Hazra v Minister for Immigration
[2017] FCCA 688
•28 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAZRA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 688 |
| Catchwords: MIGRATION – Application for Student (Temporary) (Class TU) visas – review of decision of Administrative Appeals Tribunal – whether the Tribunal denied the applicants procedural fairness – what is an “issue” within the meaning of s.360 of the Migration Act 1958 (Cth) – Tribunal did not consider the issue concerning the first applicant’s desire to obtain employment in Australia – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.65, 360, 368, 425, 499, pt.5, Migration Regulations 1994 (Cth), cl.573.223 of sch.2 |
| Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293 |
| First Applicant: | KULBIR HAZRA |
| Second Applicant: | DAVINDER SINGH CHHINA |
First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2607 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr B. Lim |
| Solicitors for the Applicants: | Kinslor Prince Lawyers |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 31 August 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicants’ application for review of the decision of a delegate of the first respondent dated 25 February 2015 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2607 of 2015
| KULBIR HAZRA |
First Applicant
| DAVINDER SINGH CHHINA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of India. The second applicant is the husband of the first applicant. On 17 July 2013 the first applicant was granted a student visa to enable her to undertake a Master of Health Science in Aged Services in Australia. That visa was valid until 15 March 2015. The second applicant was granted a visa as the dependent of the first applicant.
In October 2013, rather than completing the Master of Health Science course, the first applicant enrolled in a Certificate IV course in Frontline Management. She completed that course and also a Diploma of Management. She then enrolled in an Advanced Diploma of Management, an Advanced Diploma of Marketing and a Bachelor of Business. On 23 January 2015 the applicants applied for further student visas to enable the first applicant to complete those courses.
On 25 February 2015 a delegate of the Minister refused to grant the applicants visas. On 31 August 2015 the Administrative Appeals Tribunal affirmed the delegate’s decision. The applicants now seek judicial review of the Tribunal’s decision.
Grounds of application
The sole ground of review is that the Tribunal did not give notice to the applicants of certain issues arising in relation to the decision under review, contrary to s.360(1) of the Migration Act1958 (Cth) (“Act”) and in denial of procedural fairness. Those issues were:
i)whether the first applicant had a desire to obtain employment; and
ii)whether the first applicant’s motivation for coming to Australia and remaining in Australia was more likely related to her desire to obtain employment.
The Minister argues that neither of those matters was an “issue” within the meaning of s.360(1) of the Act and, in the alternative, that the applicants were aware that there were issues in light of the reasons for the delegate’s decision.
The relevant principles
Any question of denial of procedural fairness requires close analysis of the relevant facts. Procedural fairness is essentially a practical matter, the content of which depends upon all of the circumstances. One of the critical circumstances is always the statutory context in which the obligation to afford procedural fairness arises: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504 (Kitto J); [1963] HCA 41.
The broad statutory context here is the Act and, in particular the provisions of Part 5 which deal with the conduct of a review of a delegate’s decision by the Tribunal. Of particular importance, amongst those provisions is s.360(1) which, when it applies, requires the Tribunal to invite an applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
That provision is relevantly identical to the requirement in s.425 of the Act which applies to the review of a decision to refuse to grant a protection visa. The obligation to afford procedural fairness in the context of that provision was considered by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
The Court there emphasised that the opportunity provided by s.425(1) related to the “issues arising in relation to the decision under review”. It said, at [34]:
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
(Emphasis in original)
There are two critical elements in this passage. The first is the reference to the potential entitlement to a protection visa. The decision which is to be reviewed by the Tribunal is one to refuse to grant a visa. Such a decision is ordinarily made upon the basis that the decision-maker was not satisfied that the visa applicant satisfied the criteria for the grant of the visa: s.65 of the Act. That section is pivotal in the scheme provided by the Act for the grant of visas. It means that the question of whether the visa applicant satisfies the criteria for the grant of a visa will always be an issue for the primary decision-maker and, on review, the Tribunal. Thus, at that level of generality, satisfaction of the criteria for the grant of the visa will be an issue that is apparent from the nature of the decision to be made and the terms of the statute under which it is made: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; [1994] FCA 293.
However, not all of the criteria for the grant of a visa may be in issue. As all of the criteria for the grant of a visa must be satisfied, it can be, and often is the case, that a single criterion will be determinative of a visa application. Further, there may be criteria which contain, within their terms, alternative means by which the criteria may be satisfied. Further still, the alternative means may involve broad questions of judgment with little or no express limitation on the matters that may be relevant to them. In those circumstances, it may not necessarily be apparent on the facts of a particular case that a question raised by one of the criteria is in issue. Whether it is so will depend upon the requirements of that criterion and the breadth of circumstances that may be relevant to satisfaction of it.
The second element in the passage from SZBEL cited at [9] above is that the Tribunal’s role is to review the delegate’s decision. That means, as the Court went on to explain in SZBEL, that while the Tribunal is not confined to the issues considered by the delegate, an applicant on review is entitled to assume that the issues the delegate considered dispositive were, unless the Tribunal indicated otherwise, the “issues arising in relation to the decision under review”. The Court explained the consequence of this at [35]:
…
That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
In light of the Minister’s first argument in these proceedings, it is necessary also to consider the meaning of the word “issue”. A review of the appellant authorities since the decision in SZBEL reveals that there has been very little specific consideration of that word. That is not surprising, given that it is a word commonly used in litigation and apparently well understood by lawyers. In the context of litigation it means a point of contention between parties, ordinarily defined by reference to written statements of a case including pleadings. However, given that there are no parties to a review conducted by the Tribunal, the word as it appears in s.360(1) is better understood as including any question of significance that the Tribunal considers it needs to decide. That accords with the opinion of Besanko J in SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 where his Honour said, at [115]:
The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
Cf. Aporo v Minister for Immigration & Citizenship (2009) 113 ALD 46 at [34]; [2009] FCAFC 123.
(Citations omitted, emphasis in original)
Understood in that way, an issue may be just as much one of fact as one of law, or mixed question of fact and law, and may be general in nature or very specific. An issue might be a factual matter arising from country information relevant to the Tribunal’s decision[1], factual claims made by an applicant[2], what might fall within the national interest[3], whether an applicant has supplied particular evidence referred to in a policy[4], or whether a particular factual claim will be accepted[5].
[1] Minister for Immigration & Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069.
[2]Minister for Immigration & Border Protection v SZSNW (2014) 229 FCR 197; [2014] FCAFC 145.
[3]Durani v Minister for Immigration & Border Protection (2014) 314 ALR 130; [2014] FCAFC 79.
[4]Yao v Minister for Immigration & Border Protection (2014) 140 ALD 21; [2014] FCAFC 17.
[5] SZQJH v Minister for Immigration & Border Protection (2013) 140 ALD 11; [2013] FCAFC 147.
I do not understand Bennett J to have said anything different in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [25] (“SZJUB”).
In light of those principles, it is necessary to consider in some detail, both the relevant criteria and the facts. This includes the applicants’ claims, the reasons for the delegate’s decision, the evidence and arguments before the Tribunal and the Tribunal’s reasons for decision.
The relevant criteria
The applicants applied for a Student (Temporary) Class TU visa. That class of visa has a number of subclasses, each of which is designed to allow study in Australia at a particular level. The courses which the first applicant was enrolled made subclass 573 the most relevant and applicable subclass. The criteria for the grant of that subclass were found in item 573 of Sch.2 to the Migration Regulations1994 (Cth). Amongst those criteria was cl.573.223 which provided:
573.223
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)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)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant meets the requirements of subclause (1A) or (2).
(1A)If the applicant is, and was, at the time of the application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a)the applicant gives the Minister evidence that the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii)educational qualifications required by the eligible education provider; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2)If subclause (1A) does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)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.
It may be observed that this criterion involves a number of different considerations, requires a broad judgment to be exercised and is apt to bring into issue a large number of different factual matters. There is no clear focus in the criterion on any particular matter other than the genuineness of the application for entry and stay as a student. That enquiry is divided into two parts: the first (in sub-cl.573.223(1)(a)) addressed to the intention to stay in Australia temporarily and the second (in either sub-cll.573.223 (1A) or (2)) focussed on stay “as a student”. Even then, that genuineness is to be determined by having regard to a number of very broadly stated matters.
Given the broad nature of the criterion, it is not surprising that there exists a direction made under s.499 of the Act concerning the operation of the criterion: Ministerial Direction No 53 – Assessing the genuine temporary entrant criterion for Student visa applications (“Direction 53”). I will return to this direction in dealing with the delegate’s reasons for decision. The Tribunal was obliged to comply with the direction in conducting its review of the delegate’s decision.
The evidence and submissions before the delegate
On 27 January 2015 an officer of the Department of Immigration wrote to the first applicant requesting further information concerning her application. The letter explained, amongst other things, that one of the primary criteria for the grant of the previous student visa was that she be studying an eligible higher degree course at an eligible education provider. The delegate noted in that letter that the first applicant had withdrawn from her course after studying for only seven months and had transferred to study Certificate IV in Frontline Management. The letter further stated:
… please provide an explanation regarding the change in your circumstances that prevent you from continuing your studies in the Master of Health Science and why you have made a request for study at the Vocational Education and Training Sector level. Furthermore, how this current course relates to your past study and career goals upon your return to enter home country here. And lastly, why you are transferring to a non-eligible SVP[6] education provider.
[6] Streamlined Visa Processing.
The letter went on to state that, in light of the information of the change of course, further information was required from the first applicant “in order to ensure you are a genuine student who intends to remain in Australia on a temporary basis.”
The first applicant responded to this request by email dated 18 February 2015. In that email she addressed the matters raised in the request for more information and provided an explanation of the changing courses. The first applicant also explained that she was enrolled in a Bachelor of Business and that her proposed courses aligned with her career objective to start her own independent concern in her home country.
Later on the same day, an officer of the Department sent a further request to the first applicant asking her to comment on why she had decided to undertake the Bachelor of Business. The officer also requested the applicant explain why she had enrolled in the course on 16 February 2015, that is, after the Department’s initial request for further information.
The first applicant responded to this second request by email dated 24 February 2015. In that response the first applicant repeated her previous explanation for the changing course and added:
As stated in my GTE[7], I am a higher education aspirant and have always remained in 573 subclass. I had commenced my higher study with Victoria University in Master of Health Sciences and completed one semester but due to above stated shortcomings, I decided to move to Sydney with a packaged course of Certificate IV in Frontline Management and Diploma of Management from George Brown College and Bachelor of Business from Stotts College. After spending considerable time in Sydney and successfully completing my enrolled courses, I understand the western academic culture and feel much more comfortable in the environment. I have organised my Bachelor COE[8] from Group College Australia which is in Sydney and recognise my current studies. I would like to inform the respected case officer that I have always been enrolled in higher degree.
[7] Genuine Temporary Entrant.
[8] Confirmation of enrolment.
On 26 March 2015 a delegate of the Minister made a decision to refuse to grant the applicants a visa.
The delegate’s decision
The delegate set out in his decision record the whole of cl.573.223, noting that it was known as the “genuine temporary entrant criterion”. The delegate then referred to Direction 53. He noted that that Direction set out factors that must be taken into account when assessing the genuine temporary entrant criterion for Student visa applications and that those factors included:
·The applicant’s circumstances in their home country, including the political and economic situation in the applicant’s home country, the extent of the applicant’s personal ties to their home country, and military service commitments that would present as a significant incentive for the applicant not to return to their home country.
·Whether the applicant’s potential circumstances in Australia present as a strong incentive to remain in Australia, including the extent of the applicant’s ties with Australia, whether the student visa program may be used to circumvent permanent migration programs, whether the Student visa is being used to maintain ongoing residence, the applicant’s knowledge of living in Australia, and whether the primary and secondary applicants have entered into a relationship of concern.
·The value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.
·The applicant’s immigration history, including visa and travel history for Australia and other countries.
·If the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant.
The delegate then noted that any other matter relevant to the applicants’ intention to stay in Australia temporarily must also be considered. He noted that those factors had been weighed up to make an overall decision.
The delegate was not satisfied that the first applicant met the requirements of sub-cl.573.223(1)(a), that is, that she was a genuine applicant for entry and stay as a student. The decision was predominantly based upon the first applicant’s change in enrolment after arriving in Australia. The delegate referred to the first applicant’s explanations for this change and explained:
Having taken into account the above, it appears you have gone to great lengths to apply for and obtain a visa to study a masters degree level course in Australia. I find it difficult to reconcile to the fact that having gone through the efforts to enrol in a high cost, long-term venture such as a Higher Education Degree, within seven months of arrival, you have decided to change direction.
The delegate stated, amongst other things, that he was not satisfied that the applicant had demonstrated how the proposed courses were relevant to her academic and or employment background, nor how the change in course would assist her in attaining her educational and career goals. He stated that the pathway that the first applicant had chosen appeared “more likely to have been based on taking advantage of the Streamlined Visa Processing arrangements to obtain a visa for entry into Australia, without a clear intention of studying for a Higher Education Degree level course in Australia.”
The delegate’s summary of his reasons is critical to the resolution of these proceedings and, for that reason, needs to be set out in full:
Having considered all the information available, given your personal circumstances, immigration history, the lack of value of the course to your future goals and the comparatively greater economic and employment opportunities in Australia, I find that you are using the Student visa program to circumvent the intentions of the migration program. I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.
(Emphasis added)
The applicants applied to the Tribunal for review of the delegate’s decision.
The proceedings before the Tribunal
On 27 July 2015 the Tribunal wrote to the applicants inviting them to attend a hearing before the Tribunal on 28 August 2015. In that letter, the Tribunal indicated that the applicants should have regard to the reasons for which the delegate refused them visas, as well as any changes in their circumstances in providing documents in preparation for the hearing. The Tribunal also asked the applicants to provide the following:
i)a copy of the first applicant’s Certificate of Enrolment as required for the grant of a student visa;
ii)documents showing that the first applicant was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa;
iii)documents showing the first applicant’s past studies in Australia, including copies of all her attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia; and
iv)an explanation of any gaps in the first applicant’s enrolments and any documentary evidence relevant to her explanation.
The Tribunal further noted that it would assess whether the first applicant intended “genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) of the Migration Regulations.”
By email dated 19 August 2015 the applicants’ migration agent sent a submission to the Tribunal which addressed the genuine temporary entrant criterion and, in particular, the first applicant’s change in course. The submission referred to Direction 53 and stated that the first applicant hoped “to find a well-paid job in the third world country on the basis of combination of courses completed in Australia and work experience gained from retail and administration jobs.”
Both applicants attended the hearing before the Tribunal on 28 August 2015.
Shortly after the hearing commenced the Tribunal explained to the applicants what would occur at the hearing. In doing so it stated[9]:
[9] Annexure A to the affidavit of Andrew Keevers affirmed on 9 February 2017 (T2.31).
“So we have a few different issues today in relation to your different cases.”
The Tribunal then turned to the first applicant and explained:[10]
… the issue in your matter relates to whether you’re a genuine applicant for entry and stay as a student. Okay. Okay, so what I have to be satisfied of is that you intend genuinely to stay in Australia temporarily, having regard to your circumstances, your immigration history and any other relevant matter. Okay. So in terms of “temporarily” that has been interpreted by the court to mean that you certainly can have plans to stay in Australia permanently by applying for a skilled visa. However, I have to be satisfied that you are using the student visa appropriately and that – so you are actually genuinely a student and you won’t stay beyond any period of any visa that’s authorised, okay. So there’s a Ministerial Direction which I’ve – I sent you a copy of that and that’s what I have to have regard to when I’m considering whether you’re a genuine applicant for entry and stay as a student, okay.
[10] T 3.8.
It is at least arguable that, in this passage, the Tribunal misdescribed the effect of sub-cl.573.223(1)(a): see Saini v Minister for Immigration & Border Protection [2016] FCA 858 at [30]. In any event, that point was not taken by the applicants and I will leave it to one side.
What is important for present purposes is that the Tribunal identified the broad issue of whether the first applicant satisfied the genuine temporary entrant criterion. Apart from the reference to Direction 53, the Tribunal qualified that issue only by reference to the first applicant’s circumstances, her immigration history and “any other relevant matter”.
The Tribunal went on to ask the first applicant about the reasons for which she first enrolled in health sciences and the subsequent change in direction of her studies. In the course of this line of questioning, the Tribunal stated that it was wondering whether the applicant actually really intended to study the original course. [11] It then asked a number of questions about the first applicant’s understanding of the courses in which she was enrolled[12], the type of business she wished to engage in[13] and the nature of her part-time work in Australia.[14]
[11] T 8.16.
[12] T 10; 12-13.
[13] T 11.11.
[14] T 13.14.
The Tribunal asked the first applicant about her intentions in connection with her proposed qualifications:[15]
[15] T 14.1.
Tribunal:Okay. So what do you intend to do? So your intention is to do the bachelor degree in the end.
First applicant: Yes.
Tribunal:Is that right?
First applicant: Yes.
Tribunal:And what do you intend to do with those studies in the end?
First applicant: At the end I’m thinking to eventually go back to my home country so that I will explore my experience and my education over there in India.
Tribunal:Okay.
The Tribunal then returned to what it referred to as the “big leap” from nursing courses to business courses.[16]
[16] T 14.26.
Towards the end of the Tribunal’s initial questioning of the first applicant there was the following exchange:[17]
[17] T.15.40.
Tribunal:Okay. Okay. So, Ms Hazra, what I do have to consider is whether you’re using the student visa as a – just a – the visa as a way to stay – way of staying here in Australia to …. ongoing residence as to whether you really are a genuine student. I’ve raised some concerns about the way in which you came to do something completely unrelated.
First applicant: Yeah, I know that thing.
Tribunal:You’ve moved to …
First applicant: There was a lot more situations – everything … day by day. Like, it’s automatically taking, as you can say, our interest as well in the situations as well. Everything there was lot more situations.
Tribunal:Okay. So – sorry. I forgot what I was going to ask. Sorry. So is there anything more at all that you would like to tell me today?
First applicant: Not really, just the whole – because I’m also just facing lot more and going through everything and the – I know there is a field change which is a lot more different, the medical and the business, but it’s just situations and things.
The Tribunal then asked the second applicant a number of questions. The first applicant also gave answers to a number of the Tribunal’s questions directed at the second applicant and supplemented his response to some of the Tribunal’s questions. At one point, the first applicant explained that she had completed a certificate in aged services while in Melbourne doing her Masters Degree.[18] The Tribunal then asked her why she did not do a diploma or advanced diploma in health care rather than change direction in her studies.[19] The Tribunal then clarified its concerns in this respect:[20]
Tribunal:… but you were able to find out about a certificate course, so it seems to me that you were astute enough to be able to find out about that course. Why not be able to find out about diploma, high level courses?
First applicant: Actually, that is because we straight away went into the agent, so whatever the people around us, telling us – so that was the situation.
Tribunal:Okay, but what you’re telling me from the agent, it sounds to me like you went to an agent and the agent told you, “These are the courses that you can do,” without really giving it much consideration and that’s my concern, that you seem to be more motivated to find a course that you could do to stay in Australia rather than a course that you actually were interested in and wanted to progress your career in.
(Emphasis in original)
[18] T 18.21 - 45.
[19] T 19.3.
[20] T 20.3 - 14.
The Tribunal made its decision on 31 August 2015, being the next business day after the hearing.
Tribunal’s decision
Like the delegate before it, the Tribunal was not satisfied that the first applicant satisfied the criterion in sub-cl.573.223(1)(a).
The Tribunal accepted that the applicant had family ties in India and relatively few relatives in Australia. It also accepted that there was “no evidence that the economic circumstances or political or civil unrest in India which would act as an incentive for the applicant to remain in Australia.” However, it found that her explanation for changing to a lower course was unpersuasive. Even though the Tribunal accepted that the first applicant may have found the health sciences course difficult, it considered that, had she had any genuine interest in that area, she would have attempted to find another course in Australia in the area of health services or health sciences.
The Tribunal then stated, at [16]:
…
The applicant did not do so and the Tribunal considers that her evidence that she was able to undertake a Certificate II course, which would undoubtedly assist her to obtain employment as a nursing assistant or similar position in an aged care facility, but unable to find another course in health sciences, is not credible and indicative of the fact that motivation for coming to Australia and remaining in Australia is more likely related to her desire to obtain employment.
(Emphasis added)
The Tribunal accepted that the first applicant had completed the Certificate IV course and another course and had provided evidence of her current studies; however, it found that her knowledge of the subjects that she had recently completed was unpersuasive and indicative of a limited engagement with those courses. It found that she enrolled in a Masters degree in order to rely on the expedited visa processing scheme but had no intention of completing that course. The Tribunal concluded, at [18]:
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, and having regard to the factors set out in the Ministerial Direction, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).
For that reason, the Tribunal concluded that the applicants did not satisfy the criteria for the grant of the Class TU visas and affirmed the decision of the delegate.
Consideration
The applicants contend that the Tribunal was required to, but did not identify as an issue the first applicant’s supposed motivation for coming to, and remaining in Australia, being related to a desire to obtain employment. As a consequence, the applicants argued, they did not have an adequate opportunity to give evidence or present arguments about such a motivation and there was a breach of s.360(1) of the Act and a denial of procedural fairness.
The Minister argued that there were two reasons for which the Tribunal did not fall into any error. The first is that the question of the applicants’ motivation for coming to and remaining in Australia was not an “issue” for the purposes of s.360(1). Those matters were “mere supplementary factual findings that were ancillary to the Tribunal’s ultimate finding that the applicant was not a genuine temporary entrant”. The issue, it was argued, before both the delegate and the Tribunal was whether the applicants intended genuinely to stay in Australia temporarily.
The Minister submitted that the Tribunal’s reasons, properly understood, show that it did not make any positive finding about the applicants’ motivation. This submission relied on the words “more likely” in the highlighted passage of the reasons set out at [48] above.
The Minister also relied on the following passage from the decision of Bennett J in SZJUB:
[26]Was the risk to the business and the child, independently of the general issue of risk, important to the Tribunal decision and open to doubt? If so, the Tribunal should at least have asked the appellant to expand on those aspects and to explain why the account should be accepted (SZBEL at [47]). This is not to require the Tribunal to give the appellant a ‘running commentary’ upon its thinking (SZBEL at [48]).
[27]There is no doubt that the Tribunal considered it important that the risks involved with smuggling Bibles weighed against the appellant’s asserted reason for engaging in that activity. That reason was that her friend, with whom she had a commercial arrangement, had assisted her financially to establish a business. The existence of risk was an important factor in the rejection by the Tribunal of the appellant’s claim to have been involved in the smuggling. After stating the various factors, the Tribunal said that: ‘the Tribunal does not accept that armed with this knowledge’, that her friend had had to flee the country and another person had been sentenced to three years in a labour camp, ‘that the [appellant] would take the risk of being involved in a smuggling operation that had been the target of the PSB’.After stating this conclusion, the Tribunal noted that the appellant had a business and an eleven year old dependent child and said that it ‘cannot accept that the [appellant] would become involved in this activity given her knowledge of the adverse consequences of this type of activity’.
[28]In the context of the Tribunal decision, the business and the child were not the issues on which the decision to reject the appellant’s claim were based. They were not determinative but additional factual matters that elaborated the matters to be balanced against the risk. The key point in the Tribunal’s assessment was the fact that there was a risk to the appellant and, in those circumstances, it did not accept that there was sufficient reason for her to take such a risk. The appellant was directed to that issue at the hearing, asked about it and told that the Tribunal found it difficult to accept her evidence. The Tribunal did not fail to comply with s 425 of the Act in this regard.
(Italic emphasis in the original, bold emphasis added)
The Minister properly, and correctly, conceded that her Honour did not purport to state any principle that excludes findings of fact (at any level) from the meaning of “issue” in s.360 (or, as in that case, s.425) of the Act. Such an exclusion would be inconsistent with the authorities discussed above including SZBEL itself. Rather, as Bennett J makes clear in the opening words at [28] of her judgment, her Honour was only dealing with the reasons for the decision before her. That is consistent with the approach of analysing each decision in light of the relevant criteria as well as the evidence and arguments made in support of a review application.
I do not accept the Minister’s arguments.
First, while it is true, as the Minister submits, that the critical issue for the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia. That does not mean that there were not other “issues” within the meaning of s.360(1) of the Act. Clearly enough, whether the applicant genuinely intended to complete her Masters degree was an issue and so, too, was whether she genuinely intended to engage in her business-related courses. Given the breadth of the criterion in question, including the requirement to consider “any other relevant matter”, it is not surprising that there were these, and possibly many other “issues”, that is, questions to be decided by the Tribunal.
Secondly, the Tribunal’s statement of reasons was prepared in response to the statutory directive in s.368(1) of the Act which required, amongst other things, the Tribunal to record its “material findings of fact.” The Minister’s argument relies on a very narrow, even nit-picking, approach to that statement of reasons. On a proper understanding of the Tribunal’s reasons set out at [48] above, shows that the Tribunal rejected the first applicant’s explanations about her change of course because it considered that, amongst other things, she wanted to “obtain employment”.
Thirdly, the Tribunal’s conclusion was stated, at [18] of its reasons, to have been on “the basis of the above”. That is an unmistakeable reference to at least the findings set out in [16] and [17] of its reasons, including the finding about the first applicant’s motivation to find employment.
For those reasons, I conclude that the question of the first applicant’s actual motivation to stay in Australia and, more particularly, whether she was to obtain employment, was an issue within the meaning of s.360(1).
The Minister’s second argument was that this issue was expressly raised in the delegate’s decision and so the applicants cannot say that they had no opportunity to give evidence and present arguments about it.
The Minister submitted that the delegate found that the first applicant was using the student visa program to “circumvent the intentions of the migration program” and was therefore, not a genuine applicant for entry and stay as a student. One of the factors mentioned by the delegate in coming to that conclusion was that there were “comparatively greater economic and employment opportunities in Australia” (see [30] above).
There are two difficulties with that submission. First, any issue concerning the economic conditions in India were expressly determined in the applicants’ favour: the Tribunal found, at [16], that there was no “evidence that the economic circumstances or political or civil unrest in India which would act as an incentive for the applicant to remain in Australia.” Secondly, and in any event, the delegate’s broad statement concerning comparative economic conditions in the two countries was insufficient to put the applicants on notice that the Tribunal might find that the first applicant’s actual subjective motivation for coming to, and remaining in Australia, (longer than temporarily) was to obtain employment.
The evidence establishes that the issue concerning the first applicant’s motivation to obtain employment in Australia was not raised at all prior to the Tribunal’s decision. There was no reference to it in any of the correspondence from either the Department or the Tribunal, any of the applicants’ submissions, the questioning at the hearing or the delegate’s reasons. For that reason, there was a breach of s.360(1) of the Act. The provisions of that section enacted the hearing rule aspect of the Tribunal’s obligation to afford the applicants procedural fairness and a breach of those provisions constituted jurisdictional error.
There being no discretionary reason to refuse relief, the Tribunal’s decision must be quashed and the Tribunal required to review the decision of the delegate according to law.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 28 April 2017
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