Federal Court of Australia

Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 239

ORDERS

THE COURT ORDERS THAT:

1.    The application to set aside the earlier dismissal of the appeal on 20 September 2021 is refused with costs.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    On 26 November 2019, the Appellants, Mr and Mrs Patel, filed a notice of appeal in this Court from a decision of Judge Emmett sitting in the then Federal Circuit Court of Australia: Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3161 (‘J’). The appeal was listed for hearing on 20 September 2021. There was no appearance for Mr or Mrs Patel at that time and I dismissed the appeal under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (‘the Rules’).

2    Rule 36.75(1)(a) provides:

36.75  Absence of party

(1)     If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed; or

(ii)     the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken

3    On 24 September 2021, Mr and Mrs Patel lodged an application to set aside that order under r 36.75(2)(a) of the Rules. Rule 36.75(2) is in the following terms:

(2)    If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)     setting aside or varying the order; and

(b)    for the further conduct of the hearing.

4    The application was fixed for hearing on 6 October 2021. At that time, Mr Patel appeared both on his own behalf and on behalf of Mrs Patel. In advance of the hearing I indicated that the application would be argued in full so that if the application to set aside the dismissal was allowed, no further argument would be necessary on the appeal itself.

5    Where a proceeding has been dismissed for a failure to appear under r 36.75(1), the matters germane to the exercise of the discretion conferred by r 36.75(2)(a) will generally include the:

(a)    explanation proffered by the applicant for the earlier non-appearance;

(b)    nature and extent of any prejudice suffered by the opposing party; and

(c)    prospects of the underlying proceeding.

6    I am satisfied that the First Respondent (‘the Minister’) does not suffer any material prejudice beyond a relatively small amount of irrecoverable costs if the appeal is reinstated. If I were satisfied that the appeal had merit and that the explanation for the delay was reasonable, the existence of this minor prejudice would not persuade me not to reinstate the Patels’ appeal.

7    However, I am not persuaded that the appeal has any reasonable prospects of success. It is not necessary in that circumstance to consider the adequacy of Mr and Mrs Patel’s explanation for their earlier non-appearance.

Reasoning

8    Judge Emmett dismissed the Patels’ application for judicial review of an earlier decision of the Administrative Appeals Tribunal (‘the Tribunal’). On 26 March 2018, the Tribunal had affirmed an earlier decision of a delegate of the Minister to refuse to grant the Patels Student (Temporary) (Class TU) (Subclass 500) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’) (‘Tribunal Decision’). The Tribunal’s reason for this decision was that it concluded that the Patels had provided information to the original delegate which was false or misleading in a material particular. It is an eligibility criteria for the grant of most visas, including the visas for which Mr and Mrs Patel were applying, that there be no evidence before the Minister (or, as here, the Minister’s delegate) that the applicant had provided information that was false or misleading in a material particular in relation to the application for the visa: Public Interest Criterion (‘PIC’) 4020(1)(a) (which is contained in Sch 4 of the Migration Regulations 1994 (Cth)). The Tribunal concluded that the Applicants had provided information having that quality: Tribunal Decision at [19]-[26]. Consequently, it concluded that they did not meet PIC 4020(1). Whilst PIC 4020(4)(b) gives the Tribunal the power to waive compliance with PIC 4020(1) on compassionate grounds, it was not satisfied that it should: Tribunal Decision at [30]-[31].

9    In the Federal Circuit Court, the Appellants advanced two grounds of judicial review. First, it was said that the Tribunal erred in its interpretation of PIC 4020 because it had found that ‘an isolated piece of information was false or misleading’ without considering it in the context of all the information which was provided. Although it is not immediately clear, this ground also appeared to encompass a submission that the decision of the Tribunal was unreasonable in the Li sense: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. Secondly, it was said that the Tribunal had denied the Appellants procedural fairness. Judge Emmett rejected both grounds and dismissed the application for judicial review.

10    In this Court, three grounds are articulated in the Appellants’ notice of appeal in the following terms:

1.    The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when the Tribunal denied procedural fairness to the applicants in relation to a purported certificate under s375A of the Act.

2.    The Federal Judge failed to consider that the Tribunal had no jurisdiction because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

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

11    I do not think Ground 3 reflects anything which was put to Judge Emmett. No reason was shown at the hearing of the present application as to why this Court should permit it now to be raised for the first time. I would not be disposed to set aside the earlier dismissal order to permit this to be done.

12    Dealing with grounds 1 and 2 in turn:

Ground 1: Procedural fairness

13    To understand this ground, some factual background is necessary. On 20 December 2016, the then Department of Immigration and Border Protection (‘the Department’) issued a certificate under s 375A of the Act in which it stated that certain parts of the file, which had been provided to the Tribunal for the discharge of its review function, contained information which the public interest required not be disclosed. According to the certificate the information had the capacity to identify an informant. The effect of s 375A(2)(b) is that once this certificate was issued the Tribunal was bound not to disclose the information to the Appellants. Pursuant to s 359A of the Act the Tribunal did, however, provide the Appellants with a copy of the certificate and invited them to make submissions about its validity. The Tribunal informed the Appellants that the certificate related to the decision making processes of the Department and that it did not intend to rely upon the material referred to in the certificate.

14    Judge Emmett reasoned that in the absence of any evidence to the contrary, the court was entitled to take the Tribunal at its word and treat as correct its statement that it did not rely upon the evidence, citing Le v Minister for Immigration and Border Protection [2019] FCAFC 178; 272 FCR 1 at [38]. Consequently, since the material the subject of the certificate was not used in the Tribunal’s process of decision making it followed that any breach of the rules of procedural fairness could not be material: J at [55].

15    I detect no error in this reasoning. Speaking of a similar certificate provision, s 438, the High Court observed in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [47] that:

Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

16    That reasoning applies with particular force where, as here, the Tribunal explicitly stated that it intended not to utilise the material the subject of the certificate. Assuming for the sake of argument, therefore, that there was a denial of procedural fairness in not providing to the Appellants the material the subject of the certificate, Judge Emmett was, in my respectful opinion, correct to conclude that it must necessarily have been immaterial to the outcome before the Tribunal. In that circumstance, I detect no error in her Honour’s handling of this issue. That being so, there is no reason to set aside the earlier dismissal of the appeal in order to permit this ground to go forward.

Ground 2: Reasonable satisfaction of the Tribunal not arrived at lawfully

17    In order to be eligible for the visa, the primary applicant, Mr Patel, had to satisfy the Department and the Tribunal on review that he had sufficient funds to support himself and members of his family unit for the first 12 months of study and stay in Australia. In his visa application, Mr Patel confirmed that he had access to sufficient funds for this purpose. It was said that it took the form of ‘Financial support from an individual’ and ‘Other financial support’. Its details were said to be that it was ‘a Bank Loan against the property mortgage’. Under a section headed ‘Financial support from an individual’ it was confirmed that the financial support would be provided by another person and that this other person was Mr Patel’s parent. The funding type was said to be a ‘Loan from financial institution’ and the financial institution was said to be a ‘public sector bank’.

18    The application for the visa was dated 7 August 2016. On 16 September 2016, the Department asked Mr Patel for evidence of these matters. On 6 October 2016, Mr Patel responded and informed the Department that:

My father has always agreed to invest behind my education since for him, spending behind education is an investment and not an expenditure. I have got the education loan worth 37,240 AUD sanctioned to meet my expenditure incurred on my study and accommodation. I have been maintaining my overseas health student cover.

19    Attached to this letter was a letter dated 26 September 2016 addressed to Mr Patel’s father, Mr Jayantibhai Somabhai Patel, from Canara Bank in these terms:

We refer to your application, for the granting of loan for Education Purpose of Rs. 19,35,000/- (Rupees Nineteen Lac Thirty Five Thousand Only) for pursing studies of Mr. Kalpeshkumar Jayantibhai Patel for pursuing course of Bachlor of Business, Group Colleges Australia Pty Ltd, Australia and it has been sanctioned on the following terms and conditions:

Purpose of Loan:             For Financing studies abroad of Mr. Kalpeshkumar Jayantibhai patel for pursuing course of Bachlor of Business, Group Colleges Australia Pty Ltd, Australia

Nature of Loan:               Loan for Education Purpose against security of Deposit

Limit:                              Rs. 19, 35, 000/- (Rupees Nineteen Lac Thirty Five Thousand Only)

Margin:                           10%

Rate of Interest:              9.25%

Documentation charges: Not Applicable.

Processing Charges:       Not Applicable.

Disbursement:               As per Bank Norms.

Security:                       Security Value of Rs. 21,50,000.00 in the name of Mr. Jayantibhai Somabhai Patel R/o C20  Aml Akhand Anand Society, Part-2 Opp Motiba School, CTM Amaraiwadi, Ahmedabad-380026

Repayment:                   Bullet payment of Rs. 19,35,0000/- + interest on or before 23/09/2021.

20    It will be seen that it contemplated a loan of Rs 1,935,000 to Mr Patel’s father for the purposes of his education at an interest rate of 9.25%. It was to be secured over the contents of a bank account in Mr Patel’s father’s name which was to have a credit balance of at least Rs 2,150,000. The loan appears to have been for a 5 year period.

21    The Department wrote to Mr Patel on 25 October 2016 raising concerns about the loan and inviting him to comment on them. The relevant parts of that letter were as follows:

On 7 August 2016 the applicant lodged an application for a student visa to study in Australia. In support of the application, the applicant has provided financial support from Mr Jayantibhai Somabhai Patel, including:

Loan Certificate – Canara Bank – Mr Jayantibhai Somabhai Patel

The Department subsequently conducted checks to confirm the information provided in your application with regards to your genuine intention as a Student. Serious concerns have been raised in relation to the financial support declared in the application.

The Department subsequently conducted checks to confirm the information you provided in your application in regards to your ability to meet the financial criteria for this visa. During this process the Department received unfavourable information which did not support your application. Serious concerns have been raised in relation to evidence of financial support claimed. In your Student Application you have declared access to sufficient funds; however, the recent debits may indicate that the documentation was prepared for the significant purpose of obtaining a Student Visa.

22    On 10 November 2016, Mr Patel responded in these terms:

Immediately upon receipt of this letter, my father contacted my bank (Canara Bank, Ahmedabad.) regarding the same query. I was told at the time of loan sanction that I will be able to access the fund anytime I wish since it has been sanctioned for my study purpose. Till date, I had paid my fees from my sources and I was in the impression that I will approach the bank for money anytime the need arises.

My father explained the entire situation to concerned bank staff. They supported my father saying that we are ready to cooperate with my father in any manner within the banking rules and regulations. I requested manager to remit the loan into my father's account which manager said that we can't do that but we can definitely remit the money to your education provider’s bank account. I requested the manager to do so in order to establish the fact that my loan has been genuinely availed by providing all the required documents and by adhering due process of availing the loan.

Yesterday when my father contacted the bank manager to further support us if department of immigration has any further doubts or need more evidence. Bank manager has assured us to support us but he said that the banking sector has stupendous task ahead in the wake of the announcement of Indian Prime Minister to withdraw all the currency of the denomination of 500 and 1000. This move of Indian Prime Minister to curb the black and unaccounted wealth is going to keep banking sector really busy for next fifty days which is the deadline to deposit all the cash in the currency notes of 500 and 1000 denominations. Still he has assured my father to provide all the support. I am here attaching the letter given by the bank manager.

To support the submission I provide the following documents:

1)    The remittance evidence of 500 AUD

2)    Letter from the bank manager confirming the same

Feel free to contact me if you need further information.

23    The attached letter from Canara Bank was dated 12 November 2016 and was in these terms:

We have sanctioned the loan for the higher education for Mr. Kalpeshkumar Jayantibhai Patel against which we have remitted $500 AUD to his education provider (GCA MANAGEMENT SERVICES PTY LTD).

We are pleased to remit further amount upon the request of Mr. Kalpeshkumar Jayantibhai Patel for his tuition fees payment subject to the availability of the balance in his account and his consent as per FEMA guideline.

24    On 22 November 2016, the delegate refused the application. In relation to the loan the delegate reasoned as follows:

There is evidence before the Minister that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.

…

The Department subsequently conducted checks to confirm the information that you provided in your application in regards to your financial documents. During this process the Department received unfavourable information which did not support your application. Serious concerns have been raised in relation to your financial capacity and the documents provided as evidence. On 21st October 2016 the Department’s New Delhi office undertook checks to verify your sponsor’s financial evidence, a loan sanction letter from Canara Bank issued on 26 September to the applicant’s father to sponsor the applicant’s education in Australia.

The following information was obtained:

19/09/2016

The fixed deposit was funded from a saving bank of sponsor. The saving account number was 1414101053354 and it was opened with a balance of INR 1,000.

22/9/2016

Above fixed deposit was opened on with a balance of INR 2,150,000.

This was a RTGS bank transfer of INR 2,150,000 from a 3rd party details of which cannot be identified.

23/9/2016

Loan has been sanctioned in the name of sponsor for INR 1,935,000. Loan account number is 1414743002464.

Loan was provided against the security of fixed deposit as owned by sponsor.

Fixed deposit number is 1414401006309.

23/9/2016

After the loan was sanctioned entire amount was disbursed back into the above saving bank account which currently has an INR of 1,000.

21/10/2016 – Current balance in the account is INR 1,000.

The above dates indicate funds were not available at the time of application and that a loan was only initiated after the request for financial evidence was received. Furthermore the funds were transferred in on 22 August 2016 and removed on 23 August 2016.

There are no funds available in the loan account and the loan was provided only to meet the fund requirements of the visa application as evident from above sourcing and further disbursements of funds out of the savings bank account.

25    The picture this creates is, to an extent, unclear. An unknown third party deposited Rs 2,150,000 into the fixed deposit account which then served as the security for the loan. The loan proceeds of Rs 1,935,000 were disbursed to Mr Patel’s father’s savings account on 23 September 2016. Yet, on 6 October 2016, Mr Patel informed the Department that he had access to a loan from a bank for the purposes of funding his studies in Australia. By 21 October 2016, the loan proceeds were no longer in Mr Patel’s father’s savings account, which had a balance of only Rs 1,000. It is unclear whether the loan was repaid from the proceeds or whether they were transferred elsewhere from the savings account.

26    What is clear, however, is that Mr Patel’s statement to the Department on 6 October 2016 that he had access to a loan from a bank to support him was not correct. The proceeds of the loan had by then already been disbursed to the father’s savings account on 23 September 2016.

27    On review, the Tribunal recited the delegate’s account of the transactions: Tribunal Decision at [20]. Its consideration of the matter was somewhat more nuanced than the delegate’s since the Tribunal appears to have been alive to the uncertainties. It said this at [22]-[24]:

22.    The applicant’s evidence was that his father who is his sponsor withdrew the loan funds for use in his business as it was attracting interest without being utilised. It was claimed that the money remaining in the fixed deposit that provided security for the loan was a greater amount and that his father did not in fact need to take a loan to fund the applicant studies. He said the loan was taken because as a business owner, his father’s money was kept in circulation to prevent cash flow problems. The applicant also declared he has maintained sufficient funds in his own account in Australia to fund his studies and he had not been aware the bank loan had to be kept in an account.

23.    On 14 November 2016 the applicant replied to the Department’s invitation to comment on the adverse information by providing a receipt for $500 paid to the applicant’s education provider, a letter in response and a letter from Canara Bank stating a loan had been sanctioned, $500 remitted to the education provider and further funds would be remitted subject to the balance in the account.

24.    The Tribunal has considered the applicant’s evidence but finds the applicant provided information that is false or misleading in a material particular as defined in PIC 4020(5), that is, information that is false or misleading at the time it is given and was in relation to the visa application. He was required to demonstrate access to funds and according to the Department’s investigations, he did not have access to the bank loan funds because they had been disbursed back into another account that then had a balance that did not meet the financial requirements for the grant of the visa.

28    The Tribunal concluded that the loan with Canara Bank was not arranged to support Mr Patel during his study in Australia. Although, the precise ins and outs of the transaction are to an extent obscure, there is no getting away from the fact that when all is said and done the loan proceeds of Rs 1,935,000 are nowhere to be seen. The Tribunal then reasoned this way at [25]:

25.    The Tribunal is not satisfied the applicant’s sponsor arranged the bank loan with the intention of it being available to support the applicant and his family unit in the first 12 months of his study and stay in Australia. On the applicant’s own evidence, the funds were removed in order to avoid having to pay interest on the loan. It appears the loan was in fact obtained only to give the appearance of funds being available for the applicant’s education and for this reason, there was an element of deception in the provision of the information.

29    The reference to Mr Patel’s evidence refers back to the Tribunal Decision at [22] (see above at [27]). That evidence does indeed suggest that the money was transferred to Mr Patel’s father:

It was claimed that the money remaining in the fixed deposit that provided security for the loan was a greater amount and that his father did not in fact need to take a loan to fund the applicant studies. He said the loan was taken because as a business owner, his father’s money was kept in circulation to prevent cash flow problems.

30    It seems to me that the logic of the Tribunal’s reasoning is sound. Mr Patel said that he had a loan for educational purposes, the funds from that loan are nowhere to be seen and Mr Patel himself said that his father had withdrawn the loan funds himself for use in his business. His statement that the loan was for educational purposes is proven incorrect on his own evidence that it was ultimately used for the purposes of his father’s business. Further, as I have noted, at the time that Mr Patel told the Department on 6 October 2016 that he had a loan in place to support him, the proceeds of the loan had already been disbursed to his father’s savings account. Whilst a close examination of the delegate’s explanation of the money flows is unenlightening for those who dislike loose ends, in the end that is not what the Tribunal rested its conclusion upon.

31    Judge Emmett reasoned this way at [38]:

38.    The timeline demonstrates that funds were not available at the time of application; that a loan was only initiated after the request for financial evidence was received and, the funds were transferred in on 22 September 2016 and removed on 23 September 2016. As the Tribunal found, on the Applicant’s own evidence, the funds were removed in order to avoid having to pay interest on the loan. In those circumstances, the Tribunal found that the loan was in fact obtained only to give the appearance of funds being available for the Applicant’s education. Yet the day after the funds were deposited they were withdrawn for the business purposes of the father. In those circumstances, it was open to the Tribunal to find that there was an element of deception in the provision of the information that the bank loan guaranteed by the deposit was able to support the applicant and his family in the first 12 months of his study and stay in Australia.

32    It seems to me, with respect, that this reasoning is sound. Although I initially had some misgivings about the material dealing with the money flows, it is apparent that that was not the basis of the Tribunal’s reasoning. It was open to conclude that Mr Patel had provided information which was false or misleading in a material particular. He said the loan was for educational purposes; it was in fact for the purposes of his father’s business. Further, as I have said, his statement on 6 October 2016 that he had access to the loan was not correct as the loan proceeds had already been disbursed. I therefore do not accept that the Tribunal’s reasoning about this is susceptible to a Li type of challenge which was correctly rejected by Judge Emmett.

33    In that circumstance, it would not be appropriate to set aside the earlier dismissal to permit this to go forward.

Conclusion

34    The application to set aside the earlier dismissal of the appeal should be refused with costs.

Associate:

Dated:    18 March 2022