FEDERAL COURT OF AUSTRALIA

Toura v Minister for Immigration and Border Protection [2017] FCA 1405

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The appellant is a citizen of the Republic of India. On 19 October 2007 the appellant was, whilst offshore, granted that class of visa under the Migration Act 1958 (Cth) known as a Student (Class TU sub-class 573) visa. That visa was valid until 15 March 2012. On the basis of that visa the appellant was granted entry into Australia upon his arrival on 14 February 2008.

2    On 1 May 2012, the appellant was granted a further student visa, on this occasion a Student (Class TU sub class 572) visa. That visa was valid until 15 March 2013. On 11 April 2013 the appellant was granted a further such student visa valid until 14 May 2014. Thereafter, he applied for a further such visa. On this occasion his student visa application was refused by a delegate of the Minister for Immigration and Border Protection (Minister).

3    The appellant then sought the review of the delegate’s decision given on 9 September 2014 by the Migration Review Tribunal (Tribunal). On 8 April 2015, for reasons sent to the appellant together with the decision on 10 April 2015, that Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a student visa.

4    The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal’s decision. On 24 July 2017 the Federal Circuit Court dismissed with costs that judicial review application. By that stage the functions of the Migration Review Tribunal had been assumed by the Administrative Appeals Tribunal (Tribunal): s 2 of the Tribunal Amalgamation Act 2015 (Cth).

5    The appellant has now appealed against the orders made by the Federal Circuit Court. As was the case before the Federal Circuit Court, the Administrative Appeals Tribunal, though a necessary respondent, has adopted a submitting role. As in the Federal Circuit Court, the only active party respondent is the Minister.

6    There are two grounds of appeal, which are:

1.    The Administrative Appeals Tribunal (“the AAT”) and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error when they incorrectly applied the guidelines set down by Ministerial Direction 53 to the Applicant’s overall circumstances.

2.    The learned Judge in the Federal Circuit Court erred in law and/or in fact in failing to find that the decision of the AAT was affected by jurisdictional error and/or that the AAT had misapplied the Migration Regulations and/or the Migration Act with respect to the evidence presented by the Applicant.

Particulars

i)    By Summarily dismissing and discounting the evidence that indicated that the Applicant was a ‘genuine student’;

ii)    By failing to consider the evidence in totality and cumulatively;

iii)    By failing to properly and/or adequately investigate and assess the claims of the Applicant as to the reasoning behind his stunted study progression;

iv)    By failing to given proper consideration and weight to the evidenced presented by the Applicant.

7    These grounds do not reflect the ground of review specified in the application made to the Federal Circuit Court. That ground was in these terms:

I came in Australia as an international student to study. I applied to the Department of Immigration for a student (Temporary) (Class TU) visa on 14 May 2014. My application was refused by the department on 9 September 2014 on the basis that I did not satisfied their requirement of this visa. I am not satisfied with the decision made by MRT on my application. I believe that I should get another chance to study here. Therefore I want to appeal against the MRT decision in the federal court.

[sic]

As to that ground the learned primary judge at [9] concluded that:

None of that faintly hinted at jurisdictional error into which the Tribunal allegedly fell.

8    Having regard to the appellant’s oral submissions this morning, I have no doubt that that particular ground of review reflected a deep-felt and genuine disagreement with the evaluation of his circumstances made by the Tribunal in reviewing the decision not to grant him a student visa. The learned Federal Circuit Court judge regarded the ground of review specified as attempting impermissibly to request a review on the merits of his entitlement to a visa by that court. Quite correctly and citing pertinent authority, namely, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that court refused to conduct any such review.

9    Having regard to the ground of review specified, the Federal Circuit Court’s judgment was undoubtedly correct. Exceptionally, the interests of justice may dictate that an appellant be permitted to raise as a ground of appeal a ground not taken as a ground of review in the Federal Circuit Court. In order to decide whether or not even to grant such leave, some evaluation of the merits of a ground of appeal is necessary: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48] and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 736 at [19] – [20]. Of course, that may not be, in itself, a basis for the granting of leave if some particular prejudice would be suffered by a respondent.

10    The burden for the appellant in respect of the grounds specified in the notice of appeal is that neither ground has any merit. The first ground in the notice of appeal is, as was submitted on behalf of the Minister, cast at a level of generality which does not identify any particular jurisdictional error made by the Tribunal. As to the second ground of appeal, the particulars specified might, in singular circumstances, amount to a jurisdictional error or errors. By that I mean if the Tribunal had not engaged with the material before it, particularly that submitted by the appellant, it could be concluded that it had failed to discharge its review function: Pt IV of the AAT Act. That is not this case.

11    The Tribunal’s reasons disclose a close engagement with the courses of study undertaken by the appellant, as shown on the material before the Tribunal. Those reasons also show that the Tribunal quite properly put to the appellant for comment, in the course of a hearing the Tribunal conducted, particular features noted by the Tribunal in respect of those courses of study. The ultimate conclusion reached by the Tribunal was that the appellant did not meet the visa criteria because he was not a genuine student. That was an evaluative conclusion reasonably open to the Tribunal to make on the material before the Tribunal.

12    The appellant’s disagreement with that evaluation, though genuine, does not amount to demonstrating unreasonableness on the part of the Tribunal. The other feature of the particulars under ground 2 in the notice of appeal is an asserted failure on the part of the Tribunal to investigate the appellant’s claim. It needs to be remembered though that the core function of the Tribunal is that of reviewing a decision of the Minister or a delegate not conducting an investigation: see SZIAI v Minister for Immigration and Citizenship (2009) 83 ALJR 1123 (SZIAI).

13    In particular circumstances, a failure on the part of the Tribunal to make an obvious inquiry or to grant to an applicant a short adjournment to furnish material obviously available can amount to unreasonable conduct on the part of the Tribunal and in that prove jurisdictional error: SZIAI at [25] – [26]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. That is not this case. Ordinarily, while there is no formal onus of proof in a review proceeding such as this, it is for an applicant nonetheless to adduce such material as he or she is able to support the outcome he or she desires. In other words, ordinarily, and far and away ordinarily at that, it is not for the Tribunal to make an applicant’s case for an applicant: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at 172-173.

14    For these reasons neither of the grounds of appeal have any merit.

15    There is a further, at least prospective, ground of appeal raised not in the notice of appeal but rather in the appellant’s written submission. Quite fairly, the Minister approached the appeal on the basis that regard ought also to be had to this additional issue, even though it was not specified in the grounds of appeal. The issue raised is whether in the particular circumstances which occurred after the conclusion of the hearing offered by the Tribunal and taken up there was, nonetheless, to be found a denial of procedural fairness to the appellant. Here, too, a grant of leave would be necessary because the point is not one which was raised as a ground of review.

16    The Tribunal’s hearing was conducted on 27 March 2015. On 2 April 2015 the appellant contacted the Tribunal’s registry to request a copy of the audio recording of the hearing held on 27 March 2015. An electronic version of that was sent by a Tribunal officer to the appellant on 2 April 2015 (see appeal book p 89). It appears from file notes made in the course of the Tribunal’s administration and included in the appeal book that, on 2 April 2015, the appellant had also requested time within which to submit further evidence (see appeal book p 91, third paragraph of file note).

17    It appears further from that same file note that the appellant was told that any such evidence should be provided by 3 April 2015. No evidence was provided by that date but the Tribunal member, nonetheless, waited until 8 April 2015 before making a decision. The appeal book discloses that the Tribunal member’s decision was signed on 8 April 2015.

18    Also in the appeal book is a file note made by a Tribunal registry officer on 9 April 2015 (see appeal book p 90). That records a call to the Tribunal’s registry on that date by the appellant requesting an extension of time to provide post-hearing documents. He advised that he was seeking an extension until the following Tuesday because he was waiting for his mother to send him funds to pay for transcripts which I infer to be academic transcripts. On 10 April 2015 after that request had been considered by the member, the appellant was advised that the extension was refused, because the decision had been made on 8 April. In my view, no procedural fairness denial issue is raised on those facts. There was no engendering of an understanding on the part of the appellant by the conduct of the Tribunal member or an officer of the Tribunal that a decision would not be made until after particular material had been submitted. The Tribunal is not obliged to stay the making of a decision indefinitely after a date upon which further material after a hearing is to be submitted has passed.

19    In short then, whether one approaches the determination of this appeal by reference to the notice of appeal or by to additional issue raised in the appellant’s written submission, there is no merit in any of the grounds. Further, the conclusion reached by the learned Federal Circuit Court judge in respect of the ground of review was plainly correct. It necessarily follows that the appeal must be dismissed.

Associate:    

Dated:    5 December 2017