TAKHI v Minister for Immigration

[2018] FCCA 1913

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAKHI & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1913

Catchwords:
MIGRATION – Student visas – where first applicant had enrolled in series of courses and applied for a range of different visas – where delegate refused application on ground that first applicant not genuinely intending to stay temporarily in Australia – where Tribunal affirms decision on same ground – grounds of review generalised – whether first applicant afforded a real opportunity to present case – whether first applicant’s evidence and submissions given real and genuine consideration – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 44.12

Migration Act 1958 (Cth), ss.65, 360, 476

Migration Regulations 1994 (Cth), reg 1.12, Sch 2 cll 572.223(1)(a), 572.322

Cases cited:

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

Morad v El-Ashey [2017] FCA 1136

Minister for Immigration and Border Protection v Guder [2018] FCA 626

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593

Nichol v Discovery Africa Limited [2016] FCAFC 182

Siddique v Minister for Immigration and Border Protection [2014] FCA 1352

Spencer v The Commonwealth (2010) 241 CLR 118.

SZTTW v Minister for Immigration and Border Protection  [2014] FCA 837

SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6

Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190

First Applicant: NAVNEET TAKHI

Second Applicant: HARJIT SINGH BASRA

Third Applicant: JAI BASRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE REVIEW TRIBUNAL

File Number: MLG 689 of 2017

Judgment of: Judge A Kelly

Hearing date: 12 July 2018

Date of Last Submission: 12 July 2018

Delivered at: Melbourne

Orders Pronounced: 12 July 2018

Delivered on: 13 July 2018

REPRESENTATION

The First and Second Applicants appeared in person.

The Third Applicant appeared by his litigation guardian

Solicitor for the Respondents: Ms Nyabally

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. The first applicant pay the costs of the first respondent fixed at $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 689 of 2017

NAVNEET TAKHI

First Applicant

HARJIT SINGH BASRA

Second Applicant

JAI BASRA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 6 April 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on

   
   

   17 March 2017 affirming the decision of a delegate of the first respondent (Minister) to refuse to grant the first applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act). For the purposes of the Act, the second and third applicants are members of the first applicant’s family unit: reg 1.12, Migration Regulations 1994 (Cth) (Regulations). 

2. On 12 July 2018, I ordered that the application be dismissed.  These are my reasons for that decision.

Background

1. The first applicant, a female Indian national aged 39 years, first arrived in Australia in 2008.  The second applicant is the first applicant’s spouse and the third applicant is their child.

2. On 4 March 2015, the first applicant lodged an application for a student visa.  The second and third applicants were listed in the application as members of the first applicant’s family unit.

3. On 5 March 2015, the Department of Immigration and Border Protection requested further information from the first applicant.

4. The first applicant responded to the request for further information by email on 30 March 2015, attaching a range of supporting documentation.

5. On 26 June 2015, a delegate of the Minister refused to grant the first applicant a Student visa, providing a statement of reasons for doing so. The delegate concluded that the first applicant was not a genuine applicant for entry and stay as a student, not being satisfied that the first applicant intended genuinely to stay in Australia temporarily. For that reason, the delegate was not persuaded that the first applicant satisfied the criterion prescribed by cl 572.223(1)(a), Part 572, Sch 2 of the Regulations. The delegate accordingly refused the visa applications of the first, second and third applicants.

6. On 10 July 2015, the applicants, with the assistance of a registered migration agent, applied to the Tribunal for a review of the delegate’s decision to refuse their visa applications. A copy of the delegate’s decision was submitted with the application for review.  

7. On 16 December 2016, the applicants were invited to appear before the Tribunal on 23 February 2017 to give evidence and present arguments relating to the issues arising on the decision under review.

8. On 23 February 2017, the first and second applicants attended a hearing before the Tribunal.  While their representative did not attend the hearing, the applicants indicated that they wished to proceed with the hearing in his absence.

9. On 17 March 2017, the Tribunal affirmed the delegate’s decision, providing a statement of its reasons for doing so (Reasons).

10. The Reasons demonstrate that the Tribunal variously considered the first applicant’s history before arriving in Australia in 2008, the members of her family now living in Australia, the various visas which she had held since 2008 and the several courses of study which she had undertaken: Reasons, [12]-[38].

11. The Tribunal noted that since 2008 the first applicant had held the following classes of visa: student 572 visa (2008), skilled subclass 485 visa (2010), student visa (2010), student visa (2014), student visa (2015).

12. The Tribunal also had regard to the first applicant’s personal circumstances in Australia, including the birth of her child and the periods for which she had worked: Reasons, [39]-[46]. The Tribunal expressed its concern that the first applicant had already undertaken some eight courses since arriving in Australia, and was now seeking to embark upon a further two courses: Reasons, [47].

13. The Tribunal expressed concern that the first applicant may not have held a genuine intention to stay in Australia temporarily, and that her enrolment in courses was indicative that she was using the student visa program to remain in Australia: Reasons, [46]-[51]. The Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily, and identified both the factors that were supportive of a conclusion that the first applicant intended genuinely to stay in Australia temporarily, and those which were not: Reasons, [53]-[63]. The Tribunal was not satisfied that the first applicant satisfied the criterion prescribed by cl 572.223(1)(a), Part 572, Sch 2 of the Regulations, and for that reason, could not satisfy an essential criterion for the grant of a student visa or any other visa falling within that class: Reasons, [64]-[65]. As the first applicant did not meet the primary criteria for the grant of a student visa, the Tribunal could not be satisfied that the second or third applicants met the requirements of cl 572.322, Part 572, Sch 2 of the Regulations: Reasons, [66]. The Tribunal affirmed the delegate’s decision to refuse the applications.

Procedural history

1. On 6 April 2017, the applicants filed an application for judicial review of the decision made by the Tribunal on 17 March 2017.

2. The first applicant’s affidavit affirmed on 6 April 2017 annexed a copy of the Tribunal’s decision, but adduced no further evidence in support of the application or otherwise informing the grounds of judicial review.

3. By a Response filed on 20 April 2017, the Minister contended that the application did not establish any jurisdictional error, and sought that the application be dismissed.

4. On 20 October 2017, an order was made appointing the first applicant as the litigation guardian for the third applicant, and setting the application down for a show cause hearing.  On 22 November 2017, orders were made regulating the filing of any amended application, supplementary Court Book and written submissions.

5. The first applicant and first respondent have filed submissions.

6. The matter was listed for a show cause hearing on 12 July 2018.

Consideration

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).

2. Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the Court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.

3. The course which the Court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6, [10] (Smith J).

4. As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118.

5. Caution must be exercised when considering whether to grant summary judgment.  Such caution is equally appropriate upon the determination of a show cause hearing.

6. The power to grant summary judgment is expressed in permissive terms; the Court may give judgment and may order that it be dismissed generally or in relation to any claim.  Critically, in the case of summary judgment, the power is not engaged unless the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding.  So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the Court that an arguable case for relief has been raised.

7. In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:

   (a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;

   (b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;

   (c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;

   (d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;

   see at [46]-[49].  The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).

8. In SZUTB, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 (Siddique),

   
   

   [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.”  That is, the residual discretion remains to be considered.

9. I apply those principles in determining this show cause application.

10. The grounds of review as advanced by the applicants read as follows (verbatim): 

    Tribunal failed to take the facts of application [into account] without giving me any sufficient opportunities to justify my claim.

    Tribunal rushed up with its decision without following the principle of natural justice.

    The tribunal rushed to a decision and did not take my facts into consideration.

    I therefore, request you to set aside the decision made by the tribunal.

    The first three paragraphs of the application may be identified a separate grounds of review; however, the fourth paragraph does not do so.

Ground 1 – a genuine hearing?

1. As to the alleged failure to deal with the facts or afford the first applicant a sufficient opportunity to develop before or justify to the Tribunal the merits of the application, the first applicant did not identify any claims or evidence that, she contended, had not been properly considered by the Tribunal or in respect of which she had been denied such opportunity.

2. By s 360 of the Act the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising on the decision under review. As the purpose of s 360 is to provide the applicant with an opportunity to present evidence and arguments, the obligation to invite the applicant to attend must be meaningful in the sense that it must provide the applicant with a real chance to present their case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [60]-[61], (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [39], [42]-[45] (Griffiths J). In the latter case, Griffiths J observed that there may be circumstances in which an applicant has been denied a real and meaningful opportunity to present evidence and arguments.

3. In the present case, I consider that the first applicant was afforded a real and meaningful opportunity to present evidence and arguments to the Tribunal, and that she did so.  She was represented by her migration agent, and afforded further time to produce further documents for the purposes of the conduct of a merits review of the delegate’s decision.

4. The first ground might also be seen as a failure to give proper, genuine and realistic consideration to the issues arising or to the material that was before it.  It is clear that the Tribunal must engage actively with those issues and such material as is presented: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, [57]-[59] (Stone, Foster and Nicholas JJ). However, the authorities emphasise the need for caution in determining whether proper, genuine or realistic consideration was given: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [33]-[38] (Perram, Perry and O’Callaghan JJ).

5. From my examination of the Reasons, I do not consider that the Tribunal failed properly to consider the material that was before it or the issues arising on the decision under review.  The Tribunal allowed the first applicant an opportunity to provide further documentation, and the Reasons record all of the material that was before it.

6. The affidavit filed in support of the application for judicial review merely exhibited a copy of the Tribunal’s decision.  It adduced no further evidence from which consideration could be given as to whether the applicants had any grievances as to the manner in which the Tribunal hearing had been conducted.

7. The first applicant’s submission filed on 22 November 2017 also took the matter no further.

8. Having regard to the materials comprised in the Court Book, the Reasons, the first applicant’s affidavit and submissions, I consider that there is no reason to conclude that the material or issues arising on the decision under review were not properly considered.  I do not consider that Ground 1 raises an arguable basis for review.

Grounds 2 & 3 – natural justice, proper consideration

1. By Grounds 2 and 3, it is contended that the Tribunal rushed its decision. 

2. I have referred, at [33] above, to s 360 of the Act and the principles which it engages. I have referred at [35] above to the Tribunal’s obligation to give a matter proper consideration.

3. In the present case, I consider that the applicants were afforded a real and meaningful opportunity to present evidence and arguments to the Tribunal.  No basis is shown for a conclusion that they could not do so. 

4. The Tribunal hearing was held on 23 February 216 and that hearing occupied a period of two hours. The Tribunal’s decision to affirm the delegate’s decision to refuse the visa applications was made on 17 March 2017.  The Reasons themselves demonstrate that the matter was given close consideration.  The Reasons are, in my opinion, comprehensive.  Neither the duration of the hearing, the elapsed time between the hearing and the giving of a decision, nor the content of the Reasons supported a conclusion that the Tribunal had rushed its decision.  Nothing in the first applicant’s affidavit or submission indicated why it was said that the Tribunal had rushed its decision or not taken into account the first applicant’s submissions or the evidence on which she had relied.

5. Insofar as the applicants’ complaint may otherwise be understood as seeking a further review in this Court of the merits of the application for a Student visa, this is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J). However, the close analysis of the factual evaluation and approach by the Tribunal is not merits review; it is part of the process of ensuring or assessing whether serious findings made about applicants have been made lawfully: SZSSG v Minister for Immigration and Border Protection [2018] FCA 670 at [6]-[7] (Allsop CJ). I have examined the Reasons and materials comprised in the Court Book, and see no reason to conclude that the Tribunal had not considered the evidence before it.

6. I do not consider that Ground 2 or 3 raise an arguable basis for review.

Applicants’ submission

1. As the applicants were self-represented, I have re-examined the applicants’ submission for the purposes of considering whether any arguable ground of review is suggested, or whether any other reason is otherwise shown why the Court should exercise its residual discretion to allow the matter to proceed to a final hearing.  In my opinion, no such reason is shown by that submission.

Conclusion

1. I was not satisfied that the applicants had raised an arguable case for relief. Nor was I persuaded that discretionary considerations militated in favour of a conclusion that the show cause application should be adjourned for a final hearing: r 44.12(1)(b).

2. For the reasons above, I ordered that the application be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date:  13 July 2018