Suwal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 552
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Suwal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 552
File number(s): SYG 1876 of 2022 Judgment of: JUDGE VASTA Date of judgment: 13 June 2023 Catchwords:
migration – visa – student visa – application made overseas – extension of time – application refused
Legislation: Migration Act 1958 (Cth): ss 57, 476 Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 13 June 2023 Date of hearing: 13 June 2023 Place: Brisbane Counsel for the Applicant: Mr Gormly Solicitor for the Applicant: Residency Legal Counsel for the Respondent: Ms Rayment, Solicitor Solicitor for the Respondent: Sparke Helmore ORDERS
SYG 1876 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YUYAB SUWAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.The interlocutory application filed on 13 December 2022 is refused.
2.The Applicant pay the First Respondent’s costs of an incidental to the application fixed in the sum of $4,189.38
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgement delivered today, unless and appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
On 3 October 2022, the delegate of the Minister declined to issue a student visa to the applicant Yuyab Suwal. On 13 December 2022, the applicant asked this Court to review that decision.
Because the application was refused while the applicant was overseas, he does not have the ability to ask for a merits review by the Administrative Appeals Tribunal. For that reason this Court has the jurisdiction to review the decision of the delegate.
However, the same rules, pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”) apply, and the applicant needed to make the application before this Court within 35 days of the decision. Because the decision made on 3 October 2022, it means that the applicant had until 7 November to bring this matter before the Court. Having lodged the application on 13 December 2022, he was 36 days out of time. This means that today’s application is an application for extension of time within which to lodge the application.
There are three aspects that a Court looks at in deciding whether it should exercise its discretion to allow the extension of time. The first is, what is the reason or reason for the late filing, or what is the excuse for not filing the application on time. Secondly, what prejudice, if any, is there to the respondent to such an application. And thirdly, do the merits of the actual substantive application present an arguable case for success in the substantive proceeding.
It is not simply one of those factors that determines the matter, but really a synthesis of all three. Quite properly the Minister has conceded that the issue of prejudice to the respondent is not a matter which the Court should really be concerned about, as the Minister concedes that there is no true prejudice to the Minister if the application were to be granted.
As to the reason why the matter was not filed in time, the applicant, in his application, wrote the following:
1. In the interests of the administration of justice the Applicant seeks an extension of time especially given the delegate has failed to consider the Applicant’s case correctly and according to law and where it is submitted the Applicant case has not been properly assessed and decision made as per the requirement.
2. The Applicant needs time to obtain significant financial resources required to proceed with the application.
3. The issue in the case were complex and needed proper assessment by legal representative before deciding as to the prospect and required additional time to obtain all the relevant information.
4. The Applicant has to obtain legal advice as to prospect, seek if counsel assistance was possible, and decide whether this Court has jurisdiction and authority to hear this application and then provide instructions as to the application proceeding.
In an affidavit, filed by the applicant’s solicitor on 15 May 2023, the solicitor said this:
2. We have obtained instructions previously to assist the Applicant in relation to financial requirements under s57 invitation by the Department and the subsequent Decision.
3. There was a delay in getting instructions from the Applicant who spent weeks considering all of his options.
4. The Applicant then realised that due to this refusal a 3-year ban would be imposed in relation to his prospects of studying in Australia, he would also not be able to study in most other countries.
5. In November 2022, I have first met the Applicant in person in Nepal and we had a discussion about filing the application at Court.
6. Time has been also lost in ascertaining the jurisdiction of the Federal Circuit and Family Court of Australia. Specifically, the issue of whether the decision is a primary decision. Since there was no opportunity to have this matter reviewed by the Administrative Appeals Tribunal it would mean that it is not a primary decision, and the Court has jurisdiction to consider this matter.
7. We needed to make sure that the application was not reviewable by High Court only and is reviewable by this Court.
8. We needed to make sure that there were sufficient grounds and there were reasonable prospects, including a detailed analysis of the facts and law in a complex matter of clause 4020.
9. Further time was then lost in obtaining clear instructions, including satisfying queries of the parents of the Applicant, and obtaining funds from the Applicant in Nepal.
The applicant has submitted, as well, that another feature of the matter was that there were significant fees to be paid for filing such an application, and therefore the applicant had to think long and hard as to whether he would make such an application.
The applicant submits that when one puts all of these circumstances together, the taking of 71 days after the decision is explainable. And notwithstanding that it was 36 days after the deadline had expired, the Court would see that this was a proper excuse.
I certainly can understand that there may very well have been concerns about the jurisdiction, but it would seem to me that, even on the applicant’s own material, he took quite some time to think about whether it was that he wished to go through with the application. He says that the matter that pushed him along was the three year ban. However, it is clear on the material that the applicant knew of the three year ban when the decision was made and communicated to him on 3 October 2022. He has had the benefit of legal representation throughout this period.
Still, these were matters that were not the sort of run of the mill type issues for an applicant to navigate.
As to whether there is an arguable case, one has to look at the decision itself.
The background to the matter is that the applicant is a citizen of Nepal. He made the application for the student visa in June 2020, having just turned 20 years of age. He gave to the department a confirmation of enrolment in a particular course, and that that course would start within the next month or so.
He provided financial documents saying that he had a credit facility, and in effect showing that he could afford to stay in Australia. And he included a document from the Kathmandu Metropolitan City, Office of Municipal Executive, a certificate showing the salaries, annual income, of the father, the mother, the uncle and aunt, being equivalent to $33,980.93. The applicant also produced an independent auditor’s report done by a firm called Dambar Kumar Dev & Associates, which gave a balance sheet for the business of the parents.
In effect, all of that was designed to show, to the department, that the applicant would be able to subsist in Australia whilst here under the student visa, and also pay his tuition fees.
On 23 June 2022, the department acknowledged that the applicant had lodged the application, which seems to be the same date that the applicant actually lodged the application. However, in going through that material, the delegate became concerned as to the correctness of some of the financial material.
On 23 August 2022, the delegate wrote to the applicant saying that:
We are currently processing your application. During this process we received unfavourable information that may lead to a decision to refuse your application.
The letter explained that the applicant needed to satisfy Public Interest Criterion 4020, which was that “there was no evidence before the Minister that the applicant has given, or caused to be given to the Minister, a bogus document or information that is false or misleading in a material in particular in relation to the application for the visa”.
The notice said this:
In support of your application you provided an Independent Auditor’s Report for a business issued by Dambar Kumar Dev and Associates.
The Department has undertaken checks regarding the veracity of the information you have provided with your application. These checks have found that Dambar Kumar Dev and Associates was not legally authorised to conduct business audits on the date this auditor's report was produced, as its Institute of Chartered Accountants of Nepal (ICAN) registration had lapsed since 30 July 2020.
The income from the abovementioned Auditor's Report is also listed in the Verification of Annual Income Report from Kathmandu Metropolitan City you provided, which certified this claimed income from the business as per the Auditor's Report.
As the Auditor's Report you have provided is not valid, I have significant and well-founded concerns that the claimed income and profit of the business has been deliberately inflated in order to present your personal circumstances in your home country more favourably and to support your claim that you meet the Financial Capacity requirement of the Student (subclass 500) visa.
In addition I find that the Verification of Annual Income document has been fraudulently obtained, as it relied upon the abovementioned Auditor’s Report which is not valid.
Therefore, I am led to believe that you have knowingly provided false and misleading information to the Department. This information is found to be material to your visa application as it relates to your personal circumstances in your home country, which is relevant to the consideration of your application against the Genuine Temporary Entry requirement under clause 500.212. It is also relevant to the consideration of your ability to meet the Financial Capacity requirement under clause 500.214.
The notice asked the applicant to reply by a certain time and talked about providing documents and so on. The applicant asked for an extension to that date. The extension was granted and a new invitation to comment on the information was issued on 31 August 2022, giving the applicant 28 days to respond. And that letter, in effect, superseded the previous letter.
The applicant provided a letter to the department on 25 September 2022. It was written by his solicitor. Relevantly, in the letter, the solicitor said:
We submit that Mr. Suwal should satisfy the delegate as to the concern raised in s57 natural justice letter. We submit that Clause 4020 does not apply to the applicant in this matter and/or the applicant should be satisfy the requirement.
The solicitor for the applicant wrote as well in that letter that:
The concern as to the Audit Report is of concern only because the auditor’s license is not being renewed. The audit report however is genuine and correct and has been conducted again by a different auditor. This is a matter of a professional not renewing their liecnce (sic) but still conducting the business, this has nothing to do with an innocent student nor with the genuineness of documents which stands true and correct and is being still the same. Clause 4020 should not apply nor is breached in any way.
We intend to explain these in the following passages critically analysing law and the department assessment.
Later on in the letter, the solicitor wrote:
The fact that the auditor registration has an issue with the license is not something that the applicant could possibly be aware or manage at his end. The applicant for his part has provided correct, complete, true and honest documents and information as this is correct picture of the company/business and the financial and based on which the applicant’s parent has paid taxes and obtained loan accordingly. The applicant and his family stand by the documents and also have provided updated audit and financial to the same effect for satisfying the department’s concern.
It is not possible nor expected of an individual to be aware of registration of an auditor in any country nor should an innocent student be punished for registration expiry of an auditor. Neither we submit that it could be claimed that an educational loan obtained by an individual from the proper documents with actual business income and others should in any way impact his application or genuine of the education loan itself just because of the auditor registration issue.
And I have quoted directly from the letter. The letter later said that the concern of the delegate:
… is unfound and baseless fear or concern raised without any substance and corroboration.
The solicitor said:
We request the delegate to make assessments based on fact and circumstances rather than hypothetical, generalized comment.
The letter said that the parents of the applicant:
… came to know through the Australian High Commission that Dambar Kumar Dev and Associates registration from Institute of Chartered Accountants of Nepal (ICAN) has lapsed since 30 July 2020 and these company is not legally authorized to conduct business audit reports. It was happened all because of the auditor firm and the individual student should not be blamed for such an action by an unregistered or unauthorized person who was highly regarded professional. They would not have any way conduct audit from the firm or provided such documents to the department if they were aware of such registration issue. They were not aware that this audit company registration was lapsed. We believe that it was a mistake without any such intention.
There is an updated income verification along new audit report and tax clearance certificate.
The delegate noted all of the new material that was given to it. This included an updated income certificate, issued by Kathmandu Metropolitan Municipality, a supporting audit report issued by S. N. Jha & Associates; a study loan certificate, issued from Nabil Bank; a bank statement from Nabil Bank and Everest Bank of the applicant’s father’s savings account; a loan account statement of the applicant’s father; income proof of applicant’s mother; an audit report of her business, issued by D. N. Adhikari & Associates, and, finally, the applicant’s parents’ share valuation report.
The delegate said this:
Based on the evidence and information before me, I find the applicant has given or caused to be given information that is false or misleading in a material particular. Accordingly, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020 (1).
I note the applicant’s explanation that they did not know that the auditor was not legally registered to conduct such work. While I acknowledge their comments, I note that it was open to the applicant to have conducted their own due diligence to ensure they were seeking audit services from a registered auditor listed in the Institute of Chartered Accountants (ICAN) website. As per Departmental checks the audit reports issued by S. N. Jha & Associates and D. N. Adhikari & Associates are not legally valid.
I give significant weight to the fact that the applicant did not provide sufficient other credible digital evidence to satisfy me that the claimed income and turnover of the business was broadly accurate with the findings in the invalid business auditor’s report of concern. This leads me to find that the claimed income in the auditor’s report is false or misleading in a material particular.
The applicant has also provided a Verification of Annual Income document which relied upon the false or misleading business income claims in the auditor’s report. I find that this document has been obtained because of a false or misleading statement.
I find that this information is material to your visa application as it relates to your personal circumstances in your home country, which is relevant to the consideration of your application against the Genuine Temporary Entry requirement under clause 500.212. It is also relevant to the consideration of your ability to meet the Financial Capacity requirement under clause 500.214.
Based on the evidence and information before me, I am not satisfied that the applicant meets PIC 4020(1) of PIC 4020.
As a result, Regulation clause 500.217 is not met.
For those reasons, the delegate declined to issue a student visa to the applicant.
If the application for extension of time is allowed, the applicant seeks to argue three grounds. The first ground is that the delegate failed to comply with section 57 of the Act by not giving to the applicant clear particulars of information that was a reasonable part of a reason for affirming the decision under review.
The second ground is that the finding that the auditor’s reports were not legally valid, as per unspecified departmental checks, was legally unreasonable.
Ground three is in the alternative. It argues that the exclusion of the auditor’s reports from the delegate’s consideration of the accuracy of the original auditor’s report, because of the legal invalidity established by the departmental checks, was unreasonable because that legal invalidity did not mean the figures in any of the auditors reports were not credible or did not otherwise corroborate the accuracy of the original auditor’s report.
In effect, the applicant has argued that, when the delegate has asked for information, pursuant to a section 57 notice, and the applicant provides that information, if it is that the delegate then finds that there is something wrong with that information, the delegate must issue a further section 57 notice regarding that information.
The applicant argues that in this case, it means that when the applicant provided the further material (which included auditor’s reports from S. N. Jha & Associates and D. N. Adhikari & Associates), and the delegate found that those new reports were not legally valid, the delegate had an obligation, pursuant to section 57, to give that information to the applicant to ask him to comment upon it.
Section 57 of the Act is headed, “Certain Information Must Be Given to Applicant”. Subsection 1 says:
(1)In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason for refusing to grant a visa.
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant, or other person is a member.
(c) was not given by the applicant for the purpose of the application.
(2)The Minister must:
(a)give particulars of the relevant information to the applicant in the way the Minister considers appropriate in the circumstances.
(b)ensure, as far as reasonably practicable the applicant understands why it is relevant to the consideration of the application.
(c) invite the applicant to comment on it.
There is no doubt that this section was followed by the Minister in the letters sent to the applicant on 23 August 2022 and 31 August 2022. That was because the fact that the applicant was said to have proffered a bogus document, was information that was specifically about him, and that it would be part of the reason for refusing to grant the visa.
The applicant replied by giving information that, in effect, said:
(a)I am not responsible for the fact that the original auditor’s licence had lapsed.
(b)That there was nothing wrong, in any event, with the information given by the auditors, and that there are two other auditor’s reports that corroborate the original auditor’s report.
The delegate noted (as per departmental checks) that the audit reports issued by those other two auditors, were also not legally valid. That information is not personal information. That information is not specifically about the applicant. Because that information does not go to the correctness, or otherwise, of whether the information given by the applicant to the delegate, was incorrect, it is not personal information.
The applicant says that “the information was correct, and here are two other reports”. Those other reports cannot be personal information, therefore there was no obligation under section 57 for the Minister to ask the applicant to comment upon it.
The applicant argues that the Minister has not enlightened anyone as to what “departmental checks” meant that the reports of these other two auditors were legally invalid. The context of the delegate saying what the delegate did, was that the applicant should have done his own due diligence to ensure that he was seeking services from a registered auditor listed in the Institute of Chartered Accountants website. It would seem that the clear inference is that the departmental checks were that the audits reports issued by the other two persons were not legally valid.
The applicant has produced an affidavit that suggests that one of those two auditors is actually registered, however, the information was not before the delegate at the time. As well, the information, in the affidavit, does not seem to be time specific such that, even if the Court could receive the information, the Court could rely upon it as showing what the applicant wants it to show.
But again, even that shows the way in which the delegate was thinking, in that the delegate raised the fact that the auditor’s report, sent with the student visa application, was invalid because the auditor was not registered. One would have thought that, before proffering any other auditor’s reports, the applicant would have checked that those other auditors were registered; and secondly, the applicant would have shown proof of such registration. Neither of those actions were done.
The departmental checks, whist they are unspecified, are obviously material that has been before the delegate, in much the same way that the original departmental checks were matters before the delegate.
The fact that the numbers in all of these reports may match up, does not prove anything if it is that those persons are not legally able to provide the opinions and figures that they are purportedly providing. It matters not one whit whether they match up or not. The basic starting block is that the applicant has to show that the figures have some legal basis for acceptance, before it is that one can look at whether they match up or not.
It seems to me then, when one looks at the decision and what is said to be arguable, that there is no arguable case for the Court to consider.
When one adds that to the problems in the excuse that has been proffered by the applicant for his delay in filing, that I have already mentioned, it leads me to the conclusion that this is not a matter where the Court should exercise its discretion to extend the time within which to file the application.
For those reasons I refuse the application.
Having regard to all matters, noting that there had been a previous application for notices to produce put before me, I would make the following comments.
The previous mention was a mention that the applicant did not ask for; it was one that the Court initiated of its own volition, given that it had seen the notice to produce, because the matter was brought to its attention by the Registry.
The Court noted the date for this application and could see the problems and so brought the matter on for a mention.
There were robust discussions as to what should happen.
In my view, that does not mean that the Minister should be able to get their costs of that appearance simply because they ended up being ultimately successful today.
The costs will be awarded in the sum of the “scale” amount for an interlocutory hearing only.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 13 June 2023
0
0
0