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Patel v Minister for Immigration & Anor [2019] FCCA 2410 (30 August 2019)

Last Updated: 22 October 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Judicial review – student visa – whether wrong question asked – whether a failure to properly put and explain information – whether a failure to give proper, genuine and realistic consideration to claim – whether failure to properly conduct a review – whether jurisdictional error.


Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), s.75
Migration Act 1958 (Cth), ss.65, 348, 349, 359A, 359AA, 368, 474, 476
Migration Regulations 1994 (Cth), sch.2, cl.572.223, sch.5A, cl.A405


FTZK v Minister for Immigration & Border Protection & Anor [2014] HCA 26; (2014) 88 ALJR 754; (2014) 310 ALR 1
Huluba v Minister for Immigration & Ethnic Affairs [1995] FCA 1561; (1995) 59 FCR 518
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
LVR (WA) Pty Ltd & Anor v Administrative Appeals Tribunal & Anor [2012] FCAFC 90; (2012) 203 FCR 166; (2012) 90 ATR 37; (2012) 57 AAR 374; (2012) 289 ALR 244; (2012) 128 ALD 489
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299
Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241
Minister for Immigration & Citizenship v MZYHS [2011] FCA 53; (2011) 119 ALD 534
Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration & Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
MZYFH v Minister for Immigration & Citizenship & Anor [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10
NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99
Patel & Anor v Minister for Immigration & Citizenship & Anor [2013] FCA 97; (2013) 211 FCR 35; (2013) 139 ALD 516
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1
SXRB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
SZELX v Minister for Immigration & Anor [2007] FMCA 209
SZEOP v Minister for Immigration & Citizenship [2007] FCA 807
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZJTA v Minister for Immigration & Citizenship [2007] FCA 1289
SZMJM v Minister for Immigration & Citizenship [2010] FCA 309
SZMJM v Minister for Immigration & Citizenship [2010] HCASL 201
SZNRZ v Minister for Immigration & Citizenship [2010] FCA 107
SZOYH v Minister for Immigration & Citizenship [2012] FCA 713; (2012) 128 ALD 554
SZQOS v Minister for Immigration & Citizenship [2012] FCA 982; (2012) 133 ALD 458
SZRLO v Minister for Immigration & Citizenship [2013] FCA 825
SZRPA v Minister for Immigration & Citizenship & Anor [2012] FMCA 91
SZTGV & Ors v Minister for Immigration & Border Protection & Anor [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450; (2015) 144 ALD 525
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471
Wang v Minister for Immigration & Citizenship [2007] FCA 488
WZASX v Minister for Immigration & Border Protection [2017] FCA 1415
WZATI v Minister for Immigration & Border Protection [2015] FCA 923


Applicant:
GULAMAHEMAD ABDULKARMBHAI PATEL

First Respondent:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:`
PEG 88 of 2014

Judgment of:
Judge Antoni Lucev

Hearing date:
16 February 2015

Date of Last Submission:
16 February 2015

Delivered at:
Perth

Delivered on:
30 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))


REPRESENTATION

Counsel for the Applicant:
Mr R Hooker

Solicitors for the Applicant:
Shahid Shakur

Counsel for the First Respondent:
Mr PJ Hannan

Second Respondent:
Submitting appearance, save as to costs

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The time for the:
(2) The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
(3) The name of the second respondent be amended to “Administrative Appeals Tribunal”
(4) That leave be granted to the applicant to rely on a further amended application filed 2 December 2014.
(5) That the originating application filed 7 April 2014, as amended on 5 September 2014, and further amended pursuant to (4) above, and filed on 2 December 2014, be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 88 of 2014

GULAMAHEMAD ABDULKARMBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant, Mr Gulamahemad Abdulkarmbhai Patel (“Mr Patel”), has filed an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection , now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”), to refuse Mr Patel a Student (Temporary) (Class TU)(Subclass 572) visa (“Student Visa”).
  2. At hearing the Minister tendered the Court Book (“CB”) into evidence and it was marked as Exhibit 1. The Tribunal Decision is found at CB 205-210.

Background Prior to the Judicial Review Application

  1. The background to the Judicial Review Application is as follows:
    1. Mr Patel, an Indian citizen, applied for the Student Visa on 14 June 2011 intending to undertake a Certificate IV in Business, a Diploma of Business and an Advance Diploma of Business (“Studies”) at the Cambridge International College Australia (“College”) to commence on 11 July 2011 and finish on 25 February 2013: CB 1-6 and 70;
    2. on 15 June 2011 Mr Patel was requested to provide evidence of, amongst other things, but of relevance to the Judicial Review Application, access to sufficient funds to support himself for the length of his study and stay, that amount being identified as $41,960, and those funds having to have been held and accessible since 14 December 2010: CB 7-8;
    1. Mr Patel responded the same day with an education loan confirmation and loan disbursement letter from the “Corporation Bank” in India (“June 2011 Loan Documents”), noting that INR1,899,000 had been placed into the account of the Mr Patel’s father (“June 2011 Loan”): CB 15-21;
    1. on 1 August 2011 the Delegate invited Mr Patel to comment on information it had received that the availability of funds in the bank account of Mr Patel’s father were insufficient to meet the financial requirements of his Student Visa, and therefore he did not have the financial ability to continue the Studies in Australia: CB 36-38;
    2. on 25 August 2011 Mr Patel emailed the Delegate requesting a further 7 days to provide evidence of sufficient funds as he had made an application for a loan and required time for this to process, and on 26 August 2011 the Delegate responded stating that all evidence was required to be submitted by 29 August 2011 and no extension would be granted: CB 39-40;
    3. on 29 August 2011 Mr Patel sent an e-mail to the Delegate stating that there was a miscommunication between him and his father who was not aware of “the rules and regulations of immigration” so his father cancelled the June 2011 Loan because it had a high interest rate as “he though [sic] it was enough to cover the period of time required for the immigration to process my visa”, and Mr Patel did not become aware his father had done this until the Delegate contacted him: CB 39. Mr Patel provided a new set of loan documents from another bank as evidence of a new loan (“August 2011 Loan”) for an amount of INR2,150,000: CB 44;
    4. on 31 August 2011 the Delegate refused Mr Patel’s application for a Student Visa on the basis it was not satisfied that Mr Patel would have access to funds in accordance with the requirements of sch.5A of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 71-76;
    5. Mr Patel applied to the Tribunal on 13 September 2011 for review of the Delegate’s Decision: CB 103-109, and by letter dated 18 November 2013 the Tribunal invited Mr Patel to appear before the Tribunal on 12 December 2013 to give evidence and present arguments: CB 134-135;
    6. the Provider Registration and International Student Management System (“PRISMS”) report dated 11 July 2013 noted that Mr Patel had “finished” the Studies the subject of the Student Visa application: CB 130;
    7. on 12 December 2013 Mr Patel appeared and the Tribunal hearing was adjourned part heard: CB 141-143. On 2 January 2014 Mr Patel submitted a number of documents to the Tribunal including a letter dated 3 December 2013 evidencing a further education loan deposited into the account of his father (“December 2013 Loan”) from another bank in India for an amount of INR1,500,000 and a confirmation of enrolment to study a Certificate IV of Frontline Management with Silver Trowel Trade Training: CB 148-181;
    8. on 17 January 2014 the Tribunal asked for inquiries to be made concerning the genuineness of the December 2013 Loan, and those inquiries revealed that on 6 January 2014 the loan funds were fully withdrawn: CB 182-185;
    1. on 4 March 2014 Mr Patel appeared before the resumed Tribunal hearing and presented evidence and further arguments, and at the conclusion of the hearing Mr Patel’s migration agent was provided the opportunity to submit further documents by 11 March 2014: CB 195-197;
    1. on 10 March 2014 Mr Patel’s migration agent faxed further documents (“Supporting Documents”) to the Tribunal including a letter dated 4 March 2014 concerning the December 2013 Loan (“December 2013 Loan Letter”) and a declaration of Mr Patel dated 10 March 2014 regarding the genuineness of the December 2013 Loan (“Mr Patel’s Declaration”): CB 198-203; and
    2. on 12 March 2014 the Tribunal Decision affirmed the Delegate’s Decision not to grant Mr Patel a Student Visa: CB 205.

Tribunal Decision

  1. In the Tribunal Decision the Tribunal:
    1. noted that the Delegate’s Decision was to refuse the Student Visa as the Delegate was not satisfied that Mr Patel would have access to the funds required in accordance with the requirements of sch.5A of the Migration Regulations, and therefore was unable to meet cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations: CB 206 at [3];
    2. stated that the issue for the Tribunal to determine was whether Mr Patel was a “genuine applicant for entry and stay as a student”, which required him to give evidence in respect to the requirements of sch.5A of the Migration Regulations, and to satisfy the Tribunal that he intends to comply with the conditions of his Student Visa and will have access to the funds relied upon to meet the relevant financial requirements: CB 206 at [7]-[8];
    1. transcribed verbatim “pertinent paragraphs” of the Delegate’s Decision: CB 207 at [10];
    1. detailed the December 2013 Loan evidence Mr Patel had provided and explained that the Tribunal had caused that evidence to be sent to the relevant authorities to make inquiries and that those inquiries revealed that the December 2013 Loan of INR1, 500 000 had been transferred to a savings account and fully withdrawn on 6 January 2014: CB 208 at [12];
    2. formally put this information to Mr Patel at the resumed Tribunal hearing on 4 March 2014 and allowed Mr Patel an opportunity to respond by 11 March 2014 which he did by providing the Supporting Documents on 10 March 2014: CB 208 at [13]-[14];
    3. transcribed verbatim Mr Patel’s Declaration, in which he asserted that the inquiries were hindered by a “miscommunication by Bank Authorities because of the same kind of name” and the money was never taken out of the loan account: CB 208-209 at [15];
    4. said it had “no doubt” that if further inquiries were to be made regarding the December 2013 Loan it would confirm that the December 2013 Loan was in existence and that the funds had been reinstated, however, made a finding that the December 2013 Loan facility was nevertheless withdrawn on 6 January 2014: CB 209 at [16];
    5. rejected Mr Patel’s assertion (in (f) above), noting that the assertion was unsupported by any supporting evidence from the Bank from which he had obtained the December 2013 Loan facility: CB 209 at [16];
    6. found that Mr Patel, or his father, had engaged in a practice of creating a short term loan facility solely to attempt to satisfy the criterion for the grant of the Student Visa: CB 209 at [17];
    7. had no confidence that any loan or other financial facility submitted by Mr Patel would remain in existence for the duration of his Student Visa or that he would have access to the funds therein so as to satisfy sch.5A of the Migration Regulations: CB 209 at [17]; and
    8. was not satisfied Mr Patel had access to the relevant funds and therefore he failed to meet cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations; and
    1. affirmed the Delegate’s Decision not to grant the Student Visa: CB 209 at [18]-[19].

Proceedings in this Court

  1. The history of the matter before this Court is of some length and is as follows:
    1. Mr Patel was unrepresented when he filed the Judicial Review Application setting out two grounds of review, and a supporting affidavit sworn 4 April 2014 (“First Patel Affidavit”) which annexed a number of educational documents. It is unnecessary to set out the two grounds of review in the Judicial Review Application;
    2. a Registrar of this Court made orders on 14 May 2014 allowing Mr Patel an opportunity to file an amended Judicial Review Application and further affidavits by 9 July 2014 and listing the matter for final hearing on 27 August 2014;
    1. on 17 July 2014 Mr Patel appointed a lawyer, and on 11 August 2014 the Court made orders by consent extending the time for Mr Patel to file a further amended Judicial Review Application and further affidavits to 26 August 2014 and re-listed the hearing for 16 September 2014;
    1. on 28 August 2014 Mr Patel filed an affidavit sworn 28 August 2014 and lodged with the Registry what appears to be a minute of amended grounds of review;
    2. on 5 September 2014 Mr Patel filed a further affidavit sworn 5 September 2014 (“Second Patel Affidavit”);
    3. on 16 September 2014 the Court administratively adjourned the hearing of the Judicial Review Application to 25 November 2014; and
    4. on 25 November 2014 the Court made orders as follows:
      • 1. Leave be granted to the applicant to file and serve an application to file and serve substituted grounds of review, that application to annex the proposed grounds of review and to be supported by affidavit, by Friday, 28 November 2014.
      • 2. The respondent to file and serve any response to the applicant’s application to file and serve substituted grounds of review, supported by affidavit if necessary, by Friday, 5 December 2014.
      • 3. Time be extended for the applicant to file all affidavits already filed, up to the time of actual filing.
      • 4. The applicant file and serve:
        • (a) an outline of submissions; and
        • (b) a list of affidavits to be read with respect to the application to file and serve substituted grounds of review and the substantive application;
      • by 24 December 2014.
      • 5. The respondent file and serve an outline of submissions by 30 January 2015.
      • 6. The application to file and serve substituted grounds of review and substantive application be adjourned to 16 February 2015 at 10.15am.
    5. on 28 November 2014 Mr Patel filed a further affidavit sworn 27 November 2014 (“Third Patel Affidavit”) annexing the transcript of the Tribunal hearing from 12 December 2013 and 4 March 2014 (“2013 Tribunal Transcript” and “2014 Tribunal Transcript” respectively );
    6. on 2 December 2014 Mr Patel filed an application in a case seeking leave to file “substituted grounds of review” (“Application in a Case”) and an affidavit in support sworn by his lawyer Mr Shahid Shakur (“Shakur Affidavit”);
    7. on 4 February 2015 the Minister filed an outline of submissions, not having been filed or served with any submissions by Mr Patel and on 13 February 2015 Mr Patel filed an outline of submissions; and
    8. on the morning of the hearing on 16 February 2015 the Minister filed supplementary submissions in response to the submissions of Mr Patel filed on 13 February 2015.
  2. At hearing on 16 February 2015, there being no objection from the Minister, Mr Patel was given leave to rely upon the substituted grounds of review annexed to the Application in a Case (“Further Amended Judicial Review Application”). Mr Patel formally relied upon the Third Patel Affidavit and the Shakur Affidavit. The Minister tendered the CB which was marked as Exhibit 1.
  3. As indicated to the parties at hearing, time for the filing of any submissions will be extended to the time of actual filing, and there will be an order accordingly.
  4. The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
    1. the Further Amended Judicial Review Application;
    2. the applicant’s affidavits finally relied upon: see [6] above;
    1. Exhibit 1, being the Court Book, in which appears the Tribunal Decision dated 12 March 2014: CB 205-210;
    1. the 2013 and 2014 Tribunal Transcript;
    2. Mr Patel’s outline of submissions filed 13 February 2015;
    3. the Minster’s submissions filed 4 February 2015 and the supplementary submissions filed 16 February 2015; and
    4. the transcript of the hearing before this Court on 16 February 2015 (“Court Transcript”).
  5. It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.

Further Amended Judicial Review Application

  1. The grounds of the Further Amended Application filed 2 December 2014 are set out below at [15] (ground 1), [28] (ground 2), [46] (ground 3) and [62] (ground 4).

Jurisdictional error required

  1. This Court exercises a power of judicial review limited to determining if the Tribunal Decision is affected by jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [114] per Kirby J. The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474, 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.
  2. The Tribunal Decision may be impugned on the basis of jurisdictional error if the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that affects the Tribunal’s exercise or purported exercise of power resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
  3. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
  4. The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

Ground 1

  1. Ground 1 is as follows:

Mr Patel’s submissions

  1. In relation to ground 1 Mr Patel made the following submissions:
    1. the reasons of the Tribunal affirming the Delegate's Decision were confined to a determination of only one component of the preconditions for the grant of the Student Visa sought by Mr Patel, namely whether the Tribunal was “satisfied” Mr Patel met cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations, and it must be borne in mind that a state of satisfaction must be reached after the law has been properly and fairly applied;
    2. the text of cl.572.223(2) of sch.2 of the Migration Regulations is not to be parsed or read narrowly and the Tribunal making findings as to Mr Patel’s anticipated conduct in the future and then extrapolated those findings to a conclusion as to what was described as “the same practice that the delegate first uncovered”, that “practice” being characterised by the Tribunal as entailing a motive amounting to bad faith on behalf of Mr Patel and his father, which illustrates how the Tribunal was deflected from addressing what the statutory text expresses;
    1. the Migration Act must be properly construed and applied for the entirety of the fact finding analysis, and that did not occur here, rather the Tribunal lapsed into a course of arbitrariness and capriciousness in simply assuming what would be the case if further inquiries were to be made, and by reaching a finding that there had been engagement in a particular practice and that Mr Patel and his father had engaged in this practice solely to satisfy the criteria, does not involve asking and answering the question in the way that the Tribunal must; and
    1. that the ultimate conclusion was expressed in words drawing on part of the language of the Migration Regulations is not to the point as by this stage the inquiry that had been pursued was one of a very different nature to the question posed by the legislative framework and that in and of itself was a jurisdictional error as the conclusion expressed reflected what was, in substance, an answer to a different question than that presented by the relevant requirements for the grant of the Student Visa.

Minister’s submissions

  1. The Minister submitted:
    1. the complaint seems to be, and the Minister accepts that the Tribunal did, consider whether Mr Patel’s financial facility would remain in existence during the term of the Student Visa, however it was proper for the Tribunal to do so when one considers the text and the purpose of cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations when read in the light of cl.5A405(1) and (2)(c) of sch.5A of the Migration Regulations; and
    2. clause 572.223(2)(a)(iii) of sch.2 of the Migration Regulations requires the Minister to be satisfied that while Mr Patel holds the visa, Mr Patel will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity and the Tribunal Decision displays no error in the construction or application of the relevant statutory criteria.

Consideration of ground 1

  1. The applicant’s contention is that the Tribunal misconstrued or misapplied cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations and in doing so was limited to a determination of only one component of the preconditions for the grant of the Student Visa, namely whether the Tribunal was “satisfied” Mr Patel met cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations.
  2. The Delegate and the Tribunal referred to cl.572.223(2) of sch.2 of the Migration Regulations which read as follows:

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

(B) any other relevant matter; and

(iii) 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; or
  1. The financial capacity criteria referred to in cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations are those in sch.5A405 of the Migration Regulations and in this case are relevant, and are as follows:
  2. At the Tribunal hearing on 12 December 2013 the Tribunal explained to Mr Patel that:

(2013 Tribunal Transcript, p.11 at [26]-[31]).

  1. This indicates that Mr Patel was told by the Tribunal that it was for him to furnish evidence and that he needed to satisfy the Tribunal that he would “generally have access” to the funds he claimed he would have access to for the duration of the Student Visa. The Tribunal’s finding, that causing any further inquiries to be made would not change the conclusion that the funds would not remain in existence whilst Mr Patel holds the Student Visa, or that he would not have access to the funds as demonstrated or declared in order to meet the requirements of sch.5A of the Migration Regulations, was a part of the fact-finding function of the Tribunal and the course it undertook in order to satisfy itself of whether it was satisfied that Mr Patel met the Student Visa criteria: CB 209 at [16].
  2. The Federal Court discussed cl.5A405 of sch.5A to the Migration Regulations in Patel & Anor v Minister for Immigration & Citizenship & Anor [2013] FCA 97; (2013) 211 FCR 35; (2013) 139 ALD 516 (“Patel”) at [22] per Bromberg J as follows:
  3. The Tribunal was required to satisfy itself that while Mr Patel holds the Student Visa he will have access to the December 2013 Loan funds, being the funds he had “demonstrated or declared” to meet the Migration Regulations sch.5A financial criteria relating to financial capacity. Clause 572.223(2) of sch.2 and cl.5A405 of sch.5A to the Migration Regulations are criteria against which the application for the Student Visa must be assessed. The Tribunal was required to be satisfied that the “demonstrated and declared” funds assured that the basic expenses likely to be incurred during Mr Patel’s stay in Australia were capable of being met.
  4. With respect to Mr Patel, it is not sufficient that the funds be simply “demonstrated and declared”: this is just one limb of the requirements of cl.572.223(2)(a)(iii) of sch.2 of the Migration Regulations. There is also the requirement that Mr Patel have “access to the funds”, which when read in light of cl.5A405 of sch.5A to the Migration Regulations requires that funds be sourced from “a financial institution... and held in the name of” his father. The Tribunal must look forward in order to satisfy itself that Mr Patel will have access to the funds, and in circumstances where evidence exists that Mr Patel may not have that access, the Tribunal cannot be satisfied that Mr Patel meets cl.572.223(2)(a)(iii) of sch.2 to the Migration Regulations and must therefore refuse him the Student Visa: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [37] per Gleeson CJ.
  5. The Tribunal did not misconstrue the question it was required to ask itself, namely whether Mr Patel satisfied the criterion of cl.572.223 of sch.2 of the Migration Regulations, or ask itself the wrong question. The particular finding open to the Tribunal, that Mr Patel had engaged in a “practice” that was “first uncovered by the Delegate” regarding short term loan facilities to satisfy the financial capacity requirements to be granted a Student Visa, was simply a process of reasoning the Tribunal undertook in asking itself if Mr Patel satisfied the Student Visa criterion, and one in respect of which it was entitled to make findings and conclusions in order to answer the correct question and fulfil its statutory task of review and in exercising one of the powers under s.349 of the Migration Act.
  6. In the court’s view no jurisdictional error arises in relation to ground 1 as it has not been made out.

Ground 2

  1. Ground 2 is as follows:

Mr Patel’s submissions

  1. In relation to ground 2 Mr Patel made the following submissions:
    1. the language of ss.359AA and 359A of the Migration Act and the nature of its operation at such a critical juncture in a merits review where an applicant may have little or no sense of where the Tribunal may be heading leads inexorably to the conclusion that compliance with its requirements is an imperative duty or inviolable limitation or restraint upon a lawful exercise of power;
    2. it is acknowledged that the Tribunal had regard to the applicability of s.359AA of the Migration Act and purported to comply with its several requirements, but as MZYFH v Minister for Immigration & Citizenship & Anor [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409 (“MZYFH”) emphasises, the “understanding” by Mr Patel of the relevance of the information, and hence the “meaningful opportunity” to comment, are important procedural obligations the purpose of which is to ensure a visa applicant must not be left to choose between uncertain inferences that might be available as to how the information may be used adversely;
    1. the particular circumstances surrounding how a given merits review is being conducted are relevant to a determination of whether s.359AA of Migration Act has properly been applied, and here Mr Patel was merely told in bare, conclusionary terms that certain material suggesting what had become of an earlier loan in January 2014 would lead the Tribunal to find that Mr Patel would not have access to funds for the purposes of sch.5A to the Migration Regulations;
    1. to assume the status of a “pattern of conduct” as the Tribunal duly found (and it can be inferred to have had such an approach in mind at the resumed Tribunal hearing) was not mentioned or even hinted at, let alone was there any suggestion or insinuation that Mr Patel and his father had been, and would in the future be, creating a short term loan facility essentially as a mere device to satisfy the requisite element for the relevant Student Visa;
    2. having chosen to go down the path of the provision of particulars orally of information under s.359AA of the Migration Act, what the Tribunal stated would, if viewed in isolation, no doubt, be indicative of compliance with s.359AA of the Migration Act because viewed in isolation it is, in substance, the enlisting of a form of words of the kind, or very close to the kind, that may in and of themselves discharge part of the obligations, but the failure to go further and explain how and why the process of fact finding was likely to pan out adversely to Mr Patel, and to just leave it at a high level of generality, being that the Tribunal stated a provisional conclusion that had been reached on the basis of the state of affairs at 6 January 2014, and then to recite the conclusion in the language of s.359AA of the Migration Act without saying anything about the analytical pathway in the mind of the Tribunal falls manifestly short of what is required on a proper construction of s.359AA of the Migration Act;
    3. Mr Patel was not told that the focus of the fact finding was going to continue to be on what the status of the funds were and their availability on 6 January 2014, and there was no indication that the way the fact-finding task might be approached was as it turned out to be, and that there would be the adverting to of the possibility of further inquiries about the cogency of further material; and
    4. in no real or meaningful sense did the Tribunal ensure that Mr Patel truly and fully “understood” why the information referred to, and ultimately relied upon fatally, was relevant or what the consequences of its acceptance by the Tribunal might be, and absent a proper explanation of the analytical route which Mr Patel was in peril of the Tribunal taking, his opportunity to be heard on this critical issue was rendered of very limited value.

Minister’s submissions

  1. In relation to ground 2 the Minister submitted that:
    1. this ground alleges the Tribunal did not comply with s.359AA(b) of the Migration Act because the Tribunal did not ensure Mr Patel understood why certain information falling within ss.359A and 359AA of the Migration Act was relevant to the review;
    2. there is no evidence, such as an affidavit filed on behalf of Mr Patel, to suggest the Tribunal did not take “reasonably practicable” steps to ensure Mr Patel had the requisite understanding;
    1. the Tribunal is under no obligation to inform an applicant of concerns about the credibility of an applicant’s evidence, and where certain aspects may be important to the decision of the Tribunal it need only ask an applicant to expand upon those aspects and explain why the Tribunal should accept Mr Patel’s account, and if Mr Patel’s credibility was in issue before the Delegate it is for Mr Patel to make an attempt to allay those issues before the Tribunal;
    1. Mr Patel provided a copy of the Delegate’s Decision in which it is clear why he did not satisfy the Delegate;
    2. Mr Patel does not seek to say the Delegate was incorrect, or to undermine the findings of the Delegate regarding the veracity of the inquiries made by the Delegate, but simply provided new documents without any attempt to allay the credibility concerns that arose in the Delegate’s Decision;
    3. there is no evidence before the Court that any practical injustice was suffered by Mr Patel so as to indicate that had he misunderstood the information put to him by the Tribunal, and that were that not the case he he would have put on “this evidence or that evidence”;
    4. given the process before the Delegate and the previous Tribunal hearing (on 12 December 2013) and the resumed Tribunal hearing (on 4 March 2014), there can be no doubt that Mr Patel knew, or ought to have known, that the Tribunal’s major concern was whether the funds were in fact available, and Mr Patel then provided the further documents, and the Tribunal makes a finding that the funds were withdrawn on 6 January 2014, and the Tribunal was not persuaded by, or placed no weight on the further documents, which is a lawful way of reasoning; and
    5. MZYFH is distinguishable as in the present case there was only ever one issue that arose, namely access to funds in a bank account:
      1. for the Delegate, the means of satisfaction was always funds in a bank account, and it had concerns about the funds remaining in a bank account for Mr Patel to access; and
      1. at the Tribunal stage the Tribunal made inquiries in relation to the December 2013 Loan and found that the funds were not available, an explanation was proffered by Mr Patel for this, but the Tribunal was not satisfied the funds would remain accessible.

Consideration of ground 2

  1. The applicant’s contention is that the Tribunal failed to comply with the requirements of s.359AA(b) of the Migration Act and failed to ensure that the applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the Delegate’s Decision.
  2. Section 359AA of the Migration Act states:
  3. The Court notes the principles which apply when considering the application of s.359AA of the Migration Act in this case:
    1. the Tribunal must provide to the visa applicant “clear particulars” of any information that the Tribunal considers would be the reason, or part of the reason, for affirming a decision that is under review: MZYFH at [33] per Bromberg J, yet the Tribunal need not put to an applicant, and s.359AA of the Migration Act does not encompass the “subjective appraisals, thought processes or determinations” of the Tribunal or “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up that evidence”: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471 at [24] per Finn and Stone JJ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1; (2011) 241 CLR 594; (2011) ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 (“SZGUR”) at [9] per French CJ and Kiefel J;
    2. the Tribunal must ensure that, as far as is reasonably practicable, the visa applicant understands why the information is relevant to the review and the consequences of the information being relied upon for the decision under review: Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 (“SZGMF”) at [31] per Branson, Finn and Bennett JJ;
    1. the policy and purpose of the provision is that the Tribunal should be compelled to put the visa applicant on fair notice of critical matters of concern to the Tribunal, and to ensure that the visa applicant understands the significance of those matters to the decision under review and give the applicant a reasonable opportunity to comment or respond: MZYFH at [34] per Bromberg J;
    1. given the largely subjective nature of the precondition for the provision becoming operative, found in the phrase “that the Tribunal considers”, it is important to look at what the Tribunal has said to an applicant and if that characterisation was apt to have enlivened the operation of s.359AA of the Migration Act to the notice of the applicant: MZYFH at [36] per Bromberg J;
    2. each of the requirements of s.359AA of the Migration Act are not to be treated as though they are divorced one from the next, thus the greater degree of clarity in the particulars of any information provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken or put differently, the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant: MZYFH at [38] per Bromberg J;
    3. the Tribunal was required to put the applicant “on fair notice of critical matters of concern to the Tribunal”, the example in MZYFH being that the Tribunal was required to identify whether its concern related to the whole of the evidence of the father, or simply that part of it which directly refuted what was said by the Tribunal to be the applicant's claims: MZYFH at [59] per Bromberg J;
    4. section 359AA(1)(b) of the Migration Act speaks of both the relevance and the consequences of the information, thus the Tribunal must ensure that an applicant has an understanding of the consequences of the information being relied upon by the Tribunal, therefore it must be clear that the information before it “would” be the reason or part of the reason for affirming the decision under review, not that the information “might” or “could” form the reason or part of that reason. MZYFH at [63] per Bromberg J, citing Minister for Immigration & Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448 at [25] per French CJ, Heydon, Crennan, Kiefel and Bell JJ;
    5. “clear particulars” are context specific and the information necessary to ensure that the opportunity to comment or respond is “meaningful”, may in some cases only require the disclosure of the “substance” of the information: NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99 at [33] per Beaumont J; SZNKO at [23] per Flick J; and
    6. there is no jurisdictional error where the Tribunal has failed to take independent steps under s.359AA(1)(b)(i) of the Migration Act to ensure that the applicant understood what particular information was relevant to the review when that relevance may be self-evident from the information itself: Wang v Minister for Immigration & Citizenship [2007] FCA 488 at [29] per Besanko J.
  4. The purpose of s.359AA of the Migration Act is to ensure that it is not left to chance that Mr Patel would appreciate the relevance of the adverse information from the course of the Tribunal hearing, or from other circumstances surrounding the way in which the review is being conducted: SZEOP v Minister for Immigration & Citizenship [2007] FCA 807 at [36] per Rares J.
  5. The Tribunal Decision refers to having put information resulting from the investigation of the December 2013 Loan to Mr Patel for comment pursuant to s.359AA of the Migration Act at the resumed Tribunal hearing: CB 208 at [13] at which the following exchange occurred:

TRIBUNAL: Since then, I have had those documents verified by the Australian High Commission in New Delhi. The result of those inquiries is that the loan facility that you provided last time, the amounts of the loan was drawn down and the funds were withdrawn from the related bank account...

So, the issue, of course, then, Mr Patel, is the same issue that was the reason why the visa was refused in the first place. In the original decision, which you gave to me, you provided evidence of a loan, and the delegate records that the amounts that were provided in relation to that loan were withdrawn and dispersed to other accounts. Now, it would appear that exactly the same thing has happened. The Canara Bank loan, all the money was withdrawn on 6 January 2014, and the money disappeared. So, I'm going to now formally put to you some information under section 359A of the Migration Act, and I'm going to use the oral procedure available to me under section 359AA. I would now like to put to you some information which would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review. I'm required to do this by section 359A of the Act. I will explain the information's relevance to your case, and will give you an opportunity to respond or comment on the information at the end. This is the information. Investigations conducted by the Australian High Commission in India reveal that the Canara Bank loan funds that you have submitted to the tribunal, to satisfy the schedule 5A financial capacity requirement, are not available, as the full loan amount was withdrawn on 6 January 2014.

This is information is relevant to the decision under view, because it would, subject to your comments or response, lead me to find that you will not have access to the funds you have demonstrated in accordance with the schedule 5A requirements. This would mean that the tribunal must affirm the decision under review. Mr Patel, do you understand the information?

MR PATEL: Yes.

TRIBUNAL: Do you understand why the information is relevant to the review?

MR PATEL: Yes.

TRIBUNAL: Do you want to respond or comment on the information now, or would you like more time?

MR PATEL: I would like to have more time...

TRIBUNAL: So you will need to provide to me a written response within 1 week, so I will give you that time... Mr Singh [Mr Patel’s representative], is there anything you wish to say?

MR SINGH: No, sir. That's fair enough.

TRIBUNAL: Do you understand what has gone on?

MR SINGH: Yes, sir, exactly.

TRIBUNAL: All right. So, I will just find - the date today is the 4th, so it will be 11 - sorry, today is the-yes, it is the 4-11 March 2014. You can provide a response to that 359A invitation. All right? So, unless there is anything else, I will conclude the hearing.

(2014 Tribunal Transcript, pgs.2-4).

  1. Based upon the above exchange it would be hard to find that the Tribunal fell into jurisdictional error in failing to ensure that Mr Patel understood why the adverse information was relevant to the review and the consequences of the adverse information being relied upon in affirming the Delegate’s Decision. Both Mr Patel and his migration agent, Mr Singh, were asked if they understood what was being put to them and both responded in the affirmative, and in the case of the migration agent went so far as to say that he understood it “exactly”.
  2. The Tribunal expressly eliminated the risk s.359AA(2)(a) of the Migration Act was enacted to alleviate, by asking Mr Patel and his representative if they understood the nature, content and consequences of the information. It is difficult to see what more the Tribunal could have done, and what “reasonably practicable” steps the Tribunal could further have taken in order to ensure Mr Patel understood the information. In SZRPA v Minister for Immigration & Citizenship & Anor [2012] FMCA 91 at [43] per Cameron FM stated:

In the absence of unusually compelling reasons to conclude otherwise, where a claimant is professionally represented, as was the case here, it must be assumed that the claims which the claimant wished to make before an independent merits reviewer were the ones expressly articulated by him and his advisers and that none were left to be inferred... Represented claimants are in a different position and if they have not pursued an issue, then that is their election.

  1. The Court is of the view that the Tribunal did all that was reasonably practicable to ensure that Mr Patel understood the information that was being put to him and that the consequences were that the Tribunal Decision would affirm the Delegate’s Decision. The Tribunal clearly stated the information “would lead me to find that you will not have access to funds”, and therefore placed Mr Patel on notice that the information that was being put to him was in essence what amounted to the determinative issue before the Delegate in refusing to grant the Student Visa: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The particularity which the Tribunal gave to this information was sufficient to communicate the substance of the issue and what Mr Patel was required to address, and it cannot be said that Mr Patel did not understand what was being put to him as he provided submissions and evidence in response to this information.
  2. While it can be stated that the Tribunal did not go as far as stating the information may lead to the Tribunal finding that Mr Patel and his father were engaging in a particular course of conduct of implied “bad faith”, the Tribunal provided sufficient particulars to place Mr Patel on notice that the determinative issue before the Delegate, the access to the funds, was of concern and the Tribunal went further to indicate that the same information was uncovered when the Delegate made similar inquiries concerning the June 2011 Loan: CB 208 at [13]. Mr Patel was squarely on notice of the determinative issue and it was for him to advance the evidence and arguments he wished to advance in support of his application for a Student Visa. The Tribunal is not required to put to Mr Patel the “prospective reasoning process” and what “could” or “might” be a reason for affirming the Delegate’s Decision: MZYFH at [63] per Bromberg J; SZTGV & Ors v Minister for Immigration & Border Protection & Anor [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450; (2015) 144 ALD 525 at [18] per Perram, Jagot and Griffiths JJ.
  3. The bases upon which the Tribunal affirmed the Delegate’s Decision not to grant Mr Patel a Student Visa was that he did not satisfy cl.572.223(2)(a)(iii) of sch.2 to the Migration Regulations and the reasons for doing so were twofold, namely, that the Tribunal was not satisfied that:
    1. any loan or funding would remain in existence as it had found that a practice had been uncovered whereby a short term loan facility was created in order to satisfy the Student Visa criterion; or
    2. Mr Patel’s access to funds would be available as “demonstrated or declared” as the funds available under the December 2013 Loan were fully withdrawn on 6 January 2014.
These are two independent bases, and either is sufficient to conclude that the Tribunal was not satisfied that Mr Patel met cl.572.223(2)(a)(iii) of sch.2 to the Migration Regulations.
  1. The Court notes that it was as a result of the Tribunal causing inquiries to be made in relation to the December 2013 Loan that there was a need for information to be put to Mr Patel regarding the veracity of the December 2013 Loan. The Tribunal Decision indicates that the document put to the bank for verification was information that Mr Patel had provided for the purposes of his Student Visa application: Migration Act, s.359A(4)(b) and CB 208 at [11a]. There is no requirement for the Tribunal to give Mr Patel information contained in the Delegate’s Decision where Mr Patel had furnished a copy of the Delegate’s Decision to the Tribunal himself: Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 at [11], [16] and [27] per Sundberg J. The Tribunal therefore had material before it, put by Mr Patel, inviting a finding that there was a “course of conduct” as there was an indication that what the Tribunal had found by reason of its inquiries had occurred before, a different explanation had been proffered and not accepted by the Delegate on that occasion.
  2. The Court questioned as to whether there was anything to made of the Tribunal stating that the information, subject to the comments of Mr Patel, would lead the Tribunal to find that Mr Patel “will not have access to funds”, as opposed to stating that it would lead the Tribunal to find that Mr Patel “did not have access to funds” and whether that could leave open the inference that a person hearing “You will not have access to funds,” may assume that what is required is that they demonstrate that they will have access to funds. Upon consideration, however, the Court considers that to place emphasis upon such perfection of expression in the course of a Tribunal hearing would be to engage in the overzealous analysis the cases warn against when exercising judicial review powers: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZRLO v Minister for Immigration & Citizenship [2013] FCA 825 at [49] per Barker J.
  3. The Tribunal did not fall into error in the manner described in MZYFH at [66]-[68] per Bromberg J, because the Tribunal clearly stated that the information “would be” the reason for affirming the Delegate’s Decision as it would lead to a finding that Mr Patel “will not” have access to the funds.
  4. Clause 572.223 of sch.2 to the Migration Regulations is a “time of decision” criterion, therefore the Tribunal was required to determine if at the time of decision Mr Patel satisfied the particular criterion. The facts are that the inquiries of the Tribunal revealed that Mr Patel “did not” have access to the funds at the time the inquiry was made, however, when putting the information to Mr Patel it stated that this information would lead the Tribunal to find he “will not” have access to funds. There is no error when one looks at this holistically. The Tribunal was required to satisfy itself that Mr Patel had access to funds “demonstrated or declared” for at least the first 24 months of his stay (if not the entire duration): Migration Regulations, sch.2, cl.572.223(2)(a)(iii) and sch.5A, cl.5A405, therefore the use of the word “will” was correct, the Tribunal was required to determine if it was satisfied that Mr Patel “will” or “will not”, have access to funds for the duration required by the Migration Regulations. There was no error in the way in which the Tribunal put the information to Mr Patel, and it did not constitute a breach of s.359AA of the Migration Act, or fail to comply with the requirements of s.359AA of the Migration Act.
  5. Ground 2 is not made out and does not establish jurisdictional error in the Tribunal Decision.

Ground 3

  1. Ground 3 is as follows:

Mr Patel’s submissions

  1. In relation to ground 3 Mr Patel made the following submissions:
    1. under the heading “Consideration of Claims and Evidence” the Tribunal isolated what it saw as “the issue in the present case”, summarised the nature of the criteria required to be met, but did not then go on to address these but rather turned to extract verbatim a large component of the Delegate's Decision, making reference to materials previously provided by Mr Patel, and referring to the “purported invocation” of ss.359AA and 359A of the Migration Act;
    2. the Tribunal did not make any further reference to any evidentiary material, let alone evaluate it or weigh it with perceived competing considerations before making a conclusion;
    1. the paucity of the analysis of the material before the Tribunal is made manifest by the very terms of the limited findings the Tribunal made: not only did the Tribunal assess the evidence and couch the first step of factual findings in a prospective way without any consideration of competing alternatives, it failed to undertake an analysis of any substance into the explanation that had been advanced by Mr Patel about the integrity of his sources of funding;
    1. although seemingly contemplating that it was open for the Tribunal to make inquiries of the Bank, the Tribunal declined to take that step and instead expressed with certainty what it considered would be the outcome if it did further inform himself in that way;
    2. the documents put by Mr Patel in satisfaction of the requirements of the Student Visa criterion were not properly and genuinely treated, or in practical reality not properly considered and evaluated for the purpose of the fact finding task as the Tribunal did not depart from the conclusion that had been reached by the Delegate or have any regard to the veracity and the potential probative force of the documents; and
    3. even allowing for the caution which must be observed in assessing a ground of this character, the consideration given to what was advanced by Mr Patel when measured against the very decision that it was duty bound to hear de novo, was superficial, cursory and limited, thus it was the antithesis of proper, genuine and realistic consideration.

Minister’s submissions

  1. In relation to ground 3 the Minister submitted that:
    1. this ground alleges the Tribunal failed to give proper, realistic and genuine consideration to the material presented to the Tribunal to satisfy the requirements for a Student Visa, however, this ground is a bald assertion unsupported by any kind of particulars, detail or explanation and should be rejected: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [19] per Emmett FM;
    2. Mr Patel is inviting the Court to indulge in impermissible merits review as it was open to the Tribunal, for the reasons that it gave, to find Mr Patel did not meet the requirements of cl.572.223(2)(a)(iii) of sch.2 to the Migration Regulations;
    1. the argument put orally by Mr Patel was simply that the Tribunal repeated what the Delegate stated, did not engage with what the Delegate did, or why the Delegate did it, however, this ignores the fact that the Tribunal focused in on the December 2013 Loan documents and was particularly concerned about those funds being withdrawn on 6 January 2014, which is a matter which could never have been considered by the Delegate it took place after the Delegate’s Decision, and therefore the Tribunal was engaging with the case as put on the current material presented to it;
    1. it was a case of the Tribunal dealing with what was put by Mr Patel and not being satisfied by what was put when the documents were analysed and found to sit uncomfortably together, and that kind of analysis and rejection of the material appears more analytical than the kind of approach that has been held acceptable by the High Court; and
    2. the failure to make inquiries is a line of judicial review territory which ought to have been pleaded in the Judicial Review Application, nonetheless, it was not an obvious inquiry the Tribunal was obliged to make and a legitimate factual analysis was undertaken by the Tribunal when making its findings, without the need to make any further inquiries given the particularity with which the issue had been raised (as to which see (a) above).

Consideration of ground 3

  1. The applicant’s contention is that the Tribunal failed to give “proper, genuine and realistic” consideration to the material advanced by the applicant to support his claim, in particular in relation to the documents put forward by Mr Patel and the bank inquiries.
  2. The Court notes that:
    1. it is well accepted that the Tribunal is required to properly, genuinely and realistically consider all relevant material and engage in an active and intellectual process before granting or refusing a particular visa: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47]- [54] per Lindgren, Rares and Foster JJ.
    2. the failure to consider one piece of evidence does not necessarily amount to a failure to consider a mandatory integer of an applicant’s claim to satisfy a particular visa, it will only be a failure to consider the mandatory criterion or integer if that evidence, by itself or coupled with other evidence be it direct or circumstantial, would have affected or might have affected the result at which the Tribunal arrived: SXRB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222 at [32]- [33] per Lander J; SZOYH v Minister for Immigration & Citizenship [2012] FCA 713; (2012) 128 ALD 554 at [37]- [38] per Reeves J;
    1. both parties referred to Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [18] and [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ:
      • [18] It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal's functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.
      • [25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case...;
    1. in SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 at [53] per Bennett J (special leave refused by the High Court in SZMJM v Minister for Immigration & Citizenship [2010] HCASL 201) the Federal Court said as follows:
      • The appellant alleges that the Tribunal failed to make inquiries of the hospital. However, inquiries were made by the Tribunal. The Tribunal had obtained information from the Hospital through DFAT that the hospital had no record of the appellant’s daughter, which suggested that the medical records provided by the appellant, purporting to be from the Saidu Teaching Hospital, were not authentic. It was open for the Tribunal to rely on that information. The Tribunal was not obliged to conduct further inquiry into the genuineness of the medical records.
  3. It is necessary to set out the Tribunal’s “Consideration of Claims and Evidence” at CB 207-209 at [9]-[17]:
  4. Mr Patel alleges failure by the Tribunal to properly consider the materials before it, specifically to properly, genuinely and realistically inquire into the materials referred to at CB 208 at [11] and [14]. In particular, submissions were made with respect to the fact that the documents that were sought to be advanced in response to the adverse information were not properly and genuinely treated or inquiries made as to the veracity and the potential probative force of the documents. Indeed, Mr Patel invited the Tribunal to make inquiries about the December 2013 Loan and to verify that there was still a funds facility.
  5. No jurisdictional error will be found based on a failure to make an inquiry, unless the claimed inquiry would have produced evidence which “might” have led the review to an outcome different from the one it reached: SZIAI. The Tribunal accepted that if it were to make the inquiry asked of by Mr Patel of the bank then it would have “no doubt” everything would be in order, however it had reservations as to the continuing availability of the funds. There is no basis to conclude that any inquiry would have produced evidence which might have led the Tribunal to make a decision different from the one it did make, rather to the contrary any inquiry the Tribunal did make would have made no impact upon the outcome the Tribunal arrived at, namely that Mr Patel would not continue to have access to the funds whilst he holds a Student Visa. The Tribunal noted at the first Tribunal hearing on 12 December 2013 that the Delegate’s Decision was to refuse the Student Visa on the basis it was not satisfied that Mr Patel would have access to the money: Tribunal Transcript, p.11 at lines 7-8.
  6. Mr Patel did not provide any documentary evidence until the day prior to the first Tribunal hearing, therefore, the Tribunal did not have the benefit of those materials before it and after taking oral evidence from Mr Patel on a number of matters, adjourned the first Tribunal hearing. Upon receiving and reviewing the documents, the Tribunal caused the inquiries to be made, and thereafter called Mr Patel back to the resumed Tribunal hearing in order to invite him to comment on the outcome of those inquiries. In the resumed Tribunal hearing the information was put to Mr Patel and he was given seven days to respond to that information.
  7. The Federal Court in SZQOS v Minister for Immigration & Citizenship [2012] FCA 982; (2012) 133 ALD 458 at [42] per Cowdroy J stated:
  8. The Tribunal was not obliged to check into the genuineness of the December 2013 Loan as it had already made inquiries and invited Mr Patel to comment upon that information. The Tribunal was not obliged to do more than have regard to Mr Patel’s wishes to make a further inquiry, it did so and concluded that it had “no doubt” the result of the inquiry would reveal the existence of the facility, but that it would be a short-term loan facility created for the purposes of satisfying the Student Visa, and was not satisfied that there would be ongoing access to the relevant funds.
  9. The Tribunal evaluated the evidence and material before it, and findings were made in respect of the documents and the evidence as a whole, including that:
    1. the Tribunal accepted that the Loan Letter verified there was a facility that was available, or had been reinstated, and that any further inquiries would confirm the existence of the facility: CB 209 at [16];
    2. the information obtained by the Australian High Commission that the funds availed by the facility were fully drawn on 6 January 2014 was accepted: CB 209 at [16]; and
    1. the explanation offered by Mr Patel that there was an “identity mistake” in the investigation of the December 2013 Loan by the Australia High Commission because of a “miscommunication by Bank Authorities because of same kind of name” was rejected on the basis that the documents Mr Patel provided to the Tribunal: CB 208 at [11a], were those which were furnished to the bank to verify the existence of the funds.
  10. The Court does not accept that the Tribunal did not engage actively and genuinely with the documents: the Tribunal referred to them, made express findings accepting the truth of the Loan Letter, and rejected Mr Patel’s explanation for what was uncovered by the inquiry into the December 2013 Loan. The Tribunal weighed that evidence and the weight the Tribunal gave to it was a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299, CLR at 41 per Mason J; NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.
  11. In the present case the Tribunal made factual findings concerning the evidence provided in support of the Student Visa, including the documents provided by Mr Patel, and the findings in the Delegate’s Decision that Mr Patel himself provided to the Tribunal, and came to the conclusion it had no confidence that any loan or other financial facility proffered by Mr Patel would remain in existence whilst he held the Student Visa or that he would have access to the funds he demonstrated or declared in order to meet the requirements of the financial capacity criterion in sch.5A to the Migration Regulations.
  12. The Tribunal need not show more than a logical connection between the facts as found and the conclusion from those facts: FTZK v Minister for Immigration & Border Protection & Anor [2014] HCA 26; (2014) 88 ALJR 754; (2014) 310 ALR 1 at [31] per French CJ and Gageler JJ, and at [93] Crennan and Bell JJ. The Tribunal found as a fact and concluded that what had been uncovered by the inquiry was the same “practice” that the Delegate found to have occurred. The Tribunal adequately considered the evidence of Mr Patel in support of his Student Visa, it engaged with that evidence and, albeit brief, made evaluative findings on the materials before it to consider.
  13. Ground 3 is not made out and establishes no jurisdictional error in the Tribunal Decision.

Ground 4

  1. Ground 4 is as follows:

Mr Patel’s submissions

  1. In relation to ground 4 Mr Patel made the following submissions:
    1. it is acknowledged that the range of circumstances that may be legitimately characterised as a “review” of the merits of an “MRT-reviewable decision” is diverse, and that considerable discretion resides with the Tribunal as to the means by which relevant evidence and other material may be obtained, assessed and made the subject of necessary factual findings;
    2. that discretion is naturally confined by a correct application of the Migration Act, the Migration Regulations and any other relevant statutory framework and otherwise according to law, yet what does not legitimately constitute the undertaking of a review is the pursuit of a limited fact-finding exercise on one element alone which has its governing premise, the findings made by the decision-maker on the material before that decision-maker, but that was precisely what the Tribunal did in these circumstances;
    1. far from undertaking a fresh analysis of all relevant evidence and addressing an independent mind to the facts required to be found the Tribunal took a very different and impermissible course in that it reasoned from the findings of the Delegate and asked whether, in effect, there was sufficient cause to depart from the conclusions so reached. That methodology is more akin to a species of appeal by way of rehearing, where the reviewing decision-maker seeks some justifiable basis to depart from the earlier decision, whether on demonstration of appealable error, wrongful fact-finding or other recognised basis and a process of that kind is inevitably one different from merits review, or a fresh exercise of original jurisdiction;
    1. on a fair reading of CB 207-209 at [10]-[17], the Tribunal has used verbatim, as his template the critical findings of the Delegate, not necessarily demonstrative of error in and of itself, but a course which is at the very least undesirable because it generates the real potential for the merits reviewer not to undertake a true rehearing de novo; and
    2. however, one may precisely characterise the limited task undertaken by the Tribunal in making the short findings it did and moving to the conclusions accordingly, it was something other than a “review” for the purposes of the core function imposed by s.348 of the Migration Act that was undertaken.

Minister’s submissions

  1. In relation to ground 4 the Minister submitted that:
    1. this ground is premised upon the success of Grounds 1-3 as Ground 4 is pleaded as “Following the circumstances ... set out ... above ... [the Tribunal] thereby failed to properly conduct a review ....”, and in circumstances where Grounds 1-3 should fail, so too does Ground 4;
    2. there is no jurisdictional error in the Tribunal using material from an earlier decision-maker so long as the Tribunal makes its own findings in respect of the materials and evidence before it;
    1. in the event Ground 4 is an independent ground saying that there was not in all the circumstances a substantive hearing of the type contemplated by s.348 of the Migration Act, this is “another side of the same coin” of the proper, realistic and genuine consideration argument, and the Minister adopts those submissions as applicable; and
    1. the case as put is that there was undue deference to what took place in front of the Delegate and the findings in the Delegate’s Decision, the sole question to ask is, insofar as findings are picked up or adopted, did the Tribunal bring its own mind to bear? Given that the December 2013 Loan was not in issue before the Delegate it is evident the Tribunal bought its own mind to the matter.

Consideration of ground 4

  1. The applicant’s contention is that the Tribunal failed to conduct a review pursuant to s.348 of the Migration Act by using the critical findings of the Delegate verbatim as his template in the Tribunal Decision.
  2. Section 348 of the Migration Act states:
  3. The Court notes:
    1. the Full Court of the Federal Court in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166; (2012) 90 ATR 37; (2012) 57 AAR 374; (2012) 289 ALR 244; (2012) 128 ALD 489 (“LVR”) at [81]-[112] per North, Logan and Robertson JJ, extensively examined whether the Tribunal in that matter had failed to perform the statutory duty to review in adopting material as the decision-maker's own reasons for a decision, and observed that:
      1. at [81] and [98] per North, Logan and Robertson JJ that many Australian case authorities concern copying of submissions by Judges and “there are important differences between those cases and the position of Tribunals”. Reference was made to SZNRZ v Minister for Immigration & Citizenship [2010] FCA 107 at [6] per Flick J, who noted that the appropriateness of reproducing the work of others may in large part depend upon the circumstances of each individual case;
      2. at [91]-[92] per North, Logan and Robertson JJ that:
        • 91. In our view, speaking generally, it is more appropriate to consider these matters by reference to whether or not the tribunal has discharged its statutory role, its jurisdiction to review the decision before it, rather than to approach it by reference to procedural fairness or the inflexible application of policy or acting under dictation. In our view the fundamental question is whether there has been a constructive failure on the part of the decision-maker to perform its allotted task. In a particular case it may also be that adopting submissions has the consequence that the tribunal has failed to disclose its reasoning.
        • 92. In relation to template or standard paragraphs, relevant to the question, to be answered objectively, whether or not the decision-maker has performed its allocated task will be the following:
        • (i) the function of the decision-maker and the source of that function;
        • (ii) the source of the copied material;
        • (iii) the subject-matter of the copied material;
        • (iv) whether the copied material was controversial;
        • (v) the similarity of the claim to the claim from which the material was copied;
        • (vi) the extent of the copying;
        • (vii) whether the copied material was up to date;
        • (viii) whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and
        • (ix) whether the fact of copying and the source of the copied material was acknowledged.
      3. at [111]-[112] per North, Logan and Robertson JJ that:
        • 111. The relevant principles which emerge from the cases in the United States are that a deal of leeway was given to courts which copied findings of fact only and the decisions would only be reversed when clearly erroneous but such a course led to increased scrutiny on appeal... In relation to the copying of submissions or of the “opinion”, that practice could involve the failure of the trial judge to perform his or her judicial function. As the Court said in Jenkins this conclusion was not to be based on a mathematical calculation of replication but on the demonstration on the face of the lower court’s opinion that substantial portions were derived wholly or virtually verbatim from a party’s brief. The word “substantial” conveyed both a qualitative and a quantitative meaning.
        • 112. In Canada... in a case of unacknowledged copying, could a reasonable and informed observer be persuaded that the trial judge had examined all of the evidence before him and made appropriate findings. The court looked beyond the words themselves and to the circumstances of their creation. Issues of public accountability and confidence in the administration of justice were invoked;
    2. the Federal Court in Huluba v Minister for Immigration & Ethnic Affairs [1995] FCA 1561; (1995) 59 FCR 518 (“Huluba”) at 529 per Beazley J stated:
      • A decision-maker is entitled to have regard to research and investigations carried out by others as well as to assessments and reports and recommendations prepared by others in the course of the administrative process. A decision-maker may have regard to and adopt, if thought appropriate, the reasoning of some other person involved in the administrative process. Thus a decision-maker could accept the reasoning of an officer whose function it had been to provide a recommendation and could adopt verbatim, such report or recommendation, provided at all times that the decision was the independent decision of the decision-maker.
  4. The Court accepts, that a large portion of the Tribunal Decision transcribes material that was before the Delegate: CB 207 at [10]. What must be determined however, is whether the Tribunal simply adopted the Delegate’s Decision and made no independent analysis or undertook any “review” of its own in determining if it was satisfied that Mr Patel ought to be granted a Student Visa. The extensive copying or reproduction of material may reflect a failure of the Tribunal to discharge an obligation to “review”, however there is no automatic assumption of a failure to review, and the Court must consider the circumstances, and in particular those factors referred to in LVR at [92] per North, Logan and Robertson JJ.
  5. Applying what was stated in LVR at [92] per North, Logan and Robertson JJ, to this case, the Court observes as follows:
    1. the core function of the Tribunal is to conduct a review on the merits and not act as a contradictor;
    2. the source of the material copied was from the Delegate’s Decision or the documents that Mr Patel provided to the Tribunal concerning Mr Patel’s financial capacity and it cannot be said that material was controversial as it was material Mr Patel had access to and had provided. The portion of the Delegate’s Decision that was copied merely referred to the materials and evidence before it, the facts and information that had emerged in respect of the materials and information and the assessment and weight the Delegate attributed to those findings;
    1. the same type of information that had been uncovered by the Delegate when making inquiries to the Australian Embassy in India regarding the June 2011 Loan was provided to the Tribunal upon inquiries being made as to the December 2013 Loan, therefore the similarity of the Delegate’s findings and the determinative reason for refusing the Student Visa and the issue determined by the Tribunal is hardly surprising;
    1. while the Delegate’s Decision was made on 31 August 2011 and was therefore not “up to date” the Tribunal copied the portions of the Delegate’s Decision that were relevant to the “up to date” information it had received from the Australian High Commission in India concerning the December 2013 Loan, and the portions of the Delegate’s Decision that were extracted were used by the Tribunal to address the individual current circumstances of Mr Patel’s genuineness in meeting the financial criterion of the Student Visa; and
    2. the Tribunal openly acknowledged that it was transcribing verbatim the “pertinent” parts of the Delegate’s Decision. Furthermore, the Tribunal did not come to the same conclusion, as the Delegate made no finding or conclusion that Mr Patel was engaging in a “practice” of creating short term loan facilities to satisfy the criteria for the grant of a Student Visa, rather that was the Tribunal’s conclusion based on the Delegate’s Decision for refusing the Student Visa and the circumstances and information that had emerged and been provided to the Tribunal.
  6. The extracts from the Delegate’s Decision, and the portion of Mr Patel’s declaration, that the Tribunal copied verbatim into the Tribunal Decision were part of the claims and evidence and materials before the Tribunal for consideration as to whether Mr Patel had access to sufficient funds, and the Tribunal considered the Delegate’s Decision in the context of similar conduct by Mr Patel, and his father, in relation to the June 2011 Loan and the December 2013 Loan.
  7. The 2013 Tribunal Transcript indicates that at the first Tribunal hearing the Tribunal was aware of the task it had to undertake and that it was to determine and be satisfied that Mr Patel was entitled to a Student Visa: 2013 Tribunal Transcript, p.3 The Delegate’s Decision did not find that Mr Patel was engaging in a fraudulent or misleading practice, but it evinced concerns in relation thereto and it gave little weight to the August 2011 Loan, but it made no findings as such. It was the Tribunal who made a finding that Mr Patel was engaging in “exactly the same practice that the delegate first uncovered”, the Delegate did not “uncover” the practice it merely adverted to the possibility thereof: the Tribunal came to that independent finding of fraudulent or misleading practice based on its review of the material and information it had before it.
  8. It cannot be said the Tribunal did not undertake a proper review, or that it simply adopted the findings and conclusions of the Delegate. The finding of the Tribunal regarding the impugned conduct of Mr Patel and his father constituting “practice” was not one made by the Delegate, but rather made by the Tribunal on the basis of the information and material it had before it, including the Delegate’s Decision: CB 209 at [17]. The Court is therefore of the view that the process followed by the Tribunal, together with the structure and text of the Tribunal Decision, indicate that the Tribunal considered all of the relevant evidence and materials before it, and independently applied its mind to the evidence and materials to arrive at an “independent decision”: Huluba at 529 per Beazley J, that is a decision independent from, and different to, the Delegate’s Decision in relation to a different set of facts, and notably, the facts surrounding the December 2013 Loan which exposed the nature of the conduct of Mr Patel and his father which was the subject of the Tribunal’s adverse finding.
  9. Ground 4 is not made out and no jurisdictional error in the Tribunal Decision is established.

Other matters

  1. During the course of the hearing and oral submissions, Mr Patel adverted to two potential further grounds of review, a failure to make an inquiry and the Tribunal drawing inferences that were not reasonable. The Minister objected to these “additional grounds” on the basis that they were not pleaded as grounds in the Judicial Review Application, nor in any amendments made thereafter, and therefore Mr Patel should be confined to those grounds that were pleaded in the way they were so framed: SZJTA v Minister for Immigration & Citizenship [2007] FCA 1289 at [7]- [9].
  2. Mr Patel confirmed to the Court there was no intention to plead a ground of illogicality or unreasonableness: Transcript, p.38 at lines 19-29 and p.39 at lines10-22, and the Court does not consider it necessary to address this potential ground any further.
  3. To the extent that the failure to make inquiries was pressed, the Court considers that this was a matter advanced in relation to ground 3 as an element of the Tribunal failing to undertake a proper and genuine consideration, and the Court has dealt with that above: see [50] and [52]-[56] above.
  4. With respect to the affidavit material filed by Mr Patel, save for the 2013 and 2014 Tribunal Transcript, even where it was not relied upon or read into evidence, the Court notes that the materials annexed to the affidavits were not before the Tribunal and it is generally not open to the Court on a judicial review application to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. Mr Patel accepted that the affidavit material was not probative of any facts relevant to the grounds of review but “might have some potential relevance”. The “potential relevance” was never adverted to in the course of submissions and therefore without any indication from Mr Patel that the “potential relevance” bears upon any jurisdictional error pleaded the Court will not consider that affidavit material: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at [27] per McKerracher J.

Conclusion and orders

  1. The Court has concluded that grounds 1-4 of the Further Amended Judicial Review Application have not been made out, and have therefore not established jurisdictional error in the Tribunal Decision. It follows that the Further Amended Judicial Review Application must be dismissed. There will be an order accordingly.
  2. The Court will also order that the name of:
    1. the Minister be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”; and
    2. the Tribunal be amended to “Administrative Appeals Tribunal”.
  3. The Court will hear the parties as to costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:

Date: 30 August 2019

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