FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v Khanna [2016] FCA 142
Appeal from: Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 File number: NSD 927 of 2015 Judge: REEVES J Date of judgment: 26 February 2016 Date of order: 26 February 2016 Date of replacement order: 1 March 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where Minister’s delegate refused to grant the first respondent a student visa subclass 573.223(1) of the Migration Regulations 1994 (Cth) – where decision of the Minister’s delegate affirmed by the Migration Review Tribunal – where Federal Circuit Court judge quashed the decision of the Migration Review Tribunal – whether the Federal Circuit Court erred in finding the Tribunal’s decision had demonstrated jurisdictional error Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14
Craig v South Australia (1995) 184 CLR 163
Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388, [2015] FCCA 1971
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Date of hearing: 27 November 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: Mr MJ Smith Solicitor for the Appellant: Australian Government Solicitor Counsel for the First, Second and Third Respondents: Mr BM Zipser Counsel for the Fourth Respondent: The Fourth Respondent filed a submitting notice ORDERS
NSD 927 of 2015 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND: KAMNA KHANNA
First Respondent
JAGDEEP SINGH
Second Respondent
SAHIBJOT SINGH (and another named in the Schedule)
Third Respondent
JUDGE:
REEVES J
DATE OF ORDER:
26 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The orders made by the primary judge on 20 July 2015 quashing the decision of the fourth respondent and ordering that the first respondent’s application for review of the delegate’s decision be determined according to law be set aside.
2.The first respondent is to pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 927 of 2015 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND: KAMNA KHANNA
First Respondent
JAGDEEP SINGH
Second Respondent
SAHIBJOT SINGH (and another named in the Schedule)
Third Respondent
JUDGE:
REEVES J
DATE OF ORDER:
1 MARCH 2016
THE COURT ORDERS BY CONSENT (IN REPLACEMENT OF ORDER 1 OF 26 FEBRUARY 2016) THAT:
1.Order 1 of the orders made on 26 February 2016 is vacated and in its place, the Court orders that:
(a) The appeal be allowed.
(b)The orders of the Federal Circuit Court made on 21 July 2015 be set aside and in their place this Court orders that the application be dismissed, with costs.
Note: Entry…
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- MIBP v Khanna [2016] FCA 142
- Case
- [2016] FCA 142
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CaseChat Overview and Summary
The case of MIBP v Khanna involves the Minister for Immigration and Border Protection who appeals against a decision of the Federal Circuit Court. The Minister's delegate had refused to grant Ms Khanna, a national of India, a student visa under the Subclass 573 of the Migration Regulations 1994. The Tribunal affirmed the delegate's decision, but the Federal Circuit Court judge quashed the Tribunal's decision. The Minister's appeal raises issues concerning the interpretation of the phrase "intends genuinely to stay in Australia temporarily" and whether the Federal Circuit Court was correct in its finding that the Tribunal's decision had demonstrated jurisdictional error. The Minister argues that the Federal Circuit Court erred in its interpretation of the phrase, its assumption about Ms Khanna's intentions, and its requirement for the Tribunal to consider whether Ms Khanna intends to return to her home country at the end of the visa period.
The key legal issue in this case revolves around the interpretation of the phrase "intends genuinely to stay in Australia temporarily" under clause 573.223(1) of the Migration Regulations. The Minister contends that the Federal Circuit Court misinterpreted this phrase and incorrectly assumed that Ms Khanna's wish to settle in Australia in the long term, if given the opportunity, implied she did not have an intention genuinely to stay in Australia temporarily. Additionally, the Minister argues that the Federal Circuit Court erred in concluding that the terms of clause 573.223(1) required the Tribunal to consider whether Ms Khanna intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
The court considered the arguments put forward by the Minister and the submissions of Ms Khanna. It found that the Federal Circuit Court had not erred in its interpretation of the phrase "intends genuinely to stay in Australia temporarily". The court held that the Tribunal had indeed asked itself the wrong question in determining whether Ms Khanna was a genuine applicant for entry and stay as a student because she intends genuinely to stay in Australia temporarily. The court agreed with the Federal Circuit Court that the Tribunal had determined Ms Khanna's review application on the assumption that her wish to settle in Australia in the long term, if given the opportunity, implied she did not have an intention genuinely to stay in Australia temporarily. Furthermore, the court found that the Federal Circuit Court was correct in concluding that the terms of clause 573.223(1) required the Tribunal to consider whether Ms Khanna intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
The final orders of the court were to set aside the orders made by the primary judge on 20 July 2015 and to order that Ms Khanna's application for review of the delegate's decision be determined according to law. Additionally, Ms Khanna was ordered to pay the appellant's costs of the appeal.
The key legal issue in this case revolves around the interpretation of the phrase "intends genuinely to stay in Australia temporarily" under clause 573.223(1) of the Migration Regulations. The Minister contends that the Federal Circuit Court misinterpreted this phrase and incorrectly assumed that Ms Khanna's wish to settle in Australia in the long term, if given the opportunity, implied she did not have an intention genuinely to stay in Australia temporarily. Additionally, the Minister argues that the Federal Circuit Court erred in concluding that the terms of clause 573.223(1) required the Tribunal to consider whether Ms Khanna intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
The court considered the arguments put forward by the Minister and the submissions of Ms Khanna. It found that the Federal Circuit Court had not erred in its interpretation of the phrase "intends genuinely to stay in Australia temporarily". The court held that the Tribunal had indeed asked itself the wrong question in determining whether Ms Khanna was a genuine applicant for entry and stay as a student because she intends genuinely to stay in Australia temporarily. The court agreed with the Federal Circuit Court that the Tribunal had determined Ms Khanna's review application on the assumption that her wish to settle in Australia in the long term, if given the opportunity, implied she did not have an intention genuinely to stay in Australia temporarily. Furthermore, the court found that the Federal Circuit Court was correct in concluding that the terms of clause 573.223(1) required the Tribunal to consider whether Ms Khanna intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
The final orders of the court were to set aside the orders made by the primary judge on 20 July 2015 and to order that Ms Khanna's application for review of the delegate's decision be determined according to law. Additionally, Ms Khanna was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. The orders made by the primary judge on 20 July 2015 quashing the decision of the fourth respondent and ordering that the first respondent’s application for review of the delegate’s decision be determined according to law be set aside.
2. The first respondent is to pay the appellant’s costs of the appeal.
Background
Background to the litigation
The Minister has appealed against a decision of a judge of the Federal Circuit Court: see Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388, [2015] FCCA 1971 (Khanna). He relies upon the following three grounds of appeal:1.The Federal Circuit Court erred in concluding that … the Tribunal fell into jurisdictional error because it asked itself the wrong question in determining whether [Ms Khanna] was a ‘genuine applicant for entry and stay as a student because ... [Ms Khanna] intends genuinely to stay in Australia temporarily’ for the purposes of cl 573.223(1) of Schedule 2 of the Migration Regulations 1994 (Cth).2.The Federal Circuit Court erred in concluding that the Tribunal determined [Ms Khanna’s] review application on the assumption that [her] wish to settle in Australia in the long term, if given the opportunity, implied [she] did not have an intention genuinely to stay in Australia temporarily.3.The Federal Circuit Court erred in concluding that the terms of cl 573.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) required the Tribunal to consider whether [Ms Khanna] intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.THE FACTUAL BACKGROUND Ms Khanna 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, she applied for a Subclass 573 student visa. On 20 December 2011, a delegate of the Minister refused that application. Ms Khanna then sought to have the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), conduct a merits review of the delegate’s decision.THE PROCEEDING BEFORE THE TRIBUNAL Before the Tribunal, the issue was whether Ms Khanna met the criterion prescribed by cl. 573.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations). That clause relevantly states:(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 (2). In determining Ms Khanna’s application, the Tribunal was required to have regard to Ministerial Direction 53 made under s 499 of the Migration Act 1958 (Cth) (the Act). In relation to this direction, the Tribunal noted in its decision record that:This Direction requires the Tribunal to have regard to a number of specified factors in relation to:Ÿthe applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;Ÿthe 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;Ÿif the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; andŸany 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Tribunal therefore affirmed the delegate’s decision not to grant Ms Khanna a student visa.THE DECISION OF THE FEDERAL CIRCUIT COURT Ms Khanna then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. In her application, she raised the following sole ground of review: “The Tribunal made a jurisdictional error whilst making a decision on application.” However, in a supporting affidavit, she relied on a number of alleged failings on the part of the Tribunal. They may be summarised as follows:(a)failure to consider evidence of enrolment;(b)failure to consider capacity to travel to India;(c)misplaced reliance on her intention to stay permanently in Australia if given the opportunity;(d)bias; and(e)failure to grant her time to secure enrolment. The primary judge decided to treat all these matters as grounds of review (see Khanna at [3]) and proceeded to reject all but ground (c) above. Since the other grounds of review are not material to this appeal, it is unnecessary to outline how the primary judge disposed of them. Verbatim, ground (c) above, or what his Honour described as “the third ground of review”, was as follows [Khanna at [23]]:In the subject decision of the [Tribunal] paragraph 22 the Tribunal find [sic] that I am not a genuine student and intend to live in Australia.5.1Even 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.(Emphasis in original) After recording the contentions made by the Minister and Ms Khanna on this ground and stating the effect of the Tribunal’s decision at [22] (see at [5] above), the primary judge turned to consider the proper construction of the expression in clause 573.223 “intends genuinely to stay in Australia temporarily” (Khanna at [25]–[26]) as follows:25.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.26.Next, there is the word “temporarily”. By itself it signifies ‘‘for a time (only); during a limited time”. 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).(Emphasis in original)
Ratio Decidendi
Legal Principle Established
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