Reena v Minister for Home Affairs
[2019] FCA 174
•21 February 2019
FEDERAL COURT OF AUSTRALIA
Reena v Minister for Home Affairs [2019] FCA 174
Appeal from: Application for leave to appeal: Reena v Minister for Home Affairs [2018] FCCA 2057 File number: NSD 1358 of 2018 Judge: PERRAM J Date of judgment: 21 February 2019 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – whether Court erred in summarily dismissing appeal on show cause basis from Administrative Appeals Tribunal – whether sufficient doubt about decision of the Court below – where Applicant sought to challenge Tribunal’s account of her evidence Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Regulations 1994 (Cth) Sch 2 cl 500.211
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 Date of hearing: 8 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms S He of Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1358 of 2018 BETWEEN: REENA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
21 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The Applicant pay the First Respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
This is an application for leave to appeal from orders made by the Federal Circuit Court. It arises in the following way. The Applicant is an Indian national who first arrived in Australia on 29 September 2008 as the holder of a student (subclass 573) visa. That visa permitted her to be resident in Australia, insofar as this case is concerned, so long as she was enrolled in a course of higher education. The Applicant completed six such courses whilst holding the visa: a Bachelor of Business, a Certificate IV in Accounting, a Diploma of Accounting, an Advanced Diploma of Management, a Certificate III in Printing and Graphic Arts, and a Diploma of Printing and Graphic Arts. Prior to her departure from India she was also awarded a Bachelor of Science Information Technology from Punjabi University which is in Patiala in Punjab.
The record in the Court below does not disclose how long these studies took or when it was that her student (subclass 573) visa expired (or even whether she held a succession of such visas). What is clear however is that on 12 September 2016 she applied for a fresh student visa. It was a student (temporary) (class TU) (subclass 500) visa which was a similar kind of visa. As I understood it, the different name related to a change made in the student visa system in 2016 rather than any substantive matter. In any event, that does not especially matter for present purposes. Because it is not suggested that the Applicant has ever been in the situation that her visa has lapsed one may infer that her original visa did not expire before 12 September 2016 and, accordingly, that the six Australian qualifications referred to in [1] above were awarded over the eight year period from September 2008 to 12 September 2016.
As with the earlier visa, it is one of the relevant qualifying criteria for the grant of a student (temporary) (class TU) visa that the applicant for the visa should be enrolled in a course of study: Migration Regulations 1994 (Cth) Sch 2 cl 500.211(a). The Applicant satisfied this criterion because at the time of her application she had been accepted for enrolment in a Graduate Diploma in Business Administration at the Universal Business School Sydney (‘UBSS’) from 24 October 2016 to 18 August 2017.
The length of time that the Applicant had spent studying for the six qualifications she obtained in Australia aroused in the delegate who considered her application a suspicion that her interest lay not in studying for the sake of studying but rather in studying for the sake of remaining in Australia. That suspicion corresponded with another of the criteria for the grant of the visa that the Applicant should ‘genuinely intend to stay in Australia temporarily’: Migration Regulations 1994 (Cth) Sch 2 cl 500.212(a). The Minister’s delegate concluded that this criterion was not satisfied and accordingly refused her application.
The Applicant was entitled to have that decision fully reviewed on its merits by the Administrative Appeals Tribunal. She sought such a review but the Tribunal reached the same conclusion and affirmed the delegate’s decision. The Applicant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 30 July 2018 that Court convened a show cause hearing following which it dismissed the application on a summary basis under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) finding, as that rule requires, that it was not satisfied that the Applicant had an arguable case for the relief she claimed: Reena v Minister for Home Affairs [2018] FCCA 2057.
That decision is taken to be interlocutory in nature as a result of r 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) (‘To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory’). No appeal lies to this Court from an interlocutory order of the Federal Circuit Court other than by leave: Federal Court of Australia Act 1976 (Cth) s 24(1A). The Applicant applied to this Court for a grant of leave to appeal on 31 July 2018.
Leave will generally not be granted unless there is sufficient doubt as to the correctness of the judgment below and, assuming it to be wrong, that substantial injustice would be suffered by the Applicant were leave to be refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398 per Sheppard, Burchett and Heerey JJ. It is plain that the second limb of this test is satisfied as the summary disposal of the Applicant’s case has resulted in her claim wholly failing. Attention may, therefore, be confined to the first limb, i.e., whether there is sufficient doubt as to the correctness of the judgment below.
At the hearing in this Court, the Applicant indicated that her proposed appeal would proceed, if leave were granted, on the basis of the grounds articulated in her Draft Amended Notice of Appeal and I will approach the matter on the same basis. Her first proposed ground of appeal focusses on part of the reasoning of the Tribunal (at [24]) in which it reached the conclusion that the Applicant did not genuinely intend to stay in Australia temporarily.
In reaching that conclusion the Tribunal relied upon a number of matters about which it expressed itself to have ‘concerns’. One of these concerns related to a statement apparently made by the delegate in refusing the original visa application. There is regrettably no direct evidence as to what the delegate actually said since those reasons have not been included amongst the appeal papers in this Court. The Court was briefly provided with a copy of the court book from the Court below during the hearing but only for the purpose of drawing to my attention some presently unrelated documents and to permit those documents to be copied. The court book was then returned. No attempt was made at the hearing to draw to my attention any other part of the court book.
According to the Tribunal (at [16]), the Minister’s delegate had expressed concern about the Applicant continuing at the Vocational Education and Training level since she already had a Bachelor of Business. The Applicant submits that the Graduate Diploma in Business Administration in which she was enrolled was not at the Vocational Education and Training level but was, in fact, at the postgraduate level. As such there was no inconsistency between her being enrolled in the Graduate Diploma and holding the Bachelor of Business.
The Applicant tendered at the hearing in this Court a document entitled ‘Course Overview and structure’ prepared by the UBSS and this document supports the Applicant’s contention. It shows (on p 8) that the admission criteria for the Graduate Diploma include either the holding of a Bachelor degree or a post-graduate award from a recognised tertiary institution. As such, if the delegate had reasoned as the Tribunal’s reasons suggest that it did, this would appear to involve an error on the delegate’s part.
After the delegate’s decision, but before the hearing in the Tribunal, the Applicant transferred her enrolment to the UBSS Master of Business Administration course (‘MBA’) which had a later commencement date of 16 January 2017. She had, in fact, already completed nine subjects which counted towards the MBA in the course of studying for the Graduate Diploma. The course materials show this was indeed possible and that all of the courses in the Graduate Diploma were also courses in the MBA. As the UBSS brochure put it: ‘The Graduate Diploma articulates fully with the MBA degree. Students completing this qualification will receive full credit for their studies towards the MBA’. The precise requirement for the MBA was that the Applicant should complete 16 subjects with the consequence, as I read the paper work, that she needed to complete another 7 courses in order to obtain the MBA.
The Tribunal’s reasoning about this was as follows (at [16]):
‘Although the applicant was originally enrolled in a course that would complete in August 2017, she has now changed that enrolment to undertake her MBA which would see her remain in Australia until December 2018. The Applicant claimed that she changed her enrolment following the decision of the delegate, who had raised concerns about her continued enrolment at the Vocational Education and Training Level, as she had already completed a Bachelor degree. The applicant claimed that she had wanted to undertake higher level business management qualifications. Upon receiving the decision of the delegate she became aware that this was also at the Vocational Education and Training Level, so she took steps to enrol in the MBA. This raised concerns for the Tribunal because after 9 years of study in Australia it was expected that the applicant would herself have knowledge of the Australian education system and also that at this stage in her educational career she would personally have knowledge of further courses she claims would benefit her career.’
(emphasis added)
I accept the Applicant’s submission that the reference to the Graduate Diploma being at the vocational education and training level is wrong. However, if one accepts the Tribunal’s reasons at face value this is a statement which is attributed to the Applicant. If that was the Applicant’s evidence to the Tribunal then the materials the Applicant has now placed before this Court show that her understanding at the time of giving that evidence was itself incorrect. And if that is so, then one can hardly criticise the Tribunal for the conclusions it drew about the Applicant.
Before this argument can go anywhere, therefore, the Applicant needs to demonstrate that the Tribunal’s account of her evidence to it is itself wrong for if she does not do that she must remain saddled with that account and the inferences which the Tribunal was inclined to draw from it. As I apprehended her case in this Court, the true position was that her decision to switch from the Graduate Diploma to the MBA was unrelated to any concerns that she had about the visa process.
The evidence of the Applicant to which the Tribunal was referring was a statutory declaration prepared by her for the Tribunal hearing. This Court has not been provided with a copy of that statutory declaration and accordingly has no way of ascertaining whether the Tribunal’s distillation of its contents is incorrect. And, because the reasons of the delegate have not been included in the appeal papers, there is also no way of knowing the correctness of the statement that the Tribunal attributed to the Applicant about what the delegate had said to her in relation to vocational training.
The only material on this issue which the Applicant did put forward was a statement in her outline of submissions to the effect that ‘[t]he AAT also misunderstood that I had changed my enrolment after receiving the delegate’s decision’. However, that submission is not evidence. Even if were evidence, I would be unwilling to act on it without first being taken to the Applicant’s statutory declaration and the delegate’s reasons. Without those, I do not think it is open on the evidence before this Court to say that this argument has any substance.
By contrast, the Court below does appear to have had access to the statutory declaration which it referred to as being in the court book. Despite that, it seems more likely to me that when it dealt with this point it accepted the Tribunal’s account of what the statutory declaration said rather than by consulting the statutory declaration itself. This part of its reasoning was at [16] of the Court’s reasons and these are textually very similar to [16] of the Tribunal’s reasons. My conclusion that the Court relied upon the Tribunal’s account in reaching its conclusion is fortified to an extent by the fact that the Court cross-referenced its reasons to that very paragraph. The reasons of the Court below do not therefore provide much more information than the Tribunal’s reasons themselves do.
The fact remains that I have not seen either the Applicant’s statutory declaration or the delegate’s reasons for decision and it is therefore impossible for me to say that what the Court below did was incorrect. This is for the same reason that I cannot say that what the Tribunal did was incorrect. In that circumstance, I am not persuaded that it has been demonstrated that there is sufficient doubt about the decision of the Court below on this issue to warrant a grant of leave.
This argument was the subject of proposed ground 1. As I understood it, there was no substantial difference between proposed ground 1 and proposed ground 2. Accordingly, the application for leave to appeal will be dismissed with costs.
For completeness, I mention the Applicant’s submission made to me at the hearing that she had been the victim of her lawyers. That argument bears no relation to the proposed grounds of appeal. Even assuming that such an argument is maintainable in a civil proceeding, I would not be disposed to entertain it on application such as the present. In any event, the evidential burden which the articulation of such an argument would require was not undertaken.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 21 February 2019
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