FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2013] FCA 1333

THE COURT ORDERS THAT:

1.    Leave is granted for the title of the first respondent in the Notice of Appeal dated 19 August 2013 to be amended from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection.

2.    The appeal is dismissed.

3.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SUMMARY OF CONCLUSIONS

1    This appeal concerns consideration by the Migration Review Tribunal of criteria in the Migration Regulations 1994 (Cth) (the Regulations) about the necessary evidence of financial means to be supplied by the appellants before student visas could be granted to them. In this Court, the appellants raised an argument concerning whether s 359A of the Migration Act 1958 (Cth) (the Act) obliged the Tribunal to disclose to them, in advance of its decision, the fact that the evidence they relied on had a flaw which was fatal to the success of their application.

2    For the reasons that follow, the appeal will be dismissed. The Tribunal did not contravene its obligations under s 359A of the Act.

Factual Background

3    The appellants are citizens of India. They applied for Student (Temporary) (Class TU) visas on 13 April 2011. The first appellant was the main applicant, and the second appellant, who is her husband, was the second applicant. The grant of a visa to the second appellant depended upon the grant of a visa to the first appellant. The basis of the student visa application was that the first appellant was enrolled in a course leading to the award of a Certificate III in Hospitality.

4    By a letter dated 15 April 2011, a delegate of the Minister wrote to the first appellant informing her she needed to provide further information within 28 days. Relevantly, the first appellant was told she needed to provide:

evidence [of] sufficient funds to support yourself, and any family members accompanying you, in Australia for the duration of you course of study. This includes:

    Course Fees         $11,950

    Living expenses        $34,294

    Travel expenses        $4,000

    TOTAL AUD         $50,240

…

Appellants must demonstrate their funds have been held for at least 6 months immediately before the date of the application …

5    This request was based on the criteria set out in cl 572.223(2)(a)(i)-(iii) of the Regulations, read with cl 5A405 of Sch 5A, and also read with applicable determinations made by the Minister about the sums of money required to cover living costs for such student visa applicants.

6    On 18 May 2011, having received no response to this request and no evidence of funds, the delegate refused to grant the student visas on the basis the first appellant had not provided evidence of sufficient funds to support herself and the second appellant.

7    On 6 June 2011, the appellants applied to the Tribunal for review of this decision. As part of that application their then migration agent made a submission to the Tribunal about why the first appellant had not provided the evidence of funds to the delegate. Relevantly, the migration agent stated:

We advised to act on behalf of our Client (KIRANDIP KAUR) to lodge MRT application with you under section 347 of Australian Migration Act 1958. For your information we attached the following documents with this application:

•    The applicant Refusal Letter from Department of Immigration and Citizenship.

•    Filled form M1 for review for applicant.

•    Medical Evidence for client and her father who was sick back home.

•    The applicant presented to the Tribunal evidence of his financial capacity to undertake the study, including evidence of the bank loan obtained by his mother, declarations, evidence relating to his father’s income and other materials.

•    Medibank Health Insurance Receipt.

My client have lodged the Student (Class TU, Subclass 572) Visa application 13th April 2011 with DIAC. As mention on Refusal letter Visa Officer asked for documents which must be provided to the DIAC within 28 days starting from 15th April 2011. Visa Officer had done his/her job.

Application was lodged by one of Migration Agent In Melbourne CBD. I think as per duty of care as a Migration agent he should notify the applicant about the deadline for submission. But he did not even send them an email or any letter in post let know the applicant about documents asked by the DIAC. Applicant is on Student Visa In Australia from more two years. She do not have any understanding about what is the legal time frame or legal terminology of Immigration. Applicant is just an layman. Her agent can send a request to Visa officer for more time to submit the documents. But he did not bother about it.

But compelling circumstances arisen during her Visa processing with DIAC which were beyond her control. The reason for refusal was Clause 572.233 and Clause 5A405 of Schedule 5A. Due to medical situation back home. Because her father was seriously sick back home (see attached evidence) she could not concentrate on to collect the documents on time. Circumstance were beyond her control. She could not say to her sick father in the hospital to go and collect the documents for her. She was in Mentally depression as well due to her father medical condition (Please see medical certificate evidence).

If we look into the previous record of the applicant she never have any issue in Regards to her study in Australia. Her conduct during study time in Australia was Perfect. From her last record she had full attendance and satisfactory academic records in Australia. She never had any issue with college or with DIAC in the past. If we look into her past records in Australia please allow her one more chance to complete her study in Australia. So he look forward her future brightly with her Australian Education. Because once again what ever happen it was not under her control. For following reason I believed it was beyond under control

•    Her Father was seriously sick back home.

•    She was mentally depress as well in Australia for her father at that time.

•    She was not aware with 28 days period time to submit the documents.

•    She is aware with legal terminology of the Australia Immigration law or relevant legislation.

8    Some medical certificates in respect of the first appellant and a letter on the letterhead of one “Dr Dilbag Rai” from the Civil Hospital Mahilpur, Hoshiarpur in the Punjab were attached.

9    The appellants were sent an invitation to appear before the Tribunal and were told that the Tribunal would be assessing the criteria set out in Sch 5A of the Regulations. The Tribunal invited them to provide evidence of sufficient funds for that purpose. Relevantly, the Tribunal stated:

You are therefore invited to provide the following:

…

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

•    If you intend to show funds from a source in India, the Minister (on review, the Tribunal) must be satisfied that the financial institution is acceptable. See

http://www.india.embassy.gov.au/ndli/vm%5fstudyloans.html for a detailed list. Funds from financial institutions not listed may not be accepted.

•    I draw your attention to the requirement to provide evidence that the regular income of any person (including yourself) providing funds to satisfy financial capacity requirements was sufficient to accumulate the level of funding being provided by that person; as well as the requirement to provide evidence of your relationship to this person which demonstrates they are an ‘acceptable individual’.

•    The Tribunal will assess you against the applicable Schedule 5A criteria, based upon your enrolment at the time the Tribunal makes its decision, taking into account any changes to your enrolment which have occurred since you lodged your visa application. For example, the amount of funds you must demonstrate to satisfy Schedule 5A financial criteria may have changed, reflecting changes in the length of your course and the amount of course fees outstanding. If you have enrolled in a new course, depending on the type of evidence of funds you provide, you may be required to show a savings history for 6 months prior to the date of your visa application. Furthermore, if your principal course has changed, you may be assessed against a different visa subclass, in which case different Schedule 5A criteria would apply.

5.    Evidence that, while you hold the visa, you will have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5A for the proposed period of your stay in Australia, as required by cl.572.223(2)(a)(iii). Without limiting the ways in which this requirement may be satisfied, where you have shown evidence of a loan which is secured against a money deposit, the Tribunal specifically invites you to provide the following:

•    evidence of the source of funds used to create that money deposit;

•    evidence of the regular income of any person providing those funds (for example, official tax records); and

•    where the funds were obtained from selling land or a dwelling, evidence of a registered deed of sale, and that money has been received from the purchaser.

10    The Tribunal’s reasons record that the first appellant handed up to the Tribunal on the day of the hearing (12 November 2012) “a batch of term deposit receipts in the name of her father”.

11    In fact, on the evidence before the Court, these documents appear to be term deposit receipts in the name of the first appellant’s mother. That difference seems immaterial given the definition in the relevant schedule of “acceptable individual” as including parents.

12    The Tribunal focused on the question whether the first appellant met the “Schedule 5A requirements” in respect of adequate funding for the term of her studies, this being the reason the delegate had refused to grant the student visas.

13    On this matter, the Tribunal found:

24.    The applicant has provided 10 term deposit receipts in her father’s name. Whilst their combined face value equates with the amount of funds required, only three were issued before the date of application for the visa on 13 April 2011. However, these were only established in March 2011, and therefore were not held for six months immediately prior to the date of application. The Tribunal therefore disregards them

25.    The applicant has provided no other claim or evidence pertaining to her funds.

26.    On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which she is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).

14    Accordingly, the Tribunal affirmed the delegate’s decision.

the Relevant Provisions

15    The criteria for the grant of a 572 visa are set out in Subclass 572 of Sch 2 to the Regulations. Relevantly to the Tribunal’s decision in this case, cl 572.223 provides:

(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

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

(a)    for an applicant who is not a person designated under regulation 2.07AO

(i)     the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

…

16    Regulation 1.41 provides that the Minister must specify assessment levels for “eligible passports” in relation to each subclass of student visa, thus identifying assessment levels by reference to nationality. The Tribunal found that, as Indian nationals and holders of passports issued by India, the applicable specification for the appellants was assessment level 4.

17    Schedule 5A to the regulations deals with evidentiary requirements for student visas. Division 2 of Sch 5A deals solely with evidentiary requirements for those applicants who must meet assessment level 4. Clause 5A405 set out the evidentiary requirements for financial capacity and relevantly provided:

(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 36 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 36 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.

…

18    Some of the definitions of the terms used in cl 5A405 also should be set out. These definitions are to be found in cl 5A101.

(2)     In this clause:

acceptable individual means one or more of the following:

(a) the applicant;

(b) the applicant’s spouse or de facto partner;

(c) the applicant’s parents;

…

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

(a)     if the applicant:

(i)     has successfully completed at least 75% of the requirements for his or her principal course; and

(ii)     has applied for the visa in order to complete the course; and

(iii)     does not propose to undertake any further course;

a money deposit held by an acceptable individual;

(aa)     if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application;

(b)    financial support from:

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

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

    (iii)    the government of a foreign country; or

    (iv)    a corporation that:

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

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

    (v)    a multilateral agency; or

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

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

    (viii)    an acceptable non-profit organisation;

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

(d)    a loan from the government of the applicant’s home country.

…

living costs has the meaning given by subclause 5A104(1).

…

travel costs, for an applicant, means the sum of costs for each of the applicant and any family applicant:

(a)    if the applicant or family applicant is not in Australia when the application is made — of travelling to Australia; and

(b)    of returning to the applicant’s home country at the end of his or her stay.

19    Clause 5A104(1) defined “living costs” relevantly as:

(1)     An applicant’s living costs for a period are taken to accrue at the sum of the rates set out in the following table:

…

(a)     an amount specified by the Minister in an instrument in writing for this clause (the basic rate); and

(b)     if the applicant has a spouse or de facto partner who is a family applicant — 35% of the basic rate; and

…

20    The student visa has other criteria, such as English language proficiency (cl 5A404 of Sch 5A), satisfaction of the delegate or Tribunal that the applicant is a “genuine applicant for entry and stay as a student”, and satisfaction that during her or his stay the applicant will have access to the funds demonstrated or declared under Sch 5A.

The Tribunal’s decision about the first appellant’s access to funds

21    Evidence before the Court indicated the delegate had stipulated that the appellants must provide evidence of funds in the amount of $50,240. In the letter sent by the Tribunal to the appellants, there was no sum referred to in terms of the total funds to which the appellants needed to demonstrate access. However, in the Tribunal’s reasons the sum is stated to be $47,395. There is no evidence before the Court, and no material in either the delegate’s or the Tribunal’s reasons, to indicate how these sums were calculated and why they were different.

22    At the Tribunal hearing, the first appellant provided a number of documents. She provided 10 term deposit receipts from the ICICI Bank in India, specified to be held in the name of Jaswinder Kaur. There were also two letters from the relevant ICICI Bank branch giving a summary of information about the term deposits. These letters specified the holder as “Mrs Jaswinder Kaur”.

23    In addition, the first appellant provided to the Tribunal a number of documents in Punjabi with English translations relating to the ownership of land by one Santokh Singh, son of Banta Singh. The documents also deposed to the annual income received from those lands. There was a further document issued on the letterhead of the Oriental Bank of Commerce in India, certifying that Santokh Singh held a term deposit in the sum of Rs 463,449.00 as at 1 November 2012. There were further documents (in Punjabi with English translations) which appear to list land held, and incomes derived from that land, some of which are in the name of Santokh Singh. Finally, there were two lease agreements in relation to agricultural land which listed Santokh Singh as the tenant. Most of the copies of the documents in evidence before the Court appear to have been certified by a notary for use outside India.

24    The Tribunal found the combined face value of the term deposits equated with the amount of funds required under Sch 5A. It made no findings about the relevance of or necessity for the other documents.

25    However, the Tribunal found that only three of the term deposits were issued before the date of the appellants’ student visa applications, namely 13 April 2011. It also found that none of those three had been held for six months or more immediately before that date, as the terms of cl 5A405 and the definitions of “funds from an acceptable source” required. The Tribunal stated it would thus disregard the term deposits.

26    Inevitably, that led the Tribunal to conclude the appellants had not satisfied the assessment level 4 requirements under cl 5A405 of Sch 5A of the Regulations. That finding in turn led to the inevitable conclusion that the delegate’s decision would be affirmed.

27    As the Minister submitted, there is some suggestion at [20] of the Tribunal’s reasons that, even if the first appellant had provided material to meet the assessment level 4 requirements under cl 5A405 of Sch 5A, the Tribunal may not have been satisfied that all the necessary visa criteria were met, in particular, evidence of proficiency in the English language. However, given there is no jurisdictional error demonstrated in the Tribunal’s decision, it is not necessary to reach any concluded view on whether the Tribunal would have reached the same conclusion in any event.

The decision of the Federal Circuit Court

28    On 5 December 2012, the appellants lodged an application to review the Tribunal’s decision. There were no grounds in the application, aside from the statement that “I think MRT Tribunal and department of immigration did not look my situation”. The first appellants did not appear at the hearing before the learned primary judge, and a decision was given in their absence. Without the benefit of any grounds or submissions, and in circumstances where there appeared to have been a straightforward application of the visa criteria to the evidence by the Tribunal, the primary judge concluded that the Tribunal was “clearly correct”. No criticism can be made of that approach.

The appellants’ grounds of appeal

29    The appellants are unrepresented in this Court, as they were before the Federal Circuit Court.

30    The appellants have filed a Notice of Appeal which identifies one ground:

The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

(a)     There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

31    The reference to s 424A of the Act is erroneous and the Minister properly conceded as much. The equivalent provision in respect of the Migration Review Tribunal is s 359A: s 424A is the applicable provision in respect of the Refugee Review Tribunal.

32    The Minister did not oppose consideration by the Court of the Notice of Appeal on the basis that it should be read as referring to s 359A.

33    Nevertheless, the Court must be satisfied that it is expedient in the interests of the administration of justice to consider an argument for the first time on appeal which was not put to the primary judge: O’Brien v Komesaroff (1982) 150 CLR 310 at 317-319. Often, and especially in private litigation or in litigation about the exercise of public power between parties of relatively equal resources, issues of prejudice to other parties may loom large. Forensic decisions may have been made based on arguments as presented, significant resources may already have been expended in meeting arguments not now relied upon and parties may have assumed some finality in the judgment at first instance, with which granting leave to raise a new argument on appeal can interfere. There are many authorities in this Court dealing with such issues: see, eg, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [38] per Allsop J, with whom Drummond and Mansfield JJ agreed. The question of the merits of the proposed new grounds is usually critical: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48].

34    Cases which involve the supervisory jurisdiction of this Court over the exercise of public power may call for an approach with different emphasis to that taken in private litigation. A decision made in the exercise of public power which is affected by jurisdictional error is no decision at all. If there is a duty to exercise the power (as there is in s 65 of the Act, one way or the other) then where there has been jurisdictional error that duty remains unperformed: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [53] per Gaudron and Gummow JJ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76]; SZFDE v Minister for Immigration and Citizensihp (2007) 232 CLR 189 at [52]. The merits of the proposed new arguments are thus linked with the effective exercise of this Court’s supervisory jurisdiction and the ultimate validity of the exercise of public power: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [21]-[38] per North, Merkel and Weinberg JJ.

35    In cases such as the present, other factors such as an applicant’s lack of legal representation, little or no familiarity with the Australian court system or the nature of this Court’s supervisory jurisdiction, not having English as a first language, and (often) the ability to remain lawfully in Australia must be considered. Where a tolerably clear point is raised in such circumstances, and the point cannot be said to be without merit, it is expedient in the interests of the administration of justice for the Court to consider the argument raised. Accordingly, it is appropriate for the Court to consider the Notice of Appeal on the basis that it raises the argument that the Tribunal did not act consistently with its obligations under s 359A of the Act in not informing the appellants about the fact the material they proposed to present had a fundamental defect as far as the terms of the visa criterion were concerned.

The appeal hearing

36    The first appellant appeared in person on the hearing of the appeal in this Court. She was assisted by an interpreter in the Punjabi language. The Court had arranged for the interpreter to translate the Minister’s submission for the first appellant prior to the hearing commencing.

37    Towards the conclusion of the appeal, the Court considered it was appropriate to invite the first appellant to give sworn evidence about some of the factual matters arising in the context of this appeal. She had previously told the Court about some of these matters from the Bar table. The Minister indicated there was no objection to her giving evidence.

38    The matters either confirmed by the first appellant in her sworn evidence, or given in evidence, were these. First, the first appellant indicated that the person identified in the appeal books documents as “Mrs Jaswinder Kaur” is her mother. She stated that the person identified in the appeal book documents “Santokh Singh” is her father. She stated that (as the documents indicated) her father had been sick for some time before and after the visa application was lodged, and this caused some delay in assembling the necessary proof of funds. Second, she stated she knew she had to show evidence of funds, but was not aware of the requirement for those funds to have been in a term deposit for some six months prior to the making of the visa application. Third, she stated that she did not receive the letter sent by the Tribunal in advance of the oral hearing (which included details of the evidence the Tribunal would require in order to be satisfied that the first appellant met the visa criterion in cl 572.223(2)(a)(iii)), and that it went to her migration agent. She stated the first time she saw that letter (with the details of the evidence required) was at the Tribunal hearing. The first appellant also confirmed through her evidence that she and her husband had been represented by a migration agent, although he did not attend the Tribunal hearing with them.

39    The Minister was invited to cross-examine the first appellant but chose not to do so.

The parties’ submissions

40    The first appellant made no submissions on the question whether the Tribunal met its obligations in s 359A. However it was apparent from what she did say that her complaint essentially was that she was not personally aware until the Tribunal hearing that the material she was presenting to the Tribunal had a fundamental defect. The defect was that the funds to which she must establish access had to have been held by the relevant person (the “acceptable individual”) for a period of six months prior to the visa application being made. The material she presented to the Tribunal demonstrated on its face her father and mother had not held the funds for six months prior to the first appellant’s visa application on 13 April 2011.

41    The Minister submitted that, even if the appeal proceeded on the basis of an alleged contravention of s 359A, the Tribunal's decision was based on an absence of sufficiently probative evidence and s 359A had no relevant role to play, because the Tribunal found that the evidence that was provided by the appellants did not satisfy the relevant statutory condition. Section 359A does not, the Minister submitted, extend to evidence the appellants gave to the Tribunal for the purposes of the review or “the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

42    The Minister submitted the six-month statutory requirement is plain from the definition of “funds from an acceptable source” under cl 5A405. It is also clear, the Minister submitted, that the appellants had the assistance of a migration agent and had been put on notice about the evidentiary requirements, as they came to the Tribunal hearing with the kind of evidence contemplated by cl 5A405.

43    Prior to the hearing of the appeal, the Court sent the parties a letter which relevantly stated:

The Court draws the first respondent’s attention to the applicant’s reliance on s 424A of the Migration Act, which the first respondent in his written submissions has accepted is properly to be understood as a reference to the equivalent provision in respect of the MRT, namely s 359A.

In the course of the appeal, the Court would be grateful if the Minister’s submissions could address the following questions:

1.    Did the fact that the term deposits held by the applicant’s parent had not been held for the requisite 6 months prior to the visa application constitute “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” for the purposes of s 359A(1)?

2.    If so, was that fact within the exclusion provided for in s 359A(4), and if so, how?

3.    If non-compliance with s 359A were identified and s 359A(4) does not apply, did that non-compliance deprive the applicant of the possibility of a different outcome, given there were other options available to meet the definition of “funds from an acceptable source” in cl 5A 405(2) of the Schedule 5A to the Migration Regulations?

44    After the Minister’s counsel addressed these issues at the hearing, leave was sought and granted to file further written submission on the matters raised. The first appellant was given leave to file a response to the material put in by the Minister if she wished to. No further submissions were received from the first appellant, although she filed a further affidavit attaching documents which were already in evidence in this appeal.

45    The Minister’s further submissions contended that the word “information” should be construed in s 359A in a way which was consistent with the context in which it is used elsewhere in Div 5. For example s 359 empowers the Minister to “get information” from a visa applicant. The Minister also referred to the ordinary meaning of the word “information” as “[k]nowledge or facts communicated about a particular subject, event etc; intelligence, news”.

46    The Minister’s further submissions concentrated on the proposition that the obligation under s 359A does not extend to disclosing to an applicant the Tribunal’s thought processes and reasoning. He submitted that the Tribunal’s subjective appraisal of the evidence before it, or conclusions it draws from that evidence, are not “information” within the meaning of s 359A. Reliance was placed on four authorities: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]; Gajjir v Minister for Immigration and Citizenship (2013) 87 ALJR 549 at [26]. Reliance was also placed on the terms of s 359A(4), which the Minister submitted demonstrated that information given to the Tribunal by an applicant did not need to be disclosed back to the applicant. In part, the Minister submitted, this was because the manner in which the Tribunal then used that information was in its reasoning processes and to reach its conclusions, thus coming within the matters said by the authorities to be outside the procedural fairness obligations in s 359A.

47    The Minister submitted that the appellants did not give the Tribunal material that was sufficient to satisfy it of those matters. It is evident from the Tribunal’s reasons that it reached this conclusion due to the date of the term deposits and the clear words of the statute. There was no ambiguity in the statutory language and the primary judge found that the Tribunal was “plainly correct”.

CONSIDERATION

48    Section 359A of the Act provides:

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

…

(4)    This section does not apply to information:

    (a)    that is not specifically about the applicant or another person and is just about a class of person of which the applicant or other person is a member; or

    (b)    that the applicant gave for the purpose of the application for review; or

    (ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c)    that is non-disclosable information.

49    There is no transcript of the hearing before the Tribunal in evidence before the Court, nor was there before the learned primary judge. However, I find that the first appellant gave her account of the material aspect of the Tribunal hearing frankly and honestly, without embellishment, and I am prepared to find that the first time she personally knew of the six-month requirement was when the Tribunal informed her about it at the Tribunal hearing.

50    That is not to say there has been a contravention of s 359A.

51    As the Minister submitted, the fact that the appellants provided some considerable information about their access to funds reveals awareness of the nature of the visa criterion. They were represented by a migration agent, however there is insufficient evidence for any findings to be made, or inferences to be drawn, about the explanation for why what was provided was obviously non-qualifying.

52    The resolution of the appellants’ sole ground of appeal turns on what is to be characterised as “the information” the Tribunal was required to give the appellants under s 359A. If it was simply the terms of the relevant visa criteria in cl 5A405 and in particular what the phrase “funds from an acceptable source” was defined to mean, then I accept the Minister’s submission that an inference can be drawn that the appellants had had their attention drawn to the visa criteria and they were aware of the kind of information they needed to provide.

53    Rather, for s 359A to be breached in these circumstances, “the information” would need to be characterised as the fact that the material presented by the appellants was incapable of meeting the relevant visa criteria in cl 5A405, because the term deposits showed on their face that the funds had not been held for the requisite six months prior to the visa application being made.

54    I accept the Minister’s submissions that this is not “information” for the purposes of s 359A: it is the conclusion of the Tribunal on the material before it, on application of the visa criterion. It is, in that sense, the product of the Tribunal’s reasoning process. In a circumstance where the delegate refused to grant the visa for the same reason, the review is primarily concerned with whether the appellants could produce the necessary material to satisfy the Tribunal they met this visa criterion. The appellants were aware, I find, that this was what they had to do. Perhaps they were not well advised about the particular characteristics that material needed to have; perhaps their migration agent did not advise them the funds had to have been held for six months prior to the visa application. Those are not matters on which the Court can make any findings.

55    The conclusion that the material produced did not meet the applicable visa criterion was adverse to the appellants, and indeed fatal to their student visa application. It was nevertheless the product of the Tribunal’s reasoning process and not therefore within s 359A. Nor would it be within any broader procedural fairness obligation because it was an adverse conclusion obviously open on the known material: see SZGUR 241 CLR 594 at [9] per French CJ and Kiefel J.

CONCLUSION

56    The appeal must be dismissed. There is no error in the decision of the Federal Circuit Court, and no contravention by the Tribunal of its obligations pursuant to s 359A of the Act. If the appellants consider they have been badly advised by their migration agent, there are avenues for them to make a complaint to the Migration Agents Registration Authority. There is no basis for anything but the usual order as to costs.

Associate:

Dated:    13 December 2013