Pathak v Minister for Immigration and Border Protection

The 10 May 2013 hearing before the Tribunal 10 Early in the hearing, the Tribunal questioned Mrs Pathak about why she had not commenced study on the Bachelor of Business course or any other course after the birth of her child. It also asked her about the making of the application to study the Bachelor course. 11 During the course of the hearing before the Tribunal, it became apparent that Mrs Pathak was not completely familiar with the precise requirements she would have to meet to undertake her proposed new course, in respect of both her English level (although that in the end, did not matter) and, crucially, the total amount of her financial capacity that she had to demonstrate for the purposes of Sch 5A. As the hearing progressed, the Tribunal discussed the financial issues with her and then calculated with her her financial capacity requirements for the first 24 months of her course, arriving at a figure of $94,600. Mrs Pathak agreed with the correctness of that calculation after the Tribunal had gone through it with her during the hearing. 12 The Tribunal then asked her what evidence she was relying on to satisfy her Sch 5A financial capacity requirement and she said that her cousin in Australia was supporting her. The Tribunal asked if the cousin's support, in the form of the 12 April 2012 certificate deposit with the Commonwealth Bank of nearly $150,000, was what she relied on, to which she responded that it was and that she was not relying on other previously submitted financial information. The earlier financial information was relevant to requirements for different courses that she had previously applied for when she originally sought the visa. Those courses had different financial capacity criteria. 13 The Tribunal then explained to Mrs Pathak that it needed to be satisfied that her cousin had sufficient financial capacity under cl 5A508 for the period of three months immediately before her visa application had been made on 1 December 2010. It told her that the certificate was given only on 12 April 2012, and therefore did not satisfy the requirement of cl 5A508(1)(a) that she provide evidence of having "funds from an acceptable source", namely, that there be "a money deposit that the applicant, or an individual who is providing support to the applicant, has held for at least the 3 months immediately before the date of the [visa] application". The Tribunal also said that it needed to be satisfied that the funds were still available. 14 Mrs Pathak clearly had not appreciated that this was a requirement, because she asked the Tribunal why she had to provide all the old documents. That enquiry referred to the circumstance that the hearing was occurring two and a half years after she had made the original application, albeit that she had been assisted by a migration agent in preparing documentation. However, the agent was not at the hearing. 15 The Tribunal then reiterated what the requirements for granting the visa were and next turned to discussing with her what it termed another issue, namely why her cousin's previous financial support statement signed on 13 April 2012 had guaranteed financial support up to $100,000 but he had now, on 2 May 2013, signed a new statement that provided a more limited level of financial support of only up to $65,000. The Tribunal stated that the cousin had "downgraded his guarantee of financial support by $35,000" and that this amount was less than the $94,600 that was required. Mrs Pathak replied that her cousin had just bought a house and because of this he had had to put money towards his mortgage credit line but the money was still there, she said, for him to withdraw. She reiterated that he was still able to provide the funds. 16 The Tribunal then said to Mrs Pathak that she had not given evidence in accordance with what Sch 5A required concerning financial capacity and that it was ready to make a decision. However, it then briefly adjourned to enable her to discuss with her husband whether there was anything else either of them wished to say. 17 After resuming, the Tribunal asked Mrs Pathak whether there was anything else she wished to say or any reason why the Tribunal should not make a decision that day. She responded that her cousin was ready to provide her with the level of support, if needed, and she could have him commit to that if need be. The Tribunal responded that it did not understand why the cousin would sign a financial guarantee for only $65,000 a week beforehand, when he was prepared to guarantee support up to the required amount of $94,600. She responded that her cousin thought $65,000 was enough for her bachelor course and that he had bought his house and might have had some expenses. 18 The Tribunal then asked if there was anything else Mrs Pathak wished to say. She replied that she wished to study further, explained her position concerning the genuineness of her desire to study, the stress that she felt she had been under since the birth of her child and the impact of the absence of a visa entitling her to stay on a secure basis to study in Australia. The Tribunal responded that it had considered what she had said but that had not alleviated its concerns regarding what it described as her "significant study gap", that is, her failure to take up studies during the period between the conclusion of the last course which she had completed pursuant to her previously expired study visa. 19 The Tribunal then gave its reasons for refusing the adjournment to enable Mrs Pathak to get additional financial documents as follows: In relation to the applicant's suggestion that she could ask her cousin to commit to a higher financial guarantee, the Tribunal noted that the visa application was originally refused in February 2011 because the applicant did not meet her Schedule 5A financial capacity requirements and, on that basis, she had known for a long time why her visa application was refused and she had had a long time to arrange her financial documentation. The Tribunal also observed that its 17 April 2013 hearing invitation went into a lot of detail about the evidence the applicant was being invited to provide in an attempt to assist her to meet her Schedule 5A financial capacity requirements. The Tribunal had invited the applicant to provide this evidence by 3 May 2013 and she was also told in the hearing invitation that the Tribunal intended to make a decision at the end of the hearing. The Tribunal noted that although in the hearing invitation the applicant had been invited in bold, underlined type to provide "current" evidence that she met her Schedule 5A financial capacity requirements, she had submitted a bank certificate that was more than a year old. The Tribunal further indicated that because of its concerns regarding her study history in Australia and whether she is a genuine applicant for entry and stay as a student, the Tribunal did not wish to falsely raise her expectations of a successful outcome by granting an extension of time to provide additional financial documentation. This was for the reason that the applicant's study history in Australia caused the Tribunal to doubt whether she is a genuine applicant for entry and stay as a student. On that basis, the Tribunal refused the applicant's request for an extension of time to provide additional financial documents. The applicant stated that because she is proposing to do a bachelor degree now and she does not have her father, the old documents have expired and she is getting new documents from her sponsor, her cousin, for that degree. The Tribunal reiterated that the applicant's cousin's bank certificate is dated 12 April 2012 and, therefore, is out of date. The applicant responded that that document was prepared for the previous appeal. The applicant then referred the Tribunal to the Student Visa Financial Support Statement signed by her cousin on 2 May 2013. The Tribunal noted again that this only guaranteed financial support up to $65,000 whereas the amount required was $94,600. The applicant stated that her cousin can provide a current bank statement; maybe he was not aware that he needed to have $95,000. The Tribunal noted that it had already refused the applicant's request for an extension of time. The Tribunal then affirmed the decision under review. (emphasis added) 20 The Tribunal then proceeded to set out its findings and reasons saying that, on the basis of the evidence before it, it found that Mrs Pathak proposed to undertake a bachelor degree specified in subclass 573 in the relevant instrument under reg 1.40A and that subclass 573 was the relevant class. It found that the Sch 5A financial capacity requirements totalled $94,600 and that Mrs Pathak had agreed this was correct. It then said: The applicant provided a Commonwealth bank certificate of balance for her cousin's account which, as at 12 April 2012, had a credit balance of $149,814.33. However, this does not meet the definition of "funds from an acceptable source" as on this evidence the Tribunal cannot be satisfied that this money deposit had been held for at least the 3 months immediately before the visa application was made on 1 December 2010 or that these funds are still available. They are not, therefore, "funds from an acceptable source" for the purposes of cl 5A508. 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 573 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 573.223(2)(a)(i). Although the Tribunal discussed with the applicant its concerns regarding her study history in Australia, in light of the Tribunal's finding at paragraph 42, which is fatal to the application, it is unnecessary to go on to make a finding in relation to whether the applicant tis a genuine applicant for entry and stay as a student for the purposes of cl 573.223(2)(a)(ii). (emphasis added)

The proceedings before the trial judge 21 The application before the trial judge asserted that the Tribunal's refusal to grant an extension of time to provide further evidence of financial support was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds", and that it ought to be set aside. 22 Among other matters, the trial judge noted that the applicants had relied on the decision in Li (2013) 249 CLR 332, as an analogous case. His Honour said that it was not for the Court to make out the applicants' arguments for them, noting that they were legally represented, as they were before me. He distilled the argument for the applicants as: at the Tribunal hearing the applicant asked the Tribunal for more time so that her cousin could provide documents in relation to the question of "funds from an acceptable source". The applicant submitted that the Tribunal refused her more time because of its doubts as to whether she was a genuine applicant for entry and stay in Australia as a student. Further, that the Tribunal found that the applicant's evidence, and circumstances, were such that she did give a satisfactory or reasonable explanation for the study gap, which the applicant said informed the Tribunal's concerns about genuineness. The applicant submitted that the Tribunal's response, in light of that evidence, and in the circumstances, was, therefore illogical, irrational and unreasonable. 23 His Honour rejected another submission, correctly in my view, that the purpose of the request for the adjournment had been to obtain documents from overseas. There was nothing in the Tribunal's decision record to provide any foundation for such a suggestion, and the Tribunal was not asked to consider that. Rather, as his Honour pointed out, the issue was whether Mrs Pathak could have asked her cousin to provide a higher financial guarantee and other financial documents. 24 His Honour concluded that the Tribunal's reference to its doubts about the genuineness of Mrs Pathak's intentions to study was relevant to the exercise of its discretion to refuse her more time to provide the financial documentation that could meet the Sch 5A requirements. He relied on some remarks made by Mortimer J in Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [69], where her Honour had said the Tribunal could legitimately take into account, in its approach to the exercise of its powers over the continuation or finalisation of the review, issues about merits on other points. The trial judge said that: I respectfully understand what her Honour said in Chava at [69] to be relevant direction in the current case because the concluding proposition there, on which the Minister now relies, derives from facts that are similar to the current circumstances. That is, the Tribunal there, "harboured scepticism" about whether the applicant was a genuine student. As set out above that is also a relevant consideration in the current case given the regulatory requirement referred to above. 25 In the end his Honour found that that was the situation in the present case and dismissed the application. 26 Both parties in effect adopted the arguments that they had made to the trial judge, with which he dealt in the manner I have described.

Consideration 27 The statutory scheme applicable to the Tribunal's task in Pt 5 of the Act was extensively analysed in Li 249 CLR 332. Hayne, Kiefel and Bell JJ pointed to a number of indicia within Pt 5 that were important to the consideration of the manner in which the Tribunal ought approach the exercise of its powers under s 363(1) of the Act, including, relevantly, its power to adjourn the review from time to time under s 363(1)(b). 28 Importantly s 357A(3) required the Tribunal, in applying Div 5 of Pt 5, to "act in a way that is fair and just". That may have been a supplementation of the more precatory words of s 353(2)(b) that required the Tribunal, in reviewing a decision, to act "according to substantial justice and the merits of the case". The Tribunal had to invite Mrs Pathak to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 360(1)). The Tribunal also had power to ask her to provide information or documents, as it did. 29 Hayne, Kiefel and Bell JJ discussed the constructions of ss 353, 357A, 360 and 363(1)(b) at some length in Li 249 CLR at 358-368 [51]-[80]. Their Honours said that the Tribunal is not under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence and that, in appropriate cases, the Tribunal can decide that "enough is enough". They said that the purpose of s 360(1) was to provide an applicant for review the opportunity to present evidence and arguments "relating to the issues arising in relation to the decision under review". 30 Those issues were clarified during the hearing by the calculation that the Tribunal made with Mrs Pathak of the amount she needed for financial support. Although it had invited her, on 17 April 2013, to provide "current" evidence that she satisfied, among other things, financial capacity requirements in Sch 5A, the Tribunal recognised in its reasons at [17] that that invitation "was predicated on [Mrs Pathak] having to meet the various requirements of cl 572.223, rather than cl 573.223, because at the time of the previously constituted Tribunal's decision in April 2013 [Mrs Pathak] had been enrolled in a diploma level course". 31 In other words, the Tribunal's own approach to the issues that would be presented for review at the hearing had been predicated on the basis of what was, by the time of the actual hearing, out of date or unresponsive material in that changed scenario. No doubt that is why, during the course of the hearing, the Tribunal had gone through calculating with Mrs Pathak what was necessary, and also why the level of guarantee provided by her cousin turned out to be inadequate. 32 In my opinion, the Tribunal's decision record revealed that the quantification of the precise amount that Mrs Pathak needed to satisfy the relevant requirements in Sch 5A was only fully appreciated by it and her during the course of the hearing. Whatever assistance she may have gained from her migration agent in preparing for the hearing, the Tribunal itself went through the calculation with her during her evidence. It then became apparent that there was an immediate disparity between what her cousin had recently provided by way of a reduced guarantee on 2 May 2013 and what Mrs Pathak was required to provide. 33 Moreover, the Tribunal at no point suggested that it did not accept or believe or had any doubts that Mrs Pathak would be able to obtain from her cousin the increased requisite guarantee amount of $94,600 that the now clarified requirement entailed. Nor was there any suggestion in the Tribunal's decision record that, having appreciated from the Tribunal's explanation to her of the inadequacy of the 12 April 2012 certificate, she needed to obtain financial documents for the three months before 1 December 2010. There was no apparent reason to consider that, had she had an opportunity to obtain those from her cousin, she could not have done so. Presumably, he had had some savings and documentation from which he had built up the approximately $150,000 in the 12 April 2012 certificate. 34 Given that the Tribunal took another 11 days after 10 May 2013, when it made its decision, to provide its reasons, it is difficult to see why the Tribunal needed to decide the review immediately rather than reserving its decision after hearing all the evidence and giving Mrs Pathak an opportunity, however brief, to do what she said she could do, namely, obtain the requisite financial information including a guarantee for the correct amount from her cousin. The Tribunal could still have prepared reasons had it granted her that time. It could still have made its decision promptly but it would have had a complete case from Mrs Pathak on matters that were easily remedied, and it would not have needed to have any further hearing. 35 Instead, the Tribunal proceeded to give its decision immediately, having refused to provide any adjournment to Mrs Pathak to obtain updated financial material, even though issues for the review had only been clarified during the course of the hearing. Of course, the Tribunal did not have to assume that Mrs Pathak would have been successful in obtaining all of the necessary outstanding financial information, although she was confident she would be able to have her cousin commit to the higher guarantee required of $94,600. Her cousin may or may not have been able to provide evidence of holding at least those funds for the three months prior to 1 December 2010. 36 But, the Tribunal determined the adjournment request on the basis that it "did not wish to falsely raise her expectation of a successful outcome by granting an extension of time to provide additional financial documentation". It said this was because its doubts had not been resolved. But, it never did resolve those doubts as to Mrs Pathak's genuineness as an applicant for entry and stay as a student. 37 The facts of the proceedings before Mortimer J appear to me to be different and do not provide assistance in the disposition of this matter. That is because the test for determining that the Tribunal's refusal of the adjournment was unreasonable is that in Li 249 CLR 332. 38 In my opinion, by having regard to those doubts, the Tribunal took into account an irrelevant consideration for the reasons given by Hayne, Kiefel and Bell JJ in the following passage in Li 249 CLR at 369 [84]-[85]: There remains the possibility that the previous conduct of Ms Li influenced the Tribunal. It had continued to question her about the false information associated with her application despite her repeated admissions and the advice that the case she wished to put forward did not depend upon that information. If her prior conduct was influential, the Tribunal took into account an irrelevant consideration for the reason that Ms Li's conduct per se was not relevant to the visa criteria. The concern of the criteria is with the information relied upon to satisfy them, a point Ms Li's migration agent attempted to make to the Tribunal. The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law [Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473]. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction. (emphasis added) 39 If, on the merits of the review, Mrs Pathak were not a genuine applicant for entry and stay as a student, then the Tribunal would have been obliged so to find. Yet, it expressly refrained from making such a finding. Instead, it considered the question of whether to exercise its power to adjourn the review under s 363(1)(b), to allow Mrs Pathak to provide additional financial documents on three bases. 40 First, it appeared to be determined to give a decision immediately on the day of the hearing, as appeared from its invitation letter of 17 April 2013. And it remained fixed on doing so notwithstanding that as the hearing progressed, it became apparent that the pre-hearing preparation by the Tribunal and its identification of the issues in its letter of 17 April 2013 to Mrs Pathak and her advisors had occurred on an erroneous basis. The Tribunal's 17 April 2013 letter had emphasised the need for Mrs Pathak to provide current evidence, but as the Tribunal acknowledged at [17] of its decision that letter had been predicated on the wrong clause in the Regulations for her actual situation. And, it said at [33], immediately before adjourning briefly to allow Mrs Pathak and her husband to discuss what else they might wish to say: The Tribunal indicated that [Mrs Pathak] had not given evidence in accordance with her Schedule 5A financial capacity requirements and the Tribunal was ready to make a decision. (emphasis added) 41 Secondly, the Tribunal refused the adjournment because it said that Mrs Pathak had known for a long time about the need to satisfy the Sch 5A financial capacity requirements. However, as was clear and understandable, given the Byzantine complexity of those requirements, the actual consequence of the requirements as they applied to her current circumstances only became apparent to both the Tribunal and her during the course of the hearing. 42 Thirdly, the Tribunal said it did not wish "to falsely raise her expectations of a successful outcome by granting an extension of time to provide additional financial information" based on its doubt, but not a finding, about whether she was a genuine applicant for entry and stay as a student. 43 The Tribunal's reasons demonstrated that although Mrs Pathak needed to satisfy the Sch 5A requirements $94,600, she and her cousin had proceeded before the hearing on the by now demonstrably erroneous premise that a guarantee of $65,000 would be sufficient. The Tribunal did not express any disbelief or doubt as to the truth of Mrs Pathak's statement to it that her cousin would provide the increased level of financial support if required and she could have him commit to that amount if need be. Moreover, he had had a very large sum on deposit as at 12 April 2012, but that was not the relevant date. His financial circumstances, as Mrs Pathak had said, had changed since then but the Tribunal made no finding that that had affected his expressed willingness or ability to support his cousin as she asserted. The Tribunal's 17 April 2013 letter told her emphatically that she had to have current evidence. It explained the problem with the 12 April 2012 certificate to her in the hearing and said that she needed to provide additional financial information based on the new calculation of $94,600 for the period of the three months before 1 December 2010. 44 On the basis of the evidence before the Tribunal, it could reasonably have expected Mrs Pathak to be able to collect an updated guarantee and the necessary financial information from her cousin promptly. If the absence of that material were then cured, the Tribunal could have considered the substantial justice and merits of the case and what was fair and just, as ss 353(2)(b) and 357A(3) required. 45 It was not relevant for the Tribunal to consider any unresolved "doubts" that it may have had on another essential criterion for the grant of the visa when deciding Mrs Pathak's request for an adjournment, so that she could obtain the additional financial information. The Tribunal used those unresolved doubts to refuse the adjournment to obtain the additional financial information and then decided the review on the basis that the financial requirements it had identified only on that day had not been met. As Hayne, Kiefel and Bell JJ said in Li 249 CLR at 369 [85], it is not possible to say which errors by the Tribunal were made but in any event "the result itself bespeaks error". 46 In my opinion, the Tribunal's refusal to allow Mrs Pathak a reasonable opportunity to supplement her financial documents, which need not have taken any particularly long period of time, or one beyond the 11 days taken by the Tribunal to deliver its written reasons, was based on an irrelevant consideration. It found that the potentially easily remediable deficiency in Mrs Pathak's financial documents was fatal to her application for review and, then, it found expressly that it was unnecessary for it to resolve the issue about the doubts that it said caused it to refuse her any adjournment at all to remedy that fatal point. 47 It is one thing to refuse an adjournment because the deficiency in evidence or material on one point would not be capable of changing another determinative deficiency in the applicant's evidence in the review. It is another to refrain from deciding a point, but to use unresolved "doubts" about it, to refuse an applicant an opportunity to cure a remediable but, if unremedied, fatal, deficiency in his or her case. The existence of "doubts" could not have been relevant to a decision to allow or refuse her a reasonable opportunity to supplement her financial documents, unless the Tribunal had decided that Mrs Pathak, in fact, was not a person who was a genuine applicant for entry and stay as a student. In other words, the adjournment could have been refused if the Tribunal had concluded that Ms Pathak was not such a genuine applicant. 48 There was no necessity, and certainly no explanation for the seemingly imperative necessity, for the Tribunal to make its decision on the day of the hearing in the circumstances where it did not express any disbelief or reject Mrs Pathak's evidence that her cousin would provide the support, as he apparently had done up to the moment of the dismissal of the application for review. 49 In my opinion, the Tribunal's refusal to exercise its power to adjourn was unreasonable. It failed to comply with its obligation to act in a way that was fair and just and by failing to give the applicants an opportunity to remedy the deficiency in the financial documents. The Tribunal could not reasonably have taken doubts about a matter on which it had not made a decision into account in refusing an adjournment so that Mrs Pathak had an opportunity to cure the actual defect in her evidence, that it gave as the reason for affirming the delegate's decision.

Conclusion 50 For these reasons the application for an extension of time must be granted and the appeal allowed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 6 July 2015 SCHEDULE PRABHAT KANDEL Second Applicant SADHANA KANDEL Third Applicant