Khanna & Ors v Minister for Immigration & Anor
[2015] FCCA 1971
•20 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHANNA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1971 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – application for Subclass 573 visa – whether a person who applies for a Subclass 573 visa but who intends to settle in Australia if given the opportunity intends genuinely to stay in Australia temporarily – whether Tribunal decided application on the assumption that a person who intends to settle permanently in Australia if given the opportunity implies the person does not intend to stay in Australia temporarily – whether by so deciding the Tribunal failed to consider whether the applicant would return to her home country if before the Subclass 573 visa would expire the applicant would not become entitled to remain in Australia beyond the period for which the Subclass 573 visa would be valid – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.499 |
| First Applicant: Second Applicant: Third Applicant: | KAMNA KHANNA JAGDEEP SINGH SAHIBJOT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 474 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 17 September 2014 |
| Date of Last Submission: | 10 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2015 |
REPRESENTATION
| Applicants in person assisted by an interpreter. |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the second respondent made on 3 February 2014 affirming the decision of a delegate of the first respondent made on 20 December 2011 not to grant the applicants a Student (Temporary) (Class TU) subclass 573 visa is quashed.
The Administrative Appeals Tribunal be added as a respondent to these proceedings.
Pursuant to item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the second respondent to review the decision of a delegate of the first respondent made on 20 December 2011 not to grant to the applicants a Student (Temporary) (Class TU) subclass 573 visa.
The first respondent pay to the applicants such costs to which the applicants are entitled as unrepresented parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 474 of 2014
| KAMNA KHANNA |
First Applicant
| JAGDEEP SINGH |
Second Applicant
| SAHIBJOT SINGH |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the first applicant a Student (Temporary) (Class TU) subclass 573 visa (Subclass 573 visa).
The Tribunal affirmed the delegate’s decision because it was not satisfied the first applicant (applicant) intends genuinely to stay in Australia temporarily. The Tribunal, therefore, found the applicant did not satisfy cl.573.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That sub clause provided:
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 (2).
The application for review specifies one ground – that “the Tribunal made a Jurisdictional error whilst making a decision on application”. The applicant, however, in an affidavit she filed with the Court on 7 August 2014, relies on a number of grounds for setting aside the Tribunal’s decision. Like the Minister, I will treat the grounds stated in the affidavit as the grounds of the application before this Court.
Before I consider those grounds, it will be necessary to set out the relevant background, and the Tribunal’s reasons for affirming the delegate’s decision.
Background
The applicant is a national of India. She entered Australia on 19 August 2009 on a student visa that was valid until 25 October 2011. On 13 November 2011 the applicant applied for the Subclass 573 visa, but, on 20 December 2011, a delegate of the Minister refused the application.
By letter dated 20 September 2013 the Tribunal invited the applicant to comment on information the Tribunal specified in its letter dated 20 September 2013.[1] One item of information related to the applicant’s enrolment in educational courses. The Tribunal stated the applicant had been enrolled in many courses, but had successfully completed only one.
[1] CB87-88
The applicant responded through her agent by letter dated 15 October 2013.[2] The letter was accompanied by documents that indicted that over the period 5 October 2009 to 30 November 2012 the applicant had enrolled in a Certificate III and IV in Hairdressing, a Diploma of Hairdressing Salon Management,[3] and an Advanced Diploma of Management;[4] that over the period 11 July 2011 to 27 January 2013 the applicant completed a Certificate IV in Business,[5] a Diploma of Management,[6] and an Advanced Diploma of Business;[7] and that the applicant had enrolled in a Diploma of Accounting course that had been due to commence on 16 August 2010.[8] In addition, the agent’s letter stated:
The applicant first arrived to do Cert III, IV and Diploma in Hairdressing but decided to change the course of Diploma in Accounting based on her previous background of education and experience in hairdressing, therefore did not want to repeat her skills.
The applicant changed from Dip in Accounting to (Cert IV, Dip & Adv Dip) in Management because she wanted to gain more management skills rather than studying accounting.
[2] CB89
[3] CB95-97
[4] CB105
[5] CB106-108
[6] CB109-111
[7] CB112-115
[8] CB100
There was also enclosed with the agent’s letter documents that showed the applicant had enrolled in an Advanced Diploma of Tourism[9] and in a Bachelor of Business.[10] An attachment to the agent’s letter stated that the applicant had withdrawn from the Advanced Diploma of Tourism because the immigration case officer “did not accept the application for the Visa for two Advanced Diploma course [sic] at the same time”.[11] The attachment also stated that the applicant did not proceed with her enrolment in the Bachelor Degree in Business because she was not sure if she would be granted a visa.
[9] CB117
[10] CB119
[11] CB116
Before the Tribunal, the applicant said she had enrolled in a Bachelor of Business course at Macquarie University which was to start on 4 March 2013 and was to be completed on 29 January 2016, but she cancelled her enrolment. She did that because she had not been granted a Subclass 573 visa, and she was concerned about the cost if her visa were not to be renewed. She said she was prepared to obtain another confirmation of enrolment and continue studying if she were granted a Subclass 573 visa.[12] The applicant said she would like one further chance to continue her studies; she had a young son and she would like the chance to make a future.[13] The Tribunal’s reasons also record the following:[14]
Later in the hearing the Tribunal asked applicant what her future intentions were, and the applicant said she would like to stay and make a future and settled [sic] in Australia if given the chance.
[12] CB140-141, [10]
[13] CB141, [12]
[14] CB141, [12]
In response to the Tribunal’s question about her long term intentions concerning her studies, the applicant said she had qualifications from overseas, she would like to open her own business as a hairdresser either in Australia or overseas, and that was the reason she had enrolled in a Bachelor of Business course. [15] In response to the Tribunal informing the applicant that on the face of it the applicant’s movements in and out of Australia indicated that her long-term intention was to stay in Australia, the applicant said that “Australia is safe and she would like to settle in Australia in the long term if given the chance”.[16]
[15] CB141, [13]
[16] CB141, [15]
Tribunal’s reasons
The issue the Tribunal considered it had to determine was whether the applicant met the criterion prescribed by cl.573.223 of Schedule 2 to the Regulations.[17] In determining that question, the Tribunal considered it was required to have regard to Direction No. 53 made under s.499 of the Migration Act 1958 (Cth) (Act). The Tribunal noted “[t]his Direction requires the Tribunal to have regard to a number of specified factors in relation to:
the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
[17] CB142, [17]-[18]
The Tribunal accepted the applicant’s evidence that she was a good student who had passed the majority of the courses she had undertaken; that the applicant would obtain confirmation of enrolment if granted a student visa (noting, however, that the grant of a student visa is not possible without a current confirmation of enrolment); and that the applicant cancelled her most recent enrolment because she had been refused a further student visa and the costs and uncertainty relating to this.[18]
[18] CB143, [23]
The Tribunal, however, was not satisfied the applicant had a genuine intention of staying in Australia temporarily. The Tribunal said its finding “is based on several factors including”:[19]
a)the applicant’s evidence that she wishes to settle in Australia in the long term if given the opportunity;
b)the applicant’s immigration history which indicated the applicant spent a limited amount of time outside Australia since her arrival;
c)the applicant’s not having a current confirmation of enrolment for a course of study in Australia; and
d)the “limited and unconvincing evidence regarding the value of further study in Australia towards the applicant’s long-term future”.
[19] CB143, [22]
Grounds of application
As I noted at the beginning of these reasons, the applicant has identified in an affidavit the grounds on which she seeks to challenge the Tribunal’s decision.
Failure to consider evidence of enrolment
The first ground is the Tribunal “failed to consider properly” the applicant’s evidence that she had “submitted my COE [i.e., confirmation of enrolment] to study Bachelor Degree in Business prior to refusal of my student visa”; that the degree was for three years and cost $36,000, and that the applicant had cancelled her enrolment “due to the uncertainty in securing my student visa”.[20]
[20] Applicant’s affidavit, 05.08.14, [3]
The Minister submits the Tribunal was aware of these matters, and the Tribunal informed the applicant she could not be granted a student visa without a confirmation of enrolment. The Minister further submits the Tribunal was not satisfied as to the applicant’s explanation of why she wished to obtain a Bachelor of Business Degree.
I accept the Minister’s submissions. The Tribunal recorded in its reasons the applicant’s evidence that she had enrolled in a Bachelor of Business Degree at Macquarie University, that she had cancelled her enrolment because her student visa had not been granted and because “she was concerned about the cost if her visa was not renewed”.[21] The Tribunal also accepted the applicant’s evidence that she had cancelled her enrolment “because she had been refused a further Student Visa, and the cost and uncertainty related to this”.[22] The Tribunal, however, found the applicant evidence’s regarding the value of further study in Australia towards the applicant’s long-term future to be limited and unconvincing.[23]
[21] CB140, [10]
[22] CB143, [23]
[23] CB143, [22]
This ground, therefore, fails.
Failure to consider capacity to travel to India
The second ground on which the applicant relies is that the Tribunal did not take into account the applicant’s “evidence that due to the financial constraints, frequent overseas trips [are] not possible for the student like me”.[24] The Minister interprets this ground as taking issue with the Tribunal’s overall conclusion that the applicant did not intend to stay in Australia temporarily. I do not share the Minister’s interpretation of the applicant’s ground. The ground complains of the Tribunal’s failing to consider evidence in relation to a particular matter, namely, the applicant’s financial constraints, and how that bore on her capacity to travel to India.
[24] Applicant’s affidavit, 05.08.14, [4]
The applicant has not identified the evidence of the applicant’s financial constraints the applicant claims the Tribunal failed to take into account. The transcript or audio recording of the hearing before the Tribunal is not in evidence. The Tribunal in its reasons, however, records the following:[25]
The Tribunal raised that since the applicant had entered Australia in 2009 she had only travelled overseas on two relatively brief occasions. The Tribunal noted that it was within its scope to consider things such as the applicant’s movement records, and on the face of it, these indicated that her long-term intention was to stay in Australia. The applicant responded by saying that Australia is safe and she would like to settle in Australia in the long term if given the chance.
[25] CB141, [15]
On the material before me, therefore, the only answer the applicant gave to the Tribunal about why she did not travel to India more often than she did was that Australia is safe, and the applicant would like to settle in Australia in the long term.
This ground, therefore, also fails.
Misplaced reliance on applicant’s intention to stay permanently in Australia if given the opportunity
The third ground on which the applicant relies is as follows (emphasis added):[26]
In the subject decision of the MRT paragraph 22 the Tribunal find that I am not a genuine student and intend to live in Australia.
5.1 Even if I accept this finding, I would argue that nothing wrong with this intension [sic]. Australia offer skilled Migration Program and I will apply to stay here under this program if I qualify.
[26] Applicant’s affidavit, 05.08.14, [5]
The Minister interprets this ground as claiming that even if the applicant’s intention is to stay in Australia permanently, such finding should not have prevented her from being granted a Subclass 573 visa. That does not capture the gist of the applicant’s ground. The effect of the applicant’s ground is that the fact the applicant intended to settle in Australia, if qualified to do so, did not necessarily mean that she did not intend to remain in Australia temporarily. Implicit in this submission is the submission that the Tribunal incorrectly assumed that the applicant’s intention to stay in Australia permanently, if she was qualified to do so, implied that the applicant did not intend to stay in Australia temporarily. Whether these submissions are correct turns, in the first instance, on the proper construction of the expression “intends genuinely to stay in Australia temporarily” as it appears in cl.573.223.
The starting point is the word “intends”. According to the Oxford English Dictionary, the chief current sense of the word “intend” is to “have in the mind as a fixed purpose; to purpose, design”. Thus, on this meaning, a person “intends . . . to stay in Australia temporarily” if that person has in his or her mind as a fixed purpose to stay in Australia temporarily. The word “genuinely” does not seem to add much to the word “intends”; a person who holds an intention that is not genuine cannot be said to hold the intention.
Next, there is the word “temporarily”. By itself it signifies “for a time (only); during a limited time”.[27] The expression “intends genuinely to stay in Australia temporarily”, therefore, means “intends to stay in Australia only during a limited time”. Clause 573.223 of Schedule 2 does not, however, specify what that limited time is. At the very least, it is reasonable to suppose that “temporarily” is the period for which the Subclass 573 visa applied for is valid. If “temporarily” is so understood, the expression “intends genuinely to stay in Australia temporarily”, when used in relation to a person who applies for a Subclass 573 visa, means “intends to stay in Australia only during the time for which a subclass 573 visa applied for will be valid” (573 visa period).
[27] Oxford English Dictionary
The question that must be addressed, then, is this: does the fact that a person who applies for a Subclass 573 visa intends to reside permanently in Australia, if the person so qualifies, imply that that person does not intend genuinely to stay in Australia temporarily for the 573 visa period? The key to answering this question is to recognise that the fulfilment of such person’s intention to reside permanently in Australia is conditional; it is conditional on the person later applying for and being granted a permanent residence visa, or being granted a temporary visa which could lead to the person being granted a permanent residence visa.
That a person’s intention to do X is conditional on the happening of some event does not necessarily prevent the person from being treated as having the intention to do X. A person who conditionally intends to reside permanently in Australia, therefore, can be said to have an intention to reside permanently in Australia, whether or not the person ultimately succeeds in being granted a permanent residence visa. On its face, that would be inconsistent with an intention to stay in Australia temporarily. But there must also be considered the person’s intention if he or she is not to succeed in being granted a permanent residence visa. If the person’s intention would be to return to his or her country at the end of the 573 visa period if the person does not obtain permanent residency in Australia, or some other visa that would entitle the person to stay in Australia beyond the 573 visa period, then it could equally be said that the person intends to stay in Australia temporarily, that is, only for the 573 visa period. On this approach, a person who intends to stay permanently in Australia, if a visa to that effect is granted to him or her, but who also intends to leave Australia at the end of the 573 visa period if the person does not obtain any visa that will entitle the person to stay in Australia beyond the 573 visa period, would hold apparently inconsistent intentions.
In truth, there would be no inconsistency between these two intentions. That is so because the intentions would be directed to two mutually exclusive states of affairs. A person’s intending to stay permanently in Australia, if qualified to do so, is directed to a state of affairs that assumes the person has been granted a permanent residence visa. On the other hand, a person’s intention to leave Australia at the end of the 573 visa period, if no permanent residence visa or some other visa is granted to the person during that period, is directed to a different state of affairs, namely, the person’s having obtained no further visa to stay in Australia beyond the 573 visa period. A person, therefore, may consistently intend both to reside permanently in Australia, if the person obtains a visa to do so, and to leave Australia at the end of the 573 visa period if, by the end of the period, the person obtains no further visa that would permit him or her to stay in Australia beyond the 573 visa period. It follows, then, that a person who intends to stay permanently in Australia, if qualified to do so, does not by itself imply the person does not intend to stay in Australia temporarily.
This conclusion is consistent with the policy underlying the introduction of cl.573.223 into Schedule 2 to the Regulations. That clause was introduced on the recommendations made in the Strategic Review of the Student Visa Program 2011 prepared by the Hon Michael Knight (Report).[28] The Report said:[29]
Unlike a tourist visa where it is a basic criterion that an applicant must be a temporary entrant who intends to return home, there is no explicit requirement to assess a student visa applicant the same way. The first item of business in assessing a student visa application should be whether or not the applicant is a genuine temporary entrant. Are they someone who will come, study and go home afterwards (unless there is a legitimate pathway to staying longer)?
[28] Report, recommendation 1, page 25. The first emphasis is in the original. The second emphasis is mine.
[29] Report, page x
The words “unless there is a legitimate pathway to staying longer” suggests the Report contemplated that an applicant will be a genuine temporary entrant even if he or she is to come and study in Australia with the intention of taking advantage of legitimate pathways to staying longer in Australia. That the Report so contemplated is further supported by the following passage (emphasis added):[30]
Regrettably we can’t have it all. Huge student numbers and no risk to Australia’s migration controls are simply not possible. Even with the demise of the shonkiest operators, who were really selling migration outcomes while masquerading as education providers, there is still substantial risk in the system. At one end of the spectrum educational providers have a financial interest in having more international students. At the other end of the spectrum, DIAC has the responsibility to only allocate visas to students who will return home (except when offered a legitimate pathway to permanent residence). It is also DIAC officers who have the difficult task of removing those who overstay their visa period. Unfortunately, the people who are the hardest to remove are often the people Australia would be least likely to choose if they were applying for migration from their home countries.
[30] Report, page 6
The applicant, therefore, is correct in her submission that her having an intention to reside permanently in Australia, if she were to qualify, does not imply that she has no intention to stay in Australia temporarily. Did the Tribunal, however, determine the applicant’s case on the assumption that a person who holds an intention to reside permanently in Australia, if he or she were to qualify, implies that the person does not intend to stay in Australia temporarily? And, if it did, has the Tribunal made a jurisdictional error?
In my opinion, the Tribunal determined the applicant’s case on the assumption that the applicant’s wish to settle in Australia in the long term, if given the opportunity, implied the applicant did not have an intention genuinely to stay in Australia temporarily. That is apparent from the Tribunal’s relying on the applicant’s evidence that she wishes to settle in Australia in the long term if given the opportunity.[31] That, in turn, led the Tribunal to make a jurisdictional error. The jurisdictional error is that the Tribunal did not in truth undertake the inquiry cl.573.223 required it to undertake, namely, to consider whether the applicant intended to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
[31] CB143, [22]
In particular, the Tribunal did not ask the applicant - and it did not, therefore, consider - what the applicant intended to do if, by the end of the period for which the Subclass 573 visa she applied for would be valid, the applicant will not have obtained a visa that would entitle her to remain permanently in Australia, or which could legitimately set her on a path that could lead her to becoming entitled to remain permanently in Australia. If the Tribunal asked the applicant a question to that effect, and the applicant had answered she intended to return to India, then, if the Tribunal would have accepted the applicant’s evidence, the applicant should have established to the Tribunal’s satisfaction that she intended genuinely to stay in Australia temporarily, notwithstanding her intention to stay in Australia permanently, if given the opportunity.
The applicant, therefore, succeeds on this ground.
Bias
The fourth ground on which the applicant relies is bias.[32] The applicant contends the Tribunal ignored the principle of keeping an open mind when determining the applicant’s case. There is nothing in the material before me that could possibly indicate an actual disposition on the part of the Tribunal to decide the applicant’s case against her; and there is nothing which could reasonably indicate to a fair minded bystander that the Tribunal might not have considered the applicant’s case with an open mind.
[32] Applicant’s affidavit, 05.08.14, [5], [5.2]
Failure to grant applicant time to secure enrolment
The fifth ground on which the applicant relies is that the Tribunal failed to grant the applicant time to arrange a confirmation of enrolment in the Bachelor of Business course and, in so doing, failed to uphold the principle of natural justice. This does not disclose any jurisdictional error.
Conclusion and disposition
The Tribunal made a jurisdictional error by assuming that the applicant’s wishing to settle in Australia in the long term, if given the opportunity, implied that the applicant did not intend genuinely to stay in Australia temporarily. The Tribunal thus failed to consider whether the applicant intended to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
Should the applicant be granted any relief? That question arises because, at the time of the hearing before the Tribunal, the applicant did not satisfy an essential criterion for the grant of the Subclass 573 visa, namely, the provision of a confirmation of enrolment. It could be argued, therefore, that the Tribunal would have inevitably affirmed the delegate’s decision.
The Minister has made no such submission; and, in any event, I do not accept that, had the Tribunal not made the jurisdictional error I have found it made, it would necessarily have affirmed the delegate’s decision because the applicant had not provided confirmation of enrolment. As I have already noted, the Tribunal accepted that the applicant would obtain confirmation of enrolment if granted a student visa. Thus, if the Tribunal would have been satisfied the applicant intended genuinely to stay in Australia temporarily, it is conceivable the Tribunal may have offered, or the applicant may have requested the Tribunal, to adjourn the hearing to permit the applicant to obtain the necessary confirmation of enrolment.
I propose, therefore, to quash the Tribunal’s decision. I also propose to order that the application for review of the delegate’s decision be determined according to law. Because of item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth), it is the Administrative Appeals Tribunal that must determine the applicant’s case according to law. I propose, therefore, to order that the Administrative Appeals Tribunal be added as a party, and that it determine the applicant’s application for review according to law. I also propose to order that the
Minister pay to the applicants such costs as they may be entitled to as unrepresented parties.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 21 July 2015
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