FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Border Protection [2015] FCA 1221

THE COURT ORDERS THAT:

1.    The application to extend time to appeal is dismissed.

2.    The first applicant pay the first respondent’s costs of the application to be taxed if not agreed.

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

REASONS FOR JUDGMENT

Introduction

1    The first applicant, Mr Patel, is a citizen of India. He seeks an extension of time to appeal to this Court from an order of Judge Jarrett in the Federal Circuit Court of Australia. His Honour refused to set aside a decision which upheld the refusal by a delegate of the first respondent (the Minster) to grant Mr Patel a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the student visa).

2    The second applicant also a visa applicant but her application was made as part of Mr Patel’s family unit. She did not provide any separate grounds for the grant of a visa. She did not appear in the Federal Circuit Court.

3    Neither Mr Patel nor the second applicant appeared at the appeal in this Court. The Court allowed more than an additional hour for either of them to attend. The Court had written to Mr Patel, by email and mail on 12 October 2015, advising of the time and place of this hearing. The details were set out in bold in the letter. The address to which the letter was sent was the same address as Mr Patel had listed in (i) his student visa application, (ii) his migration agent form, and (iii) communications from the Minister’s department. Counsel for the Minister said that the Minister had also written to Mr Patel to advise him of the hearing.

4    Counsel for the Minister did not seek to make any oral submissions in the applicants’ absence. She sought an order that the application be dismissed with costs. She said that she was content to rely upon her written submissions.

5    Rule 35.33 of the Federal Court Rules 2011 (Cth) permits a matter to be determined in the absence of a party when that party has not attended, although the absent party may apply to the Court for an order setting aside the orders made and for the further conduct of the proceedings (r 35.33(2)). The principles in relation to rule 35.33 are well established: SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 [9]-[10] (Flick J); SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 [18] (Kenny J); SZJNR v Minister for Immigration & Citizenship [2007] FCA 1724 [2] (Greenwood J).

6    I am satisfied that Mr Patel was given proper notice of this hearing. For the reasons I explain below, and in the absence of any submissions by Mr Patel, I also consider that neither ground of appeal has any merit. It is appropriate to make a determination of the matters raised in the grounds of appeal and addressed in the Minister’s submissions.

7    The application for leave to appeal must be dismissed.

The proceedings before the Minister’s delegate

8    On 19 May 2014, Mr Patel applied for a student visa under the Migration Act 1958 (Cth).

9    On 21 May 2014, a delegate of the Minister requested more information from Mr Patel to support his application for the student visa. The requested information included information about Mr Patel’s financial capacity and, in particular, whether he had access to AUD $31,418.31.

10    On 13 June 2014, Mr Patel responded to this request and provided documents which included the following:

(1)    a letter from the Punjab National Bank which said that a loan of Rs.1,850,000 was “sanctioned to you for Higher Education”. It said that the loan would be dispersed to an account in the names of Mr Patel and his father; and

(2)    a certificate of Confirmation of Deposit of the amount of Rs.2,050,000 for a period of six months at a rate of 7.5%. The Confirmation of Deposit recorded that it had been received from Mr Patel’s father.

11    On 14 August 2014, an officer in the Minster’s department wrote to Mr Patel saying that it had “been verified that the loan document and the fixed deposit are non-existent and fabricated”. Mr Patel was invited to comment on this statement.

12    On 26 August 2014, Mr Patel replied. His reply included the following statement:

As you have call to Punjab national bank of patan for verification about the finance and it is found that the loan is not credited in to the account of MR BIPIN RAMANBHAI PATEL AND MR RAMANBHAI SOMABHAI PATEL because my father did not done any disbursement in to that account. Therefore it shows non-existence of loan and fixed deposit. My father has just sanctioned the loan against the fixed deposit of rupees 2050000. The loan was granted 1850000. A per your request of pic4020 I had a call to bank and bank replied with answer that the money is not credited because of disbursement was not do[n]e by account holder. When I told to my father about the disbursement he again started processing with the disbursement of loan by opening a new account on his name of MR RAMANBHAI PATEL. My father has closed the previous account in which disbursement is not done by my father. I am also sending the proof for the previous closed account. In the new account my father has put fixed deposit of 2060000.

13    Mr Patel also provided documents to show as follows:

(1)    the account in the name of him and his father (numbered 6702000100012159) had been closed;

(2)    a loan of Rs.1,850,000 had been “sanctioned to you for Higher Education” and that the loan had been secured against a deposit by Mr Patel’s father of Rs.2,060,000 and that the loan would be dispersed into an account (numbered 6702000100026587) in the name of Mr Patel and his father;

(3)    a Confirmation of Deposit certificate showing that the amount of Rs.2,060,000 had been deposited from an account of his father (numbered 670200DP0001893B); and

(4)    a ledger entry showing that the amount of Rs.1,850,000 had been deposited into the account (number 6702000100026587) for Mr Patel and his father on 20 August 2014.

14    On 17 October 2014, the delegate of the Minister refused the student visa.

15    The delegate of the Minster explained in reasons for the refusal that Mr Patel had applied for a Student (Temporary) (Class TU) visa. This was taken to be an application for a Higher Education Sector (Subclass 573) visa because Mr Patel had indicated that this was the subclass that he was seeking to be granted.

16    The delegate of the Minister refused the application because it did not satisfy the requirements of Public Interest Criterion PIC 4020 of Schedule 4 or cl 573.224 of Schedule 2 to the Migration Regulations 1994 (Cth).

17    Clause 573.224 of Schedule 2 to the Migration Regulations provides criteria to be satisfied at the time of decision as follows:

The applicant:

(a)    satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and

(b)    if the applicant seeks to stay in Australia for 12 months or more, satisfies public interest criterion 4010; and

(ba)    if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019; and

(c)    if the applicant is applying outside Australia and the applicant has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.

18    Subclause 4020 of Schedule 4 to the Migration Regulations provides public interest criteria as follows:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

…

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

19    The delegate to the Minister concluded that Mr Patel had “given a bogus document within the meaning of s 97 [of the Migration Act]”. This was because Mr Patel had (i) provided a Certificate of Deposit citing a non-existent bank account in the name of his sponsor and (ii) provided a loan document dated 3 June 2014 purporting to disburse funds to an account that was shown to have been closed on 20 June 2013 that was supposedly lending the loan funds to Mr Patel and his sponsor (the bogus documents).

20    The delegate of the Minister observed that Mr Patel “did not comment on why these documents were found not to be genuine” but that Mr Patel had instead said that “his father had not arranged the disbursement of the loan funds to the stated account and that his father has since opened another account in order to explain the proper disbursement of the loan amount”.

The proceedings in the Migration Review Tribunal

21    Mr Patel challenged the decision of the delegate to the Minster not to grant him a student visa.

22    On 1 April 2015, the Tribunal conducted a hearing of Mr Patel’s application for review. Mr Patel was present and made submissions. The Tribunal described the evidence from Mr Patel and the conduct of the proceedings as follows.

23    Mr Patel said that the Punjab National Bank made a mistake when it told the Minster’s Department that the two accounts and the loan did not exist. The Tribunal told Mr Patel that he should be able to get the bank to verify that the two accounts existed and that a loan had been obtained. Mr Patel said that he would try to get that verification from the bank. He was asked to provide his response to the Tribunal by 1 May 2015.

24    On 26 April 2015, Mr Patel provided a response to the Tribunal. He said that the bank would not provide him with written confirmation but that if “Australian Immigration” wanted details regarding the accounts then they could telephone the branch in India. He provided one letter from the bank, dated 15 April 2015 and signed by the manager of a branch of that bank. The author of that letter said that Mr Patel’s father had a fixed deposit with the bank which was used to secure a loan. The author also referred to a bank account held by Mr Patel’s father in which loan funds were dispersed and held from 20 August 2014 until 31 October 2014. The bank account number provided was the same account number as in [8(2)] and [8(4)] above.

25    The Tribunal concluded as follows:

13.    The Tribunal has considered the evidence before it and finds that the applicant supplied bogus documents to the Department in support of his student visa application. The Tribunal finds that the applicant obtained documents from India, relating to a loan and two bank accounts at the Punjab National Bank, to support of student visa application and to demonstrate that he could meet the financial capacity requirements for the visa. However, the bank which allegedly issued those documents subsequently stated that the accounts and the loan did not exist. The Tribunal has formed the view that persons assisting the applicant to lodge his application obtained bogus documents for him which he submitted in support of his student visa application. It finds that the documents were intended to deceive the Department and enable the applicant to get the student visa. Accordingly, it finds that the applicant does not meet the requirements of PIC 4020(1).

26    The Tribunal considered that the letter provided by Mr Patel after the hearing had referred to an account and a loan which (i) did not relate to his initial submission or (ii) did not relate to the accounts his father allegedly held at the time when the original loan was allegedly taken.

27    The Tribunal also considered the evidence provided by Mr Patel after the hearing. But it was not satisfied that the evidence provided accounted for the bogus documents initially submitted to the Minister’s department. The Tribunal concluded that if the Punjab National Bank had granted a loan to Mr Patel’s father at the time when the application was lodged and if two accounts existed at that time then the bank would confirm the existence of those arrangements. But the absence of such evidence indicated to the Tribunal that the initial accusations of bogus documents were accurate. For that reason the Tribunal did not consider it necessary to make further enquiries with the bank.

28    The Tribunal was not satisfied that compassionate or compelling circumstances existed in Mr Patel’s case for the purposes of PIC 4020(4). It was also not satisfied that the requirements of PIC 4020(1) should be waived. The Tribunal therefore concluded that Mr Patel did not satisfy PIC 4020 for the purpose of cl 573.224(a) of the Migration Act.

The proceedings in the Federal Circuit Court

29    On 27 May 2015, Mr Patel commenced judicial review proceedings in the Federal Circuit Court. He applied for an order that the Minister and the Tribunal show cause why the decision of the Tribunal and the decision of the Minister should not be quashed and the matter returned to the Tribunal or Minister to be determined according to law.

30    The grounds of Mr Patel’s judicial review application were as follows:

1.    The Tribunal constructively failed to exercise its jurisdiction

Particular:

The applicant provided a letter from Punjab National Bank to the Tribunal. The Tribunal failed to engage in an active intellectual process of the document. The Tribunal ultimately gave the document no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the document without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the document corroborated his claims.

2.    The Tribunal failed to accord “procedural fairness” to the Applicants because of the little weight it gave to the applicants because of the applicants financial statement in the application for a student visa.

31    On 18 August 2015, the Federal Circuit Court dismissed Mr Patel’s application for judicial review.

32    The Federal Circuit Court correctly explained that Mr Patel must establish jurisdictional error in order to succeed.

33    As to the first ground, the Federal Circuit Court concluded as follows:

(1)    the Tribunal engaged with the letter that Mr Patel said that the Tribunal had ignored;

(2)    the Tribunal considered before it all of the evidence including the original evidence, the letters, the purported loan document and other documents from the bank, and the subsequent evidence provided by Mr Patel;

(3)    the Tribunal’s reasons for decision revealed a thorough examination of the issues;

(4)    the Tribunal’s finding that were ultimately reached on the authenticity of the original documents were findings that were clearly open to it on the evidence; and

(5)    the Tribunal’s enquiries were correctly focused upon the authenticity of the documents that were originally provided to the delegate of the Minister in support of Mr Patel’s visa application, rather than focusing upon the credit of Mr Patel himself.

34    The Federal Circuit Court concluded that ground (1) of Mr Patel’s application revealed no error. Having made a finding that Mr Patel had provided bogus documents when he made his visa application, the Tribunal was bound to affirm the decision under review, subject to waiving the requirements of public interest criteria 4020(1).

35    As to ground (2), the Federal Circuit Court concluded that the material contained within the court book and the Tribunal’s reasons for decision revealed that there had been no want of procedural fairness. In particular:

(1)    Mr Patel was made aware of the relevant issue arising in the application;

(2)    Mr Patel was given an invitation to comment by the Minister’s delegate on 14 August 2014;

(3)    the delegate’s decision put Mr Patel on notice of the issue that caused the failure of his visa application;

(4)    once proceedings were commenced in the Tribunal Mr Patel was provided with the opportunity to give further evidence to the Tribunal;

(5)    Mr Patel was invited to appear before the Tribunal to give evidence and present arguments and he took up that invitation; and

(6)    Mr Patel was permitted to provide additional documents to the Tribunal with additional time to provide those documents.

36    For those reasons the application for judicial review to the Federal Circuit Court was dismissed on 18 August 2015.

Mr Patel’s application for leave to appeal and his proposed grounds of appeal

37    On 14 September 2015, Mr Patel filed an application for an extension of time to bring an appeal to this Court. The principles concerning the exercise of a discretion to extend time within which to bring an appeal are well established. Key factors for the court to consider are the length of delay in lodging the application and reasons for the delay, any prejudice to the respondent if the extension is granted, and the merits of the substantive appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344, 348-349 (Wilcox J); SZVGG v Minister for Immigration and Border Protection [2015] FCA 859 [47] (Barker J).

38    The extension required was short. Mr Patel explained in an affidavit that the delay had been caused by his lack of legal representation before the Federal Circuit Court and also before this Court, and his lack of awareness of time limits for bringing an appeal. The Minister did not identify any matters of substantial prejudice if leave were granted.

39    The central question then for the extension of time is whether the proposed grounds of appeal have any merit.

40    Mr Patel has two proposed grounds of appeal:

1.    The Judge failed to consider that the Administrative Appeals Tribunal exceeded its jurisdiction in making its decision to affirm the First Respondent’s decision.

2.    The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

41    Mr Patel provided no particulars of these proposed grounds of appeal. Nor did he provide any submissions which explained the manner in which the proposed grounds related to the grounds of judicial review before the Federal Circuit Court. The proposed grounds of appeal appear to be “pro forma” or standard grounds of appeal which do not focus upon the facts of Mr Patel’s case or the decision of the Federal Circuit Court: see SZLHM v Minister for Immigration [2008] FCA 754 [35]-[36] (Flick J); SZVGG v Minister for Immigration and Border Protection [2015] FCA 859 [42], [50] (Barker J).

42    To the extent that the grounds of appeal relate to matters that were the subject of the two grounds of judicial review before the Federal Circuit Court, the decision of that Court was correct for the reasons explained above.

43    If the grounds of appeal were intended to raise additional and new matters beyond those matters raised before the Federal Circuit Court then there was no identification of what those “legal and factual errors” were said to be. Three points can be briefly made to illustrate why any new (unidentified) point cannot succeed.

44    First, the application for judicial review to the Federal Circuit Court was not a rehearing of the merits. For the reasons I explained in ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 [41]-[44], Mr Patel was required to identify a ground of jurisdictional error.

45    Secondly, on this appeal from the Federal Circuit Court it is necessary to identify some error by the Federal Circuit Court in its conclusion that no jurisdictional error was committed. There is no apparent error.

46    Thirdly, there are also obstacles to raising grounds of appeal which had not been agitated below. If the grounds of appeal had contained substantial particulars it is possible that these obstacles might have been encountered: Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 461 [51] (Gleeson CJ, McHugh and Gummow JJ); Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; (2013) 140 ALD 524, 529 [28] (Cowdrey, Katzmann and Farrell JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424, 439-440 [37]-[39] (Allsop J; Drummond and Mansfield JJ agreeing).

Conclusion

47    Neither of Mr Patel’s grounds of appeal has any merit. The application to extend time to appeal is dismissed.

Associate:    

Dated:    11 November 2015