FEDERAL COURT OF AUSTRALIA

Bal v Minister for Immigration and Border Protection [2017] FCA 228

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT (revised from transcript)

MURPHY J:

1    The appellant is a citizen of India. He arrived in Australia on 15 April 2009 on a student visa. Since his arrival in Australia he has held either a student visa or an associated bridging visa. On 14 May 2014, while in Australia, he applied for a Student (Temporary) (Class TU) (Subclass 572) visa (the visa) to undertake study in Australia. A delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused to grant the visa. The appellant applied to review that decision to the Migration Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal), but the Tribunal affirmed the decision. The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, but the Court dismissed the application (Bal v Minister for Immigration & Anor [2016] FCCA 2938).

2    The appellant now appeals to this Court from the decision of the Federal Circuit Court.

The application to the Migration Review Tribunal

3    On 24 November 2014 the delegate of the Minister refused to grant the appellant the visa, doing so because the delegate was not satisfied that the appellant intended genuinely to stay in Australia temporarily having regard to the criterion in cl 572.223(1) (the genuine temporary entrant criterion) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and Ministerial Direction No 53, “Assessing the genuine temporary entrant criterion for Student visa applications” (Direction 53). The delegate said:

Overall, given your lack of academic progress, your study history, your potential circumstances in Australian, your immigration history and lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.

4    On 16 May 2014 the appellant made an application for review by the Tribunal. The application required the Tribunal to decide whether the appellant met the relevant criterion. Pursuant to cl 572.223(1)(a) the Tribunal was required to be satisfied that:

…the applicant is a genuine applicant for entry and stay as a student because:

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

(i)    the applicant’s circumstances, and

(ii)    the applicant’s immigration history; and

...

(iv)    any other relevant matter; and

…

5    Direction 53 required the Tribunal to have regard to a number of specified factors, including:

(a)    the appellant’s circumstances in his home country, potential circumstances in Australia and the value of the study course to the appellant’s future;

(b)    the appellant’s immigration history including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; and

(c)    any other relevant information provided by the appellant, or information otherwise available to the Tribunal.

Those factors were not to be used as a checklist but rather as a guide for the Tribunal in weighing up the circumstances of the visa applicant as a whole.

The appellant’s failure to appear before the Tribunal

6    The Tribunal hearing was scheduled for 30 March 2015 and the appellant was invited to attend to give evidence and present arguments. The Tribunal’s decision records that the appellant responded to the hearing invitation by stating that he and his migration agent would be attending. He was sent SMS message reminders of the hearing date on 23 and 27 March 2015. On 30 March 2015, notwithstanding that the appellant’s migration agent told the Tribunal that the appellant was aware of the hearing and was expected to attend, the appellant did not attend. The Tribunal allowed the agent further time to provide information as to why the appellant had failed to attend the hearing. On 7 April 2015 the agent informed the Tribunal that the agent had tried to contact the appellant by telephone and by email without success but had heard nothing from him. The agent was unable to provide any further information or evidence in relation to the appellant’s non-attendance.

7    The Tribunal decided that, in the absence of any explanation for the appellant’s failure to appear at the hearing, it would exercise its discretion under s 362B of the Migration Act 1958 (Cth) and proceed to a decision in his absence. On 7 April 2015 the Tribunal delivered its decision.

8    The Tribunal considered the written submissions made by the appellant and the PRISMS database which recorded the courses of study he had undertaken. In reliance on the PRISMS database the Tribunal said that the appellant had been enrolled in the following courses: Diploma of Business (Frontline Management), Diploma of Management, Certificate III in Electronics and Communications, Certificate III in Automotive Mechanical Technology (Light Vehicle), Diploma of Business, and Diploma in Automotive Management. The database also indicated that the appellant did not engage in any study in the approximately seven month period between 22 April 2012 and 14 November 2012.

9    In written submissions the appellant informed the delegate that he had completed the Certificate III in Electronics and Communications, had only partly completed the Diploma of Management, had only partly completed the Diploma of Business (Frontline Management). The PRISMS database showed that he had completed the Advanced Diploma of Management and was at that time studying a Diploma of Marketing.

10    The Tribunal expressly gave consideration to Direction 53 and the appellant’s circumstances. There were, however, a number of questions which the Tribunal was unable to address because the appellant did not attend the hearing. The Tribunal’s decision records (at [16]-[19]) that it wanted to ask questions of the appellant regarding matters including:

(a)    his choice of a disparate range of courses with limited relevance to his future employment plans;

(b)    how his extended time in Australia with limited education outcomes provided him with a grounding for his desire to become an entrepreneur in an unstated area;

(c)    why it had taken him six years to commence a course in marketing if this was part of his plans for the future;

(d)    why he would undertake a Diploma of Marketing if he had been offered a marketing position in his uncle’s marketing firm as he said;

(e)    whether the appellant could produce any evidence that he had genuinely been offered a position in his uncle’s marketing firm;

(f)    the seven month gap in his study history;

(g)    whether the courses the appellant had undertaken in business, management and marketing had more than a limited connection or relevance and whether they provided the appellant with a future employment plan; and

(h)    whether the appellant’s study history demonstrated that the appellant was a genuine temporary entrant.

11    The Tribunal said (at [23]) that:

The applicant has been in Australia for an extended period of time. He has completed one practical course in electronics and communications, and then more recently courses in unrelated fields of business, management and marketing. The applicant has not shown how his studies relate to his future plans, which, as provided, are vague and contradictory. He has provided limited detail regarding his connection to India, his actions have been to remain in Australia, and his proposal to remain in Australia for a further extended period to undertake further studies provides further information about his limited connection to his home country. He has had an extended break in his studies which has not been sufficiently explained, and remained in Australia during this gap in his studies. This causes the Tribunal to have concerns about the applicant’s migration history generally, as his stated aim to be in Australia was to study, which he failed to do for this gap in 2012.

12    The Tribunal concluded (at [24]) that, having considered the appellant’s circumstances, immigration history and other relevant matters, it was not satisfied that the appellant intended genuinely to stay in Australia temporarily and that he did not meet the requirements of cl 572.223(1)(a). The Tribunal therefore affirmed the decision not to grant the appellant the student visa he sought.

The application to the Federal Circuit Court

13    The application for judicial review to the Federal Circuit Court raised only one broad ground of review. It said:

The MRT erred in not giving consideration to the evidence that I, being the Applicant, provided to the effect that I am a genuine student visa Applicant. As a result of same the visa application refusal decision has been affirmed by the MRT. Accordingly, the MRT erred as a matter of law.

No particulars were provided.

14    The appellant submitted that the Tribunal had failed to take into account evidence in relation to the seven month gap in his study history. He said that the gap was not his fault, but that he could not provide evidence to the Tribunal. Essentially, he said that having enrolled at an institution named Austwide in a Certificate III in Automotive Mechanical Technology (Light Vehicle) he decided that course was not for him and he sought to cancel his enrolment and enrol elsewhere. However, a dispute had ensued about payment of fees and Austwide had refused to issue him a cancellation of the enrolment. He said that it was not until November 2013 that he was able to enrol elsewhere. The appellant said that the Tribunal ought to have preferred his explanation for the gap in his study history.

15    The appellant acknowledged that there were reasons other than the gap in his study history for the Tribunal’s finding that he did not satisfy the criteria in cl 572.223(1)(a). He submitted that the Tribunal’s finding that he lacked plans because he changed courses was unfair as he had done so after talking to friends about the appropriate course to undertake.

16    The primary judge found that the Tribunal’s finding was open to it on the material. Her Honour considered that the appellant’s arguments were an attempt to engage the Court in an impermissible merits review of the Tribunal’s decision by substituting the Court’s view for the Tribunal’s findings. Her Honour also noted that the appellant failed to appear before the Tribunal and therefore could not provide evidence and present arguments in relation to the very matters that he sought to ventilate in the Court. Her Honour held that the Tribunal did not make a jurisdictional error.

17    Finally, her Honour noted that the appellant had not argued that the Tribunal’s decision to proceed to make a decision pursuant to s 362B of the Act was unfair. Out of an abundance of caution her Honour noted her view that the Tribunal had exercised its discretion reasonably.

The appeal to this Court

18    Before me the appellant did not have legal representation but he appeared to understand the proceeding and he made oral submissions. The Notice of Appeal raises the following grounds of appeal:

1.    The learned Judge erred in law in not giving enough consideration to the fact that the Applicant was legally unrepresented and a foreign national. The Applicant was therefore unable to present his arguments properly due to a lack of understanding of the courts [sic] processes.

2.    The learned Judge erred in law and/or in fact in failing to find that the decision of the Administrative Appeals Tribunal (“the AAT”) was affected by jurisdictional error and/or that the AAT had misapplied the Migration Regulations and/or the Migration Act for the following reasons with regard to the Applicants [sic] intentions to stay in Australia for the purpose of study;

a.    The AAT and/or the Federal Circuit Court failed to take into account relevant evidence and/or took into account irrelevant evidence in that they ignored the facts put forth by the Applicant that indicated his study patterns were that of a ‘genuine applicant’;

b.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant matters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by law;

c.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicant;

d.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicant;

e.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims put forth by the Applicant with respect to the apparent break in his study.

Ground 1

19    In relation to ground one of the appeal, the appellant did not particularise how the primary judge had failed to give proper consideration to the fact that the appellant was not legally represented and was a foreign national. Before me the appellant was unable to provide any explanation as to what he meant by this ground of appeal.

20    It is established that the Court has a duty to ensure that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. This includes an obligation to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable, for the purpose of ensuring a fair trial. The application of that principle will depend upon the circumstances of the case. The touchstone at all times is one of fairness: see Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] (Beazley JA, with whom Giles and Whealy JJA agreed), approved in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37] (Robertson J, with whom Allsop CJ at [47] and Mortimer J at [56] agreed).

21    In the hearing below the primary judge explained to the appellant that the function of the Federal Circuit Court was not to engage in a review of the merits of the Tribunal’s decision but to decide whether the Tribunal had fallen into jurisdictional error. Her Honour endeavoured to explain the concept of jurisdictional error in terms understandable to a layperson. Even so, as her Honour noted, the appellant’s submissions were essentially directed to the merits of the Tribunal’s decision and the appellant invited the Court to substitute its conclusion for the Tribunal’s findings.

22    In the absence of particulars I do not understand how the appellant contends that the primary judge failed to properly take into account that he is from India and was not legally represented. On the face of the judgment of the Federal Circuit Court I can discern no appealable error in the primary judge’s approach.

Ground 2

23    In relation to ground two of the appeal, there is nothing in the Tribunal’s decision to suggest that it misapplied cl 572.223(1)(a) or the Act or Direction 53. The Tribunal summarised the factors to be considered, and assessed the appellant’s circumstances by reference to the relevant requirements in the Regulations and the Direction.

24    The appellant did not particularise how he said the Tribunal took into account irrelevant evidence, ignored the facts put forward by the appellant, erred in law and/or in fact, summarily dismissed and discounted the appellant’s evidence, or failed to properly and/or adequately investigate and assess the appellant’s claims in relation to the gap in his study history. Before me the appellant was unable to provide any cogent explanation as to what he meant by this ground of appeal and its particulars.

25    I cannot see how the appellant can make out the contention that the Tribunal ignored the facts he put forward. Before me the appellant focused on showing why the Tribunal was wrong to reach the view that it did in relation to the seven-month gap in his study history. I do not accept that the Tribunal ignored the appellant’s explanation or summarily dismissed and discounted his evidence in relation to that gap. The Tribunal noted his explanation but said that it had a number of questions to ask him which it was unable to do because the appellant did not attend the hearing.

26    I do not accept that the Tribunal ignored relevant evidence or summarily dismissed and discounted the appellant’s evidence in relation to other matters underpinning the Tribunal’s decision. The Tribunal considered the courses that the appellant studied but, having regard to his choice to undertake a disparate range of courses with limited relevance to his future employment plans, it found that there was no apparent clear and genuine study path.

27    I can see no substance in the appellant’s complaint that the Tribunal failed to properly and/or adequately investigate and assess the appellant’s claims with respect to the gap in his study history. Failure to make an obvious enquiry about a critical fact may constitute jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). However, the gap in the appellant’s study history was just one of many factors underpinning the Tribunal’s decision and I would not describe it as critical. I would not easily conclude that the Tribunal fell into error in this regard when it was open to the appellant to put on evidence and make submissions to the Tribunal but he did not attend the hearing. The appellant did not take up the opportunity to present evidence in relation to the very matters that he now seeks to assert constitute jurisdictional error.

28    Standing back from the second ground of appeal, the true nature of the appellant’s complaint is that the Tribunal did not accept his claims. It is well established that disagreement as to the merits of the Tribunal’s decision does not amount to jurisdictional error.

29    Finally, the appeal does not allege that there was anything unreasonable in the Tribunal’s decision to determine the application for review in the appellant’s absence. However, having regard to the fact that the appellant is not legally represented, I will deal briefly with the Tribunal’s decision to do so.

30    Section 362B of the Act allows the Tribunal the discretion to proceed to make a decision on an application for review when an applicant is invited to attend a hearing but does not. Depending upon the circumstances, it may be legally unreasonable for a tribunal to proceed with a hearing in the absence of the applicant: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Allsop CJ, Robertson and Mortimer JJ). In Li (at [74]) the plurality (Hayne, Kiefel and Bell JJ) said that an obviously disproportionate response by the Tribunal in refusing an adjournment application may be legally unreasonable. Their Honours said (at [76]) that a conclusion of unreasonableness may be applied to a decision which lacks evident and intelligible justification. French CJ said (at [30]) that a disproportionate exercise of an administrative discretion may be unreasonable on the basis that it exceeds what is necessary for the purpose it serves.

31    I can see nothing that is legally unreasonable in the Tribunal’s exercise of its discretion to determine the application for review in the appellant’s absence. The appellant had been informed of the hearing date, reminded by way of SMS message of the hearing date, he was apparently aware of the hearing date, and he said that he intended to appear. Yet he did not. The Tribunal allowed the appellant’s migration agent a significant period of time after the hearing to ascertain the appellant’s explanation for his non-appearance, but the agent was unable to contact the appellant. The appellant has offered no explanation for his non-appearance.

32    In my view the Tribunal did not fall into jurisdictional error, and I can see no appealable error in the decision of the primary judge. The appeal must be dismissed with costs.

Associate:

Dated:    8 March 2017