FEDERAL COURT OF AUSTRALIA

Joshi v Minister for Immigration and Border Protection [2014] FCA 1239

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicants pay the first respondent’s costs fixed in the sum of $3,400.

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

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

1    In February 2013, a delegate of the Minister for Immigration and Border Protection (the Minister) decided to refuse to grant Ms Sumitra Joshi a student visa on the basis that she did not meet one of the criteria for the grant of the visa. This also meant that the visa application by Ms Joshi's husband, Mr Raj Kumar Shrestha, which was dependent on Ms Joshi's application, was also refused. Ms Joshi and Mr Shrestha sought a review of the refusal decision in the Migration Review Tribunal (the Tribunal). That application failed. They then challenged the Tribunal's decision in judicial review proceedings in the Federal Circuit Court. The application was dismissed on an interlocutory basis because the primary judge found that there was no arguable case for relief. Ms Joshi and Mr Shrestha now apply for leave to appeal from the judgment of the Federal Circuit Court.

the Tribunal proceedings and decision

2    A criterion for the grant of the student visa that Ms Joshi applied for was that the Minister was satisfied that she was “a genuine applicant for entry and stay as a student because the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily”: clause 572.223(1)(a) of the Migration Regulations 1994 (Cth) (the Regulations). It would appear that the Tribunal entertained some concerns about whether Ms Joshi met that criterion. Those concerns appear to largely have emanated from the history of courses that Ms Joshi had enrolled in as a student. Those courses had provided the basis for previous student visas applied for by, and granted to, Ms Joshi. Prior to the Tribunal's hearing of the review application, the Tribunal wrote to Ms Joshi and Mr Shrestha pursuant to s 359A of the Migration Act 1958 (Cth) (the Act).

3    Section 359A(1) of the Act provides as follows:

Information and invitation given in writing by Tribunal

(1) Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

4    The material part of the Tribunal's letter was a follows:

I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Student (Temporary)(Class TU) visas.

In conducting its review, the tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

Please note, however, that the tribunal has not made up its mind about the information.

The particulars of the information are:

Electronic (PRISMS) records before the tribunal indicate that you are currently enrolled in a course of study. The tribunal notes that you provided the Department of Immigration and Border Protection with two Confirmation of Enrolment (CoE) documents, for Certificate IV in Hospitality (Commercial Cookery) from 12 November 2012 to 27 June 2014 and Diploma of Hospitality, from 21 July to 26 September 2014. These records indicate:

You were enrolled in a number of courses in the field of Hairdressing and Salon Management for over four years after your arrival in Australia on 1 January 2009. However, your two current enrolments are in an unrelated field.

Since your arrival in Australia you have finished a number of inexpensive and short courses, only one of which was for more than six months, at the Vocational level. Your current CoEs are for further study, for two years, at the same level.

You applied for permanent Skilled Migration on the basis of your qualifications in Hairdressing, on the nomination of SNJ Hair Styling Pty Ltd. This application was refused by the Department on 21 June 2012. You have not explained why you decided to change to courses in Hospitality or why, you would have done so, having sought permanent residency in Australia on the basis of a career in the field of Hairdressing.

You have submitted a work reference from Vatan restaurant stating that you were employed as a kitchen hand but this provides little information about your duties or your tenure in this position.

The above information is relevant as it might lead the tribunal to conclude that you do not satisfy clause 572.223(1) of Schedule 2 to the Migration Regulations as you are not a genuine applicant for entry and stay in Australia as a student; further, the information might lead the tribunal to conclude that you do not satisfy clause 572.223(1)(a) as the tribunal might conclude that you do not intend genuinely to stay in Australia temporarily; and that the decision refusing to grant you a Student (Temporary) (Class TU) visa should be affirmed.

5    Ms Joshi plainly comprehended the potential relevance to her review application of the particulars of the information provided in the Tribunal's letter. Within a week, she had provided a response. The Tribunal summarised her response in the following terms at paragraph 7 of its reasons:

•    After completing her course in hairdressing she could not find a job as a hairdresser in Australia. She realised that cheap hairdressers and barbers are prevalent in Nepal. She believed that the hairdressing skills she had learned would not assist her employment prospects.

•    She developed an interest in cookery when she obtained a job as a kitchen hand two years previously. Cooks are needed everywhere and she thinks she may open a restaurant specialising in western style food in Kathmandu when she returns to Nepal. Increasing globalization means young people in her country are interested in eating western food.

•    With this in [mind] she decided to study cookery. She has experienced much frustration in her attempt to stay in Australia. She has to plan her future when she returns to Nepal and she believes cookery skills gained in Australia, particularly relating to western food, will give her a good career there.

6    Mr Joshi later sent the Tribunal a statutory declaration that reiterated much of the information in her initial response.

7    The Tribunal convened a hearing at which Ms Joshi gave evidence and presented arguments in support of her and her husband's review application. It will later be necessary to refer to parts of the transcript of the hearing. That is because Ms Joshi and Mr Shrestha's submissions in support of the leave application rely heavily on some things said by the Tribunal during the hearing. It is at this stage sufficient to note two things. First, the transcript was not tendered or relied on by Ms Joshi and Mr Shrestha in the Federal Circuit Court. The Minister objected to the tender of the transcript on this basis. That objection will be dealt with later. Second, a fair reading of the hearing transcript reveals that the subject matter of the information in the s 359A letter, and Ms Joshi's response to it, was dealt with at length in the course of the Tribunal's hearing.

8    The Tribunal affirmed the decision of the delegate refusing Ms Joshi's application. The Tribunal was not satisfied that Ms Joshi was a genuine applicant for entry and stay in Australia as a student temporarily. She accordingly did not meet the criterion in clause 572.223(1) of the Regulations. The critical part of the Tribunal's reasoning in relation to that finding is at paragraph 19 of its reasons, though Ms Joshi also relies on what the Tribunal said in paragraph 20. Those paragraphs of the Tribunal’s reasons are as follows:

19. Having carefully considered the applicant’s evidence and the information before the Tribunal I am unable to be satisfied that she is a genuine applicant for entry and stay in Australia as a student temporarily. I accept that she is currently studying a course in Certificate IV in Commercial Hospitality, to end in June 2014, and that she is also enrolled in a course in Diploma of Hospitality to end in September 2014. As put to her in the Tribunal’s letter of 15 November 2013 and at the hearing, however, she previously applied for permanent Skilled Migration on the basis of her qualifications as a hairdresser and was nominated by a hairdressing salon. This application was refused in June 2012, and some months later she commenced a course of study in commercial cookery, a quite unrelated field. I have considered the reasons she has advanced for the change in her sturdies – that she realized hairdressing would not offer good employment prospects in Nepal and that she had developed an interest in cookery from working in a restaurant in Auburn – but I do not find these convincing. I consider her actions evince a clear interest in remaining in Australia permanently, an aim which she hoped to achieve through nomination in the field of hairdressing but which she now sees as being achieved through study in commercial cookery. I am not satisfied that she does, in fact, intend to return to Nepal on completion of her studies in this field.

20. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that she is a genuine applicant for entry and stay in Australia as a student or that she intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet cl.572.223(1) or 572.223(1)(a).

Federal Circuit Court Proceedings and Judgment

9    In the Federal Circuit Court, Ms Joshi and Mr Shrestha sought judicial review of the Tribunal's decision on the following grounds:

1.    The Tribunal failed to carry out its Statutory Duty.

Particulars

a.    The Migration Act 1958 s.359A requires that the Tribunal must give the Applicant particulars of any material that is before it and is adverse to the Applicant.

b.    The Tribunal gave the Applicant a general outline of the adverse material p.3 para 6.

c.    The Tribunal relied upon specific information adverse to the Applicant p.7 para 19.

d.    By failing to give the Applicant specific particulars of the adverse information, the Tribunal failed to carry out its Statutory Duty set out in the Migration Act [1958] s.359A.

2.    The Tribunal’s decision was not based on the facts as found.

Particulars

a.    The courses currently being undertaken by the Applicant would, on the balance of probabilities, only lead to an application for a further temporary visa rather than a permanent visa.

b.    The Tribunal failed to distinguish between the Applicant’s intentions and dreams.

10    The application was listed for what is commonly referred to as a "show cause" hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). That rule provides as follows:

Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

11    It would appear that Ms Joshi and Mr Shrestha did not seek to persuade the primary judge that they had an arguable case in relation to the second ground of their application. The primary judge, in her reasons, noted that no particular submissions were made in support of that ground. Her Honour found that there was no arguable case for relief based on it. This finding is not the subject of the application for leave to appeal.

12    In relation to ground 1, the primary judge noted at paragraph 7 of her reasons that the submission advanced by Ms Joshi and Mr Shrestha in relation to this ground was to the effect that the Tribunal failed to give "specific particulars" of the adverse information to Ms Joshi because the s 359A letter was "no more than an immigration history".

13    The primary judge rejected that submission and held that ground 1 of the application did not raise an arguable case for relief. Her Honour found at paragraph 10 that the Tribunal's letter "clearly gives the applicant the particulars that the Tribunal was of the view may be part of the reason for affirming the decision under review" and "explained the consequences that may flow to the applicant if that information was relied upon". Her Honour noted that Ms Joshi responded to the letter and that her response was considered and taken into account by the Tribunal.

Leave to Appeal Grounds and Submissions

14    The notice of appeal that Ms Joshi and Mr Shrestha propose to file, if granted leave to appeal, contains the following two grounds:

1.    The Court applied the wrong test

1    The Court looked for the appellant to mount an argument that would succeed

1    The proper test is whether an Applicant to that Court has raised an arguable base for the relief claimed. Federal Circuit Court Regulations Ref 44.12

2.    The Court misapplied the provisions of the Migration Act 1958 s.359A.

2    S.359A of the Migration Act 1958 requires, inter alia, that

“The Tribunal give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”

2    The Court stated at [8] p.3

“Section 359A of the Act requires the MRT to give to the applicant information that the MRT considers would be the reason or part of the reason for affirming the decision…”

2    The Court has failed to consider whether the Tribunal gave clear particulars of the information.

15    At the hearing of the application Mr Turner, who appears for Ms Joshi and Mr Shrestha, confirmed that proposed ground 1 in the draft notice of appeal is not pressed. His submissions at the hearing focused entirely on ground 2 in the proposed notice of appeal. In relation to proposed ground 2, Ms Joshi and Mr Shrestha rely on two extracts from the transcript of the Tribunal hearing. Those two extracts are as follows:

Andrew Mullin    Right. Well thanks for that. Now ah the Tribunal has an electronic records of your previous academic progress in Australia and I think just looking at here you have completed a course a short course in English then you completed courses in Certificate III and IV in Hairdressing, Diploma of Hairdressing, Certificate IV in Business and Diploma of Business Administration.

Interpreter        … … Three, four … She did Administration … …

Andrew Mullin    Yes, and looking at those records I think you had six enrolments which were cancelled for various reasons.

Interpreter        …

Andrew Mullin        Is that correct?

Interpreter        Yes.

Andrew Mullin    Um, the history of that study does seem to show that you followed different – quite different areas of study.

Interpreter        …

Andrew Mullin    You started out studying hairdressing and the related courses in salon management and so on. But then you switched to Business Administration and then after that you switched to Hospitality, in fact Commercial Cookery.

…

Interpreter    I would like to add to something you mentioned – a couple of courses being cancelled.

Andrew Mullin         Yes.

Interpreter        What do you mean by that?

Andrew Mullin    Well you had a – for instance you were enrolled in a course in Diploma of Hairdressing and Salon Management to begin in October 2010 which was cancelled for non-commencement of studies.

Interpreter        … nothing like that.

Andrew Mullin        Well that is what the electronic records show.

16    Ms Joshi and Mr Shrestha submit that these passages show that in its s 359A letter the Tribunal failed to provide "clear particulars" of information which the Tribunal considered might lead to an adverse decision, as required by s 359A of the Act. They argue that the letter only contains a summary of Ms Joshi's immigration history. It omits any reference to course cancellations and Ms Joshi’s enrolment in a business administration course. Both of these matters were referred to in the hearing. Ms Joshi and Mr Shrestha submit that both these matters were considered by the Tribunal to be the reason, or part of the reason, for affirming the delegate's decision. That, they submit, is apparent from the reference in paragraph 20 of the Tribunal's reasons to Ms Joshi's "immigration history".

17    It should perhaps be noted that proposed ground 2 of the appeal also appears to allege error on the part of the primary judge in paragraph 8 of her Honour's reasons. It appears to be contended that her Honour applied the wrong test because, in summarising the effect of s 359A in paragraph 8, her Honour did not use the words "clear particulars". No submissions were made by Ms Joshi and Mr Shrestha in relation to that aspect of proposed ground 2. It may be inferred, therefore, that it is not pressed. In any event, it plainly has no merit. The balance of her Honour’s reasons clearly show that her Honour applied the correct test.

Consideration and Disposition of the Appeal

18    Leave to appeal will not be granted unless it can be demonstrated that the decision sought to be challenged is attended with sufficient doubt to warrant it being revisited on appeal. Ms Joshi and Mr Shrestha have not satisfied that requirement. They have not demonstrated that the decision of the primary judge is attended with sufficient doubt. Indeed, the proposed ground of appeal and the submissions in support of it have no merit. The primary judge was correct to find that Ms Joshi and Mr Shrestha had no arguable case for relief.

19    Despite the wording of proposed ground 2 in the draft notice of appeal, the only argument ultimately advanced on behalf of Ms Joshi and Mr Shrestha is that the primary judge erred in not finding that the Tribunal failed to comply with s 359A of the Act. The non-compliance is said to arise from the fact that the letter did not refer to certain facts that were required to be included in it. Those facts, in Ms Joshi and Mr Shrestha's submission, related to Ms Joshi’s course cancellations and her enrolment in a business administration course.

20    A fair reading of the Tribunal's s 359A letter reveals that the main issue of concern for the Tribunal was that Ms Joshi had initially enrolled and completed a number of courses relating to hairdressing and had sought a permanent visa on the basis of her skills in that area. When that application failed, she shifted her attention to courses relating to the hospitality industry. Concern also appeared to arise from the fact that Ms Joshi had initially enrolled in and completed a number of inexpensive short courses, but that her new proposed course of study was for a long course (two years). The potential relevance of these matters was that they may have cast some doubt on whether Ms Joshi was a genuine applicant for stay in Australia as a student temporarily. They may have tended to suggest that she simply wanted to stay in Australia permanently.

21    The Tribunal's s 359A letter gave clear particulars of the information that led it to have this particular concern and clearly explained the potential relevance of the information. This is demonstrated by the fact that Ms Joshi was able to provide a clear and meaningful response which addressed both the information and its potential relevance. Ultimately, the Tribunal was not persuaded by Ms Joshi's response, but that is immaterial to the question whether the Tribunal complied with s 359A of the Act.

22    The fact that in two exchanges during the hearing the Tribunal referred to some different or additional information, or expressed the information in slightly different terms, says nothing about whether or not the Tribunal complied with s 359A in the circumstances of this matter. The exchanges relied on by Ms Joshi and Mr Shrestha are fairly minor exchanges in a relatively lengthy hearing. Their submissions rely on these exchanges read in isolation and largely out of context.

23    Ms Joshi and Mr Shrestha rely on the fact that in these exchanges the Tribunal referred to the fact that a number of Ms Joshi's enrolments had been cancelled, and to the fact that she had enrolled in a business administration course. When read in context, however, it is clear that these facts were largely immaterial and inconsequential to the Tribunal's concerns. It may readily be inferred that it was for this reason that these facts were not referred to in the s 359A letter. It was therefore not information that s 359A obliged the Tribunal to give to Ms Joshi.

24    This is also apparent from a fair reading of the Tribunal's reasons.

25    Neither of the two facts referred to in the hearing that are relied on by Ms Joshi and Mr Shrestha ultimately played any role in the Tribunal's reasons. Ms Joshi and Mr Shrestha submit that those two facts can be seen to have played some role in the Tribunal's reasons because they were part of Ms Joshi's "immigration history" to which reference is made, albeit in very general terms, in paragraph 20 of the Tribunal's reasons. That submission is rejected. It is not even arguable that this very general reference in the Tribunal's reasons encompasses the two facts which otherwise do not rate any mention in the more detailed reasoning in paragraph 19 of the Tribunal's reasons. Nor could the fact that Ms Joshi had enrolled in a business administration course readily be seen objectively to give rise to any relevant issue for the Tribunal.

26    As indicated earlier, the Minister objected to the tender of the transcript of the Tribunal hearing. He did so largely on the basis that fresh evidence should not be admitted "unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result": Sami v Minister for Immigration and Citizenship (2013) 139 ALD 1; [2013] FCAFC 128 at [7].

27    There is considerable merit in the Minister's submission. In the end, it probably matters little whether the evidence is admitted or not, given that in any event it provides no basis for the grant of leave. The preferable course is perhaps to admit the transcript and deal with the substance and merit of Ms Joshi and Mr Shrestha's submissions. That is so particularly because both parties made detailed and helpful submissions, both in writing and orally, in relation to that evidence.

28    It follows that Ms Joshi and Mr Shrestha have not demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave. Indeed, the primary judge was plainly correct to find that their case that the Tribunal had failed to comply with s 359A was not arguable. The application for leave to appeal is accordingly dismissed.

29    The first respondent sought an order that the applicants pay his costs fixed in the sum of $3,400. No submissions in opposition to this course were advanced by Ms Joshi or Mr Shrestha.

30    The appropriate orders are:

(1)    The application for leave to appeal be dismissed;

(2)    The applicants pay the first respondent’s costs fixed in the sum of $3,400.

Associate:

Dated:    21 November 2014