Toor v Minister for Immigration - [2012] FMCA 804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 804

MIGRATION – Schedule 5A of the Migration Regulations 1994 – evidence of availability of funds – s.359AA(b)(iii) and s.359AA(b)(iv) of the Migration Act 1958 (Cth) considered.

Commonwealth of Australia Constitution Act, s.75(v)
Migration Act 1958 (Cth), ss.359A, 359AA, 360, 424A, 424AA
Migration Regulations 1994, Schedule 2, Schedule 5A

Minister for Immigration and Citizenship v Li [2012] FCAFC 74
MZYFH v Minister for Immigration and Citizenship [2010] FCA 559
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

Applicant:

SUPINDER SINGH TOOR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 123 of 2012

Judgment of:

Whelan FM

Hearing date:

24 July 2012

Date of Last Submission:

24 July 2012

Delivered at:

Melbourne

Delivered on:

7 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gilbert

Solicitors for the Applicant:

Bentleys Migration Law

Counsel for the Respondents:

Mr Brown

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the Application filed 8 February 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 123 of 2012

SUPINDER SINGH TOOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) of 10 January 2012 to affirm a decision of a delegate of the Minister not to grant the Applicant a Subclass 572 (Class TU) visa.
The Applicant seeks:
·A writ of prohibition, prohibiting the First Respondent from taking action on the decision of the Tribunal;
·A writ of certiorari quashing the decision or an Order setting it aside;
·A declaration that the decision is invalid; and
·An Order remitting the matter to the Tribunal for determination according to law.

Background

The Applicant is a citizen of India. On 14 August 2010, while resident in Australia, he applied for a subclass 572 student visa. On 12 October 2010 he was requested to provide evidence of having access to sufficient funds for his tuition fees, living expenses and return travel.
On 2 November 2010, he provided certain documentation to the Department of Immigration and Citizenship (“the Department”) including a loan sanction letter from the Punjab National Bank.
On 29 November 2010, the Applicant was requested to provide evidence that the loan had been disbursed into an account and funds were readily available. On 3 December, the Applicant provided a letter from the bank in relation to a fixed deposit account held by Mr Rajinder Singh, the Applicant’s father.
The Delegate referred the letters to the Australian High Commissioner in New Delhi for verification. The response indicated that the monies had been transferred into a savings account and fully withdrawn.
On 16 December 2010, the Delegate invited the Applicant to comment on the information that the relevant funds had been withdrawn on 10 December 2010.
The Applicant responded by email dated 20 December 2010, attaching a number of documents.[1] Amongst other things, these included, an Affidavit from the Applicant’s father, indicating that the funds had been withdrawn because of a legal necessity, but had since been re-deposited.[2] A number of other documents were provided, designed to establish the financial backing of the Applicant’s father, in particular regarding his agricultural land. Included were four “J Forms”, which evidenced the sale of rice, in October 2010.[3]
[1] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Court Book, pages 32-70.
[2] Ibid, page 33.
[3] Ibid, pages 63-66.
The Delegate made a decision to refuse the application on 22 December 2010.[4] The Delegate was not satisfied that the required funds were available to the Applicant, as required by Schedule 5A of the Migration Regulations 1994 (“the Regulations”). In particular, the Delegate took into account the withdrawal of the funds, and the lack of evidence that the funds had been disbursed into an account that was available to the Applicant.[5]
[4] Ibid, pages 75-80.
[5] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Court Book, page 80.
On 21 January 2011, the Applicant applied to the Tribunal for a review of the Delegate’s decision. By letter, dated 14 September 2011, the Tribunal invited the Applicant to appear at a hearing and asked the Applicant to provide certain information. The Applicant engaged the services of a migration agent, who provided a submission and supporting documents. A hearing was conducted on 2 November 2011, with the Applicant and his adviser present.
At the hearing an issue arose concerning the adequacy of the funds available to the Applicant. The Applicant initially asked for an extension of time to provide evidence of sufficient funds[6] and later, after a short adjournment, suggested that he pay his course fees ‘today’. The Tribunal was still not satisfied that the Applicant had sufficient funds available but gave him until 5.00pm that day to attend to two issues - the funds, and whether having not studied or been enrolled for 15 months he qualified as a ‘genuine’ student.
[6] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page 17.
A further hearing was conducted on 12 January 2012. The Applicant attended with his adviser. The Tribunal had received further adverse information from the Australian High Commission in Delhi. The Tribunal informed the Applicant of this information during the hearing. The Applicant was asked if he wanted an adjournment to consider the information. The Applicant requested, and was given a break of 15 minutes to discuss the information with his adviser. He was then asked if he wished to respond and if he had had enough time. He answered “yes” to both questions. Before the hearing was concluded both the Applicant and his adviser sought more time, but this was refused. At the conclusion of the hearing, the Tribunal gave an oral decision, affirming the decision of the Delegate. Written reasons were later provided.[7]
[7] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Court Book, pages 168-180

The Tribunal’s decision

The Tribunal’s written reasons deal with the history of the matter and the Delegate’s decision. At the interview on 2 November 2011, the Tribunal indicated to the Applicant that on the information before it, he did not have sufficient funds available to him to meet the Schedule 5A requirement. The Applicant requested additional time to make further submissions.
The Tribunal later received a written statement from the Applicant and three letters. One indicated that he had no outstanding fees. The others from the Commonwealth Bank of Australia and the State Bank of India showed respectively what funds he had available in Australia and what amount the Applicant’s father had available to him in an overdraft account in India.
At the hearing on 10 January 2012, the Tribunal referred the Applicant to information contained in a report from the Australian High Commission in New Delhi of 1 December 2011. That information was that the Applicant’s father had created a term deposit account by depositing a cash amount of 1,115,000 Rupees in October 2011. When asked about the source of these funds he referred to the sale of crops and relied on receipts from October 2010. When asked where he kept the money between October 2010 and October 2011, he said he placed it with private money lenders – he was unable to provide any receipts or documentation to support this claim.
Given the history of the matter the Tribunal was concerned about the source of the funds securing the current overdraft and whether they would remain as security for the overdraft or available to the Applicant. The Tribunal considered that the Applicant was unable to give a satisfactory response to these concerns. For these reasons the Tribunal was not satisfied that the Applicant could meet the financial capacity requirements of Schedule 5A of the Regulations.

Grounds of the application

The Applicant contends that the Tribunal failed to comply with s.359AA(b)(iii) and/or (iv) of the Migration Act 1958 (“the Act”) and this was in breach of s.359A in that it failed to advise the Applicant that he may seek additional time to comment on or respond to the information and/or failed to adjourn the review upon the request of the Applicant.
The Applicant, in written submissions, sets out the statutory scheme relevant to the Applicant. The Applicant was required to satisfy, cl.572.223 of Schedule 2 of the Regulations:
572.223
(2)An applicant meets the requirements of this subclause if:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; 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.
The Applicant was required to satisfy cl.5A405 in Schedule 5A of the Regulations:
5A405 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 24 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 24 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.
The Applicant submits the issues arising for decision involve matters of law only. The Applicant submits that the Tribunal failed to comply with s.359A and s.359AA of the Act.
Section 359AA of the Act reads:
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information the Tribunal must adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
In the matter of MZYFH v Minister for Immigration and Citizenship,[8] Bromberg J noted that a failure to comply with the equivalent section in the refugee context, forces one back to the primary section, in this case s.359A of the Act:
Sections 424AA and 424A work in a complementary manner. If the tribunal engages the provisions of s 424AA and complies with that section, it need not meet the requirements of s 424A(1). That is the effect of s 424A(2A) as explained by Moore, Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 ; [2009] FCAFC 46 at [88] and [104] (SZMCD).
A failure to comply with the requirements of s 424AA does not constitute jurisdictional error: SZMCD at [74] – [75]] and [93] – [101]. However, non-compliance by the tribunal with the requirements of s 424AA will cast the tribunal back to s 424A. In that event, the tribunal must then comply with the provisions of s 424A(1): SZMCD at [92] and [103]. A failure to comply with the requirements of s 424A(1) does constitute jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; 83 ALD 545; [2005] HCA 24 at [78]; SZBYR at [13].[9]
[8] MZYFH v Minister for Immigration and Citizenship [2010] FCA 559.
[9] Ibid, at [30] – [31].
The Applicant also referred to paragraph 33 of the judgment where his Honour refers to the applicant being given a “meaningful opportunity” to comment and respond to the information, including by seeking additional time and, if the Tribunal considers it reasonably necessary, through an adjournment of the hearing.
His Honour goes on at paragraph 34 to say:
As the Full Court said in SZMCD at [71] – [72], the same policy and purpose underpins s 424AA as that which underpins s 424A. Relevantly, the policy and purpose is that the tribunal should be compelled to:
(a) put the visa applicant on fair notice of critical matters of concern to the tribunal;
(b) ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.[10]
[10] MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 at [34].
The Applicant also took the Court to paragraphs [71] and [72] of the joint judgment of Tracey and Foster JJ, which is the source of that quotation, and to paragraph [102] of that judgment which cites the Explanatory Memorandum underpinning s.424AA of the Act.
The Applicant referred to the history of the matter and to the Delegate’s decision.[11] The Applicant submits that the decision of the Delegate had nothing to do with the “J forms” but was based on the fact that the funds relied upon by the Applicant had been withdrawn.
[11] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Court Book, pages 79-80.
The Applicant referred to the invitation to attend a hearing on 2 November 2011 and the request for up to date information. The Applicant provided various documents including an Affidavit from his father and a document from the State Bank of India. Further documents were filed following the first hearing including a letter from the Bank of India explaining the previous document.
The Applicant notes that a request was made to the Australian High Commission in New Delhi to verify the documents on 4 November 2011 and a response was received on 2 December 2011. The Applicant was then invited to appear at a further hearing on 10 January 2012.
The Applicant took the Court to various passages from the transcript of the Tribunal hearing. He submitted that on the first hearing date the issue was dealing with the question of whether there were sufficient funds in the account. There was nothing about the authenticity of the documents being provided. The s.359AA issue raised on the second hearing date was quite a different question. Until that time, the authenticity of the actual funds, in terms of the “J forms” and whether the money had been with a money lender was not raised at all.
The Applicant submits that the Tribunal’s obligations under s.359AA of the Act were not spent once the Applicant had been given the 15-minute adjournment. After that time the Applicant addressed the issue of the “J forms”. The fact that the “J forms” could not be verified was part of the adverse information raised. The Applicant after the adjournment says that he had telephoned one of those numbers and it was correct. The issue at the primary stage concerned the money being withdrawn. The Tribunal, however, goes further to ask where the money came from. The Applicant had not had time to consider that issue.
The Applicant submits that in order to prepare a case for the Tribunal, the Applicant is entitled to rely on the way the primary decision is framed and the way in which the first Tribunal hearing was framed. The issue of where the money came from only arose for the first time at the second hearing. The Applicant tried to call the numbers on the “J forms” and he suggested getting further information from his father. The Applicant sought additional time to comment or respond. It was clear that he was not able to respond adequately during the hearing.
The Applicant submits that the Tribunal misdirected itself as to the request for additional time. There was therefore a failure to comply with s.359AA of the Act and, therefore, with s.359A of the Act.
The Applicant submits that the Tribunal failed to comply with s.359AA(b)(iii) and/or s.359AA(b)(iv) of the Act, in that it failed to properly advise the Applicant of his right to seek additional time and/or accede to his request for more time in which to comment on or respond to the adverse information presented for the first time at the hearing. The Applicant submits that “the Tribunal acted precipitously in handing down an oral decision, foreclosing any possibility the Applicant could lodge any material after the hearing.”[12]
Contrary to the view apparently taken by the Tribunal, the issues raised at the second hearing were entirely new. It was not until this hearing that the authenticity of the “J forms”, which were first filed with the Department on 20 December 2010, (Court Book, pages 23-70) became an issue. The Applicant’s father had also not been approached by the Department previously.[13]
In these circumstances, it was simply unreasonable to expect that the Applicant could adequately address the new information by giving him a short break in the hearing. He tried to utilise his time by calling the numbers on the “J forms” (Supplementary Court Book, page 47). His adviser tried to deal with the issue of money lenders, effectively giving evidence from the Bar table (Supplementary Court Book, page 55, line 29). A suggestion that the Applicant’s father go to a solicitor and make a declaration was dismissed out of hand (Supplementary Court Book, page 57, lines 1-10). The Applicant’s plea to “please give me one more chance. I provide you whatever you want” (Supplementary Court Book, page 59, lines 28-29) was declined with immediate effect.[14]
[12] Applicant’s Contentions of Fact and Law, dated 6 July 2012, page 6 at paragraph 15.
[13] Applicant’s Contentions of Fact and Law, dated 6 July 2012, pages 7-8 at paragraph 21.
[14] Ibid, page 8 at paragraph 22.
The Applicant submits that “the undoubted purpose of s.359A and s.359AA of the Act is to provide the Applicant with the opportunity to have a fair hearing and ensure that the Tribunal complies with its procedural fairness obligations”.[15] The question of the reasonableness of the operation of s.359AA(iv) of the Act must depend upon the context and history of the matter.
The Tribunal here, contrary to s.359AA(iii), did not adequately advise the Applicant that he may seek additional time to comment on or respond to the information.
The Tribunal decided to utilise s.359AA, when undoubtedly a s.359A letter would have enabled the Applicant ample time to address the new issues. By raising the information at the hearing, then giving an oral reason, the “review” ended at the same time as the hearing. The Applicant had no real opportunity to deal with matters critical to the decision. In the result, there was a breach of s.359AA(iv).
As the information fell squarely within s.359A, there was a resulting breach of s.359A and hence jurisdictional error.[16]
[15] Ibid, page 8, paragraph 23.
[16] Ibid, page 8, paragraphs 24-26.

The First Respondent’s Submissions

The First Respondent submits that an analysis of the hearing transcript reveals the following relevant matters:
·The Tribunal informed the Applicant that it had sent particular material concerning the source of the Applicant’s funding to New Delhi for verification, as the Department had done on a previous occasion and the report back “does not sound good”.
·The Tribunal then informed the Applicant that it was required to: provide the information to the Applicant under s.359AA of the Act; inform the Applicant why the information was relevant to its review and the consequences for the Applicant should the Tribunal rely on the information; and then invite the Applicant to seek an adjournment to consider any response to the information.
·The Applicant’s adviser (a registered migration agent) then asked for permission to explain the process outlined by the Tribunal to her client, which request was acceded to by the Tribunal.
·The Tribunal then read out the relevant parts of the report it had received. At various points the Tribunal asked the Applicant if he understood what had been read and each time this was responded to in the affirmative.
·The Tribunal then informed the Applicant: “Now let me tell you why it is relevant to the Review” and proceeded to inform the Applicant that if the Tribunal were to rely on the information it might not be satisfied about the source of the Applicant’s funding and if were not satisfied of that matter the consequence would be the Tribunal would affirm the decision under review. The Tribunal repeated its explanation of the relevance of the information and consequences to the Applicant should it rely on the information.
·The Tribunal then asked the Applicant if he wished to adjourn the hearing to consider what comments or response he might give to the information and to consult with his Migration Agent. The Applicant requested an adjournment, the Tribunal responded, “How long would you like?” and the Applicant’s Migration Agent responded with “15 minutes, please”.
·When the hearing resumed, the Tribunal asked the Applicant, “have you had enough time?” to which the Applicant responded in the affirmative.
·The Tribunal then asked the Applicant “would you like to respond or comment?” to which the Applicant responded “yes”.
·Thereafter ensued an exchange between the Tribunal and the Applicant about what were known as the ‘J documents’ and the extent to which the Tribunal could rely on them as evidence of sufficient funding in light of the information that had been received from the High Commission in New Delhi and a previous episode where funds had been withdrawn from an account used as evidence of sufficient funding.
·In the course of the exchange between the Tribunal and the Applicant, the Tribunal indicated that the material that had been provided by the Applicant was not sufficient to satisfy the Tribunal of the matters relating to funding.
·A little further into the discussion, the Applicant’s adviser suggested to the Tribunal that the Applicant could have his father make a declaration before a solicitor about the source of the funds. In response the Tribunal stated that it would not grant any further time as the Applicant had known he was required to provide sufficient evidence of the source of the funds to satisfy the Tribunal and this had not been done.
·Finally, after the Tribunal indicated that it was not inclined to grant further time for the Applicant to deal with an issue that had been known for some time and it would then make a decision on the Review, the Applicant sought additional time to “provide whatever you need”, which request was refused and a decision was made to affirm the decision under review”.[17]
[17] Outline of Submissions of the First Respondent, dated 18 July 2012, pages 2-3.
The First Respondent submits that the Application ought to be dismissed for the following reasons:
·It is plain from the hearing transcript that the Tribunal complied with its obligations under s.359AA of the Act;
·If the Tribunal complied with s.359AA then s.359A has no operation; and
·Therefore, the Applicant has not identified any jurisdictional error in the conduct of the Tribunal’s Review.[18]
[18] [18] Outline of Submissions of the First Respondent, dated 18 July 2012, page 3.
The First Respondent conceded that the information received by the Tribunal from the Australian High Commission was “information” for the purposes of the provisions. Further, the First Respondent conceded that if the Tribunal did not meet the standard required under s.359AA then it failed to discharge the obligation imposed upon it by s.359A of the Act.[19]
[19] Ibid, page 4, paragraph 16.
Section 359AA of the Act does not, on its face, indicate how much time the Tribunal should grant an applicant under that provision. However, in the First Respondent’s submission, that question is not in issue because the Tribunal asked the Applicant how much time he required, a specific response was provided and this was allowed by the Tribunal.[20]
[20] Ibid, page 5, paragraph 18.
The Applicant submits that under s.359AA, the Tribunal ought to have acceded to the Applicant’s subsequent requests for an adjournment. The First Respondent submits that the Applicant’s submission is without foundation for the following reasons:
·The Tribunal had already discharged its obligation under the provision – it had adjourned the hearing for the length of time requested by the Applicant and, further, it had checked with the Applicant that the length of the adjournment was adequate.
·There is nothing in the plain words, statutory context or purpose behind s.359AA that would suggest that it confers a right or a continuing right on an applicant to be granted an adjournment.
·Even if s.359AA conferred a continuing right on the Applicant (which is denied), it is subject to the requirement of the Tribunal considering that the applicant reasonably needs additional time. It is clear from the hearing transcript and the Tribunal’s Reasons that the Tribunal did not consider the Applicant reasonably needed additional time after the first adjournment was granted (Court Book, page 178).[21]
[21] Outline of Submissions of the First Respondent, dated 18 July 2012, pages 5-6.
The fact that the Applicant needed to put forward material that was satisfactorily persuasive to the decision-maker had always been an issue. The issue as to whether the documents were authentic had, in fact, been foreshadowed, in any event, in the first hearing in November 2011.[22] The fact that the Tribunal was interested in the source of the funds was clearly foreshadowed.
[22] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page 30 lines 19-30
SZMCD v Minister for Immigration and Citizenship[23] makes it clear that the decision to engage the provisions of s.424AA (in this case s.359AA) is a discretionary one.[24]
[23] SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415.
[24] Ibid at page 431.
The Applicant puts its case on the basis that the decision of the Tribunal not to grant a further adjournment was unreasonable. The Respondent submits that the Tribunal has properly considered the matter and refused the request for an adjournment on a proper basis and it could not be said that no reasonable decision-maker would make that decision. The Respondent refers to paragraph 45 of the Tribunal’s decision:
The Tribunal considered the request for additional time and referred to the length of time the applicant has had, and the several opportunities he has had to respond to invitations to demonstrate that he meets the criterion which has been in issue for more than one year. The Tribunal further indicated that at the earlier hearing of 2 November 2011, the Tribunal had discussed the same with him and was then not persuaded that it was reasonable to continue to grant additional time. Since then a further two months or more have elapsed and the same issue of funds remains unsatisfactorily addressed. The Tribunal told the applicant that in its view having regard to these observations, it declines his request for yet more time and it is appropriate to make an oral decision on the basis of the information before the Tribunal.[25]
[25] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Court Book, page 178, at paragraph 45.

Conclusions

The sole ground in this matter deals with whether the Tribunal failed to comply with s.359AA(b)(iii) and/or s.359AA(b)(iv) by:
a)Failing to advise the Applicant that he may seek additional time to comment on or respond to information; and/or
b)Failing to adjourn the review upon the request of the Applicant.
The First Respondent concedes that if the Tribunal did not comply with s.359AA of the Act then it failed to discharge the obligation imposed upon it by s.359A of the Act.
Section 359AA provides that during the course of a hearing:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)    if the Tribunal does so--the Tribunal must:
(i)   ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)    orally invite the applicant to comment on or respond to the information; and
(iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)   if the applicant seeks additional time to comment on or respond to the information the Tribunal must adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
To understand the application of s.359AA of the Act to this matter it is necessary to look at the history of the Applicant’s application for a subclass 572 student visa. It is apparent that the Applicant first arrived in Australia on a student visa in 2008. His application for a future visa, lodged in August 2010, was refused because the Delegate was not satisfied that he was able to meet the criteria of having access to funds from an acceptable source that were sufficient to meet course fees, living costs and school costs for the remainder of his stay and evidence of having funds from an acceptable source sufficient to meet his travel costs.
The Delegate’s decision was based on the following:
·On 12 October 2010 the Applicant was requested to provide evidence of having access to sufficient funds.
·On 28 October 2010, the Applicant’s father deposited 1,112,000 rupees in the Punjab National Bank on fixed deposit for 6 months and borrowed 1,000,000 rupees secured on the fixed deposit.
·After providing evidence of the loan to the Department on 2 November 2010, the Applicant’s father withdrew the full amount of the loan early in December.
The Applicant on 21 January 2011 sought a review of that decision. On 14 September 2011, the Applicant was advised that on the basis of the material before it the Tribunal was unable to make a favourable decision and invited the Applicant to attend a hearing. The Applicant was advised of the material he would need to provide to the Tribunal to satisfy the requirements of Schedule 5A of the Regulations and was notified that this must be provided no later than the hearing date.
During the first hearing, the adequacy of the funds the Applicant was able to access was raised. The material before the Tribunal was that the Applicant’s father had deposited 1,115,000 rupees into an ‘STDR’ Account with the State Bank of India on 20 October 2011 and had sanctioned an overdraft limit of 1,000,000 rupees against that account. The Tribunal pointed out that on the current exchange rate the amount in the loan account was not sufficient to cover the Applicant’s needs. A request was then made for an extension of time to provide evidence of sufficient funds.[26]
[26] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page p.17.
The Tribunal raised with the Applicant that the original application had been made in August 2010 and that the funds issue had been a problem all along.
So the point of all this is you have had a lot of opportunity to fix this. What has been standing between you and a student visa since August is the issue of funds, August last year and where are we now? November 2011. So what is that? 15 months and what are you asking me for? More time to get it right. Give me a good reason why I should give you more time because we have done all this so we can fix everything at the hearing so we are ready to make a decision today. So within a few minutes of discussing the evidence you are saying, “I need more time”; give me a good reason. What have you been doing since you lodged your application for review about your visa? --- (No audible response.)
The letter from the bank is dated, what, 20 October this year which really means you started to do something about it shortly before 20 October. Our letter was 14 September.[27]
[27] Ibid, page 19, lines 4-19.
The Tribunal further raised with the Applicant that the bank statement produced appeared to indicate that the balance in the account was only 151,698 rupees which even if, as he suggested, the Applicant paid his course fees from money in Australia, would still not be enough.
You can cure it by going off to pay the fees but then when we go on to discuss access we only have evidence of access of $3,200 and something, say $3,200 which is not 19,000. That is on the evidence you have provided, that is before we go off and ask questions, “How did your father have $1,150, 000 (sic) on 20 October in the bank?” we do not even need to go there yet, we do not have access to 19,000? --- Yeah.
Because that is the next thing I would do is to say, well, where did the money come from, the security so that I can satisfy myself that the loan is not going to not be available to you as happened in the past? --- Yeah.[28]
[28] Ibid page 30 at lines 12-22.
At the end of the day the Applicant was given time to submit further material and the Tribunal took action to verify this with the Australian High Commission in New Delhi.
At the second hearing the Tribunal raised the issue of the evidence of funds from the beginning of the hearing.
At page 5 of the transcript of the hearing on 10 January 2012[29] the Tribunal refers to the action taken previously to verify the information provided by the Applicant and to the fact that documents submitted by the Applicant after the 2 November 2011 hearing had also been sent to New Delhi. The Tribunal then refers to the provisions of s.359AA of the Act and what it requires the Applicant to do. The Tribunal allowed the Applicant’s migration agent to further explain the process to him.
[29] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page 40.
The Tribunal then read out the content of the report. The Member asked the Applicant if he understood the information to which he responded ‘yes’ and then explained why it was relevant to the Review. The transcript then goes on:
Tribunal Member: [b]ecause we do not really know where it came from, and we are not satisfied with the answers because they can’t be verified, all right? - - - Yes.
Because of this, if I am not satisfied of the source then I would not be satisfied that you will have access to the funds in the loan while you hold a visa for the time that you are going to be needing the visa, and if I am not satisfied of that then I may find that you do not meet clause 572.223 and that would be the reason, or part of the reason, for affirming the decision under review. Affirming the decision under review means the decision for refusing the visa remains as a refusal. Do you understand, you do? - - - Yes.
Now I will ask you, do you wish to adjourn to consider what comments or response you want to give to the information. Here you might consult with Mrs Bahli, your representative? - - - Yes.
Yes?
Migration Agent: Yes, please.
Tribunal Member: How long would you like?
Migration Agent: 15 minutes, please. I will adjourn for 15 minutes, at 10.22am
(Short adjournment)
Tribunal Member: Thank you. Please sit down, Mr Toor, have you had enough time? - - - Yes.
Would you like to respond or comment: - - - Yes.[30]
[30] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page 46, lines 11-31 and page 47 lines 1-5.
The Applicant then responded to the issue and discussion ensued involving the Tribunal member, the Applicant and his migration agent.
I am satisfied on the basis of that evidence that the Tribunal did meet the obligation of s.359AA(b)(iii) of the Act.
Section 359AA(b)(iv) of the Act provides that where such information is given orally to the applicant in a hearing:
[i]f the applicant seeks additional time to comment on or respond to the information the Tribunal must adjourn the review if the Tribunal considers that the applicant reasonably needs additional time to comment or respond to the information.
The First Respondent suggests that s.359AA(b)(iii) and s.359AA(b)(iv) of the Act represent alternative courses of action and not cumulative ones, having adjourned the proceedings for the time proposed by the Applicant’s representative, the Tribunal was not required to deal with a further request for the hearing to be adjourned.
I am not satisfied that in all circumstances having provided a short adjournment, the Tribunal would not be obliged to later consider if a further adjournment might not be reasonable in order to allow the Applicant to respond to the information. In some circumstances, proposals put by an applicant or information given orally in response might well justify a further adjournment for material to be produced.
Prior to the discussion of an adjournment, the Applicant was on notice that there were concerns about the origins of the 1,115,000 rupees deposited by the Applicant’s father on 20 October 2011. Those concerns derived from the fact that the funds were said to be from crop sales in October 2010 and the only explanation for where the money had been since October 2010 was that it had been with money lenders and commission agents. Further, the contact numbers provided on all the “J forms” - detailing the crop sales - were either incorrect or switched off. The Applicant was clearly on notice that Australian High Commission considered that the funds may not be genuinely made available to the Applicant.
The Applicant did not, however, return to the hearing after the 15 minutes and request additional time.
The Applicant seems to submit that the Tribunal acted unreasonably in not granting a further adjournment because the issue of the genuineness of the “J forms” had not previously been raised. Having tried unsuccessfully to contact particular numbers himself he did not however seek further time to do so.
The Tribunal put the issue squarely to the Applicant:
The telephoning of these agents and the comments that they make that they found it implausible as they said is just one element. The other elements are your father’s responses which are not particularly persuasive in the absence of verifiable evidence, as to where the money has been held for 12 months is not satisfactory. If we still have that concern about the money transferring it into your account may extend that period of time, but if the concern about the money is well founded and it comes from a temporary source as the first lot may have been apparently, what is stop [sic] you from transferring the money back to India so your father can return it to the person who lent it on a short term basis? What is to stop you from doing that? So you can transfer it now, if that is the arrangement that he has got – he has borrowed it temporarily from someone just to show that there is a loan? --- Yes, yes.[31]
[31] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page 51 at lines 12-28.

Section 359AA(b)(iv) of the Act requires the Tribunal to consider if the Applicant reasonably needs additional time to comment on or respond to the information.
The transcript of January 2012 reveals the following exchanges:
Migration Agent: It is just a request or a suggestion which I would like to make. If the (indistinct) and his father that goes to a – to a solicitor, make a declaration that he has taken money, would that be a piece of - - -
Tribunal Member: I am not granting any more time, Mrs Bahli. I really think – I mean, the last time we discussed - - -
Migration Agent: Yes.
Tribunal Member: That you have had ample opportunity to basically fix this. You have been aware all along that it is the issue that has been standing in the way of you being considered for the grant of a visa. If you thought this was going to – and I think you should have estimated that it may be verified in the same way, it’s presented in very similar unverifiable form – you had the opportunity to do whatever you thought was going to nail the issue, if you like, to the scrutiny of any routine verification process. You have had the opportunity to do all this. It starts to make, I think in my view, a bit of a mockery of the process, is if we keep coming back and you say, “Is that the problem, well give us some more time, and we will go away and produce another document.”
Migration Agent: Yes.
Tribunal Member: Then we send a document for verification. It may be good, it may be bad news. We call you back, we discuss it, we say, “Is that the problem, well give us some more time, we will do it all over again.” Where does it end? Do you understand me? How long do we hold on to the file? You made the claim for a student visa in August 2010. The onus is on you to give evidence to demonstrate that you are eligible for the visa. As the applicant, it falls to you to provide the evidence to satisfy the decision maker and you still have not been able to do it. It is January 2012 and we are still talking about the same one issue – funds. I think it is time to close this file and for you to reconsider what you want to do. As I said, I am ready to give you the decision unless you can give me one last chance and a very good reason why I should not give you the decision to finalise the case?[32]
[32] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page 57 at lines 5-31 and page 58 at lines 1-13.
There is then an exchange with the Applicant. The Tribunal continues:
It is not impossible to rely on oral evidence, but when the oral evidence doesn’t seem to make logical sense, combined with the fact that they tried calling every agent on the J forms and didn’t have a single success, all of that does not look good. The accumulation of these factors tends to leave the decision maker to say I am not satisfied with this as an explanation about the source of the money, and therefore I cannot be satisfied that it will remain there to keep the loan in place for you to access while you hold the visa. It is not that complex if you like. In many ways it is common sense. When you read the Regulations, what they require, and the questions that we ask and the investigations that we conduct it follows a reasonably predictable common sense route. As I say, you have had since August 2010 to fix this. I am not inclined to grant any more time and your comments in response to my concerns do not resolve those concerns, and I think it is appropriate to give you the decision. I can give you an oral decision now which means it closes the file, Mr Toor, and within 14 days you will get a full statement of reasons for the decision?
Applicant: Please give me one more chance. I provide you whatever you need. Please just - - -
Tribunal Member: It is not what I need, Mr Toor, “Give me one more chance.” It is really starting to sound a stretch. You have had several chances. We were ready to make a decision on 2 November. It is now 10 January and you are still saying to me, “Give me another chance.” There is a limit to being reasonable in granting yet more time to an applicant to demonstrate that they are eligible for a visa. It is a student visa. It is not your first application for a student visa, clearly, because you came here on a student visa from India. From August 2010 to January 2012 – to say, “Give me one more chance” with no guarantees – that is what we did last time, on 2 November, we gave you one more chance and this is what we got. I am sorry, but I do not think it is unreasonable to close the file, to finalise the case. I am going to give you the decision.[33]
[33] Toor v Minister for Immigration and Citizenship and Migration Review Tribunal, Supplementary Court Book, page 59 at lines 6-31 and page 60 at lines 1-14.
I am satisfied that the Tribunal considered if the Applicant reasonably needed additional time to comment on or respond to the information. The Tribunal is not obliged to adjourn the review but only to consider if the Applicant reasonably needed additional time. The Applicant had had since August 2010 to provide satisfactory evidence to meet the requirements of Schedule 5A of the Regulations in relation to his financial capacity. He knew what the problems were with the information he had previously provided. The Tribunal was entitled to take into account the history of the matter in its considerations.
As I am not satisfied that the Tribunal failed to comply with s.359AA of the Act it cannot be said to have failed to discharge its obligation under s.359A of the Act.
To the extent that the Applicant suggests that the Tribunal should have utilised s.359A of the Act rather than s.359AA of the Act, I am not satisfied that on the facts, or at law, there was any obligation on the Tribunal to do so.
Since the hearing of this matter, the decision of the Full Bench of the Federal Court in Minister for Immigration and Citizenship v Li[34] has come to my attention. The Full Bench in that case determined that an unreasonable refusal of an adjournment can constitute jurisdictional error on the part of the Migration Review Tribunal.[35] While slightly different reasons for decision are given in that matter by Greenwood and Logan JJ in their joint judgment to that of Collier J, the joint view of the Court was that an unreasonable refusal of an adjournment amounted to a failure by the Tribunal to give the Applicant a reasonable opportunity to present evidence and argument within the meaning of s.360 of the Act.[36]
[34] Minister for Immigration and Citizenship v Li [2012] FCAFC 74.
[35] Ibid at [29].
[36] Minister for Immigration and Citizenship v Li [2012] FCAFC 74, per Greenwood and Logan JJ at [29] and per Collier J at [102].
As such, it constituted a failure of the Tribunal to comply with a condition of the exercise of its decision-making power constituting jurisdictional error for the purposes of s.75(v) of the Commonwealth of Australia Constitution Act.[37]
[37] Ibid, per Greenwood and Logan JJ at [29] and per Collier J at [104].
I have considered the facts of this case in the light of that decision. I am, however, of the view that the Applicant was not unreasonably denied an adjournment under the circumstances of this case. Unlike the situation with Ms Li, the Tribunal properly considered the Applicant’s request for a further adjournment, in circumstances where the Applicant had been consistently unable to provide satisfactory evidence to the Tribunal and the Tribunal had little confidence that he would be able to do so if granted further time.
For these reasons the application is dismissed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date: 7 September 2012