Shah v Minister for Immigration
[2016] FCCA 1369
•17 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1369 |
| Catchwords: MIGRATION – Judicial review of refusal of grant of student visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 |
| First Applicant: | VAISHALI VIKAS SHAH |
| Second Applicant: | VIKAS SHAH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 522 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 16 May 2016 |
| Date of Last Submission: | 16 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Solomon-Bridge |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondent: | Mr Wood |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 522 of 2015
| VAISHALI VIKAS SHAH |
First Applicant
| VIKAS SHAH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a determination of the second respondent (“the Tribunal”) to affirm a decision of the Minister’s delegate to refuse the first applicant a Student Temporary (Class TU) visa (“the visa”). The second applicant is the first applicant’s husband.
On 7 November 2013 the delegate refused the visa on the basis of not being satisfied that the first applicant intended genuinely to stay in Australia temporarily.[1] The second applicant’s application suffered accordingly.
[1] Clause 57.223(1)(a) of Schedule.2 of the Migration Regulations1994
The applicants are from India. The first applicant arrived in Australia in April 2009 holding a Subclass (Vocational Education and Training Sector) Visa (2). Further such visas were granted, the last of which ceased on 10 May 2013. The applicants applied for the relevant visas on 7 May 2013.
By letter of 10 May 2013 the Department invited the applicant to provide evidence of her studies in Australia, together with explanation or comment on:
a)why her fields of study had changed from Hospitality to Business and then to Children’s Services;
b)how these studies related to her offshore qualification in accounting;
c)why the applicant did not resume her studies after her return to Australia from overseas on 29 April 2011 and until 2 February 2012.
Material before the delegate and the Tribunal included that the first applicant had been enrolled in:
a)diploma of hospitality and management;
b)advanced diploma of hospitality and management;
c)advanced diploma of hospitality;
d)diploma of management;
e)certificate IV in Business.
The relevant visa application involved the first applicant being enrolled in a certificate III in Children’s Services and a Diploma of Children’s Services (Early Childhood Education and Care).
There was evidence that the first applicant had two significant gaps in her studies being firstly, from 22 January 2011 to 22 February 2011, with the delegate’s decision being handed down on 7 November 2013. The second gap in studies was between November 2013 and October 2014 being after the delegate’s decision.
The applicant’s explanation for the first period is that she suffered an ongoing cough which was suspected to be infectious. A doctor’s certificate confirmed it to be non-infectious but the applicant says that her education facility would not, in any event, permit her attendance.
In respect of the second period, the applicant says that she suffered a shoulder injury from a workplace accident in 2012 and received worker’s compensation for a period.
The delegate’s decision of 7 November 2013 is of some relevance to the issues raised in this review. In the decision record at page 5 the conclusions and findings are set out:
On balance, I am not satisfied that you are a genuine applicant for entry and stay as a student because I am not satisfied that you intend to genuinely stay in Australia temporarily, having regard to your circumstances and immigration history (sic) other relevant matters. On this basis, I am not satisfied that you meet the requirements of clause 5.72.223(1)(a).
Further, the delegate’s record at page 4 notes inter alia:
… I further note, Ms Shah travelled offshore from 25 March 2011 to 29 April 2011, however, did not recommence her studies until 27 February 2012. Whilst this was addressed in her previous Student visa application, I have taken this event into consideration in order to make an holistic assessment of Ms Shah’s immigration history towards meeting the Genuine Temporary Entrant Criteria. I find a study gap of this length where Ms Shah made a conscious decision to remain onshore and not study rather than to defer her course or reside offshore until she was fit and able to study, in addition to the points noted above, contribute to my findings that she is using the Student visa program to maintain residence in Australia and does not genuinely intend to stay in Australia temporarily.
On 16 February 2015 the Tribunal affirmed the delegate’s decision, finding that it was not satisfied that the first applicant intended to genuinely stay in Australia temporarily [37].
Application to this Court
Ground 1
The first ground is that the Tribunal erred by failing to take into account a relevant consideration and/or by failing to consider the applicants’ claims in their component integers.
The failure to consider an applicant’s claim or its integers leads to jurisdictional error.[2] Consideration requires active engagement of an intellectual process.[3]
[2] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]
[3] Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at [38] – [39]
The Tribunal’s reasons at [17] – [18] indicate an understanding that the Tribunal must have regard to Direction No 53, pursuant to section 499(2A) of the Migration Act 1958, requiring the Tribunal to reference specific factors.
The applicant here was present in Australia between November 2013 and October 2014 but not studying. At [30] of its reasons the Tribunal noted:
While the applicant has provided a considerable amount of medical evidence to the Tribunal, including a medical certificate which indicates that she was fit for modified duties at work from 9 September 2014, she did not provide evidence that she was unfit for study throughout the period November 2015 until October 2014.
Further, at [34], the Tribunal concluded:
Given the length of time she has been in Australia, documentary evidence which shows that she has only completed two short courses, the variety of courses she has undertaken and the significant gaps in her studies during which she remained in Australia, the Tribunal is of the view that the applicant has been using a student visa to maintain ongoing residence in Australia.
The applicant complains that the fact of her being in Australia but not studying formed a part of the Tribunal’s conclusions and finding that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily [37], wherein the applicant argues that she did give evidence as to why she needed to remain in Australia between November 2013 and October 2014 without undertaking studies. The applicant gave evidence at the hearing that she suffered an ongoing shoulder injury (accepted by the Tribunal) and that her worker’s compensation payments would cease if she were to be out of Australia.
The applicant argues, therefore, that there was evidence not considered by the Tribunal that addressed the very reason for the Tribunal refusing the grant of the visa.
I have before me the benefit of a transcript of the proceedings before the Tribunal where the following exchange occurs (page 14).
Tribunal: Alright. Do you know what will happen to your medical treatment and your compensation that you’re receiving if you were to return to India?
Applicant:
I think they will stop paying me once I will return to India.
Tribunal member:
I don’t know the answer.
Applicant:
But – but – but they already stopped paying for the compensation. They already stopped paying for the compensation for nearly a year now.
Tribunal member: So you are not getting any insurance money?
Applicant: They – they’re only paying for the medical expenses.
Tribunal member: I think you have provided evidence of insurance payments.
Applicant: Yes.
Tribunal member: But it wasn’t clear to me that they had stopped. So you’re not getting any - - -
Applicant: Weekly compensation. No, I am not getting any weekly compensation.
Tribunal member: No. All right. You’re saying that it stopped a year ago?
Applicant: Yeah. Stopped on 17 September 2013.
Tribunal member: Were you given a payout? Is that why your insurance money stopped? Did you get a lump sum instead of getting weekly payments?
Applicant: No. They just stopped without any giving me any reason.
Tribunal member: All right.
Applicant: And now they sent me a letter 2 weeks ago, that they will stop paying for my medical expenses from 16 October 2014.
In summary, therefore, the applicant argues that the Tribunal erred in not considering this evidence being an answer in respect of the matter relied upon by the Tribunal in its finding contrary to the applicant. The applicant says that this was a failure to engage with critical evidence resulting in jurisdictional error.
Consideration of Ground 1
A usual starting point is the comments of Allsop J in Htun (supra) at [42]:
The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration …
In Dranichnikov v Minister for Immigration and Multicultural Affairs[4], Kirby J at [87]-[88] observes:
The court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief. Thus, it is essential to establish something more than an error of law within jurisdiction. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.
[4] [2003] HCA 2003
The obligation to consider claims include those that are[5]:
a)expressly raised;
b)squarely raised by the material before it; and
c)those that are evident from the Tribunal’s own findings and conclusion.
[5] MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 427 at [39]
The High Court in Minister for Immigration and Multicultural Affairs v Yusuf [6] was of the view that a Tribunal is required to:
… set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
[6](2001) 206 CLR 323 at 346
It follows that if a Tribunal in its reasons fails to refer to particular material then there may be an inference that the material was not considered by the Tribunal to be material.
The issue here was one raised by the Tribunal being the gap in the applicant’s study. The Tribunal accepted the applicant had incurred a workplace shoulder injury. At [30] the Tribunal notes the applicant having provided medical evidence but none that she was unfit to study throughout the relevant period, November 2013 to October 2014. The issue is raised on the face of the transcript then in respect of the workers compensation payments and following from an open question by the member:
Is there anything else you want to tell me to convince me that you genuinely want to stay temporarily in Australia?
And then followed by another:
All right, do you know what will happen to your medical insurance and your compensation that you’re receiving if you return to India?
Significantly, the response received was:
But – but – but they already stopped paying the compensation. They stopped paying for the compensation for nearly a year now … yes, yeah, it stopped on 17 September 2013.
This chronology leads to a reasonable inference that the Tribunal did not consider this evidence as material to the issue of whether the applicant genuinely intended to stay in Australia temporarily.
In my view, the exchange between the member and the applicant evidenced on the transcript does not represent a “claim” as argued by counsel for the applicants. It was no more than an inquiry initiated by the member and responded to by the applicant with such response not being chronologically relevant to the issue. I am satisfied that an inference was reasonably available to the Tribunal that the evidence was not material such to be included in its reasons. As such, I find no merit in this ground.
Ground 2
Particulars:
a)The Tribunal failed to give to the applicant clear particulars of the following information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review and/or failed to advise the applicant of the following issues which the applicant could not reasonably be expected to have anticipated and/or failed to invite the applicant to comment upon the following conclusions which were not obviously open on the known material:
i)The applicant had not provided the Tribunal with documentary evidence that she was refused re-entry to the hospitality course because of her cough [23].
ii)The applicant had not provided any evidence from a doctor to the effect that her cough, which was being treated as asthma, made her unfit to study for that period of time [24].
iii)It was open to the applicant to enrol and then defer her study or to remain in her home country until she was fit to study, which was the reason she held a student visa [24].
iv)The confirmations of enrolment were obtained in response to the Tribunal’s invitation, in order to obtain a favourable review decision [31].
v)The applicant did not provide any evidence of the type of job she hopes to do upon her return to India or that the additional proposed business courses would assist her to obtain employment or increase her employment prospects in India [36].
The High Court in SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs[7] noted at [35]-[36]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered … But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review” …
… But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues which arise in relation to that decision.
[7] (2006) 228 CLR 152
The applicant here argues that the Tribunal noted a lack of documentary evidence relevant to her claim and in respect of the particulars in the amended application. The argument continues that the Tribunal then relied on that lack of evidence to reject her claims and refuse the visa where the applicant could not have reasonably anticipated the lack of corroborative evidence to be an issue and hence had no opportunity to address, respond or comment on the issues.
The applicant refers to the following paragraphs of the Tribunal’s reasons:
(i) [23] – in the absence of evidence to the contrary, the Tribunal considers it unlikely that the applicant’s chronic cough, which she had before she started the hospitality course in April 2009, required treatment such that she had to cease her studies in the advanced diploma of hospitality ADH in 2011…she did not provide the Tribunal with documentary evidence that she was refused re-entry to the hospitality course because of the cough.
(ii) [24] …she did not provide any evidence from a doctor to the effect that her cough, which was being treated as asthma, made her unfit to study for that period of time…
(iii) [24] …it was open to the applicant to enrol and then defer her study or to remain in her home country until she was fit to study, which was the reason she held a student visa.
(iv) [31] On 2 September 2014, the Tribunal sent the applicant an invitation to attend a hearing. The Tribunal also asked her to provide evidence that she was enrolled in [sic] course or had a current offer of enrolment in a course, as required for the grant of a student visa. On 2 October 2014, the applicant provided the Tribunal with a COE for a diploma of business DB and an advanced diploma of business. The COEs were created on 12 September 2014. The Tribunal was of the view that the COEs were obtained in response to the Tribunal’s invitation, in order to obtain a favourable review decision.
(v) [36] The applicant did not provide any evidence of the type of job she hopes to do upon her return to India or that the additional proposed business courses would assist her to obtain employment or increase her employment prospects in India.
Generally, the applicant argues that she could not reasonably have anticipated these matters to be relied upon by the Tribunal as issues where she did not get the opportunity to respond or give or adduce evidence.
The delegate’s reasons alert the applicant to the issues for consideration by a subsequent Tribunal. Specifically, the record of the delegate’s reasons reference clause 572.223(1)(a) in schedule 2 of the Migration Regulations being the “Genuine Temporary Entrant” Criteria.
Even more particularised in that delegate’s record at page 4 appears:
…I have taken this event into consideration in order to make an holistic assessment of Ms Shah’s immigration history towards meeting the Genuine Temporary Entrant Criteria. I find a study gap of this length where Ms Shah made a conscious decision to remain onshore and not study rather than defer her course or reside offshore until she was fit and able to study in addition to the points noted above, contribute to my findings that she is using the student visa program to maintain residence in Australia and does not genuinely intend to stay in Australia temporarily.
By letter of 2 September 2014, the Tribunal wrote to the applicant inviting her appearance before the Tribunal to give evidence and present argument. Specifically, in that letter the Tribunal required information explaining any gaps in her enrolments and any documentary evidence relevant to her explanation.
Still further, that letter requests:
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction ……53 (which was attached).
It follows that this applicant was clearly on notice as to the issue arising on the Tribunal’s review whether she intended genuinely to stay temporarily in Australia or, as put by the delegate in the record of decision, …”I find that Ms Shah is using the student visa program to circumvent permanent migration programs and I am not satisfied that she is a genuine applicant for entry and stay as a student.”
Counsel for the applicant refers me to and relies on the observations Perram J in SZMUK & OTS v Minister for Immigration and Citizenship[8] that:
It is true that the Tribunal was not obliged to point out the weaknesses in an appellant’s case to them. I would not, however, regard that principle as being in any way apposite to the present appeal…Rather, the important matter is that the absence of evidence upon which the Tribunal acted was a direct result of the Tribunal not indicating to the appellants that it would not accept the article of 2 July 2008 unless corroborated by the SLPP. The appellant not being warned in that way took no steps to prove that SLPP had also raised the matter. To conclude in those circumstances that the article’s veracity was to be rejected because it had not been corroborated by the SLPP resulted in a hearing which was unfair, in my opinion, seriously so.
The categories of procedural fairness are neither closed nor susceptible of exhaustive definition. One category which is, however, established is that which obtains when a decision-maker decides the case by reference to an issue which the party before it could not be reasonably expected to have anticipated.
[8] (2009) 112 ALD 298 at [15]-[17]
However, his Honour in SZMUK was confronted with directly contradicting evidence on a critical issue. In the matter before me, the applicant was on notice as to the genuineness of her conduct during the gaps of her studies. The Tribunal here requested documentary evidence. To the extent that none was forthcoming, the Tribunal was entitled to make and obliged to make determinations of credit and fact, including the lack of any corroborating evidence. To my mind, the phrase “in the absence of evidence to the contrary” at [23] is simply saying that there was no corroborating evidence forthcoming from the invitation afforded the applicant. That phrase is not to be read as determinative of the issue. As such, I find no merit in the first two particulars of complaint in this ground.
Thirdly, the applicant complains of the Tribunal at [24] relying on the sentence and finding in its reasons: “It was open to the applicant to enrol and then defer her study or to remain in her home country until she was fit to study.” This, however, was an issue directly referenced in the delegate’s decision record. The applicant could not, therefore, have been taken by surprise and, accordingly, was on notice to address this issue. The Tribunal proceeded in accordance with its mandate to make a determination of fact on the evidence placed before it by the applicant.
Fourthly, the applicant complains to the finding of the Tribunal in [31] after requesting evidence of current enrolment. It was of the view that the COEs were obtained in response to the Tribunal’s invitation and in order to obtain a favourable review decision.
This is simply, in my opinion, a finding of fact open to the Tribunal on the evidence before it and particularly the chronological evidence. This is not information in the sense of requiring a comment or response. It is a finding of fact or credit.
Finally, the applicant complains that the Tribunal, at least in part, affirmed the delegate’s decision on the conclusion or finding in [36] that the applicant did not provide any evidence as to the type of job she hopes to do upon her return to India or that the additional proposed business courses would assist her to obtain employment or increase her employment prospects in India. Counsel says that, in fact, the transcript discloses an exchange between the applicant and the member on this very issue which constitutes evidence. The transcript shows that exchange as follows:
Tribunal member: And what study – sorry... What work do you think you will do when you finish your course?
……….
Applicant: Because I studied Certificate IV in Business and Diploma of Management, while I was doing that course, I use (sic) to work for a Oporto, the food franchise restaurant, as an assistant manager. So I have some managerial skills, but that’s just a basic skills I have. That’s why I planning to study Diploma of Business and Adv Diploma of Business to improve my managerial skills so that I can work in some supervisor or manager work so I don’t have to do heavy lifting.
Tribunal member: Do you think you will find work in India after you have completed these courses?
Applicant: Of course
Counsel argues that “… she could not reasonably anticipated the supposed insufficiency of her answer”.
Firstly, the delegate’s record of decision puts the applicant on notice as to this issue at page 5 where there appears the phrase in the findings “… and apparent lack of value of courses to her future”. Secondly, it is for the applicant to give or adduce evidence to satisfy the Tribunal as to her claims in respect of the issues. The Tribunal is not obligated to put the applicant’s case or to elicit the evidence. There is no obligation here to seek comment or response in the sense of objective or external information before the Tribunal. The Tribunal here is doing no more than commenting on the evidence given or adduced by the applicant herself which is, after all, the Tribunal’s role.
I find no merit in any of the particularised arguments in the second ground of complaint.
Conclusion
There being no merit to the applicant’s complaints the application will be dismissed with an order for costs in favour of the first respondent.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 17 June 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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