Villamayor v Minister for Immigration and Border Protection

[2015] FCA 1393

FEDERAL COURT OF AUSTRALIA

Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393

Citation:	Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393
Appeal from:	Villamayor v Minister for Immigration & Anor [2015] FCCA 2238
Parties:	MARIBETH VILLAMAYOR, ALVIN JOSEPH VILLAMAYOR and MAESIE YESTEEN VILLAMAYOR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 1004 of 2015
Judge:	NICHOLAS J
Date of judgment:	24 November 2015
Legislation:	Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) Sch 2
Cases cited:	VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Date of hearing:	24 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	17
Counsel for the Appellants:	R Keller
Solicitor for the Appellants:	Australian Business Underwriter
Counsel for the First Respondent:	MJ Smith
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1004 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MARIBETH VILLAMAYOR
First Appellant

ALVIN JOSEPH VILLAMAYOR
Second Appellant

MAESIE YESTEEN VILLAMAYOR
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	24 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1004 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MARIBETH VILLAMAYOR
First Appellant

ALVIN JOSEPH VILLAMAYOR
Second Appellant

MAESIE YESTEEN VILLAMAYOR
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	24 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before me is an appeal from a judgment of the Federal Circuit Court (Judge Street) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). By its decision the Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) to refuse to grant the appellant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). The second and third appellants are the husband and daughter of the first appellant. Their visa applications were dependent upon the first appellant’s visa application. For convenience I shall refer to the first appellant as the appellant.

   BACKGROUND

2. The appellant is from the Philippines. She arrived in Australia with her husband and daughter in May 2008 as the holder of a student visa. In June 2009 she was granted a second student visa, in April 2011 a third student visa, and, in July 2012, a fourth student visa. She applied for a further student visa in November 2014. That application was refused by the delegate on the basis that the appellant did not satisfy the requirements of cl 573.223(1)(a) of Sch 2 of the Migration Regulations 1994 (Cth). This clause is known as the genuine temporary entrant criterion. It provides:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   …

3. The appellant attended a hearing before the Tribunal, at which she was represented by a migration agent.  It appears she gave extensive oral evidence.  According to the Tribunal at [22] of its reasons, at the conclusion of her evidence, the appellant was invited to make any further submissions that she chose to.  In response to that invitation, she responded that she would like the chance to finish her course and then return home. 

   THE PROCEEDINGS BEFORE THE PRIMARY JUDGE

4. The appellant appeared in person at the hearing of her application before the primary judge.  The ground of review relied upon by her was rejected by his Honour.  That ground of review was set out in his Honour’s reasons at [1] as follows:

   THE TRIBUNAL FAILED TO CONSIDER MY PERFORMANCES IN MY STUDIES IN DETERMING MY GENUINESS AS STUDENT. FROM MY FIRST COURSE UNTIL NOW, I HAVE BEEN STUDYING, ATTENDING MY CLASSES, PERFORMING WELL AND COMPLETED THE COURSES I ENROLLED. I HAVE BEEN COMPLYING WITH MY VISA CONDITIONS. MY INTENTION TO COMPLETE MY COURSE TO BE ABLE TO ASSIST MY SISTER IN HER TRAVEL BUSINESS IN MY COUNTRY, PHILIPPINES.

5. In short, his Honour found that the findings made by the Tribunal were open to it and that it took into account the appellant’s study history and her evidence as to her intentions.  His Honour concluded that the application should be dismissed because it failed to identify any jurisdictional error. 

   THE APPEAL

6. In this Court the appellant was represented by counsel instructed by the appellant’s solicitor.

7. At the commencement of the hearing counsel for the appellant indicated that he wished to rely upon one ground of appeal only, which raised an issue which he accepted had not been raised by the appellant below. 

8. In substance, the issue that the appellant sought to raise on appeal involves a contention that she was denied procedural fairness by the Tribunal.  It was accepted by counsel for the appellant, quite properly, that his clients could only rely upon the proposed ground with the leave of the Court (see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]-[48]). In that case the Full Court said:

   [46]In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused.  Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

   [47]In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

   “It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

   [48]The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters.  The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.  Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.  In our view, the proposed ground of appeal has no merit.  There is no justification, therefore, for permitting it to be raised for the first time before this Court. 

9. The proposed ground of appeal in relation to which such leave is sought was said to be as follows:

   The Applicant had been denied procedural fairness and/or the Tribunal breached section 360 of the Migration Act leading to jurisdictional error.

   Particulars

   The Applicant was denied a meaningful opportunity to give evidence and present arguments and/or the MRT has failed to act in a manner "fair and just" towards the Applicant in circumstances where:

   a.The Applicant was not put on notice as to her credit being in issue as per the Ministerial Direction 53 [RD 90-94] - thereby denying her the opportunity to lead further evidence on the point;

   …

   The reference to Ministerial Direction 53 is a reference to the direction issued under s 499 of the Act in relation to the genuine temporary entrant criterion for student visa applications. As I understand it, the appellant now contends that she was denied a meaningful opportunity to give evidence and present arguments and that the Tribunal failed to act in a manner fair and just towards the appellant in circumstances where the appellant was not put on notice that her credit was in issue. In my opinion, the proposed ground of appeal lacks merit and leave to rely upon this ground of appeal should be refused on that basis.

10. The “credit” findings referred to by counsel for the appellant in support of his submissions were said to be found at [11], [16] and [27] of the Tribunal’s reasons.  The first two paragraphs do not involve anything in the nature of a credit finding.  However, [27] does, I accept, include a number of statements by the Tribunal rejecting the appellant’s evidence on a number of matters.  The clearest example is at [27], second bullet point, where the following statement appears:

    Having considered the evidence overall the Tribunal does not accept the applicant's evidence as to the reasons that she has studied her chosen courses, and instead finds that her study history indicates a desire to remain in Australia by using the Student Visa system;

11. One of the difficulties with the appellant’s contention that she was denied procedural fairness is that it is not supported by evidence.  In particular, there is no transcript of the proceedings before the Tribunal or any other record of what transpired during the hearing, apart from the Tribunal’s reasons.  It is not suggested that the Tribunal’s reasons are in any respect inaccurate or relevantly incomplete. 

12. As the Full Court observed in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21], an allegation that an applicant before the Tribunal was denied procedural fairness cannot usually succeed in the absence of evidence. This is necessarily so in circumstances where the only evidence of what occurred at the hearing consists of the Tribunal’s reasons, which in this case make clear that the appellant was given an opportunity to say what she wanted to say in support of her visa application.

13. In the present case the Tribunal’s reasons show that it asked the appellant numerous questions about the appellant’s immigration history, her course history and gaps in her enrolment history with a view to satisfying itself in relation to the requirements of the genuine temporary entrant criterion as guided by Direction No 53.  The evidence before me, such as it is, indicates that the appellant was afforded procedural fairness.  Prior to the hearing she was provided with a written invitation to appear at the hearing before the Tribunal together with a copy of Direction No 53.  Direction No 53 makes clear that an applicant for a student visa must be both a genuine temporary entrant and a genuine student.  It also contains detailed information as to the matters that guide the Tribunal in assessing whether the genuine temporary entrant requirement is satisfied. 

14. The gist of the appellant’s complaint seems to be that the Tribunal did not squarely put to her that it did not, or might not, accept her evidence, or that part of it which it ultimately did not accept.  But it is clear that in this case the Tribunal was not required to take that step.  In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]-[48], the High Court explained what was required in a case such as this:

    [47]First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

    [48]Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369]:

    “the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

    Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

15. This reasoning applies here.  The Tribunal was not required to tell the appellant that it might not accept her evidence.  Moreover, I am satisfied that it would have been apparent to the appellant and her migration agent that the Tribunal might not accept her evidence that she genuinely intended to return to the Philippines upon completion of her studies.  The Tribunal raised its concerns about these matters in terms that would have made it perfectly plain that it doubted the reliability of the appellant’s evidence in relation to her reasons for enrolment in various courses and her future intentions. 

16. Leave to rely upon the proposed ground of appeal is refused.  No other ground of appeal was pressed.

17. The appeal will be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:       11 December 2015