Singh v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 Jugrah Singh applies for an extension of time in which to file an appeal from a decision made by Judge Riethmuller in the Federal Circuit Court. His Honour dismissed an application for judicial review of a decision which had been made by the Migration Review Tribunal on 1 May 2013. His Honour's reasons were provided in writing on 2 May 2013. The Tribunal had affirmed a decision of a delegate to the Minister to refuse to grant Mr Singh a Student (Temporary) (Class TU) Visa pursuant to regulations made under the Migration Act 1958 (Cth). 2 Mr Singh's application for extension of time to appeal was commenced on 1 April 2014. It was set down to be heard on 21 May 2014 and on 13 May 2014 the Minister filed outlines of submission. The day before the matter was due to be heard Mr Singh sent an email to the court registry stating that he was not feeling well and would not be able to attend the court hearing. His email attached a medical certificate dated 17 May 2014 in which a Dr Peiman Sayadi wrote: To whom it may concern, This is to certify that Mr Jugraj Singh of 3/5 Wood Street Deer Park consulted me today. He was affected by a medical condition and is unable to attend work from 17/5/2014 to 21/05/2014. Yours faithfully On 20 May 2014 the court registry sent an email to Mr Singh, in response to Mr Singh's email, informing him that the matter would proceed as listed at 2.15pm on Wednesday 21 May 2014. There was no further communication from Mr Singh but he did not appear at the hearing of his application. 3 Counsel for the Minister submitted that the email from Mr Singh, and the accompanying medical certificate, should be treated as an informal application for an adjournment but that it should be dismissed. Both submissions were accepted and Mr Singh's application for an adjournment was rejected for the following reasons which were expressed orally in court. The correspondence from Mr Singh can fairly be understood as an application by him for an adjournment notwithstanding the response to him from the court registry that the applications would be heard at the time which had been fixed. The grounds relied upon by Mr Singh are not sufficient to warrant the adjournment. In Nakx v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Lindgren J rejected an application for an adjournment on a medical certificate in broadly similar terms. His Honour said at [5]-[11]: [5] The medical certificate dated 13 December 2003 in respect of the male applicant states as follows: This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive. The certificate of the same date in respect of the female appellant states: This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive. [6] The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing. [7] I do not accept that either of the medical conditions referred to would make the sufferer 'unable to attend court' - apparently each was able to attend upon the medical practitioner. [8] If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect. [9] I take into account the fact that the two medical certificates are structured identically, use the expression 'he/she', and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking. [10] In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]-[8] above. [11] I refuse the application for an adjournment. The medical certificate relied upon by Mr Singh is even less satisfactory than that which was considered by Lindgren J above. The certificate referred to by his Honour identified the specific condition of the applicants and expressed an opinion about an inability to attend court. The medical certificate relied upon by Mr Singh refers generally to a "medical condition" and expresses an opinion about an inability to attend "work". The medical certificate provided by Mr Singh was not produced by the medical practitioners for the court but addressed broadly "to whom it may concern". The medical certificate, on its face, does not reveal an evaluation by the medical practitioner of Mr Singh's ability to attend or participate in the court process and does not address the question the court would need to determine, namely, whether his medical condition was such that he would be prevented from attending court and from participating in the court hearing. Nor does the medical certificate, or the contents of the email from Mr Singh, give any indication from which the court could determine the length of any adjournment that might be required to accommodate whatever the condition might be and however the condition might affect Mr Singh's ability to attend or to participate in a court hearing of his application. 4 The Minister next submitted that the court had power either to dismiss Mr Singh's application for his failure to attend court or to consider the matter in his absence. The application to hear the matter in Mr Singh's absence was accepted for the following reasons which were expressed orally before hearing the substantive application. In Hu v Minister for Immigration and Citizenship [2009] FCA 1288 Flick J said at [5]-[6]: [5] When the appeal was called for hearing there was no attendance on behalf of the Appellant. Notice of the date and place of hearing had been given to the Appellant. The solicitor for the First Respondent had also reminded the Appellant of the date and place for hearing when forwarding him a copy of the Minister's Outline of Written Submissions. Power is conferred upon the court, in such circumstances, to dismiss the appeal: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii). On occasions that power is in fact exercised: e.g. Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117. Power is also conferred upon the court by s 25(2B)(bc) to vary an order made pursuant to s 25(2B)(bb). When an appeal is dismissed for failure to attend, it may be appropriate for an Appellant to be advised as to the terms of s 25(2B)(bc): e.g. SZDNF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 378. Power is also conferred upon the court by O 52 r 38A(1)(d) of the Federal Court Rules to proceed to hear an appeal in the absence of a party. Power is likewise conferred upon the court by O 52 r 38A(2)(a) to set aside or vary an order made pursuant to O 52 r 38A(1)(d). [6] Rather than dismissing the appeal for any failure on the part of the Appellant, it is considered that the preferable course in the present case is to proceed to hear and resolve the appeal in his absence. The issues involved are within a narrow compass. Like his Honour stated in Hu's case, the preferable course in the present case is to proceed and resolve the appeal in Mr Singh's absence. The issues involved are within a narrow compass as will appear in the reasons which follow. 5 Mr Singh's appeal is sought to be brought under s 24(d) of the Federal Court of Australia Act 1976 (Cth) and is by way of rehearing: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. The jurisdiction is, however, appellate and is to be exercised for the correction of error: Robertson v Knott Investments Pty Ltd (No 3) [2010] FCA 1074. Mr Singh must, therefore, show error in the judgment from which the appeal is sought: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 6 In this case the appellant also needs an extension of time in which to make his application because his application was made outside the 21 day time limit provided by the rules. Rule 35.14(3) provides that an application for an extension of time must be accompanied by: (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application for leave to appeal was not filed within time; and (d) a draft notice of appeal that complies with rules 36.01(1) and (2); (e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument. In Mehmood v Attorney-General of the Commonwealth [2013] FCA 406 Foster J considered the principles to be applied when considering an application for an extension of time under r 35.14. At [5]-[6] his Honour said: 5 In DZAAD v Department of Immigration and Citizenship [2013] FCA 204, I summarised the principles to be applied when the Court is considering an application for an extension of time under r 36.05. At [28]-[30] I said: The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J)). The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed). It would be a proper exercise of the Court's discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one. 6 The same principles should be applied when considering an application for an extension of time under r 35.14 of the Federal Court Rules. Mr Singh's appeal was to have been commenced within 21 days from the decision by the Federal Circuit Court: r 36.03 Federal Court Rules 2011 (Cth). The orders were pronounced by the Court on 4 March 2014 but the revised reasons were not finalised until 15 April 2014. The appeal should have been commenced before 25 March 2014 but Mr Singh did not do so until 1 April 2014. 7 The matters which are relevant to consider when deciding whether to extend time includes the length of the delay, the explanation for the delay, any prejudice to the parties, and the merits of the appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113 at [35]-[39]. In this case the length of delay is not great and the Minister does not contend otherwise or that there is any prejudice in extending the time within which to file the appeal. Mr Singh's affidavit in support of his application deposed to him not being aware of the need to file the appeal within 21 days. He said that he had 35 days in which to apply to the Federal Circuit Court from the decision of the delegate of the Minister and that he had no idea that he had to apply within 21 days from the decision of the Federal Circuit Court to this Court. He also said that he had not been told of that during the course of the hearing and did not have money to obtain legal advice. The appeal was one week out of time but would have been within time had the time begun to run from the time when the written reasons were published. The Minister accepts that the appellant acted reasonably promptly in the circumstances. 8 The Minister, however, contends that the discretion to extend the time to file the appeal should not be exercised in view of the lack of substantive merits of the case the applicant wishes to raise. A consideration of the merits of the case is relevant to whether to grant an extension of time. In Gallo v Dawson (1990) 64 ALJR 458 McHugh J said that in an application for an extension of time in which to file an appeal that it is always necessary to consider the prospects of the applicant succeeding in the appeal. His Honour explained that the reason for that lay in the purpose of the rule permitting extensions of time being to ensure that rules which fix times for doing acts do not become instruments of injustice. At [2] his Honour said: The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to "hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. His Honour's decision was approved on appeal to the Full Court of the High Court: Gallo v Dawson (No 2) (1992) 66 ALJR 859. 9 The substantive case concerns Mr Singh's entitlement to be granted a Student (Temporary) (Class TU) Visa. Section 65 of the Migration Act 1958 (Cth) permits the Minister to grant a visa only if the Minister satisfied that, relevantly, the criteria prescribed by the Act or the Regulations have been satisfied. The Tribunal had upheld the decision of the Minister finding that Mr Singh had not met the requirements of cl 572.223 of Schedule 2 to the Migration Regulations. That clause relevantly provided: 572.223 (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 (ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: (A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and (B) any other relevant matter; and (iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity; or … These provisions required the applicant to provide evidence in accordance with Schedule 5A to the Regulations. Clause 5A405(1)(a) in Schedule 1 relevantly required Mr Singh to provide evidence of financial capacity: 5A405 Financial capacity (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; […] Mr Singh appeared before the Tribunal and was asked questions concerning his ability to establish his financial capacity as he was required to do by the Regulations. The Tribunal was not satisfied of Mr Singh's ability to meet the requirements of cl 572.223 because it concluded that he had not provided evidence of his financial capacity as detailed in cl 5A405 stating: 42. The delegate found that the applicant did not meet the requirements of cl.572.223 because he had not provided evidence of his financial capacity as detailed in 5A405. The Schedule 5A requirements 43. To be eligible for the grant of a visa the applicant needs to provide evidence he satisfies the Schedule 5A requirements detailed in 5A405, by providing evidence he has access to funds to support study and living expenses in Australia. 44. The issue for the Tribunal is whether the applicant meets the requirements of cl.572.223 of Schedule 2 to the Migration Regulations. The primary decision was based on the applicant's failure to provide satisfactory evidence he had the necessary financial capacity. 45. The applicant was invited to provide evidence or access to finances and advised that where the finances provided were in the form of a loan secured against a fixed deposit, evidence of the source of funds used to create the deposit was required. 46. The applicant provided the Tribunal with evidence of overdrafts of Rs.2,900,000 ($52.103) being granted to his parents secured by fixed deposits of Rs.3,200,000 ($57,446) which had been lodged with the bank the day before the overdrafts were granted. 47. When asked the source of the funds to create the fixed deposits, the applicant gave no plausible answer and had no evidence as requested. 48. Given his earlier evidence that less than two years earlier he had withdrawn from studies because his parents could not afford to send him fees, and without evidence of the source of funds, the Tribunal is not satisfied that the applicant has access to the funds as claimed. 49. 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 he is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i). 50. For the reasons given above, the Tribunal is not satisfied that the applicant meets an essential requirement of cl.572.223 of Schedule 2 to the Regulations. As explained earlier in these reasons, the subclass of Student visa that can be granted to an applicant is determined by the type of course which the applicant is enrolled or has an offer of enrolment as his or her principal course. The relevant subclass in this case is Subclass 572. As the Tribunal has found the applicant does not meet cl.572.223, it follows that the applicant cannot be granted a visa of that subclass. As no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any other Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed. DECISION 51. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal had previously recorded in its reasons that Mr Singh had been asked at least twice where the deposits had come from and that he had replied that he did not know but speculated that his father might have sold some land. On 19 February 2013 the Tribunal had written to Mr Singh advising him that it would be unable to make a favourable decision on the evidence available and specifically invited him to attend a hearing to give evidence and present argument in his favour. Mr Singh, however, informed the Tribunal at the hearing that he could request his father to provide evidence of the source of the funds available to him if the Tribunal wanted more evidence. The passages quoted above from the Tribunal's reasons explained that the Tribunal's reason for affirming the decision of the Minister's delegate was that Mr Singh was not able to satisfy the Tribunal that he had funds from an acceptable source as was required by cl 5A405(1)(a) in Schedule 5A and by cl 572.223(2)(a)(i). 10 Mr Singh's application to the Federal Circuit Court to review the decision of the Tribunal was based upon two briefly expressed grounds. First, that he was not satisfied with the decision of the Tribunal, and secondly that he wanted to appeal the decision. Judge Riethmuller recorded in his reasons for judgment that Mr Singh had not filed any amended application nor filed any written submission or outline. Mr Singh failed to appear at the hearing before the Federal Circuit Court but his Honour allowed the applicant to appear by telephone because it appeared to his Honour that there may have been a real possibility that the applicant had been misled into believing that he would be able to appear by telephone. 11 Mr Singh made oral submissions to Judge Riethmuller over the telephone and, with the assistance of a Punjabi interpreter, his Honour discerned that the substance of Mr Singh's complaint was that the Tribunal had not given him an adequate opportunity to provide evidence of the source of the funds in fixed deposit. His Honour rejected that saying: 10. The tribunal did not allow him further time to provide additional information when he requested it. The tribunal records at paras 37-41: [37] The Tribunal told the applicant it was not satisfied the evidence presented showed he had access to the funds required and asked whether he wished to make any further submissions or had any questions or statements before the Tribunal made a decision in his case. [38] He responded that if the Tribunal wanted more evidence he could request his father to provide evidence of the source of funds. [39] The Tribunal told the applicant that it was reviewing a decision made in August 2011 to refuse his visa application because he had not provided evidence of financial capacity. The invitation sent ten weeks before the hearing had detailed the evidence required for the grant of a visa. The requested evidence was not provided. The Tribunal told the applicant it believed he had been granted ample time to provide the required evidence yet had failed to do so. It was not prepared to grant more time for the submission of required evidence. [40] The Tribunal told the applicant from the evidence presented it was not satisfied he had access to funds to support his expenses as required and therefore found he did not meet the requirements for the grant of a student visa and therefore, the decision of the Tribunal was to affirm the decision of the Department meaning that the decision to refuse his visa application remained. [41] The applicant said he understood the decision. The hearing was concluded. 11. Further information has not been provided since then to the tribunal nor to the Court. I note, strictly speaking, that such information is not a precondition to a judicial review application, rather I must assess whether or not the application for an adjournment of the tribunal's hearing has been properly dealt with. 12. Turning, then, to the notice that the applicant had on 19 February by way of letter from the tribunal. I note that the letter specifically identifies the question of evidence, as set out above. 13. The letter is quite explicit. It also invites the applicant to provide the information as soon as possible, but no later than seven calendar days prior to the hearing date set for 30 April. It advises that the tribunal will seek to make a decision at the conclusion of the hearing. 14. Even in these proceedings, the applicant has effectively done nothing to progress his case through the court. I have no evidence of the actual terms of the hearing in the form of a transcript, nor any affidavit evidence on this issue, nor an outline from the applicant. 15. The tribunal member had before him, it seems, from the face of the decision, a bare request for more time after specific and clear notice had been given to the applicant of the types of documents required, or evidence required, some 10 weeks before. It is not clear on the face of the material before me that the applicant put the case for an adjournment for a short specific period, nor was it put that the adjournment was to obtain particular documents, nor was any explanation of the delay given. One would have thought these documents would have been readily available if the money did come from the sale of land, or, indeed, wherever the money came from. 16. One would have thought there would be readily available documents to show a trail of the movement of 3.2 million rupiahs in India. Even in Australian dollars at $57,446 it is a sum of money that is very large for most people, and certainly sufficiently large that it would be most unusual for there not to be a documentary trail. 17. In the circumstances, I am not persuaded that the applicant was not given an opportunity to be heard on the question of an adjournment, nor that he was without a proper opportunity to present his case before the tribunal. 18. The tribunal member was not dealing with a case where the applicant put forward submissions that he commenced a process to obtain the documents, nor a request for a short specific period of time for an adjournment to obtain the documents, nor was this a case where this was the first time that he may have realised the need for documents of this type in that not only were they logically required but the subject of a specific written request by the tribunal some 10 weeks before. 19. This is not a case where the tribunal has failed to turn their mind to the question of whether or not an adjournment ought to be granted. 20. On the facts of this case, it does not seem to me that this is a decision by the tribunal that could be characterised as so unreasonable that no reasonable decision-maker could make it in the sense described in Wednesbury's case, nor so unreasonable as to amount to a failure to afford procedural fairness as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225; (2013) 87 ALJR 618. 21. In the circumstances I am therefore not satisfied that the applicant has established any error of law on the part of the tribunal that can be the subject of judicial review. 22. In these circumstances, I therefore refuse the application and formally dismiss the applicant's application before the court. Mr Singh now seeks to appeal from that decision. His only ground for seeking to appeal from his Honour's decision is stated in the first ground of the application, namely: Federal Circuit Court found no jurisdictional error in decision of MRT. I had applied the application to federal court which clearly stated that I have been a student in Australia and even continuing studying in Australia when my student visa was refused. I have always maintained by enrolment and complied with my student visa conditions. I did provide all the requirements in relation to my student visa application. My father is a farmed and exempted to pay income tax in India. I had provided Income certificate from tehsildar and also J forms. Member concentrated on me having formal Income proof from Income tax department and savings of money. My father is a farmer and gets money when we sell our crop we do not put money in banks and mostly the payments come in case. Proof of income is provided in form of J forms and Income certificate. Member failed to put weight on fact that Agricultural Income is exempt of tax and if we have money in cash as long its accounted and proof of its income is given they there is no compulsion that we have to put money in bank. Rather that standing on facts of regulation Member took decision on his personal opinion. The affidavit filed by Mr Singh in support of his application does no more than state that there was jurisdictional error in the Tribunal's judgment and that the Federal Circuit Court had failed to detect jurisdictional error in the Tribunal's decision. The draft notice of appeal relevantly repeats the grounds of appeal set out above which was found in his application for extension of time. 12 None of the material In Mr Singh's application shows error in his Honour's judgment. His Honour considered Mr Singh's case and found that the Tribunal had not failed to give Mr Singh an opportunity to present his case. The material before his Honour established that Mr Singh was given the opportunity to present his case but that he failed to do so to the satisfaction of the Tribunal and had failed to show to the satisfaction of his Honour that the Tribunal had not given him an opportunity to present his case. The Tribunal acted upon the evidence before it and had expressly indicated to Mr Singh the specific task Mr Singh needed to undertake to satisfy the matters required by the Regulations. Mr Singh was asked about those matters at the Tribunal hearing but was not able to provide the evidence he had previously been told was required. Mr Singh was not denied any opportunity to present material he had or which he sought to submit. The most that Mr Singh can point to is the paragraph in the Tribunal's reasons recording his response to the Tribunal informing him that he had not satisfied the Tribunal with the evidence he had presented when the Tribunal said: 38 [Mr Singh] responded that if the Tribunal wanted more evidence he could request his father to provide evidence of the source of funds. Mr Singh was not prevented from providing evidence known or available to him but, at best, was prevented from asking his father for information which Mr Singh did not have, but which Mr Singh had been told, as his Honour noted, by the letter of 19 February 2013, that he was obliged to provide as part of the evidence to demonstrate that he had access to funds. The need to provide evidence of the source of the funds of a loan secured against a money deposit was a matter specifically referred to by the letter to Mr Singh. Mr Singh was specifically invited by paragraph 5 of the letter to provide: 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 way 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 registered deed of sale, and that money has been received from the purchaser. In those circumstances his Honour was correct to conclude that Mr Singh had not been deprived of an opportunity to present his case on the only matter about which he had said that he could request his father to provide evidence about the source of funds "if the Tribunal wanted more evidence". The Tribunal had put him on notice of the need to deal with that matter by its letter of 19 February 2013 and had informed him at the hearing that he had not satisfied them about the very matter which he had been asked to establish. 13 In those circumstances Mr Singh's appeal must fail. And, in those circumstances, it is also not appropriate to extend the time within which to file his appeal. The orders will be to dismiss the application for an extension of time. I would, in any event, dismiss the appeal if the time within which to make the appeal had been extended. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.