Rehill v Minister for Immigration and Border Protection
[2017] FCA 1066
•8 September 2017
FEDERAL COURT OF AUSTRALIA
Rehill v Minister for Immigration and Border Protection [2017] FCA 1066
Appeal from: Rehill v Minister for Immigration and Anor [2016] FCCA 2342 File number: SAD 279 of 2016 Judge: CHARLESWORTH J Date of judgment: 8 September 2017 Legislation: Migration Act 1958 (Cth), ss 31, 65, 474, 476A, 499
Migration Regulations 1994 (Cth), r 2.03, cl 572.223
Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Rehill v Minister for Immigration and Anor [2016] FCCA 2342
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Date of hearing: 8 March 2017 Date of last submissions: 8 March 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 32 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr D O’Leary Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting appearance ORDERS
SAD 279 of 2016 BETWEEN: KULVIR SINGH REHILL
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
8 SEPTEMBER 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal, fixed in the sum of $4,300.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The appellant, Mr Rehill, is an Indian national. In 2014, he applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa under the Migration Act 1958 (Cth). A delegate of the Minister for Immigration and Border Protection refused the application. The delegate’s decision was affirmed by the then-named Migration Review Tribunal.
An application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court of Australia (FCC): Rehill v Minister for Immigration and Anor [2016] FCCA 2342. This is an appeal from that judgment.
It was an essential criterion for the grant of the visa that the Minister (or his delegate) be satisfied that Mr Rehill intends genuinely to stay in Australia temporarily. On his application for judicial review, Mr Rehill argued that the Tribunal erred in applying that criterion and that the criterion was “flawed”. He submits on this appeal that the primary judge should have accepted those arguments and quashed the Tribunal’s decision.
Mr Rehill has not demonstrated any appealable error affecting the decision of the primary judge. The appeal should be dismissed with costs.
STATUTORY FRAMEWORK
In order to grant a visa under the Act, the Minister must be satisfied that the criteria for it prescribed by the Act and the Migration Regulations 1994 (Cth) have been satisfied: s 65(1)(a)(ii) and s 65(1)(b) of the Act. The criteria for the grant of a subclass 572 student visa include those prescribed in cl 572.223(1)(a) of Sch 2 to the Regulations (see s 31(3) of the Act). It provides:
572.223
(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; …
In assessing Mr Rehill’s visa application, the delegate (and, on review, the Tribunal) was required to comply with any direction given by the Minister under s 499 of the Act. An applicable direction is Ministerial Direction No 53 titled Assessing the genuine temporary entrant criterion for Student visa applications dated 3 November 2011 (the Direction). Paragraphs 1 to 4 of the Direction state:
ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION
1.Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant’s circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny.
b.The applicant or a relative of the applicant has an immigration history of concern.
c.The applicant intends to study in a field unrelated to their previous studies or employment.
d.Apparent inconsistencies in information provided by the applicant in their Student visa application.
Among other things, the Direction requires decision-makers to:
(1)consider the value of the course to the applicant’s future ([7] and [12]), having regard to:
a.Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.
b.Relevance of the course to the student’s past or proposed future employment either in their home country or a third country;
(2)place weight on circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia ([8] and [11(c)]); and
(3)consider the visa applicant’s circumstances in their home country, including whether the applicant has sound reasons for not undertaking study in that country if a similar course is available there ([9(a)]).
BACKGROUND TO THE APPEAL
Mr Rehill first arrived in Australia in March 2009 as the holder of a temporary student visa. He has held two further temporary student visas since that time, the most recent of which expired on 20 September 2014.
It is fair to say that Mr Rehill has been a successful student in Australia. He has, as the holder of three successive temporary student visas, completed the following courses:
(1)General English: 27 April 2009 — 29 May 2009;
(2)Certificate III in Hospitality (Asian Cookery): 15 April 2010 – 24 June 2010;
(3)Diploma of Hospitality: 1 July 2010 — 30 December 2010;
(4)Certificate IV in Business: 11 April 2011 — 7 October 2011;
(5)Diploma of Management: 24 October 2011 — 20 April 2012;
(6)Certificate III in Horticulture: 4 June 2012 — 6 June 2013; and
(7)Advanced Diploma of Management: 22 July 2013 — 20 July 2014.
Mr Rehill applied for the visa forming the subject of this appeal on 2 September 2014. He sought to remain in Australia for a further two years to complete a Certificate IV and Diploma in Business Administration. His claimed reasons for wanting to study those courses are conveniently summarised in the reasons of the primary judge as follows (at [9]):
… In explaining his reasons for seeking to undertake further study, the applicant indicated that it would be beneficial for him to learn about all aspects of how a business operates, particularly with respect to planning and organising administrative systems. He claimed that the degree of industry focus in Australia would provide him with ‘valuable hands on practical skills of the business environment’. He claimed that this distinguished it from the more theoretical approach taken in India. For this reason, the further studies will improve his prospects for employment when he returned to India, or indeed to set up his own business.
The Minister’s delegate refused the visa application on the basis that Mr Rehill was seeking to use the migration program as a means of maintaining on-going residence in Australia. The delegate found that the courses completed by Mr Rehill had already provided him with the skills and knowledge he had claimed to seek from the further study he sought to undertake, and that he did not genuinely intend to stay in Australia temporarily as a student.
After an oral hearing on 18 August 2015, the Tribunal affirmed the delegate’s decision for largely the same reasons given by the delegate. It gave oral reasons, then published written reasons the following day. In its written reasons, the Tribunal said:
13.The Tribunal finds your courses to be unrelated. It sees no reason why you would study horticulture, and the management and business courses that you have studied seem to be repetitive and of questionable value to your future.
14.Regarding your Purpose of Study you have nominated a range of future options. In your visa application you stated you wanted to be a manager. In your statement you said you wanted to be an administration manager and thought you’d get a job working in business. You told the tribunal that your intention is to go back and open a restaurant.
15.The Tribunal finds your statements lack any real clarity and lead the Tribunal to find your studies are not focused on a clear career plan but rather are ad-hoc and designed to maintain ongoing residence in Australia.
…
17.When the Tribunal asked why you do not study your proposed courses at home, your answer is that you want to study here, you have experience with the Australian education system and your father is happy to pay for your studies and does not want you to come home until you have finished your studies.
The Tribunal went on to note that Mr Rehill had been employed for some time in a suburban newsagency and that, having regard to his rate of pay, Mr Rehill appeared to have little incentive to return to India.
The Tribunal concluded at [18]:
Having considered all the evidence including your study history, the value of your proposed courses to your future, your circumstances, immigration history, and other relevant matters, the Tribunal is not satisfied you are a genuine applicant for temporary entry and stay as a student in Australia and it is therefore the decision of this Tribunal to affirm the decision under review.
To succeed on his application for judicial review before the FCC, it was necessary for Mr Rehill to show that the Tribunal had committed jurisdictional error: s 474 and s 476A of the Act; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Mr Rehill’s single ground for judicial review was expressed as follows (original grammar and spelling retained):
In oral decision, Member claimed that I have already studied enough and It seems to him that course which I am studying is not good enough and I am doing it to maintain my temporary residence in Australia. Member asked me question like, Certificate 4 and diploma of Business administration are available in India then why are you studying in Australia. Member came to conclusion for decision by asking wrong questions and putting less weight on the facts and proof presented to him. All the courses which are taught in Australia are available in Indian so no student should to Australia? What did member want to imply. I have my career goals and I am studying according to that So now Member has authority to decide what is good for my future and which courses are enough? I believe member did not act as per migration law and came to conclusion based on wrong questions asked by him. HE also did not consider that I have successfully completed all the courses I was earlier registered in and I am doing well in the course in which I was enrolled. Letter from College and other proof were already given to Tribunal but member did not put any weight on these proofs.
The learned primary judge held that although the Tribunal had made no express reference to cl 572.223(1)(a), the Tribunal had clearly approached its task on review by assessing whether Mr Rehill satisfied that criterion. The matters considered by the Tribunal were consistent with those specified in the Direction. There was, his Honour held, no basis for finding that the Tribunal had asked itself the wrong question in performing its review function. As to the complaint that the Tribunal had afforded insufficient weight to the circumstance that Mr Rehill had been successful in his studies, the learned judge said (at [29]):
I am not satisfied that the Tribunal committed jurisdictional error by failing to give appropriate weight to the fact that the applicant had successfully completed his earlier studies. The Tribunal did not doubt that the applicant had successfully completed courses in the past. It concluded that those courses were disparate in nature, repetitive and that the pattern of studies supported an inference that his application for the visa was made for the ulterior purpose of prolonging his stay in Australia. Having made that finding, it then found that he did not satisfy cl.572.223(1) because it was not satisfied that he was a genuine applicant for entry and stay in Australia as a student because he did not intend genuinely to stay in Australia temporarily. This finding was at least open to the Tribunal. It was a matter for the Tribunal what evidence it regarded as relevant. Unless for some reason a failure to accord appropriate weight to a relevant piece of evidence caused its decision to be unreasonable in the relevant legal sense, then the weight to be accorded to the evidence was entirely a matter for the Tribunal. I am not satisfied that the Tribunal decision was unreasonable in failing to accord greater weight to the fact that the applicant had successfully completed his previous studies. It is clear from the reasons of the Tribunal, that it found the lack of focus and cohesion between the applicant’s previous studies, and his proposed future studies and plans, to be of greater significance than the fact that he had successfully completed earlier studies. It was open to the Tribunal to so find.
The learned judge concluded (at [33]) that Mr Rehill had, in reality, impermissibly sought merits review of the Tribunal’s decision: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
CONSIDERATION
Mr Rehill appeared unrepresented on the appeal. His grounds of appeal are expressed as follows (without alteration):
1.I explained Court my stand but the Respected Judge failed to figure out jurdictional error in tribunals decision. Tribunal Member in his oral decision claimed that I have already studied enough and It seems to him that course which I am studying is not good enough and I am doing it to maintain my temporary residence in Australia. Member asked me question like, Certificate 4 and diploma of Business administration are available in India then why are you studying in Australia. Member came to conclusion for decision by asking wrong questions and putting less weight on the facts and proof presented to him. All the courses which are taught in Australia are available in Indian so no student should come to Australia? What did member want to imply. I have my career goals and I am studying according to that So now Member has authority to decide what is good for my future and which courses are enough? I believe member did not act as per migration law and came to conclusion based on wrong questions asked by him. He also did not consider that I have successfully completed all the courses I was earlier registered in and I am doing well in the course in which I was enrolled. Letter from College and other proof were already given to Tribunal but member did not put any weight on these proofs.
2.This criteria of genuine student is flawed and court should take action against this as this criteria is flawed and it gives unrestricted rights to the decision maker without any limitation. A decision maker can make any decision based on his/her personal opinion and law does not restrict that. There is no clause and such criteria is against public interest.
The issue sought to be raised in [2] of the notice of appeal was not agitated in the proceedings before the primary judge. Leave is required to now raise the issue on appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [9]. The Minister opposes the grant of leave.
Section 31(3) of the Act empowers the making of regulations prescribing the criteria for a visa of a specified class. The criterion in cl 572.223(1) of the Regulations was prescribed in relation to the visa for which Mr Rehill applied: see r 2.03 of the Regulations.
It is true that fulfilment of the criterion turns upon the subjective satisfaction of the Minister in respect of matters involving an evaluative assessment. However, it does not follow that the criterion is one based on the wholly unconstrained formation of a “personal opinion”. Mr Rehill has not demonstrated any reasonable basis to argue that the criterion is ultra vires s 31(3) of Act, nor any reasonable basis to argue that the Direction is ultra vires s 499 of the Act. The issue sought to be raised in [2] of the notice of appeal is fundamentally lacking in merit. Leave to raise the issue on the appeal should be refused.
Paragraph 1 of the notice of appeal is to the effect that the learned primary judge erred in failing to find that the Tribunal had committed jurisdictional error by:
(1)asking itself the wrong question when assessing Mr Rehill’s visa application particularly by its conclusion that he had already studied “enough” (to adopt Mr Rehill’s word); and
(2)failing to give appropriate weight to the circumstance that Mr Rehill had been successful in his past studies.
In my judgment, these arguments fail to have proper regard to the wording of the criterion in cl 572.223(1)(a). Mr Rehill’s submissions proceeded from the incorrect footing that he ought to have been found by the Tribunal to have fulfilled that criterion merely because he was genuinely motivated to commit to his further courses of study in Australia, as evidenced by his demonstrated success in his past studies.
The purpose of the criterion in cl 572.223(1)(a) is evident from its text and context. Its purpose is to ensure that the migration program is used by those who seek to stay in Australia temporarily to undertake directed and purposive study and not by those who intend to engage in perpetual or undefined periods of study as a means of prolonging their stay. The guidance given to decision makers by the Direction is clearly intended to advance that statutory objective.
The Tribunal was required to make an assessment of whether Mr Rehill intended genuinely to stay in Australia temporarily. It did not ask itself the wrong question in making that assessment. It was entitled, indeed bound, to consider the nature and duration of the studies already undertaken and completed by Mr Rehill, together with the connection between his newly proposed courses of study to his stated career aspirations. There was, as the Tribunal found, a close connection in subject matter between that which Mr Rehill had already studied and that which he proposed to study if the fourth student visa was granted.
As the primary judge correctly identified, the factors considered by the Tribunal were all matters it was required by the Direction to consider. That of itself demonstrates that the Tribunal did not ask itself the wrong question.
In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker (here, the Tribunal) and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in the exercise of a statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The Tribunal’s attribution of weight to any particular factor may involve jurisdictional error if it results in a decision that is unreasonable in the legal sense: Peko-Wallsend at 41 (per Mason J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] (per Hayne, Kiefel and Bell JJ).
Mr Rehill is correct in his submission that if he intended genuinely to study in Australia for the purpose of achieving his career goals, that would weigh in favour of the grant of the visa. However, put simply, the Tribunal rejected Mr Rehill’s claim that he was proposing two further years of study for that purpose. The matters taken into account were all relevant and the Tribunal has not acted unreasonably or irrationally in ascribing more or less weight to the evidence before it. The finding was one that was open to the Tribunal on the material before it, notwithstanding Mr Rehill’s proven success in his past studies. It is not enough for Mr Rehill to show that a different conclusion was also open.
The learned primary judge did not err in concluding that Mr Rehill had failed to establish jurisdictional error affecting the Tribunal’s decision and that he had, in reality sought to challenge the decision on its merits.
The appeal should be dismissed.
Having heard the parties as to costs, I will order that Mr Rehill pay the Minister’s costs fixed in the amount of $4,300.00.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 8 September 2017
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