SHARMA v Minister for Immigration
[2018] FCCA 1260
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1260 |
| Catchwords: MIGRATION – Student visa – satisfaction of criteria – applicant arrives in Australia in 2007 to study – applicant had enrolled, but cancelled, his enrolment in 20 courses of study – application considered by delegates on two occasions – merits review undertaken on three occasions – whether correct criteria applied – whether applicant was a genuine applicant for entry and stay as a student – whether regard was had to applicant’s stated intention to comply with any conditions to which the visa was subject and any other relevant matter – whether Tribunal erred in identification of operative regulation – whether correct criteria applied to merits review – whether error was material – materiality of error as an anterior issue before consideration of refusal of relief on discretionary grounds – decision not based on error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.31, 65, 360, 476 |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| Applicant: | MUNISH SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1448 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms McInnes |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed at $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1448 of 2016
| MUNISH SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 8 July 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 June 2016. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Subclass TU) visa. Since lodgement, this is the seventh occasion on which the application has been considered.
The applicant is a male Indian national aged 29 years who travelled to Australia in October 2007, ostensibly for the purposes of undertaking a Bachelor of Business.
The applicant was granted a student (Subclass 573) visa to undertake his study in a Bachelor of Business. He did not commence that course.
Whilst in Australia, the applicant enrolled in a large number of diploma and certificate level courses.
Background
On 18 August 2011, the applicant applied for a student (Temporary) (Class TU) visa.
By letter dated 22 August 2011, a delegate of the Minister advised the applicant that his visa application had been validly lodged and was under consideration. The delegate’s letter advised the applicant of the financial requirements for his visa and requested that he provide evidence that he had sufficient funds to support himself.
On 13 February 2012, the delegate made a decision to refuse the visa application on the basis that the applicant did not satisfy the financial requirements for a student visa in accordance with sub-cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Regulations).
On 8 October 2013, a Migration Review Tribunal conducted a merits review of the delegate’s decision and found that the applicant satisfied the financial evidence requirements for the grant of a visa. The Tribunal remitted the application for the delegate’s reconsideration.
On 14 June 2014, a delegate of the Minister refused the visa application on the ground that the applicant was not a genuine applicant for entry and stay as a student and so did not satisfy the criteria prescribed by sub-cl 572.223(2)(a)(ii) of the Regulations. The delegate, on this occasion, placed weight upon the applicant’s lack of academic progress and his absence from study in the period 3 October 2011 to 6 May 2013.
On 27 June 2014, the applicant applied to the Tribunal for a merits review of the delegate’s decision made on 14 June 2014.
On 3 September 2015, the Tribunal affirmed the delegate’s decision on the ground that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily and did not satisfy the requirements of cl 572.223(2)(a).
In an application for judicial review by this Court, on 22 November 2015, the decision of the second Tribunal was set aside and the Tribunal decision was quashed. Those orders were made by consent.
The parties agreed that the decision should be quashed on the basis that the Tribunal had applied cl 572.223 in a form which, although operative as at the date of its decision, was not operative at the time when the application had been made. The application for review was remitted to the Tribunal for determination.
On 25 February 2016, a third Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in his case: sub-s 360(1) of the Migration Act 1958 (Cth) (Act).
On 31 March 2016, the applicant appeared at a Tribunal hearing.
On 16 June 2016, the Tribunal affirmed the decision of the delegate to refuse the visa application and published reasons for its decision (Reasons).
In substance, the Tribunal concluded that in the period of more than eight years since the applicant’s arrival to Australia in 2007 and despite being granted a Subclass 573 visa to study at tertiary level:
. . . he has not commenced, let alone completed, a Bachelor degree. Instead, his records indicate that the applicant has enrolled in multiple, relatively inexpensive and seemingly largely unrelated vocational level courses, none of which the Tribunal considers to offer realistic value to his stated aim to return to India to assist in running the family dairy farm: Reasons [28].
Procedural history
On 8 July 2016, the applicant issued an application for judicial review of the Tribunal decision made on 16 June 2016. The applicant affirmed an affidavit made on 8 July 2016 to which he exhibited a copy of the Tribunal’s decision but otherwise advanced no further evidence in relation to his application.
By a response dated 4 August 2016, the Minister opposed the application, contending that the Tribunal’s decision was not affected by jurisdictional error.
On 7 December 2016, orders were made, by consent, that the proceeding be listed for final hearing. Those orders provided for the applicant to file any amended application with proper particulars of the grounds of his application and written submissions.
The applicant has not taken the opportunity to file any amended application or submissions in relation to this hearing.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. On an application for judicial review, the Court is required to determine whether the Tribunal’s decision is affected by an error of that kind: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).
The grant or refusal of a visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been ‘satisfied’: ss 65(1)(a), 65(1)(b). Where the criteria prescribed for the relevant visa have not been satisfied, the application must be refused.
The Regulations may prescribe criteria to be satisfied for a visa: s 31(3). Subject to exceptions not here relevant, for the purposes of s 31, the primary (and where applicable, the secondary) criteria set out in a relevant Part of Schedule 2 of the Regulations are the criteria prescribed for the grant of a particular class of visa: reg 2.03.
Subclass 572 of Schedule 2, which concerns visas for the Vocational Education and Training Sector, prescribes the primary and secondary criteria that must be satisfied in relation to visas, including Student visas. One of the primary criteria prescribed by cl 572.211 may be satisfied where, relevantly, the applicant is the holder of a Student (Temporary) (Class TU) visa: para 572.211(2)(xiii).
Further primary criteria are prescribed by cl 572.22 which must be satisfied at the time of decision. Clause 572.22 is comprised of sub-cll 572.221- 572.234.
Of central relevance to the present application was sub-cl 572.223.
Consideration
The applicant was self-represented before me and in those circumstances I have examined the decision of the Tribunal, together with the materials which were before it. Having done so, my consideration of the application is arranged as follows:
(a)Grounds in application.
(b)Ground 10 – Factual error?
(c)Ground 11 – Merits review.
(d)Ground raised at hearing – a meaningful opportunity.
(e)Ground emerging from consideration of Reasons?
(a) Grounds in application
The applicant relied upon 11 grounds of review; only two of which disclose grounds upon which judicial review might have been sought.
Paragraphs 1 - 9 stated grounds which provided a history of the application. Nonetheless, it is convenient to set out the grounds in full:
1. I applied to the Department of Immigration for the student visa on 18 August 2011. I was refused for the student visa on 13 February 2012 on the basis that I failed to demonstrate the applicable financial capacity requirements. Then I sought review of that decision to the Migration Review Tribunal where the Tribunal found and was satisfied that I satisfy the relevant financial and other requirements applicable to him under Schedule 5A and remitted the matter back to the Department for reconsideration on this basis on 8 October 2013.
2. The department of immigration then refused to grant the visa a second time on 14 June 2014 on the grounds that I did not satisfy the requirements of cl.572.223(2)(a)(ii) of Schedule 2 to the Regulations. I was asked about the study gap and about change of enrolments, I have explained the situation and wrote back to the immigration about the situation and about the 19-month gap period and provided the evidence that I am enrolled in the course when I became aware of that I had to be studying. I have been truthful with what I said to the immigration.
3. Despite of explaining and giving them the same explanation which I previously gave to the tribunal Immigration did not grant me the visa and refused.
4. Then I sought review of this decision with the Migration Review Tribunal on 27 June 2014. Then I attended a hearing in March 2015. I was previously given the date in February but I had to postpone the date as I wanted to visit my family in India and my father was undergoing a heart surgery. I requested the tribunal for the extension of the hearing to visit my family. I have a strong and emotional connection with my family back in India and I am worried and concerned about them. I am also not agreeing about the fact which immigration and tribunal says that I do not have strong ties between my family and myself. My grandmother and my uncle's family was also visiting to India from Canada. I love my family as everyone does. I was thankful to the tribunal to extend my time of hearing so that I could visit my father. I would have visited frequently to India if I would have known the fact that I could travel.
5. After attending and explaining the whole situation for the 3rd time by now in March 2015 to the tribunal member and immigration, I was notified on 30 June 2015 that the matter was reconstituted to another Tribunal Member. And I attended a further hearing on 1 September 2015 and my previous appointment was ceased. I have explained for the 4th time the same situation and explanation. In the mean time I was so stressed and depressed that I have to go through the hearing and tribunal processes again. I have been continuously enrolled and have been completing my courses which I have been enrolled in. As I have been telling to the tribunal members that I was misguided and I was not aware of the circumstances that’s why I was unable to complete courses.
6. On 3 September 2015, the Tribunal made a decision to affirm the refusal to grant me a student visa. The tribunal was so rude to me and was asking me questions which I would not even imagine about the cattle in India. And I just went blank in front of him and could not respond to his questions properly. I felt that the Tribunal member was just wanting stress me and not listen to me at all. The Tribunal member did not accept my explanation at all that I followed the advice of friends and agents in changing courses.
7. The fact that I was enrolled in 20 courses this shows how much confused I was and how much I was following every one’s advice. I always have this thought in mind that how can I help my father back in India with his business and how can my father earn more money in India. I want to establish a business for myself and I could not decide which course I should do or what field I should go on with. I have been explaining this situation again and again to every tribunal member’s. I have also told them that I can’t change the past but I have been on the right path since when I came to know that I should only ask department of immigration if there is any query not anyone else. I have learnt a lesson in my life.
8. Then I applied for a judicial review on 29th September 2015 then the Federal Circuit Court of Australia remitted the matter back to Administrative Appeals Tribunal by consent for reconsideration. I am thankful to the Federal Circuit Court for reconsideration of my application.
9. I was notified by the Administrative Appeals Tribunal that I have to attend a hearing on 31 March 2016. I was requested to provide evidence of current CoE(s), evidence of past study in Australia and an explanation of any gaps in the study, as the Tribunal would be assessing whether I am genuinely intended to stay in Australia temporarily. I provided them with all the supporting documents. I appeared before the Tribunal on 31 March 2016 to give evidence and present arguments .This has been my 5th explanation altogether by now for the same reasons.
10. - 11. . .
Grounds 10-11 are considered below.
(b) Ground 10 – factual error?
Ground 10 reads:
10.I have explained and presented my arguments to the tribunal member. I answered all the questions whatever tribunal was asking me. On enquiring about my friends and family I have explained and made the point clear that the cousins which I am mentioning are not my blood relation cousins or first cousins. I do not have a strong relation with my so called cousins, they are not even my second cousins, this is a cultural thing if anyone is related to you in India you call them cousins which I made clear to the member and even after the explanation the member considers that the presence of these family members in Australia has provided, and would provide, me with incentive to remain in Australia. Once again I am mentioning that I love my family and I am attached to them. (Emphasis added)
The applicant gave evidence at the Tribunal hearing that he had lived with two Australian permanent residents from the time that he had come to Australia. He also gave evidence that both of those persons had also come from India to Australia in 2007 so as to undertake study. The applicant’s housemates were frequently referred to as his ‘cousins’. The Tribunal asked the applicant why it might not form the view that he might wish to seek permanent residence in Australia as his cousins had done. The applicant replied that his family situation was very different from theirs as “his family ran a profitable farm to which he was expected to return and help run, while his cousins’ parents were not that well off and it was more of a priority for them to have their children live and work in Australia”: Reasons [18].
Ground 10 may be understood as a challenge to an alleged finding by the Tribunal as to whether the applicant’s housemates were his “blood relation cousins or first cousins” and as contending that the Tribunal had erroneously taken this into account in concluding that the applicant had sufficient family ties in Australia to serve as a disincentive for him to return to India. Before me the applicant argued that the Tribunal erred in finding that the applicant’s housemates were his first cousins.
Contrary to the applicant’s contention, it is clear from the Tribunal’s reasons that it well understood that the applicant’s housemates were not his blood cousins or first cousins. So much is apparent from the statement in the Reasons at [18] where the Tribunal recorded:
He has lived with his 2 cousins (not first cousins) since he came to Australia and continues to do so. (Emphasis added)
The Tribunal returned to this topic at [20], recording that, “Apart from his 2 cousins with whom he lives, he does not have any other immediate family in Australia”. Again, at [30], the Tribunal considered that one incentive for the applicant not to return to India was the presence of his “second cousins in Australia, with whom he lives, and the Tribunal considers that the presence of these family members in Australia has provided, and would provide, him with incentive to remain here.”
The Tribunal’s express acknowledgement that his housemates were not first cousins (and the later reference to them as second cousins) made plain that the Tribunal did not in fact regard his housemates as blood cousins as the applicant contended by Ground 10.
There was no error in the Tribunal accepting the applicant’s evidence about his living arrangements or in placing weight on the applicant’s apparent ties with his housemates whom he described as his “cousins in Australia.” The applicant had lived with those housemates for a period of some eight years and, by application of the cultural practice which the applicant referred to in Ground 10, he considered them to be his ‘cousins’ or ‘brothers’ and described them to me as such.
Moreover, the Tribunal also considered in detail at [20]-[22] and [26]-[30], the nature and extent of the applicant’s family farming enterprise, the few occasions on which the applicant had returned to India in the period 2007 – 2016, Policy Guidelines relevant to consideration of whether a person was a genuine student and the applicant’s lack of academic progress, and concluded that the applicant’s conduct was “suggestive of the applicant simply enrolling in a variety of relatively short and inexpensive courses in order to reside in Australia.”
The Tribunal’s reasons confirm that, having identified the subject matter of the application, the Tribunal examined the history of the matter in detail. It observed at [9] that the Tribunal constituted on 3 September 2015 had found that:
. . . the applicant’s study history since 2007 included 20 cancelled enrolments, the majority of which were in the VET sector, and that he had completed only an 11 week English course, a Certificate IV in Business, a Diploma in Business and a Diploma in Work Health & Safety since coming to Australia . . .
The Tribunal recorded that the applicant was unable to provide a detailed account of his study history or a convincing explanation for why he had changed his areas of study. It did not accept that the applicant’s decisions had been based on poor advice from his friends and found that his study history was not indicative of him being a genuine student. The Tribunal noted that the applicant had taken a 19 month: “study gap from October 2011 to May 2013” and that he had continued to work part-time during that period to the present.
Before me, the applicant said that he had explained the reasons for his absence from study in detail. The Tribunal clearly considered, and rejected, his explanation.
It was well open to the Tribunal to conclude that the applicant was not a genuine student and did so upon a range of factors which pointed against his intention to stay in Australia on a temporary basis.
(c) Ground 11 - reconsideration
Ground 11 reads:
11.The tribunal again affirmed that I do not meet a criterion for the grant of a student visa. During this process of my visa being rejected and explaining the reasons again and again to Immigration and Tribunal I have been undergoing stress and anxiety. I am feeling so depressed at the moment and I am just disappointed by myself. I love my family and I do not want them to be stressed. I am requesting you to please reconsider my case and remit back. Lastly, I want to say that I have learnt a lesson in my life that I should not follow any foolish advises but contact the relevant department or follow legal advises. I am so disappointed by myself about the decisions made in the past. I will be very much Thankful to the Federal circuit court if I will be remitted back. I want to study and build my education history and establish a Business in India to support my father.
Ground 11 may be understood as a plea for reconsideration of the matter on compassionate grounds. After referring to feelings of stress and anxiety, the applicant requested this Court “to please reconsider my case and remit back. . .”
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, at [10] the Full Court observed that:
In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal . . . [w]hatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
Special leave to appeal was refused: Singh v Minister for Immigration and Border Protection [2015] HCATrans 126.
By Ground 11, the applicant invited this Court to undertake a review of the merits of the Tribunal’s decision. It is no part of the process of judicial review for this Court to undertake a merits review in this application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. Ground 11 is without merit.
(d) A meaningful opportunity to be heard
Before me the applicant contended that he had not been heard in relation to a variety of matters that he wanted to put to the Tribunal. He did not elucidate upon the matters which he had wished to put.
It may be accepted that the Tribunal was obliged to afford the applicant procedural fairness; however, it is necessary to identify at some level of specificity the nature of the particular complaint. The scope of the obligation to accord procedural fairness is not at large. The matter had been the subject of review on many occasions and the applicant was engaged by the Tribunal on the issues that were of dispositive importance to the application.
Whatever may be said as to grounds 1-11 as set out in the application, they were silent as to a complaint that the applicant had not been heard. The very scope of the grounds indicated that the applicant was able to articulate fully matters which he considered to be of importance to the application for judicial review. The affidavit in support of the application was likewise silent. Before me, the applicant appeared without an interpreter and participated fully in the hearing in an articulate manner. Nothing indicated to me that the applicant would have been unable to specify a ground of review based upon denial of procedural fairness if that had been the gravamen of his complaint. Further, as he said in the course of the hearing, the central complaint which he made in relation to the Tribunal decision concerned the use of and reference to his housemates as being his cousins.
In addition, the applicant was afforded, but had not taken any opportunity to amend his application or provide any submissions to make a complaint of the kind that was made before me.
In all of those circumstances, it would be wrong to suggest that the applicant was denied a fair hearing. I discern no want of procedural fairness. I consider that the applicant was afforded a meaningful opportunity – that is, a real chance – to present his case: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [61] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [36]-[41] (Griffiths J).
(e) Ground emerging from consideration of Reasons
A further possible ground of jurisdictional error emerged. I have already stated that sub-cl 572.223 was of central relevance to this application. The Tribunal considered that the issue before it was whether the applicant met the criterion for his student visa prescribed by sub-cl 572.223(2)(a)(ii), stating at [25] as follows:
The issue in the present case is whether the applicant meets the time of decision criterion in cl. 572.223. Clause 572.223(2)(a)(ii) relevantly states:
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under r.2.07AO:
(i) . . .
(ii) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(A) The stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) Any other relevant matter; and . . .
It will be recalled that the application was remitted for reconsideration following the second Tribunal decision made on 3 September 2015. Following the institution of a proceeding for judicial review in this Court, the parties were agreed in consent orders that that decision should be quashed on the basis that it had applied cl 572.223 in a form which, although operative as at the date of the Tribunal’s decision, was not operative at the time when the application had been made.
It was only by way of footnote to the Minister’s outline of submissions that attention was drawn to the fact that the quotation at [25] of the Reasons of sub-cl 572.223(2)(a)(ii) was a misquotation of that provision. This was at least regrettable if only because it served to delay a decision in the matter because of the need to give the issue proper consideration. Had the matter been squarely confronted, the parties and the Court could have addressed the issue more readily.
Counsel for the Minister accepted that the Tribunal was required to undertake a merits review of the application using the version of sub-cl 572.223(2)(a)(ii) which was operative at the time of the making of the application; that is, 18 August 2011.
I was provided with versions of the provision from compilations of the Regulations which were operative as at the date of: (1) the making of the application (being a compilation prepared on 15 August 2011); (2) the delegate’s decision (being a compilation start date of 2 June 2014); (3) the second Tribunal’s decision (being a compilation start date of 3 November 2011); (4) the third Tribunal’s decision (being a compilation start date of 1 May 2016).
The provision, operative at the date of the making of the application, was contained in the compilation prepared on 15 August 2011. The text of sub-cl 572.223(2)(a) in this compilation reads:
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation2.07AO:
(i) . . .
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and . . .
As discussed with the Minister’s counsel, in cl 572.223 each part of sub-cl (2)(a)(ii)(A) and (B) were in identical form to that which was set out in the Reasons at [25], save for the following:
(a)in the Reasons, the text of (2)(a)(ii) read:
(ii)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: . .
(b)in the operative clause, the text read:
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: . .
Notably, both para (A) and (B) were in identical form in each iteration of sub-cl (2)(a)(ii).
From my examination of the various compilations which were provided to me, the version of sub-cl (2)(a)(ii)(A) and (B) as contained in the Reasons at [25] finds no equivalent operative version of the clause at any time. Instead, it appears to faithfully reproduce the operative clause from the compilation prepared on 15 August 2011 save that it incorporates the text of para (a)(ii) from subsequent compilations: compare: para 572.223(1)(a) from Compilation start date 2 June 2014, Compilation start date 1 May 2016, and Migration Amendment Regulations 2011 (No. 6) (Cth), Sch 2, Item 5.[1]
[1] Sub-cl 572.223(2)(a) in the operative regulation became 572.223(1)(a) in later compilations.
Correct test?
Limits on the exercise of administrative power are well settled. In Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328, at [5] Jagot J stated that:
An administrative decision-maker, such as the Tribunal, has no power to make a decision otherwise than in accordance with law. If an administrative decision-maker ”falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”:
citing Craig v South Australia (1995) 184 CLR 163 at 179.
The Minister made two submissions in relation to this issue. First, that the third Tribunal applied the correct test in the conduct of its merits review of the application. Secondly, if the correct test was not applied, there would have been no material difference in the outcome had the Tribunal applied the text of the regulation in its operative form.
In support of the first submission, attention was drawn to the Reasons at [10] where the third Tribunal identified that the basis for remittal had been that the second Tribunal had used the version of sub-cl 572.223 current as at the date of its decision as distinct from the version that applied at the time the visa application had been lodged. So it was said that the third Tribunal was clearly alive to apply the earlier provision. Further, attention was drawn to the Reasons at [26] where the Tribunal referred to the need to pay regard to the Procedures Advices Manual “as it was prior to the introduction of the new cl.572.223(1)(a).” Again, this was said to confirm the third Tribunal’s awareness of the need to apply the correct provision and the criteria which it contained.
In Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34, the Full Court held that a Tribunal’s erroneous and repeated reference to the wrong clause of the Regulations relating to a Partner visa was immaterial because it could not have affected the outcome of the case. This was so because, on analysis, each applicable regulation contained the same definition of ‘spouse’: see at [48]-[51]; see also Sun v Minister for Immigration and Border Protection [2017] FCA 1270, [55]ff (Reeves J); He v Minister for Immigration and Border Protection[2017] FCAFC 206 at [45]-[46], [52], [76], [82]. In the latter case, the Full Court examined the scope of the requirement to consider the matters prescribed by certain regulations. Siopsis, Kerr and Rangiah JJ held at [52] as follows:
The matters set out in reg 1.15A(3) are relevant considerations which the decision-maker is bound to consider. This requires a decision-maker to bring an active intellectual process to each of those matters. In other words, the decision-maker must actively think about each such matter. Further, the term “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant matters. The requirement to give proper, genuine and realistic consideration to a matter necessarily incorporates the application of an active intellectual process. These authorities do not suggest that a requirement to “consider” a matter may not require a decision-maker to do more in an appropriate statutory context. (Citations omitted)
It will be recalled that sub-cl 572.223(2)(a)(ii), both in the form as set out in the Reasons and as contained in the applicable regulation each required consideration of the same criteria in sub-para (A) and (B). This may afford part of a sound reason for concluding that the proper criteria were applied to a merits review of the visa application.
As concerned sub-para (A), I consider that this issue was subsumed in the more general finding that the applicant was not a genuine applicant for entry and stay as a student in Australia: MZZLD v Minister for Immigration and Border Protection (No 2) [2017] FCA 31, [39]-[40] (Mortimer J). By his application, the applicant declared that if granted a visa he acknowledged that he would be required to abide by its conditions. There is no suggestion that the Tribunal challenged the applicant on his declaration or rejected it. The applicants stated intention that he would comply with any conditions to which his visa would be subject was not a basis on which the application was denied.
As concerned sub-para (B), the Tribunal was entitled to have regard to any relevant matter. It is clear that the Tribunal had regard to Schedule 2 of the Procedures Advices Manual which contained the Department’s guidelines on matters relevant to an evaluation of an application for a Student visa. The Reasons set out Items 81.1 – 81.8 of those guidelines in full. Those guidelines address issues including: an overview, the applications situation in his home country, his academic record, any incentives to remain in Australia, whether the applicant had an intention to remain in Australia, the appropriateness of the applicant’s study plan, whether any fraudulent documents were being used and the length of the applicant’s proposed course of study.
The Reasons demonstrate that the Tribunal was fully engaged on these relevant matters in its evaluation of the application. In my view, on a fair reading of the Reasons, the Tribunal addressed itself to the correct issues arising under sub-para (A)-(B) of the applicable regulation.
I am fortified in the conclusion I have reached by the careful analysis which was given to an analogous problem which arose in Sarabia v Minister for Immigration and Border Protection [2017] FCCA 2642, [24]-[27] (Dowdy J).
Materiality?
A question arises whether there was in fact a material difference in the required process of evaluation of merits review having regard to the text of para (2)(a)(ii) of sub-cl 572.223 as set out in the Reasons and as contained in the operative clause of the Regulation from the Compilation prepared on 15 August 2011 respectively. In my view, examination of the Reasons indicates that the Tribunal addressed itself to the correct issue. At [29] of the Reasons, the Tribunal concluded that “rather than being a genuine applicant for temporary stay in Australia as a student, his true intention was, and remains, to reside here indefinitely.”[2] I consider that this conclusion as expressed by the Tribunal was more precisely aligned with the text of the operative clause than with the text which had been erroneously transposed from a later Compilation of the clause in the Reasons at [25].
[2] Emphasis added.
A decision does not involve an error of law “unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.” Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; Craig v South Australia, supra, 176-177.
In Samad District Court of New South Wales (2002) 209 CLR 140, the Court was concerned to determine whether as a matter of statutory construction a regulation which provided that an administrative decision maker “may suspend or cancel a licence or authority” imposed a duty to exercise a power to either suspend or cancel, once the conditions were satisfied, or was permissive and conferred a power to suspend or cancel as a matter of discretion. Gleeson CJ and McHugh J held at [44], that “[t]o vitiate the decision of an administrative tribunal an error must be material; it must affect the decision itself.” Their Honours stated, with reference to Craig, that:
. . . the decision must be based upon the error. (see at [26], [44])
See also: Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256, [178] (Maxwell P); Ilievski v Olympic Aluminium [2011] VSC 472, [36] (Kaye J); Wilson v County Court of Victoria (2006) 14 VR 461, [40]-[44] (Cavanough J).
In Li v Chief of Army the Court, citing Samad, the Court held that it would not be open to disregard an error in the process of an administrative decision where it was not possible to be satisfied that the decision was unaffected by the error: (2013) 250 CLR 328, [31].
In Ibrahim, [2009] FCA 1328 at [14], Jagot J held that:
. . . to be a jurisdictional error the error must be material (in the relevant sense) to the decision. Immaterial errors, by contrast, are errors within jurisdiction.
Her Honour considered where the issue of material error fell for assessment in the context of judicial review. Her Honour stated:
First, it may be accepted that courts frequently deal with matters that might be relevant to materiality in the context of the discretion not to make futile orders (for example, X v Commonwealth of Australia(1999) 200 CLR 177; [1999] HCA 63 at [112]). But this does not mean that the latter principle subsumes the former. Nor does it mean that the question of materiality involves the exercise of discretion. The principle that an administrative decision will not be set aside unless affected by a material legal error is separate from, and logically anterior to, the existence of a court’s discretion not to set aside such a decision because its remittal to the administrative decision-maker would be futile. Unless there is a material legal error then the question of the discretion not to make orders setting aside a decision by reason of the futility of any remittal will not arise because the decision will not be vitiated by reason of the legal error.
Second, a legal error is material in the relevant sense when the administrative decision depends or is based on the error. The appellant accepted that an error will not be material if the decision is sustainable on an independent alternative ground (as the Federal Magistrate found in the present case). But this does not exhaust the requirement of materiality. An error also will not be material if no other decision could have been made on the basis of the material available to the decision-maker. The passage inCraig at 179 on which the appellants rely, properly understood, undermines the appellants’ central proposition. The High Court has said that an administrative decision-maker has no power to make a decision contrary to the only decision open on the evidence. It necessarily follows that a decision that accords with the only decision open on the evidence is lawful. (Emphasis added)
Her Honour also referred to the Full Court’s decision in Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 at 477, that “it is not enough for an applicant to demonstrate that a tribunal has mis-stated the law on a particular matter, if the mis-statement could not have affected the tribunal’s decision. An immaterial error does not vitiate the decision”: see also SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 at [27].
Jagot J held at [16] that the alleged errors were not material and so were incapable of vitiating the decision and could not amount to jurisdictional error. I respectfully adopt the analysis in Ibrahim. This conclusion means that the materiality of the Tribunal’s error in transposing the text of sub-cl 572.223(2)(a)(ii) falls for consideration at an anterior point to the question whether relief should be refused on discretionary grounds: cf Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [58], [104], [148]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [52]-[59]. Clearly, the relevant considerations may overlap and apply at each point.
More recently, in CRI026 v The Republic of Nauru [2018] HCA 19, the Court considered the reasons of a tribunal which included a paragraph that described the appellant as being a member of a particular social group, being as young Tamils and failed Tamil asylum seekers. In fact the appellant was a Pakistan national. The Court rejected a submission that the tribunal had taken irrelevant considerations into account. Accepting that the Tribunal’s reasoning appeared to have gone seriously awry, it held that on closer examination the tribunal’s conclusion that the appellant was not a refugee on the findings and evidence essayed in the reasons. The ‘incongruous observation’ as to Tamils was intended to have been a formal statement of conclusion concerning the appellant and was probably explained as a ‘cut and paste’ error. While expressing regret at the error, the Court held that:
. . . reading the Tribunal’s reasons as a whole, it is plain beyond peradventure that in this case it was not an error in the reasoning process . . . and should be disregarded: falsa demonstratio non nocet. (At [57])
Just as it is important to recognise that a right to appeal from orders is to be distinguished from a Court’s reasons, so too, the focus of judicial review is upon the decision of the administrative body under challenge.
In the conduct of a merits review, the task of a tribunal is to arrive at the correct or preferable decision in relation to the application upon the material that was before it: Li (2013) 249 CLR 332, [10]. It is an error in the decision which may attract relief on judicial review if that error is properly characterised as being jurisdictional error. The want of precision or felicity in the drafting of the reasons of a tribunal does not, in or of itself, suffice to ground a conclusion that the decision of the tribunal was erroneous or that any perceived error was of such gravity as to attract the characterisation of being jurisdictional in nature.
For the reasons given above, I am satisfied that the Tribunal undertook the task of examining the issues presented by the applicable regulation and that its decision was the preferable decision on the material before it. I also regard the Reasons as confirming that the Tribunal gave proper, genuine and realistic consideration to those issues.
Conclusion
It follows that I reject each ground on which judicial review has been sought and that this application must be dismissed.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 25 May 2018
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