Saini v Minister of Immigration and Border Protection
[2015] FCCA 2379
•3 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAINI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2379 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misconstrued the criterion “intends genuinely to stay in Australia temporarily” and failed to take relevant considerations into account. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.368, 474, 499 Migration Regulations 1994, cl.572.223 of sch.2, cl.573.223 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Khanna & Ors v Minister for Immigration Anor [2015] FCCA 1971 Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 |
| First Applicant: | HARNEET SAINI |
| Second Applicant: | AVTAR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 21 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 17 August 2015 |
| Date of Last Submission: | 17 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr R. Nair |
| Counsel for the First Respondent: | Mr M. Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 21 of 2014
| HARNEET SAINI |
First Applicant
| AVTAR SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant, who is a citizen of India, applied for a Student (Temporary) (Class TU) subclass 572 visa on 17 May 2013. The second applicant, who is her husband, was included in that application. On 24 June 2013 a delegate of the first respondent (“Minister”) refused the applicants’ application on the basis that the first applicant did not satisfy cl.572.223(1)(a) of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. One of the criteria which the first applicant had to satisfy at the time a decision was made on her application was cl.572.223(1)(a) which relevantly provided:
(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
…
(iv) any other relevant matter; …
Ministerial Direction No.53 made under s.499 of the Act acts as a guide to decision-makers when assessing the genuine temporary entrant criteria for student visa applications. It relevantly provides that decision-makers should have regard to the following factors:
a)the applicant’s circumstances in their home country, including the political and economic situation there which would present a significant incentive for the applicant to not return to his or her home country;
b)the applicant’s potential circumstances in Australia, including family and community ties, which would present a strong incentive to remain in Australia;
c)the value of the course to the applicant’s future, including the relevance of the course to the applicant’s proposed future employment;
d)the applicant’s immigration history, including visa and history of travel to Australia and other countries and whether the applicant complied with the conditions of previous visas; and
e)any other relevant information provided by the applicant or otherwise available to the decision-maker.
Background facts
The first applicant arrived in Australia on 31 November 2007 as the holder a student visa. Thereafter, she applied for and was granted three further student visas and undertook the following studies:
a)an English for Vocational Education course from 25 February 2008 to 4 April 2008;
b)a Diploma of Hospitality Management from 7 April 2008 to 12 June 2009;
c)a General English course from 17 August 2009 to 18 September 2009;
d)a Certificate IV in Hospitality from 21 September 2009 to 18 March 2011; and
e)an Advanced Diploma of Tourism from 18 April 2011 to 17 April 2013.
As already noted, on 17 May 2013 the first applicant applied for a further student visa, advising that she wished to undertake a Diploma of Human Resource Management and an Advanced Diploma of Human Resource Management. On 20 May 2013 the delegate wrote to the first applicant advising her of the Minister’s department’s concerns regarding the relationship between her courses and their relevance to her future career prospects. She was also advised that her study history raised concerns regarding her genuineness as a student and consequently her intention to remain in Australia as a genuine temporary entrant only. The first applicant was invited to comment on those concerns.
In her response dated 11 June 2013 the first applicant stated that after she had completed her hospitality and tourism studies, she had been unable to obtain employment and had been advised by “professionals in the industry” to obtain a human resource management background. She stated that her human resource management studies would assist her when she opened up her own business in the future and that they would give her “a competitive advantage for a more professional career in Australia”.
The delegate found the first applicant’s evidence about her career plan to have been unconvincing and, in light of her study history and other circumstances, was not satisfied that she was a genuine applicant for entry and stay as a student only. Consequently, the delegate found that the first applicant did not satisfy cl.572.223(1)(a) of sch.2 to the Regulations.
On 8 July 2013 the applicants applied to the Tribunal for a review of the delegate’s decision. At a Tribunal hearing on 9 December 2013 the first applicant claimed that she intended to return to India after she completed her human resource management studies and open a restaurant there. She claimed that the human resource management studies would assist her when she was recruiting for the restaurant. The first applicant also said that she would stay in Australia if she could obtain employment but that her intention was to return to India eventually.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to not grant the first applicant a student visa because it found that she was not a genuine temporary entrant. In reaching its decision the Tribunal found that the first applicant had undertaken various courses in several fields, all of which were at a similar level of academic achievement, because she wanted to extend her stay in Australia and to seek career options here. It was not satisfied that the first applicant’s human resource management courses would be particularly useful to her in establishing and running a restaurant business in India as she claimed. On the basis of the first applicant’s evidence and study history, the Tribunal was not satisfied that she was a genuine applicant for entry and stay as a student because she intended genuinely to stay in Australia temporarily. Consequently, the Tribunal found that she did not meet cl.573.223(1)(a) [sic] of sch.2 to the Regulations.
Proceedings in this Court
In their further amended application the applicants alleged:
1.The Tribunal misconstrued and misapplied the law. The Tribunal misconstrued the phrase “that the applicant intends genuinely to stay in Australia temporarily”, in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994.
Particulars:
1.The phrase “intends genuinely to stay in Australia temporarily” should be construed as related to the fulfilment of the specific, passing purpose for which the stay granted by the visa is intended. The focus is on the primary use to which the period of stay granted is intended to be put.
2.The Tribunal construed [sic] misconstrued cl.572.223(1) as requiring the Minister to be satisfied that the applicant would leave Australia, or intended to do so, after the completion of the period for which the temporary student visa was granted.
3.The Tribunal asked the wrong question. This materially affected its purported determination. It is jurisdictional error.
2.The Tribunal denied the applicant procedural fairness. The Tribunal failed to take into account relevant considerations specified in Direction No. 53 made pursuant to section 499 of the Migration Act 1958.
Particulars
1.Ministerial Direction No.53 at [sic] provides that “decision makers should assess whether or not, on balance, the genuine entrant criterion is satisfied by considering the applicant against all factors specified in the Direction.
2.It can clearly be inferred from the Tribunal’s Reasons for Decision that the Tribunal ignored a numbers [sic] of the factors specified.
3.Ignoring relevant considerations, ignoring relevant material including not giving it proper, genuine and realistic consideration in regard to the merits of the case is jurisdiction error. It is denial of procedural fairness vitiating the purported decision of the Tribunal.
Ground 1
Submissions
The applicants submitted that the Tribunal erred by construing cl.572.223(1)(a) as requiring it to be satisfied that the first applicant would leave Australia, or intended to do so, after the completion of the period for which the temporary student visa had been granted.
The applicants submitted that the expression “to stay … temporarily” was to be construed as being related to the fulfilment of the specific but passing purpose for which the stay in Australia permitted by the visa was intended. They further submitted that Direction No.53, when read as a whole, indicated that the purpose of cl.572.223(1)(a) is to require an applicant to have the capacity to undertake the study proposed and to use the time in Australia granted under the visa primarily to undertake study. The applicants submitted that there was no basis to conclude that the first applicant would not make good and proper use of the visa which she had sought, arguing that her study history showed that she had made effective use of her previous student visas. They submitted that the observance of the primary purpose of the visa ought to prevail over other “uses” of the visa, such as looking for future job opportunities.
The applicants also argued that Direction No.53 made it clear that cl.572.223(1)(a) is not directed to ensuring that persons granted student visas leave Australia after the period of study. They submitted that the Tribunal’s construction of the criterion was inconsistent with the other provisions of the Regulations which, amongst other things, provide applicants with visa options such as further study, work and permanent residence. The applicants also argued that cl.572.223 did not intend to turn something which was legal, namely a lawful attempt to remain in Australia, into something that was not lawful.
The applicants submitted that any intention held by the first applicant to attempt to stay lawfully in Australia at the end of her student visa period was not inconsistent with cl.572.223(1)(a)’s requirement that she intend to stay temporarily. In this connection the applicants referred to Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 where Judge Manousaridis held that an intention to remain in Australia if qualified to do so at the end of a student visa did not necessarily amount to the lack of an intention to stay temporarily. The applicants submitted that the first applicant ought to be understood to have indicated that she would only have sought to remain in Australia if she could have done so legally and that her lawful intentions could have been inferred from her visa history of compliant conduct.
Consideration
The first aspect of the allegation that the Tribunal misapplied cl.572.223(1)(a) was the assertion that the expression “to stay … temporarily” is to be construed as referring to the fulfilment of the specific but passing purpose for which the stay in Australia permitted by the visa was intended, namely study, and to an applicant’s capacity to undertake the study proposed and his or her application of the time allowed by the visa to the undertaking of that study.
There is no textual basis for that construction. The words “intends genuinely to stay in Australia temporarily” are concerned with how long the visa applicant intends to stay in Australia and nothing else. The words are unconcerned with the motivation for the intention, only its genuineness. There is no reason to read into those words anything concerned with the purpose of the visa sought.
There is also no contextual basis for the contention. The subclause requires that the Minister be “satisfied that the applicant is a genuine applicant for entry and stay as a student” by reference to various criteria. The first of those criteria is that the applicant “intends genuinely to stay in Australia temporarily” but the Minister must also be satisfied that the applicant is a genuine applicant for entry and stay as a student because he or she meets the criteria in sub-clause (2). That sub-clause is concerned with English language skills, the applicant’s stated intention to comply with visa conditions and his or her access to funds adequate for the stay. As the matters which the applicants submitted informed the expression “to stay … temporarily” are dealt with in sub-clause (2), there is no contextual reason to construe sub-clause (1) as dealing with them too. I find that it does not.
Such an interpretation does not appear inconsistent with the object of a visa which is granted so that a person may come to Australia to study.
The applicants’ second contention was that cl.572.223(1)(a) is not directed to ensuring that persons granted student visas leave Australia after the period of study and is not concerned with whether student visa holders seek to stay in Australia at the end of their visa period. So much may be accepted but that argument was concerned with what a visa holder does once in Australia, not the sub-clause’s requirement that the Minister be satisfied when deciding on the application that the applicant in question does not, at that point, have an intention to be anything other than a temporary entrant. A requirement that a person will not qualify for a student visa unless they intend to stay temporarily is not inconsistent with a person having that intention at that time but subsequently deciding to seek to stay lawfully after the expiry of that visa.
The applicants’ third contention was that it was not inconsistent with the requirement that an applicant intended to stay temporarily for an applicant to hold, at the time of decision, an intention to pursue further visa options at the end of the period sought. That submission highlights the factual nature of the enquiry and the centrality of the Tribunal’s assessment of whether, notwithstanding a possible desire to pursue further visa options, the applicant nevertheless intends his or her stay to be temporary. For instance, it would not be inconsistent with cl.572.223(1)(a) for a visa applicant to contemplate a series of courses at the conclusion of which he or she would return to his or her home country armed with new skills and knowledge. The issue is whether he or she intended their Australian stay to be temporary only, not whether more than one visa might be sought.
There is no reason to believe that cl.572.223(1)(a) contemplates anything other than an unqualified intention to stay temporarily. The sub-clause talks only of an intention “genuinely to stay in Australia temporarily”, a form of words which does not suggest that an applicant may harbour the hope of something more than a temporary stay. The clause’s use of the word “genuinely” reinforces the impression that the applicant must unqualifiedly intend his or her stay to be temporary. Its use points only to that conclusion. I therefore respectfully disagree with Judge Manousaridis’s statement in Khanna that an intention to remain in Australia if qualified to do so at the end of a student visa would not necessarily amount to the lack of an intention to stay temporarily. I find that it would amount to the lack of such an intention because the intention to stay temporarily would not be unqualified as cl.572.223(1)(a) requires.
For these reasons I find that the Tribunal did not misconstrue or misapply cl.572.223(1)(a) as alleged.
Ground 2
Submissions
In their written outline of submissions the applicants quoted the following paragraphs from para.9 of Direction No.53:
9.In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
…
b.The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.
c.Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.
…
e.Political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa.
The applicants submitted that the Tribunal had not made any reference to those criteria or discussed their particular circumstances by reference to them.
The applicants also cited para.11 of Direction No.53:
11.In considering the applicant’s potential circumstances in Australia, decision makers must have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties.
…
Noting that the only familial link which the first applicant had to Australia was the second applicant, an Indian citizen, the applicants observed that the Tribunal did not make a finding as to whether the first applicant’s lack of ties to Australia reduced the incentive for her to remain here.
The applicants submitted that the Tribunal had made no finding in relation to any of the subparagraphs of para.14(b) of Direction No.53 which relevantly provides:
14.In considering the applicant’s immigration history, decision makers must have regard to the following factors:
…
b.Previous travels to Australia or other countries, including:
i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control.
ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances.
iii. the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
The applicants also quoted from para.16 of Direction No.53 which says that decision-makers are to have regard to any other relevant information available to the decision-maker.
The applicants argued that the particular directions which they had identified were matters which the Tribunal had been required to take into account. They also referred in this connection to s.368 of the Act which relevantly provides:
368 Tribunal’s decision and written statement
Written statement of decision
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f)records the day and time the statement is made.
The applicants referred to Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at 75 [33]-[34] where the Full Court of the Federal Court held that if a relevant consideration has been omitted from the Tribunal’s reasons then it can be inferred that it was not considered unless, in the particular case, it can sensibly be understood as not having been material. The applicants submitted that the Court should infer that the matters which they had identified had been overlooked by the Tribunal and that it had therefore committed jurisdictional error.
Consideration
The applicants’ argument proceeded on the basis that the Tribunal had been required to address expressly all of the issues which they identified and yet the direction itself expressly stated that it was not to be treated as a checklist and that the matters it identified were:
… intended to guide decision makers to weigh up the applicant’s circumstances as a whole …
Consequently, the Tribunal was required to decide the first applicant’s claim on balance and specific reference to particular listed matters was not necessarily required. Therefore, the fact that they were not discussed individually is, without more, insufficient basis to conclude that they were not considered. Whether they were not considered is a matter to be inferred from the Tribunal’s reasons. Relevantly, in paras.14, 16 and 17 of its decision record it said:
In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This 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.
…
The Tribunal has formed the view, after considering the applicant’s evidence at the hearing, that the applicant is not a genuine temporary entrant. It finds that the applicant has undertaken various courses in several fields, all of which have been at a similar level of academic achievement, because the applicant wanted to extend her stay in Australia and seek career options in this country. The applicant claims that she is currently seeking to improve her skills in human resources management to assist her with the running of her own restaurant in India. However, the Tribunal is not satisfied that the applicant’s current courses will be particularly useful in establishing and running such a business. It finds that the applicant is undertaking the courses to further extend her stay in Australia and with a view of seeking employment opportunities in Australia. The Tribunal is not satisfied by the applicant’s evidence, or her study history, that she is a genuine applicant for entry and stay as a student because she intends genuinely to stay in Australia temporarily.
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet cl.573.223(1)(a) [sic].
It is apparent that the Tribunal’s conclusion was based principally on the first applicant’s evidence at its hearing. It is also apparent that it was aware of the content and requirements of Direction No.53 but that, having taken them into account, did not consider that those matters led it to a conclusion different from the one it had reached based on the evidence at its hearing. As the matters raised by Direction No.53 were expressly not material to its decision, the Tribunal was not required to do more than it did, which was to make it apparent that it had had regard to them.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 3 September 2015
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