct” date, that is, 6 September 2010 – see [43] at CB 83]. The Tribunal noted that his application for the student visa was made on 10 September 2010 ([24] at CB 80). The applicant sought time to provide further evidence of his financial capacity. However, the Tribunal refused the applicant’s request ([28] at CB 81).

6. The Tribunal found that, as the evidence of the deposit was that the money was deposited “only 4 days before the application was lodged”, it could not accept the deposit as evidence of a money deposit held to provide support for the applicant for “at least 3 months immediately before the date of the application” ([43] at CB 83). Therefore, the applicant did not satisfy cl.5A208(2)(a) in Sch.5A to the Regulations. Moreover, the Tribunal found that there was no further evidence before it that the applicant “had funds from an acceptable source”, hence the applicant failed to satisfy cl.5A208 of Sch.5A to the Regulations ([45] at CB 83). Accordingly, the Tribunal found that the applicant did not meet an essential requirement of cl.570.223 of Sch.2 to the Regulations ([48] at CB 84).

The Relevant Law

1. As set out above, the applicant applied for the student visa. The relevant subclass of visa was subclass 570. The criteria for the grant of such a visa are set out in Sch.2 to the Regulations. At the time of the Tribunal’s decision the relevant part is in the following terms (“cl.570.223 of the Regulations):

   570.223

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant’s circumstances; and

   (ii) the applicant’s immigration history; and

   (iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv) any other relevant matter; and

   (b) the applicant meets the requirements of subclause (2).

   (2) An applicant meets the requirements of this subclause if:

   (a) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 570 and the assessment level to which the applicant is subject, in relation to:

   (i) the applicant’s English language proficiency for the purposes of each ELICOS that the applicant proposes to undertake; and

   (ii) the financial capacity of the applicant to undertake each of those ELICOS without contravening any condition of the visa relating to work; and

   (iii) other requirements under Schedule 5A; and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii) any other relevant  matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

2. In relation to cl.570.223(2)(a), the Tribunal found the relevant assessment level to be “Assessment Level 3” ([30] at CB 81). At the relevant time, the Sch.5A requirements in respect of “financial capacity” for assessment level 3 for a subclass 570 visa were (“cl.5A208 of the Regulations”):

   5A208  Financial capacity

   (1) The applicant must give, in accordance with this clause:

   (a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 18 months:

   (i) course fees;

   (ii) living costs;

   (iii) school costs; and

   (aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 18 months; and

   (b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and

   (c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

   (1A) If the applicant is:

   (a) fully funded; or

   …

3. The term “funds from an acceptable source” was defined at the relevant time in cl.5A208(2) of the Regulations:

   (2) In this clause:

   financial support, from an applicant’s proposed education provider, means:

   (a) a scholarship that:

   (i) is awarded on the basis of merit and an open selection process; and

   (ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

   (iii) is awarded to the greater of:

   (A) not more than 10% of overseas students in a course intake; and

   (B) not more than 3 overseas students in a course intake; or

   (b) a waiver of the applicant’s course fees carried out in the following circumstances:

   (i) the applicant is part of an exchange program that involves:

   (A) a formal agreement between an education provider and an education institution in a foreign country; and

   (B) the reciprocal waiver of course fees as part of that agreement;

   (ii) the applicant proposes to study full time;

   (iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

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

   (a) a money deposit that the applicant, or an individual who is providing support to the applicant, 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, the applicant or an individual who is providing support to the applicant;

   (c) a loan from the government of the applicant’s home country;

   (d) financial support from:

   (i) the Commonwealth Government, or the government of a State or Territory; or

   (ii) the government of a foreign country; or

   (iii) a corporation that:

   (A) conducts commercial activities outside the country in which it is based; and

   (B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or

   (iv) a multilateral agency; or

   (v) the applicant’s proposed education provider; or

   (vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or

   (vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or

   (viii) an acceptable non profit organisation.

The Application Before the Court

1. The application before the Court, as amended on 25 February 2014, contains the following ground:

   “The Tribunal sent to the Applicant a notice pursuant to 359 A of the Migration Act 1958. The section requires the Tribunal to give clear particulars of any evidence that the Tribunal considers to be important perhaps critical to issues that the have been identified by them. The Applicant claims that the notice was deficient in that evidence of a withholding period for a deposit of funds required to provide for the upkeep of the an applicant seeking a student visa was not requested and that the Tribunal erred when it refused him some additional time to produce it.”

2. At the final hearing Mr M Newman appeared for the applicant. Mr P Knowles of counsel appeared for the Minister. The applicant confirmed that he abandoned the grounds of the original application.

Understanding the Applicant’s Case

1. It must be said that some of the assertions in the applicant’s ground of the amended application, and in his written and oral submissions before the Court, present difficulty in understanding the exact nature of jurisdictional error alleged by the applicant.

2. The Minister’s written submissions (at [23]) refer to two “additional complaints” raised by the applicant’s written submissions. At the commencement of the hearing, the applicant was given the opportunity to further amend his application. The applicant did not take this opportunity. The applicant submitted that the “explanation” of his case was said to be “…really about the failure by the Tribunal to comply with the provisions of s.359A”. At best, I understood that the other matters in the written submissions sought to give particularity to that assertion.

3. Nonetheless, the applicant’s oral submissions proceeded beyond the giving of particularity to, or explanation of, an alleged breach of s.359A of the Act. For example, the applicant also complained, although not in these exact terms, of what amounted to an unreasonable exercise by the Tribunal of the discretion to adjourn the review. This is dealt with below.

4. In any event, to understand the applicant’s position before the Court, what follows is an attempt to expose the applicant’s arguments as they unfolded before the Court.

5. The applicant sought to explain his complaint, or complaints, as follows. The Regulations relevant to student visas require the provision of evidence of funds, such that the student is supported while studying in Australia.

6. Where the student is unable to provide evidence that he or she holds funds in their own bank account there is provision for the student to provide evidence of funds held by an “acceptable person”, to which he or she has access.

7. However, to avoid the possibility of abuse by the rotation of funds into any such account for a short period of time simply to meet the financial requirement at a particular point in time, the Regulations provide that the funds must be held in the account for a specific length of time. In the current circumstances, that was three months prior to the making of the visa application.

8. The Minister neither addressed nor disputed this explanatory background by the applicant of the relevant regulatory scheme.

9. The thrust of the applicant’s complaint was that s.359A of the Act requires that an applicant be provided with some “particularity” of the information relied upon by the Tribunal. The applicant claimed in oral submissions that this was especially relevant in his case, since he was a “young student” whose “English wasn’t the best”.

10. The applicant contended that, pursuant to s.359A of the Act, the Tribunal was obliged to tell him of the three month requirement. Noting that the Tribunal’s decision turned on the finding that, notwithstanding the applicant having provided evidence of funds held in a bank account in his wife’s name, there was no evidence that the funds were held for a period of three months immediately before the date of the application for the student visa. I note that this was the regulatory requirement at cl.5A208(2)(a) of the Regulations relevant at the time of the application (see the Tribunal’s decision record at [24] at CB 80, [43] at CB 83 and [45] at CB 83).

11. In oral submissions, the applicant ultimately “expanded” this point as follows. At the hearing, the Tribunal put the applicant on notice that the funds provided for his support were required to be held for three months immediately before the date of the application. I understood this to be a reference to what the Tribunal set out at [24] (at CB 80).

12. In these circumstances, the Tribunal was obliged, as a matter of procedural fairness, to have given the applicant more time to “see” if he could obtain the required evidence.

13. The submission was further developed with reference to s.360 of the Act and the High Court’s judgment in SZBEL v Minister for Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”). When pressed as to whether the applicant was now alleging a failure of procedural fairness pursuant to s.360 of the Act in that the Tribunal failed to raise with sufficient particularity an issue dispositive of the review, the response was clearly that he was “…relying entirely on s.359A”. The reference to s.360 of the Act in SZBEL was left unexplained.

14. What the Tribunal recorded it told the applicant at [24] (at CB 80) provides background to what follows in this judgment:

    “The Tribunal put to the applicant if he was relying on a money deposit, this needs to be one that has been held by the applicant or an individual providing support to the applicant for a least 3 months immediately before the date of the application. The Tribunal indicated it had concerns with the money deposit he had provided with the visa application in his wife’s name. The money deposit was only made on 16 September 2010 and there was no evidence that it had been held for at least 3 months immediately before the date of the visa application. Therefore, it could not be considered as an acceptable source of funds.”

    [Noting the error explained at [9] above.]

15. The reliance on s.359A of the Act was stressed as being that the particularity of the matter of the three months should have been put to the applicant pursuant to s.359A of the Act. When asked to explain what further particularity was required other than that which was emphasised by the Tribunal to the applicant at the hearing before it, the applicant submitted that the Tribunal should have sent a “s.359A letter”.

16. However, even if s.359A of the Act was engaged (which, for reasons set out below, it was not) the applicant did not explain what lack of particularity was evident to the extent that the Tribunal did not properly comply with s.359A of the Act.

17. Although not stated as such by the applicant, I understood the initial, general, contention to refer to “…clear particulars of any information…” (s.359A(1)(a) and to the matter at s.359A(1)(b) of the Act). In my view, whatever relevance s.359A of the Act may or may not have, what is clear from the Tribunal’s unchallenged account of what was said at the hearing is that the applicant could have been left in no doubt, both in terms of particularity, and in terms of exposure to the issue dispositive of the review, of the three month requirement.

1. The applicant’s argument then turned to a complaint that what follows from what the Tribunal told the applicant, as reported at [24] (at CB 80), is that the Tribunal should have given him more time to provide any such evidence. That is, evidence that the funds were held for at least three months before the date of the visa application. I should note that before the Court the applicant was unable to explain how this was a breach of s.359A of the Act.

2. Nonetheless, two further paragraphs in the Tribunal’s decision record are of relevant note ([26] and [28] at CB 81):

   “[26] The applicant stated that he had not yet been able to obtain evidence of his financial capacity. He had only recently returned from Nepal. He wanted further time (about 4 weeks) to obtain a loan from Nepal. He may have to return to Nepal to arrange this. His mother in law owns property and she could obtain a loan in her name. She receives a pension from the American embassy. He has not taken any steps to arrange the loan as yet.

   …

   [28] The Tribunal put to the applicant that it had carefully considered his request for extra time but it declined to grant him more time to obtain the evidence. The Tribunal put to the applicant that the visa had been refused in November 2010 and the applicant had been put on notice since that time about the issues in the review and the evidence he needed to provide. In its hearing invitation dated 12 March 2013, the Tribunal also invited the applicant to provide evidence relevant to his case and provided a detailed description of the evidence that was required. Despite the considerable period of time that had passed since the visa application was lodged, the applicant had not taken any steps to obtain the relevant evidence. For these reasons, the Tribunal declined to grant the applicant further time to provide evidence.”

3. The applicant’s argument progressed along these lines. Section 359A of the Act was a part of the “family of provisions designed to bring fairness to the proceedings”. Although not articulated as such I understood this to be a reference to those sections in Division 5 of Part 5 of the Act.

4. The submission was that these provisions seek to “preclude the ambushing of an applicant”. The applicant also explained he was seeking to invoke the common law principle of an applicant’s right to know the case against him.

5. In this light, the applicant’s complaint was explained as being that the Tribunal should have given the applicant further time to make inquiries of his wife who was in Nepal, given that she was the person in whose name the relevant bank account was held. The Tribunal’s response was characterised by the applicant now as a “blunt, stark refusal.”

6. Finally, although the lack of particularity was said to relate to a breach of s.359A of the Act, I understood the complaint as it evolved from the general procedural fairness point to be as follows.

7. The applicant was told for the first time that the relevant period for the holding of the funds in an account was three months at the hearing with the Tribunal. Previously the delegate, in a letter to the applicant (dated 1 October 2010) stated that the relevant period for the holding of the funds was said to be six, not three months (see CB 9). The applicant’s submission was, therefore, that it is not open to the Minister to now say the applicant was put on notice of this requirement to a degree of “reasonable specificity”.

8. The Minister understood the applicant’s complaint as expressed before the Court to be an allegation that the Tribunal breached s.359A of the Act, and what the applicant described in reply as the “SZBEL point”. Given that by and large I agree with the Minister’s submissions, these have been incorporated in the consideration below.

Consideration: s.359A of the Act

1. Ultimately, the applicant’s complaint here was that the Tribunal failed to give the applicant sufficient particularity, as required by s.359A of the Act, in relation to the three month period for the holding of funds. Thereby it breached s.359A of the Act.

2. To make good that proposition the applicant points, in part, to the Tribunal’s letter of 12 March 2013 (CB 46 to CB 48). He characterises this as a “s.359A letter” and says there is no relevant reference to the three month period in that letter.

3. The immediate difficulty for the applicant is that it cannot be said, on any plain reading, that this is a letter purporting to contain “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” such that it can be said to be a letter sent pursuant to the obligation in s.359A(1)(a) of the Act. In these circumstances, whatever else the letter may purport to be, or to do, it cannot be said that it failed to provide “clear particulars” of any such “information”, as required by s.359A of the Act.

4. On any plain reading, the letter is, in part, an invitation to a hearing pursuant to s.360 of the Act, and, in separate part, an invitation to provide (not comment on, or respond to) certain evidence. There are a number of ways that the Tribunal may get information from an applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429). Section 359A of the Act is not one of those ways, given its focus on inviting comment on, or response to, information which is already in the possession of the Tribunal.

5. As the Minister submitted, in these circumstances the question becomes one of whether there was a requirement in the first place to comply with s.359A of the Act. The starting point here is with the High Court’s explanation in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) and the reference therein to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 (“VAF”), of the meaning of “information” for the purposes of s.359A of the Act (drawing on the consideration of the analogous s.424A of the Act), and importantly, in the current context, what is not “information” for the purposes of s.359A of the Act.

6. The Minister relied on SZBYR at [18]:

   “Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’.

   ‘does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc’.

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

7. The applicant also relied on the “extract” from VAF in SZBYR. He submitted that in the current case there was no inconsistency in the applicant’s evidence in the sense described in VAF. He submitted that there was a lack of information from the applicant. That is, the evidence of funds held in an account for three months.

8. The applicant described it before the Court as a “lacuna” or a “gap” in the information. In short, the distinction was said to be that in VAF and SZBYR the Courts were focused on an “inconsistency in information”, whereas in the current circumstances the matter involved “an absence of proof about the holding period of three months”.

9. I agree with the Minister that the descriptions given by the applicant as referred to above (“lacuna”, “gaps”, “absence of proof”) are directly what the majority of the Full Federal Court addressed in VAF. Whatever else the term “information” encompasses for the purposes of s.359A of the Act, it does not “extend to identified gaps, defects, or lack of detail or specificity in evidence” (VAF at [24] per Finn and Stone JJ). These are the words plainly stated by the Court in VAF, and endorsed in SZBYR.

10. The applicant sought to counter this by raising the distinction between “evidence”, and regulatory or statutory requirements. In essence, I understood the point to be that in VAF and SZBYR the Courts were dealing with gaps, absences and the like in the evidence before the respective Tribunals, but in the current case the critical matter was a part of the regulatory requirements applicable to the applicant’s circumstances, and which he was required to satisfy such that the visa must be granted to him.

11. In reply the Minister also sought to draw a distinction. This was that the purpose of s.359A of the Act (drawing on what was said in SZBYR about the analogous s.424A of the Act) was to provide the opportunity to comment on “adverse” information, not the Regulations containing the visa requirements to be applied to the visa application.

12. I understood the Minister’s reference to “adverse” information to be a “short hand” reference to the statutory language found in s.359A of the Act. Namely, that the information the Tribunal is obliged to give to the applicant for comment or response is information which it considered would be the reason or a part of the reason for affirming the delegate’s decision.

13. The Minister submitted that he was not aware of any authority which has considered the question, as to whether a regulation is “information” for the purposes of s.359A of the Act, or for that matter s.424A of the Act.

14. However, the Minister argued that the distinction is clear when regard is had to the purpose of s.359A of the Act. That purpose was to enable comment on information that was “adverse” (in the sense explained above) to the applicant, and not the regulation against which his evidence, or the absence of evidence, was to be assessed.

15. Before the Court, the applicant submitted that he was entitled to know the case against him, that he should not be “ambushed”, and that this was a matter generally of procedural fairness. The Minister did not dispute this as a matter of general principle.

16. However, I agree with the Minister that there is a distinction between the applicant knowing “the case against him”, and the relevant visa criteria that he is required to meet such that the visa must be granted.

17. I also agree with the Minister that, although no burden of proof in the legal sense applies, it is for the applicant to demonstrate to the Tribunal that he meets, or has complied with, the relevant criteria for the visa. In short, s.359A of the Act does not impose an obligation on the Tribunal to give to an applicant “clear particulars” of the contents of the regulation (or for that matter, parts of the statute) that he is required to meet.

18. The reason for the affirmation of the delegate’s decision in the current case was not the language of the regulation itself (cl.5A208(2)(a) of the Regulations). The language itself merely states a requirement for the grant of the visa. In that sense, its terms are neutral as to the applicant’s capacity to meet or not meet that requirement. The reason that the Tribunal affirmed the delegate’s decision was that the applicant did not provide the evidence such that he could satisfy the particular requirement. Section 359A of the Act was therefore not engaged.

Consideration: “The SZBEL Point”

1. As set out above the “SZBEL point” arose from the applicant’s submissions concerning the Tribunal’s procedural fairness obligations to the applicant. While the matter was not specifically pleaded with reference to s.360 of the Act, I will nonetheless address it in that context for the sake of completeness.

2. It is of assistance in dealing with the applicant’s complaint to be reminded of the proposition to be drawn from the High Court’s consideration of s.425 of the Act (analogous to s.360 of the Act) in SZBEL.

3. In essence, I respectfully understand the proposition to be drawn, and which assists in understanding the applicant’s submissions now, is that an applicant for a visa who, on refusal by the delegate, is before the Refugee Review Tribunal or the Migration Review Tribunal, is entitled to notice at the hearing (whether pursuant to s.425 of the Act or, as here, s.360 of the Act) of the issues dispositive of the review, which are not live issues as a result of the delegate’s decision.

4. At [35] the High Court in SZBEL stated:

   “The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the  issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

5. To the extent that the applicant sought to invoke a broader procedural fairness argument, what the High Court stated at [29] of SZBEL is of relevance:

   “No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone. The Full Court (Northrop, Miles and French JJ) said[18]:

   ‘Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.’ (emphasis added)”

6. I respectfully note also the “caution” expressed by the High Court at [30] – [31], and then what was stated at [32]:

   “In Alphaone the Full Court rightly said:

   ‘It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.’ (emphasis added)”

7. The Minister sought to answer the applicant’s complaint with the following argument.

8. First, the opportunity of being heard ordinarily requires the affected party (here, the applicant) to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material (with respectful reference to SZBEL at [32] and the extract from Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, referred to there - see [64] above).

9. I agree with the Minister’s argument here. The requirements in relation to “financial capacity” are apparent and clear in themselves from that part of the Regulations on which the Tribunal’s decision was based. There is a distinction between the regulatory requirements to be applied, and the obligation to inform the applicant of the dispositive issues in the review.

10. Second, the Minister submitted that the applicant was put on notice of the issues dispositive of the review. The Minister accepted that the reference at CB 9 (see [39] above) was “incorrect” in referring to “six months” and not “three months” as the relevant period. The Minister noted that while the applicant had been told by the delegate’s letter of the need to have evidence of access to funds, the difference between six months (as he was told) and three months (the ultimately relevant period) was not such as to prejudice the applicant’s position.

11. Attention must be given to the issue, or issues, dispositive of the review, and the identification and articulation of the nature and character of any such issues.

12. The starting point is to look at what the Tribunal itself said was determinative or dispositive of the review. Any plain reading of the Tribunal’s analysis, findings, and conclusion reveals that the issue which determined the outcome of the review was whether the applicant had provided evidence such that he met the criterion in cl.570.223 of the Regulations for the grant of the visa.

13. Before the Court, the applicant did not challenge the Tribunal’s own description in its decision record that “[t]he issue in the present case is whether the applicant meets the criterion in cl.570.223” (see [7] at CB 76). As the High Court said in SZBEL at [35], “…[t]he issues that arise in relation to the decision [in context of the delegate’s decision under review] are to be identified by the Tribunal”.

14. The detail that informed that issue in the present case is, as the Tribunal also set out in its decision record, to be determined from the terms of the regulation itself. Here that required the Tribunal to be satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student. That satisfaction was to be informed, in part, by whether the applicant gave to the Tribunal evidence such as to meet the requirements set out at cl.570.223(2) of the Regulations.

15. As stated above, amongst other matters, cl.570.223(2) of the Regulations directs attention to the need for the applicant to present evidence in accordance with the requirements in Sch.5A to the Regulations. In the applicant’s case, once the relevant assessment level had been determined, the applicant was required, relevantly, to provide evidence in relation to “financial capacity” as set out at cl.5A208 of the Regulations.

16. One way of satisfying the “financial capacity” requirement was to provide evidence that the applicant had “funds from an acceptable source”. This is defined at cl.5A208 of the Regulations. That phrase has a number of possible meanings as set out there.

17. The matter dispositive of the review was that the applicant was unable to provide evidence to satisfy any one of the possible meanings of “funds from an acceptable source” to meet his course fees, living costs and school costs for 24 months, in addition to his travel costs associated with his study in Australia. This in turn meant that he could not meet the relevant part of the criterion in cl.570.223 of the Regulations for the grant of the visa. This was the issue identified in the Tribunal’s decision record as dispositive and determinative of the review (see [47] at CB 83).

1. The question then becomes, in light of SZBEL, whether the applicant was on notice of this issue as a result of the delegate’s decision, and if not, whether the Tribunal took steps to identify this issue to the applicant.

2. Turning to the first question. While the delegate made some reference to “sufficient money” and “funds” in a letter to the applicant dated 1 October 2010 (CB 9 - the letter containing the reference to six rather than three months), it cannot be said that the issue identified by the Tribunal, as explained above, was the issue that the delegate considered as determining the application before him (see the delegate’s decision record at CB 20 to CB 26).

3. This leads to the second question set out at [76] above. Here the nature and character of the Tribunal’s letter to the applicant of 12 March 2013 (CB 46 to CB 48) assumes importance.

4. The applicant’s pleaded ground, with its emphasis on s.359A of the Act and the argument pursued before the Court, that the letter did not provide “clear” or sufficient particulars to the applicant in breach of its procedural fairness obligations, did not assist at the hearing before the Court as to the character and relevant importance of the Tribunal’s letter.

5. The letter is plainly an invitation to the applicant to attend a hearing before the Tribunal. The letter was sent in fulfilment of the Tribunal’s procedural fairness obligation as set out at s.360(1) of the Act in circumstances where the Tribunal was unable to decide the review on the material before it (s.360(2)(a) of the Act).

6. The terms of that letter state the purpose of the invitation. This is for the applicant “…to give evidence and present arguments relating to the issues arising in [his] case” (CB 46.3). This language echoes the language of s.360(1) of the Act. The importance of this reference in terms of procedural fairness was explained by the High Court in SZBEL (see in particular at [33] of SZBEL).

7. In the same letter the Tribunal invited the applicant to provide a number of items which it identified. Three things may be immediately said about this.

8. First, the items identified by the Tribunal were all related to matters arising from the regulatory scheme described above, and in particular, those parts of the scheme relevant to the applicant’s circumstances and ultimately the issue dispositive of the review as described above.

9. Second, these matters, given the way the issue dispositive of the review was shaped by the relevant regulatory scheme, the applicant’s circumstances, and the Tribunal’s reasoning, ranged beyond the matter of the “three” or “six” months. The “issue” involved the matter of the applicant’s evidence of financial capacity such that he could satisfy cl.570.223 of the Regulations.

10. Third, the letter expressly linked this issue to the scheduled hearing, “[t]he tribunal invites you to provide the above information as soon as possible prior to the hearing but no later than 2 working days before the hearing date…” (CB 47.7).

11. Therefore, what can be said is that, in the process of the conduct of the review, the Tribunal utilised the letter inviting the applicant to a hearing for the purpose of his giving his evidence and argument to put him on notice of the various pieces of evidence, and the arguments, which were relevant to the “issue” arising in his case. However, and plainly, on its own this was not sufficient to satisfy the obligation pursuant to s.360 of the Act that the applicant be given a meaningful opportunity at the hearing to address these matters.

12. This brings us to the hearing before the Tribunal. What must be noted is that, despite the benefit of legal representation and opportunity, the applicant has not provided any evidence of what occurred, and was discussed, at the hearing before the Tribunal. For example, he has not provided a transcript of the hearing. Nor did the applicant before the Court otherwise dispute any of the Tribunal’s reports in its decision record in this regard.

13. The Tribunal’s account of the hearing, as reported in its decision record, shows that, consistent with its earlier letter of invitation, what was discussed at the hearing was the need for the applicant to provide evidence that he had, or had access to, sufficient funds to meet the financial needs associated with his study and stay in Australia.

14. What must be noted in the circumstances is that there were a number of ways in which the applicant could satisfy the relevant financial capacity requirement. In this regard, it was available to him to show he had access to funds from any one of a number of acceptable sources. That issue was raised at the hearing. The applicant was given the opportunity to address it. He did not provide the evidence required. No legal error is apparent in these circumstances.

Consideration: The “Adjournment of the Review” Point

1. As set out above, the applicant also complained that the Tribunal erred in not giving him extra time to provide “necessary evidence”. The applicant’s submissions did not satisfactorily address the exact nature of the legal error said to have resulted from this.

2. The Minister, however, accepted with reference to the High Court judgment in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 (“Li”), that an unreasonable exercise of a statutory discretion to refuse an adjournment in the conduct of the review by the Tribunal would amount to legal error.

3. In this the Minister also referred to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh FCAFC”). He sought to contrast the factual situations in both cases with the current case for the purpose of establishing a basis to argue that the Tribunal’s action in the current case, and in the circumstances, was not unreasonable. Further, the Minister referred to Singh v Minister for Immigration and Citizenship [2013] FCA 669 (“Singh FCA”) per Foster J, where his Honour considered Li but distinguished the circumstances from those in Li to find no jurisdictional error in the case before him.

4. However, before going further into the relevant principles arising from Li, it is important to examine the exact relevant circumstances in the current case.

5. The applicant’s complaint that the Tribunal fell into error because it did not give him further time to obtain the “necessary evidence” requires close attention to what the applicant actually asked the Tribunal. Before the Court, the applicant’s submissions lacked precision. The complaint here was generally pressed as follows.

6. The Tribunal did not tell the applicant about the “three month” period in circumstances where the delegate’s advice made reference to a “six month” period. Therefore, the Tribunal should have given the applicant more time when he requested it, as a matter of fairness.

7. The Tribunal’s decision record reveals that, in an attempt to utilise one of the avenues available to an applicant to satisfy the need to show “funds from an acceptable source”, the applicant sought to rely on evidence of a bank account held in his wife’s name in Nepal (see CB 14, and [19] at CB 80).

8. The Tribunal discussed this with the applicant at the hearing. It advised him of its concern that that evidence revealed that the money deposit in his wife’s name was made on 16 September 2010 (see above at [9]). [Even in circumstances where the “correct” date was 6 September 2010, the applicant did not meet the three month requirement.] In the circumstances, there was no evidence that it was a money deposit held for at least three months immediately before the date of the application for the visa ([24] at CB 80).

9. At [25] (at CB 80), the Tribunal reports that it put to the applicant that he would be unable to satisfy a criterion for the grant of the visa unless he had evidence of funds from an acceptable source such that he could meet the financial capacity requirement in Sch.5A to the Regulations. This simply related, in short form, to the matter raised in the Tribunal’s letter of 12 March 2013 (CB 46 to CB 48).

10. Given the applicant’s complaint now, as expressed in submissions before the Court, it is important to note that there is no evidence before the Court that the applicant sought extra time from the Tribunal to address the “three” or “six” month issue in relation to the bank account in his wife’s name.

11. The Tribunal’s record shows that his request for more time was directed generally to the question of “evidence of financial capacity” ([26] at CB 81). To the extent that there was any specificity in this request it was so that he could return to Nepal to obtain a loan in his

    
    

    mother-in-law’s name, relying on property that she owned. He is reported as saying that he had not taken any steps to arrange the loan ([26] at CB 81). What is of note is that the applicant did not seek any adjournment in relation to the bank account in his wife’s name but in relation to arranging a “new” loan through his mother-in-law.

12. The central issue considered in Li was whether a decision of the Tribunal to refuse to adjourn the conduct of the review could constitute jurisdictional error. In Li, the High Court found the Tribunal’s exercise of discretion was unreasonable in the circumstances.

13. Two conclusions of the High Court are relevant to the disposition of the current question. First, the exercise of a discretionary power must be reasonable ([89] per Gageler J). Second, the Tribunal’s conclusion on the request for an adjournment must be reached by reasoning which is intelligible and reasonable ([25] per French CJ).

14. The facts in Li were that the applicant sought an adjournment to wait for the results of an appeal against the refusal of the relevant assessing authority of the applicant’s application for a skills assessment, in circumstances where the applicant’s representative had submitted to the Tribunal that there was good reason to believe that the assessing authority’s decision was wrong.

15. In SinghFCAFC the circumstances before the Full Court were that the applicant was required, amongst other things, to show that he had “competent English” in order to satisfy relevant criteria for the visa for which he had applied. For this purpose, the applicant sat for a particular English language test.

16. The applicant gave the result of that test to the Tribunal. He had failed one element of the test, but told the Tribunal he had sought a re-mark. There was evidence before the Tribunal that on previous attempts of the test the applicant had passed that element of the test, so there was some basis to consider the prospect of a successful outcome of the

    
    

    re-mark.

17. The important distinction between the factual circumstances in Li and in Singh FCAFC with the current case was that in those cases the requests for the adjournment were to allow time for certain consequences, flowing from an enterprise already begun, to be resolved.

18. In the current case the applicant did not seek more time to complete some process already begun, but to pursue a new avenue of “seeing” if he could obtain a loan in Nepal.

19. Some caution is necessary here. The Full Court in Singh FCAFC rejected the Minister’s submissions in that case that the approach for the Court “is to take the facts in Li and engage in a comparison with the facts…” currently before the Court. Respectfully noting also a direction to this Court now, “[n]or is that the correct approach in any other appeal to which the principles in Li are contended to apply” (Singh FCAFC at [41]).

20. The Full Court said (Singh FCAFC at [42]):

    “…legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court...”

21. The Court subsequently opined that (Singh FCAFC at [47]):

    “…where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.”

22. The Tribunal’s reasons in the current case for refusing the request for further time are set out at [28] (at CB 81). The Tribunal’s reasoning was directed to the applicant’s request, responsive to it, and the reasoning was intelligible, particularly in the sense that it actively considered the request.

23. The Tribunal’s reasons were, essentially, that the applicant’s visa application had been refused in November 2010 and the applicant had been on notice since that time of the evidence he needed to provide. It is at least implicit in, or can be inferred from, the Tribunal’s reasoning in this regard that the delegate’s decision record made specific reference to, and reproduced, cl.5A405 of Sch.5A to the Regulations which included the references to “financial capacity” and “funds from an acceptable source”. Further, that in its letter of 12 March 2013 the Tribunal had provided a “detailed description of the evidence that was required” ([28] at CB 81).

24. The Tribunal concluded that, given the time that had elapsed, and based on the applicant’s evidence that he had not taken any steps to obtain the relevant evidence, the request for further time should be refused ([28] at CB 81).

25. It is important to note here that the applicant did not seek further time to verify a loan for which he had already applied in the two and half years available to him. Rather, he wanted more time to see if he could arrange a loan (a new proposed transaction) such that he could meet the financial capacity requirement.

26. While respectfully noting what the Full Court said in Singh FCAFC at [41] (see [108] above), the circumstances here have some parallel with what Foster J found was not unreasonable in the matter of Singh FCA. There, the applicant sought more time to obtain a certificate of enrolment in a course of study which was a requisite for the visa for which he had applied.

27. It is also of note that the Tribunal in this matter was also informed in its decision to refuse the adjournment by the applicant’s evidence that he had first come to Australia with his wife as her “student dependant”. She returned to Nepal after completing her course of study in May 2010. The applicant subsequently applied for a student visa in his own right. He had not engaged in any study in Australia to date ([27] at CB 81). His evidence was that he was a businessman in Nepal, but that business opportunities were limited whereas they were greater in Australia.

28. I cannot see, in all these circumstances, that the High Court’s reasoning and the statement of principles in Li leads to a finding here that the Tribunal’s refusal of further time was unreasonable, or that the Tribunal did not properly or intelligibly turn its mind to the request as made.

29. As the Minister submits, in circumstances where the applicant had had ample time to obtain the necessary evidence, and had, on his own evidence, done nothing to provide it since the “early” attempt which relied on his wife’s bank account, the refusal did not lack an “evident or intelligible justification” (Li at [76] and see also SinghFCAFC at [35]).

Conclusion

1. In all, the ground as pleaded is not made out. Further, the additional matters raised by the applicant in his written and oral submissions do not reveal jurisdictional error on the part of the Tribunal. The application should therefore be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 4 September 2014