Grewal v Minister for Immigration and Border Protection
[2017] FCA 1533
•15 December 2017
FEDERAL COURT OF AUSTRALIA
Grewal v Minister for Immigration and Border Protection [2017] FCA 1533
Appeal from: Grewal & Anor v Minister for Immigration & Anor [2016] FCCA 3168 File number(s): VID 1376 of 2016 Judge(s): GREENWOOD J Date of judgment: 15 December 2017 Catchwords: MIGRATION – consideration of whether the Federal Circuit Court of Australia fell into error by failing to find jurisdictional error on the part of the Migration Review Tribunal (as it was prior to the Tribunal’s functions being assumed by the Administrative Appeals Tribunal) in its analysis of the criteria under clause 572.22 and subclauses of that clause, establishing criteria to be satisfied for the purposes of a Student (Temporary) (Class TU) 572 visa under the provisions of the Migration Act 1958 (Cth) – consideration of the Tribunal’s application of the statutory criteria to the facts – consideration of contended errors on the part of the Federal Circuit Court of Australia Legislation: Migration Act 1958 (Cth), ss 29, 30, 31, 359AA, 360, 499(1)
Migration Regulations 1994 (Cth), Reg 2.01, Schedule 2, cl 572.22, cl 572.223(1)(a), cl 572.223(2)(b)(ii)
Cases cited: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 Date of hearing: 26 May 2017 Date of last submissions: 26 May 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 70 Counsel for the First Appellant: The First appellant appeared in person Counsel for the Second Appellant: The Second appellant appeared in person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
VID 1376 of 2016 BETWEEN: SUKHWINDER KAUR GREWAL
First Appellant
JAGSIR SINGH DHALIWAL
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
15 DECEMBER 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants pay the costs of the first respondent of and incidental to the appeal.
3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with an appeal from orders of the Federal Circuit Court of Australia (the “Federal Circuit Court”) dismissing an application by both appellants for the grant of the Constitutional writs by way of judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) of 4 June 2015. Although the statutory review of the decision of the Minister’s delegate was conducted before the Tribunal, the functions of the Tribunal later became functions to be discharged by the Administrative Appeals Tribunal. That Tribunal was the second respondent in the proceedings in the Federal Circuit Court and is the second respondent to the present appeal. A reference in these reasons to the “Tribunal” is a reference to both the Migration Review Tribunal and the Administrative Appeals Tribunal.
In its decision of 4 June 2015, the Tribunal affirmed the decision of the Minister’s delegate not to grant each appellant a Student (Temporary) (Class TU) visa.
The background to the statutory question the Tribunal was required to answer is this.
Section 29 of the Migration Act 1958 (Cth) (the “Act”) confers power on the Minister to grant a non‑citizen permission (by way of a visa) to travel to and enter Australia or alternatively or as well as, permission to remain in Australia. Section 30 of the Act contemplates certain “kinds of visa” that might be granted and s 31 contemplates prescribed “classes of visa”. Regulation 2.01 of the Migration Regulations 1994 (Cth) (the “Regulations”) contemplates that, for the purposes of s 31 of the Act, the classes of visa are such classes (apart from the table in Reg 2.01(2)), as set out in the respective clauses in Sch 1 to the Regulations. Part 2 of Sch 1 addresses the topic of “Temporary Visas (Other Than Bridging Visas)” and one such class of visa is a Student (Temporary) (Class TU) visa. That class of temporary visa has a subclass called “Vocational Education and Training Sector”. The subclass is “572”. There are seven other subclasses within that class of visa.
These proceedings are concerned with an application each appellant made for a Student (Temporary) (Class TU) visa in the subclass 572, on 27 February 2014.
Schedule 2 to the Regulations addresses the topic of “Provisions With Respect To The Grant Of Subclasses Of Visas”. Schedule 2 contains conditions which apply to the 572 subclass of visa. The condition which was the focus of consideration by the delegate and the Tribunal is a condition set out at 572.223 of Sch 2. Clause 572.22 addresses the topic of the criteria to be satisfied, at the time of making a decision, in relation to an application. Clause 572.221 and cl 572.222 address particular matters. Clause 572.223 identifies the following criteria to be satisfied at the time the decision is made.
First, the Minister must be “satisfied” that the applicant is “a genuine applicant for entry and stay as a student”.
Second, the Minister must be satisfied of that matter “because” the Minister is satisfied that the applicant “intends genuinely to stay in Australia temporarily, having regard to”:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) [not relevant for present purposes]; and
(iv) any other relevant matter.
Third, the applicant must meet the requirements of subclause (1A) or (2) of cl 572.223.
Of course, when the Tribunal exercises a statutory review function, it stands in the shoes of the Minister (that is to say, the Minister’s delegate) and it must apply the criteria at the time it makes its decision. It can be seen that the criteria are concerned with the state of satisfaction of the decision‑maker concerning the relevant integers. The Tribunal was required to be satisfied that each applicant was, at the time of the decision, a genuine applicant for entry and stay as a student, temporarily. That state of satisfaction rested upon the identified statutory factors. Thus, the question for the Tribunal was, could it be satisfied that the applicant held an intention genuinely to stay in Australia temporarily having regard to all of the factors to be taken into account, that is, each applicant’s circumstances, each applicant’s immigration history and any other matter relevant to the question of whether the Tribunal could be satisfied that each applicant held a genuine intention to stay in Australia temporarily?: the cl 572.223(1)(a) factors.
Those questions were required to be answered in the case of the first appellant as the “primary person” for the purposes of the Regulations and the relevant clauses contained in Sch 2. That follows because the first appellant was the applicant for the 572 subclass visa. The second appellant applied for a visa on the footing that he is a member of the “family unit” of the “primary person”; the primary person satisfies or has satisfied the primary criteria in subdivisions 572.21 and 572.22; and, the primary person will be, or has been, granted a visa in relation to a course of study that meets the relevant criteria: see cl 572.322.
The second appellant is the male spouse of the first appellant who is the “primary person”. The Tribunal concluded that because the primary person did not satisfy the requirements of cl 572.223, the first appellant failed to satisfy the criteria required by subdivision 572.22. As a result, the Tribunal concluded that the second appellant did not satisfy the requirements of cl 572.322.
In these reasons, I will focus upon the contended errors on the part of the Federal Circuit Court in failing to find jurisdictional error in respect of the Tribunal’s decision concerning the primary person. The position of the second appellant is determined by the outcome in relation to the challenge made by the first appellant.
Before examining the Tribunal’s decision, the decision of the Federal Circuit Court and the grounds of challenge to the decision of the Federal Circuit Court, it is necessary to say something about a further aspect of the way in which the statutory question arose before the Tribunal.
Apart from considering the integers earlier mentioned concerning cl 572.223(1)(a) which is the subject of the matters discussed at [6] to [10] of these reasons, the Tribunal had regard to a document described as “Direction No 53”. That direction was made under s 499(1) of the Act. That section provides that the Minister may give written directions to a person or body having functions or powers under the Act (including, in this case, the Tribunal) if the directions are concerned with, first, relevantly, the performance of the Tribunal’s functions or, second, the exercise of the Tribunal’s powers. Section 499(2A) provides that, relevantly, the Tribunal must comply with a direction under s 499(1). Direction No 53 was given on 3 November 2011. It commenced on 5 November 2011. The direction applies to delegates of the Minister performing functions or exercising powers “in relation to assessing the genuine temporary entrant criterion at Schedule 2 to the [Regulations] for Student visa applications”. The direction also applies to members of the Tribunal who review the decisions of primary decision‑makers (delegates) in relation to Student visa applications.
Apart from other matters recited under the heading “Preamble” (including the elements of cl 572.223(1)(a) as described at [6] to [10] of these reasons), the direction contains the following observations:
This Direction provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances; the applicant’s immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant, and any other relevant matter to determine whether the applicant genuinely intends to stay in Australia temporarily. This direction is binding on all decision makers.
Decision makers must take a balanced approach between the need to make a timely decision on a Student visa application and the need to identify those applicants who, at the time of decision, do not genuinely intend to stay in Australia temporarily.
Part 2 of the direction sets out the actual directions given to decision‑makers.
As to assessing the genuine temporary entrant criterion, the direction says this. First, decision‑makers should not use the factors specified in the direction as a “checklist”. Rather, the factors specified in the direction are intended to “guide decision‑makers” in weighing up the “applicant’s circumstances as a whole” in reaching a finding about whether “the applicant satisfies the genuine temporary entrant criterion”. Second, the direction observes that decision‑makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied by considering the applicant against all factors specified in the direction and by taking into account any other relevant information provided by the applicant (or information otherwise available to the decision‑maker). Third, decision‑makers may request additional information from an applicant. The direction sets out circumstances where further scrutiny may be appropriate although those circumstances are not designed to limit the scope of any relevant enquiry. Fourth, point 5 of the direction says that an application for a Student visa must be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, “the decision‑maker is not satisfied that the applicant genuinely intends a temporary stay in Australia”.
As to an applicant’s circumstances, these matters should be noted. First, point 6 of the direction says that decision‑makers must have regard to the applicant’s circumstances “in their home country” and the applicant’s “potential circumstances in Australia”. Second, relevantly for a 572 subclass visa, decision‑makers must also have regard to “the value of the course to the applicant’s future”: point 7. Third, by point 8, “weight should be placed on an applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia”.
As to an applicant’s circumstances in their home country, the direction says this:
9.In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
a.Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as established by the applicant.
b.The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.
c.Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.
d.Military service commitments that would present as a significant incentive for the applicant not to return to their home country.
e.Political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa.
[emphasis added]
At point 10, the direction says that decision‑makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
As to an applicant’s potential circumstances in Australia, the direction says this:
11.In considering the applicant’s potential circumstances in Australia, decision makers must have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties.
b.Evidence that the Student visa program is being used to circumvent the intentions of the migration program.
c.Whether the Student visa is being used to maintain ongoing residence.
d.Whether the primary and secondary applicant(s) have entered into a relationship of concern for Student visa purposes. Where it has been determined that an applicant and dependant have contrived their relationship for Student visa purposes, the decision maker can find that both applicants do not satisfy the genuine temporary entrant criterion.
e.The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
[emphasis added]
As to the value of the course to the applicant’s future, the direction says this:
12.Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:
a.Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.
b.Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.
c.Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
[emphasis added]
As to an applicant’s immigration history, the direction says this at point 14(a):
14.In considering the applicant’s immigration history [which includes the applicant’s visa history and travel history], decision makers must have regard to the following factors:
a. Previous visa applications for Australia or other countries, including:
i.[I]f the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.
ii.If the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal.
[emphasis added]
Point 14(b) of the direction sets out considerations to be taken into account concerning an applicant’s previous travels to Australia or other countries.
As to any other relevant matters, the direction provides that decision‑makers must also have regard to any other relevant information provided by the applicant (or otherwise available to the decision‑maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
At the date of the Tribunal decision, 4 June 2015, the first appellant was a 36 year old Indian national woman. She was and is married to her husband, the second appellant, who is a dependant secondary applicant for a visa. I will confine the narrative of events to the circumstances concerning the first appellant, Sukhwinder Kaur Grewal. The first appellant applied for and was granted a Student (Class TU) Subclass 572 visa on 25 March 2009. That visa was valid until 8 September 2011. As at 25 March 2009, the first appellant was offshore from Australia. She subsequently arrived in Australia on 16 May 2009. Prior to arriving in Australia to study, she had completed a Master of Arts degree in India in 2004 and she had worked as a Primary School Teacher until she decided to study in Australia.
The first appellant first studied, in Australia, for a Diploma of Community Welfare Work. That course was a two year course which she completed in September 2011, about the same time as the visa granted on 25 March 2009 was to expire. Following completion of the course leading to the Diploma of Community Welfare Work, the first appellant undertook a Diploma of Management course which she successfully completed in 2013. Although the date of enrolment is not clear from the material in the Appeal Book, the first appellant enrolled in an Advanced Diploma of Management course which was to commence in February 2013. However, in May 2013, the first appellant changed her course of study so as to undertake a Diploma of Production Horticulture. The first appellant completed this course in November 2014.
Because the initial visa was to expire on 8 September 2011, the first appellant applied for a further Student (Class TU) Subclass 572 visa on 26 October 2011 which was granted and remained valid until 15 March 2014.
On 27 February 2014, the first appellant applied for a further Student (Class TU) Subclass 572 visa. At the time of that application, the first appellant was enrolled to undertake a Diploma of Production Horticulture, a Diploma of Agribusiness Management and an Advanced Diploma of Agribusiness Management. At para 16 of the Tribunal’s Decision, the Tribunal notes that at the date of the review before the Tribunal, the first appellant provided evidence that in about September 2014 she had re‑enrolled in a Diploma of Agribusiness Management with a commencement date of 26 January 2015 and a completion date of 25 January 2016; and an Advanced Diploma of Agribusiness Management commencing on 22 February 2016 and ending on 21 February 2017.
Although the first appellant had completed a Master of Arts degree and had worked as a Primary School Teacher prior to arriving in Australia and had undertaken, in Australia, a Diploma of Community Welfare Work (for two years) and a Diploma of Management which she completed in 2013, the first appellant took a change in direction in her studies by enrolling in courses related to horticulture. In her statement of 25 February 2014, the first appellant said this:
I came here on student visa. Recently I have enrolled in Diploma of Agribusiness Management & Advance[d] Diploma of Agribusiness Management as this is the booming trades in international Market which will provide me additional advantage, whether I undergo employment or start my own Business. I plan to go back to my country India and open my own Business in India. As it is economical to open a Business in India as we already have ancestral land.
…
It was my childhood dream to study abroad. Now I want to study Diploma of Agribusiness Management & Advance[d] Diploma of Agribusiness Management. I am on the way to actually fulfilling my dream i.e. to be attaining [the two Diplomas]. On the completion of these courses, I will have enough knowledge and skills to start my career in India.
The evidence before the Tribunal was that the first appellant wanted to return to India where her father has a farm. Also, her husband had been a farmer in India. She said that her background is in horticulture and that her father had suggested she should study horticulture. At para 15, the Tribunal observes that none of the courses the first appellant has undertaken in Australia have relevance to her previous qualification of a Master of Arts or her work as a Primary School Teacher.
The Tribunal also notes that the first appellant has spent four years in Australia studying for a Diploma in Community Welfare Work and a Diploma in Management. The Tribunal observed at para 15 that, notwithstanding the course work she had undertaken, the first appellant said that she “had no interest in a career in community work”, but had, nevertheless, agreed to enrol in the community welfare course as arranged by an agent and then spent two years in a foreign country studying the course.
At para 17, the Tribunal Member observes that he discussed with the first appellant the qualifications she had achieved in Australia in horticulture as well as the qualifications in other fields. The Tribunal Member asked the first appellant why she believed that she required further qualifications. The first appellant said that she wished to extend her father’s farm business. She said that her father owns seven acres of land in India and grows wheat, potato and rice. The first appellant said that she wants to “introduce a glasshouse and introduce other vegetables such as tomatoes”.
At para 17, the Tribunal Member observes that he identified Direction No 53 and the factors which appeared relevant to the circumstances of the first appellant.
At para 19, the Tribunal refers to the first appellant’s election to enrol in the Agribusiness courses because these courses would provide her with additional advantages in employment and provide her with an opportunity to exploit what she describes as the “booming trades” in international markets by which she must be taken to mean international markets in agribusiness.
At para 20, the Tribunal observes that in the course of the hearing the applicant provided further detail about her plans to complete the proposed studies, acquire knowledge and qualifications in that area of study and then return to India to improve her father’s seven acre farm and introduce glasshouse production. She also said that she needs to study sprinkler systems, spraying procedures and safety procedures.
At para 21, the Tribunal Member said this:
I have considered that the applicant has been in Australia for more than 6 years as a mature aged student and her husband is also in Australia with her having left his farm in India and now works in farming in Shepparton. If she were to complete the courses as proposed she will have spent nearly 8 years in Australia studying several courses in the vocational education and training sector across three different fields of study and career pathways.
[emphasis added]
At para 22, the Tribunal Member accepted that the first appellant wished to change direction in her studies. He said this:
Given the applicant has completed the Diploma of Production Horticulture, I accepted that after qualifying in community welfare and management, she wished to change to horticulture in order to work on the family farm. …
[emphasis added]
At para 22, the Tribunal notes the first appellant’s evidence that her husband has left his farm in India and is now working as a farmer in Shepparton where they both live. Also at para 22, the Tribunal said this:
… I questioned whether the applicant’s [first appellant’s] qualification in production horticulture is not sufficient to return to India and work on the 7‑acre farm and introduce a glass house. I indicated that it appears more than is necessary to seek to study the courses in agribusiness management for the future career she has described.
[emphasis added]
In response to that questioning, the applicant told the Tribunal Member that she wished to increase her skills and show her family that she has qualifications and knowledge. She said that she wished to remain in Australia to complete the courses in Agribusiness and then she planned to return to India. She said that she had no interest in remaining in Australia. She said that she had always wanted to study horticulture in order to improve her father’s business and again explained that she had simply undertaken the Community Welfare course because her agent had enrolled her in that course and she had paid half of the tuition fees.
The Tribunal then reached these conclusions and findings:
25.Examining all of the evidence provided and the above discussion; and having regard to the Minister’s Direction No 53, I am not satisfied that the courses the applicant proposes to undertake are relevant to her previous qualifications, except of course the most recent – the Diploma of Production Horticulture. I do not accept that the applicant has a genuine intention to stay in Australia temporarily for the purposes of studying as she claims. I do not accept the argument or proposition that the applicant does not have the necessary qualifications to commence work in the area she claims – her father’s farm in Punjab, India, or that it is necessary for her to complete the proposed courses before she has sufficient qualifications to undertake the work she claims she intends to take. [see [23] of these reasons.]
26.I have considered the applicant’s circumstances in India [see [20] of these reasons] and her evidence that she wishes to return. Having regard to the considerably long period she has spent in Australia with her husband; and that she has left the workforce in India more than 6 years ago in India, I am not satisfied the applicant has a strong incentive to return to India.
27.Considering the period she has been in Australia [see [22] of these reasons] and the courses she has undertaken and now proposes to undertake, I find that the applicant has been undertaking relatively short and inexpensive course across a range of education fields, all in the vocational education and training sector, in order to maintain ongoing residence in Australia. I also find that the applicant would be using the student visa to circumvent the intention of the migration program [see [22] of these reasons].
28.On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 572.223(1)(a). Therefore, the first named applicant [first appellant] does not satisfy Subdivision 572.22.
[emphasis added]
In the proceeding before the Federal Circuit Court, the first appellant relied upon the following grounds in support of the judicial review application:
I applied [for a] student visa on 27 Feb 2014 to the department of immigration and my application was refused by [the delegate] of the minister on the basis that [I] did not [satisfy] the requirement.
I applied for review application to MRT. I appeared before the Tribunal to [p]resent argument and give evidence that my intention to study is genuine and I will return back to my country after [completing] my study but MRT made a decision against my application.
I am not satisfied with the decision made by MRT [and] I believe [there] is an error [there] for [which] I want to [appeal] against decision in the court.
The primary judge reviewed the relevant factual matrix concerning the circumstances taken into account by the Tribunal in reaching its decision. The grounds relied upon by the first appellant before the Federal Circuit Court were devoid of any content. It thus fell to the Court to consider the reasoning of the Tribunal and the relevant factual circumstances in order to form a view about whether there was nevertheless something about the decision which raised a question of concern, in the interests of justice. The Federal Circuit Court found no question of that kind and concluded that in substance the first appellant was simply seeking to engage the Federal Circuit Court in a review of the merits of the decision made by the Tribunal. In the result, the Federal Circuit Court dismissed the application and ordered the appellants to pay the first respondent’s costs fixed in an amount of $6,500.00. As mentioned earlier, the claims made by the second appellant were truly dependant claims reliant upon the success or otherwise of the first appellant’s entitlement to a visa.
In this Court, the appellants rely upon the following grounds of appeal.
Grounds of appeal
1.That His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider clause 572.223(1)(a) and clause 572.223(2)(b)(ii) Migration Regulations 1994
Particulars
a.The Tribunal erred in not considering cl 572.223(a) [the provision should read cl 572.223(1)(a)]
b.His Honour erred in not referring and applying clause 573.223(2)(b)(ii) [the provision should read 572.223(2)(b)(ii)
c.The delegate misconstrued clause 572.223(1)(a) in finding that the appellant was not a genuine temporary entrant (GTE)
d.The Tribunal erred in not applying the facts when considering the cl 572.223
2.His Honour … erred in not looking closely at the structure of [the] Tribunal’s reasons in order to assess whether it truly has had regard to all the mandatory criteria applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.
3.The appellant’s application clearly raises an arguable case.
4.That [His] Honour … erred in not holding that the Tribunal made jurisdictional error as it failed to consider section 359AA Migration Act 1958
Particulars
a.The Tribunal misconstrued section 359AA of the Act
b.The Tribunal failed to ensure that the applicant understands why the information is relevant to the review.
5.That [His] Honour … erred in not holding that the Tribunal made jurisdictional error as it failed to accord to the Applicants procedural fairness and natural justice.
Particulars
a.The Tribunal member made unreasonable comments and observations at the hearing.
b.A transcript of the AAT hearing will be produced at the hearing.
c.The Tribunal failed to accord the applicant procedural fairness.
6.The appellant’s application clearly raises an arguable case.
In the course of the hearing before this Court, the appellants (and in particular the first appellant) was assisted by an interpreter. The first appellant asserted that she had filed an appeal (by which she was probably intending to suggest both the application before the Federal Circuit Court and the appeal to this Court), on the following basis:
I lodge appeal because – presuming that if tribunal didn’t look into my matter correctly, I might, when I applied to Federal Court, they can find a mistake that – they have done some mistake.
The first appellant also seemed to suggest that the Tribunal had applied the “rules” in an inconsistent or arbitrary way because she said that the rules ought to be the “same for everyone” and added: “if I have changed my course, why was I penalised?”.
Apart from the two matters mentioned at [46] and [47] of these reasons, the Court asked the first appellant whether she could identify the comments and observations of the Tribunal Member that she contended were “unreasonable comments and observations” as set out at Ground 5 of her notice of appeal. The first appellant said that she was nervous and added this: “I cannot remember – I am nervous. I cannot remember – I don’t remember anything”. That resulted in the Court asking her whether the position now was that she makes no issue about that ground and does not press that matter. The first appellant said that she had come back from India and had not had enough time to speak to a lawyer and did not want to say anything about that ground.
As to each of these grounds set out in the notice of appeal, it is immediately apparent that none of the grounds were grounds relied upon before the Federal Circuit Court in seeking judicial review of the Tribunal’s decision. Moreover, neither of the appellants has filed any submissions which would seek to give any wider expression or explanation of the grounds.
As to Ground 1, the appellants contend that the Tribunal failed to consider cl 572.223(1)(a). It is clear from the Tribunal’s reasons that the Tribunal had regard to cl 572.223(1)(a). The Tribunal considered each of the integers in that section and took into account the elements of Direction No 53. The Tribunal recognised that the factors set out in Direction No 53 were not to be applied as a checklist. The Tribunal recognised that its task was to weigh up the applicant’s circumstances as a whole having regard to the matters described at [16] to [26] of these reasons. The Tribunal then analysed the factual circumstances relevant to those considerations and then concluded that it could not be satisfied that the first appellant intended to stay in Australia, temporarily.
Thus, there is no substance to the contention that the Tribunal fell into jurisdictional error by failing to consider cl 572.223(1)(a). Nor can it be said that the Tribunal fell into error in “not applying the facts” when considering cl 572.223(1)(a). Plainly, the Tribunal weighed up the relevant facts and applied the elements of the clause to those facts.
Apart from cl 572.223(1)(a), the first appellant says that the Tribunal failed to consider cl 572.223(2)(b)(ii). The role of subclause (1A) or (2) of cl 572.223 is engaged because one of the elements of cl 572.223 is a requirement, in cl 572.223(1)(b), that an applicant meet the requirements of subclause (1A) or (2). According to its terms, subclause (1A) might be engaged or it might not. If subclause (1A) is not engaged, then subclause (2) may be engaged. One element of subclause (2) is a requirement that the Minister is satisfied that an applicant is a genuine applicant for entry and stay as a student having regard to the stated intention of the applicant to comply with relevant conditions attached to the visa and having regard to “any other relevant matter”: cl 572.223(2)(b)(ii), which is the ground relied upon in the notice of appeal. The appellants have not identified factors which would operate to engage either subclause (1A) or subclause (2) but, in any event, the question of whether either appellant satisfies cl 572.223(1A) or alternatively cl 572.223(2), is no answer to the fundamental problem that the Tribunal was not satisfied that the first appellant intends genuinely to stay in Australia temporarily having regard to the cl 572.223(1)(a) factors. The failure of the appellants to demonstrate any jurisdictional error on the part of the Tribunal in reaching that decision, is fatal to the present appeal, absent success on any other ground.
As to Ground 2, the appellants say that the primary judge fell into error by failing to “look closely” at the “structure” of the Tribunal’s reasons in order to assess whether it “truly had regard to all the mandatory criteria applying [to the decision]”. The appellants say that the primary judge fell into error by failing to have regard to the principles derived from Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 (“Lafu”).
Lafu is authority for the uncontroversial proposition that should a decision‑maker fail to ask the right question by failing to properly identify the relevant statutory integers by which the decision is to be reached, the decision‑maker falls into jurisdictional error because the decision‑maker has stepped outside the limits of the decision‑making power or, in a case such as this, the decision‑maker has stepped outside the boundaries of the review function. In such a case, the decision‑maker is often said to have constructively failed to exercise the statutory jurisdiction although I regard such a failure as an actual failure to exercise the jurisdiction.
In this case, the Tribunal identified the statutory elements it was required to apply. It identified the elements of Direction No 53 and it applied those considerations to the facts. There is no contention from the appellants that the Tribunal fell into error in identifying the applicable mandatory criteria. The ground of appeal is framed in terms that the primary judge fell into error in the manner in which he considered the “structure” of the Tribunal’s reasoning.
As to that structure, the primary judge examined the history of applications by the appellants and the facts relevant to the statutory integers. Plainly enough, the primary judge considered the Tribunal’s reasons. There is no error demonstrated in the approach of the primary judge. In this Court, the appellants rely upon grounds not agitated before the primary judge. Accordingly, this Court has looked at the grounds of appeal and then considered the Tribunal’s reasons so as to identify whether there is any anomalies in what might be called the “structure” of the Tribunal’s reasons.
There is no error to be found in the way in which the Tribunal went about its decision‑making processes. There is no basis for contending that the Tribunal fell into jurisdictional error in failing to have regard to the relevant statutory integers and there is no basis for contending that the primary judge fell into error in failing to look closely at the Tribunal’s reasons.
Ground 3 asserts that the appellants’ appeal clearly raises an arguable case. The question is whether the appellants have made good their appeal not whether there is an arguable case.
The next ground, Ground 4, asserts that the Tribunal fell into jurisdictional error by failing to consider s 359AA of the Act and the primary judge fell into error by failing to recognise that the Tribunal had fallen into jurisdictional error on this ground.
Section 359AA(1) provides that if an applicant is appearing before the Tribunal as a result of an invitation (under s 360 of the Act) to give evidence and present arguments relating to the issues arising in relation to the decision under review, the Tribunal may, orally, give the applicant clear particulars of any information that the Tribunal considers would be the reason or at least part of the reason for affirming the decision under review.
Section 359AA(1)(b) provides that if the Tribunal does give the applicant clear particulars of any such information, orally, it must ensure, as far as is reasonably practical, that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision under review. It must orally invite the applicant to comment on or respond to the information. It must advise the applicant that he or she may seek additional time to comment and it must, if the applicant seeks additional time, adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information: s 359AA(1)(b)(i) to (iv).
On 3 December 2014, the Tribunal sent a letter to the applicants inviting them to appear before the Tribunal to give evidence and present arguments relating to the issues in the case. The hearing date was 19 January 2015. The hearing took place on 19 January 2015. Both appellants appeared. They were represented at the hearing by Mr Jujhar Singh Bajwa of Bajwa Immigration Consultants. They were supported by an interpreter in the Punjabi language.
On 16 January 2015, their representative sent an email to the Tribunal attaching six documents. In the letter dated 3 December 2014, the Tribunal said that it would assess whether the appellants intended genuinely to stay in Australia temporarily as required by cl 572.223(1)(a), and relevant to the enquiry was the Minister’s direction known as Direction No 53. A copy of the direction was attached to the letter. The Tribunal asked the appellants to “please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53”. Accordingly, each appellant and, in particular, the first appellant, was alive to the consideration that the Tribunal intended to address the central issue having regard to the factors in cl 572.223(1)(a), and alive to the explanation given in Direction No 53.
Thus, the Tribunal complied with s 360 of the Act.
No particulars of information were put to the appellants (and, in particular, the first appellant), orally, at the hearing and no reliance was placed, by the Tribunal, on s 359AA. I accept the submissions of the Minister that no foundation has been made out for the contended ground. Moreover, it was not put to the Federal Circuit Court. The ground has not been made out.
Ground 5 asserts that the Tribunal fell into jurisdictional error by failing to accord the appellants’ procedural fairness and natural justice. They say that the Federal Circuit Court fell into error by failing to find jurisdictional error on the part of the Tribunal on that ground.
As mentioned earlier, the appellants were not able to identify any content to the ground when asked about it by this Court in the course of the hearing. There is simply no content to the claim at all. Moreover, the Minister points out that the appellants filed their application for judicial review before the Federal Circuit Court on 23 June 2015 and it was not until the filing of the notice of appeal in this Court on 25 November 2016 that a contention was made that the Tribunal had failed to provide them with procedural fairness in the conduct of the review function, that is, an elapsed period of 17 months.
No such claim was made before the Federal Circuit Court. Moreover, even though the grounds relied upon by the appellants before the Federal Circuit Court did not raise a contended failure on the part of the Tribunal to provide the appellants with procedural fairness, the primary judge nevertheless sought to identify with the appellants (as applicants) whether they contended that there had been any such failure. At [10], the primary judge says this:
The applicant was not able to articulate any complaint about procedural fairness, nor about the reasoning of the Tribunal. The applicant does not point to any error of law by the Tribunal.
The ground, before this Court, has no substance.
For the reasons identified, none of the grounds of appeal have been made good. The appeal must be dismissed with costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 15 December 2017
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