FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2016] FCA 937

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the then Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellants Student (Temporary) (Class TU) visas. The first appellant, Ms Kaur, is the primary applicant for the visa and the second appellant, Mr Pandher, is her spouse. As such the fate of the second appellant’s application is dependent upon Ms Kaur’s application.

2    The appellants, who are self-represented, provided a written submission in advance of the hearing. Written submission were also filed and served by the Minister in advance of the hearing.

3    For the reasons that follow, the appeal must be dismissed.

2.    RELEVANT STATUTORY PROVISIONS

4    Section 65 of the Migration Act 1958 (Cth) (the Act) provides that if, after considering a valid application for a visa, the Minister is satisfied relevantly that the criteria for the visa prescribed by the Act or the regulations have been satisfied, the Minister is to grant the visa. If not so satisfied, however, the Minister is to refuse to grant the visa. As such, by its terms s 65 does not confer any discretion upon the Minister to decide whether or not to grant the visa.

5    On a review, the Tribunal may exercise all of the powers and discretions conferred by the Act on the Minister (s 349, Act). The Tribunal therefore “stands in the shoes” of the Minister or delegate to make the correct or preferable decision at the time of its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 314 [96]-[98] (Hayne and Heydon JJ); SZURL v Minister for Immigration and Border Protection [2015] FCA 864 at [5] (Katzmann J) (by analogy). As such, it is for the Tribunal on review to be satisfied that the relevant criteria have been met.

6    Section 31(3) of the Act provides that the regulations may prescribe the criteria for a visa or visas of a specified class. Regulation 2.03(1) of the Migration Regulations 1994 (Cth) (Regulations) in turn provides that for the purposes of s 31(3), the prescribed criteria for the grant to a person of a visa of a particular class “are” the primary criteria (or, where relevant, the secondary criteria) in the relevant Part of Schedule 2.

7    In this case, the primary criteria to be satisfied were those applicable to Subclass 572. Relevantly, cl 572.223 of Schedule 2 of the Regulations at the time of the visa application (11 March 2011) provided that an applicant will satisfy the criteria if:

(1)    The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

(2)    An applicant meets the requirements of this subclause if:

(a)    for an applicant who is not a person designated under regulation 2.07AO:

(i)    the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(ii)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(A)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(B)    any other relevant matter; and

(iii)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity;…

8    Ms Kaur is not a designated person under reg 2.07AO and therefore is required to meet the requirements of cl 572.223(2)(a).

9    Importantly the primary criteria are prescribed in mandatory and exhaustive terms, as is apparent in particular from the phrase in reg 2.03 that “the prescribed criteria … are”. That language does not indicate the existence of any discretion. Furthermore, the criteria in cl 572.223(2)(a)(i),(ii) and (iii) are not expressed in the alternative such that it would suffice merely to satisfy one of those criterion. The use of the word “and” at the end of subclauses (i) and (ii) makes it plain that all of the criteria in cl 572.223(2)(a) must be satisfied. In this regard, the language used by the legislator is the surest guide to legislative intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). It follows in my view that the legislator intended that the primary criteria must be met before a visa can be granted in line with s 65(1) of the Act. It also follows that, where these criteria are not satisfied, the Tribunal has no option under s 65(1) but to affirm the decision of the Minister’s delegate not to grant the visa: Kaur v Minister for Minister for Immigration and Border Protection [2016] FCA 132 at [30] (Perry J).

3.    BACKGROUND

3.1    The visa application and the delegate’s decision

10    The appellants applied for the visa on 11 March 2011. That application was rejected on 25 May 2011 on the ground that Ms Kaur had not given the Minister evidence in accordance with requirements mentioned in Schedule 5A for the highest assessment level and therefore did not meet the criteria for the visa in cl 572.223(2)(a)(i) of the Regulations. That decision was subsequently set aside by the Tribunal and remitted to the Department of Immigration and Border Protection for reconsideration.

11    On 15 November 2013, a delegate after reconsideration rejected the visa application on the basis that Ms Kaur did not meet the criterion in cl 572.223(2)(b)(iii)(B). The delegate took into account that Ms Kaur did not study for 635 days despite holding bridging visas which gave her the right to study, and medical reports and other documents from the appellants in relation to that period.

3.2    The Tribunal’s decision

12    The appellants appeared before the Tribunal on 13 October 2014 to give evidence and present arguments. They were represented in relation to the review by their registered migration agent.

13    On 4 June 2015, the Tribunal affirmed the decision of the delegate not to grant the visas to the appellants.

14    In its reasons, the Tribunal found that, as Ms Kaur was at the time of its decision enrolled in an Advanced Diploma of Business as her principal course, the subclass that may be granted was Subclass 572. Contrary to the delegate’s conclusion, the Tribunal found that Ms Kaur was not a person designated under reg 2.07AO, and therefore that the issue was whether she satisfied cl 572.223(2)(a)(ii) as it read at the date of application.

15    The Tribunal found that Ms Kaur did not meet an essential requirement in that it was not satisfied that she was a genuine applicant for entry and stay as a student on several bases including the following grounds.

(1)    The Tribunal considered that Ms Kaur had failed to reconcile inconsistent evidence as to her past and future career and study intentions, including her evidence that she wished to pursue nursing despite the fact that the courses in which she was enrolled related to business (and, formerly, hospitality management).

(2)    With respect to the “limited qualifications” Ms Kaur had achieved over six and a half years, the Tribunal was not satisfied that the medical issues referred to in the medical documents provided by her had any significant impact such that she was precluded from remaining enrolled for any significant period or from successfully pursuing studies for any significant period (at [25]; see also at [27]).

(3)    Ms Kaur’s explanation as to why she did not pursue a nursing career earlier despite giving evidence that this was her intention after completing her business course was, in the Tribunal’s view, particularly unsatisfactory and added to its concern that she was “undertaking short inexpensive courses in Australia to prolong her stay unrelated to real vocational or academic success” (at [26]). The Tribunal found that if Ms Kaur had truly wished to pursue studies in nursing she could have done so potentially many years ago, and her failure to do so for well over six years undermined her claim to be a genuine student temporarily in Australia.

(4)    The Tribunal did not accept the adequacy of Ms Kaur’s explanation for not pursuing nursing earlier, namely, that her migration agent had not advised her that there was a college which provided nursing training in Melbourne (at [29]).

(5)    The Tribunal also considered that Ms Kaur’s further explanation for not undertaking a nursing course in Australia (namely, her parents’ financial difficulties) presented a “significant incentive for [Ms Kaur] not to return to her home country” (at [30]).

(6)    Nor was the Tribunal satisfied that the business courses have any real relationship to the proposed nursing career (at [29]).

16    Given these and other difficulties with Ms Kaur’s evidence, the Tribunal found that the criteria for the grant of a Subclass 572 visa were not met and affirmed the decision under review.

3.3    The Federal Circuit Court decision

17    The appellants applied for judicial review of the Tribunal’s decision in the Federal Circuit Court on 22 June 2015 on three grounds:

1.    I seek an order that the decision of the delegate of the minister and the migration review may be squashed [sic] and be replaced with a more favourable one.

2.    I claim that the circumstances due to which my non-compliance of the visa occurred were beyond my control.

3.    I shall submit more evidence and statement in due course of time.

18    On 11 March 2016, the Federal Circuit Court dismissed the appellants’ application for judicial review. The primary judge was satisfied that the Tribunal had not made a jurisdictional error on the basis that the appellant was inviting the Court to engage in a merits review, and the Court had no discretion to grant a student visa because of compelling circumstances.

4.    THE APPELLANTS’ SUBMISSIONS

19    In the notice of appeal, the appellants disputed the Tribunal’s findings rejecting Ms Kaur’s explanation for the gap in her studies, reiterating that she was suffering from depression. The appellants also alleged that the “AAT [Tribunal] did not give me [Ms Kaur] fair outcome on this application I have clearly explained to the Tribunal that non-compliance with my visa conditions were beyond her control. I believe AAT has made jurisdictional error while making decision on this visa application.” Finally, the appellants asked that this Court have a “fresh look” at the Federal Circuit Court’s judgment and “make a more favourable decision on this visa application”.

20    Ms Kaur provided written submissions in essentially the same terms as those before the Federal Circuit Court in which she made submissions on the following matters:

(1)    the courses which she has completed or embarked upon in Australia since 2008;

(2)    the reasons why there was a substantial gap in her studies referring to her medical condition, her concern to have children with her spouse, and being misguided by her previous migration agent who allegedly advised her that, while her application was with the Tribunal, she did not have to study;

(3)    that she met the relevant criteria for language and finances, and the decision of the Tribunal was unfair;

(4)    that there were “compelling circumstances” affecting the interests of an Australian citizen or permanent resident, namely, that she is working permanently part-time at an Australian business, that refusing to grant the visa will affect that business’ operations, and that she is a hard-working individual with valuable work experience in hospitality where Australia is facing a shortage of skilled hospitality workers; and

(5)    that the Tribunal made an (unidentified) error of law when interpreting the criterion in cl 572.223(2)(a) which she believed she met.

21    Ms Kaur appeared at the hearing of the appeal without legal representation and made brief oral submissions primarily on the second of the matters identified above. In addition she asked the Court to request the Department to grant the visas because of the financial hardship she would face if she returned to India.

5.    CONSIDERATION

22    Leaving aside the last issue at [20] above, the first difficulty with the appellants’ submissions is that they seek to challenge the Tribunal’s decision on the assumption that this Court and the Federal Circuit Court have jurisdiction to consider the material and the appellants’ claims afresh and to decide whether or not they meet the criteria for the grant of the visas. However, neither this Court nor the Court below has jurisdiction to engage in that task. As I explained at the start of the hearing and counsel for the Minister submitted, the jurisdiction of the Federal Circuit Court is limited to considering only whether the Tribunal’s decision to refuse to grant the appellants visas was lawfully made under the Act, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). A jurisdictional error may be established where the Tribunal, for example, has misunderstood the criteria under the Act or Regulations which it applied in deciding to refuse a visa or has failed to give the visa applicant a fair opportunity to be heard and to respond to adverse material. In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, it is also beyond this Court’s jurisdiction to consider whether or not it is satisfied on the material before it that the appellants meet the criteria for a visa or to request the Department to grant the visas sought. In short, as the primary judge held at [5], “[t]he Tribunal is the sole arbiter of fact.”

23    Secondly, no jurisdictional error has been established by the appellants with respect to the first and second issues addressed in their written submissions. The Tribunal took into account the courses of study which the first appellant had completed and embarked upon, and considered the reasons which Ms Kaur gave to explain the significant gap in her studies. Specifically, the Tribunal described Ms Kaur’s evidence that she had been unable to study during that period for medical reasons at [17] of its reasons, and the line of questioning pursued by the Tribunal of this claim. The Tribunal made findings on this evidence at [25] of its reasons as follows:

The tribunal has a further concern which is the very limited qualifications the applicant has achieved in the period of 6 ½ years. The applicant claims that she was mentally unwell and physically very sick. The tribunal has considered the medical documents she has provided but is not satisfied that medical issues referred to in those documents had any significant impact such that the applicant was precluded from remaining enrolled for any significant period of time or from capable of successfully pursuing studies for any significant period of time. Accordingly the tribunal places very little weight of the applicant’s claim that she was too unwell, either physically or mentally, to have greater academic success. In reaching that conclusion the tribunal accepts that there may have been some minimal impact on the applicant’s capacity to successfully progress in her studies due to medical issues.

24    The Tribunal also set out at [18] the first appellant’s evidence as to why she had not enrolled in nursing despite her stated desire to do so, including her evidence that her agent had not told her that there was a college providing nursing education in Melbourne but had only told her that there was a college in Geelong. However, the Tribunal did not accept that evidence. It found that the inconsistencies in her future career direction “are of considerable concern” (at [22]) and that it had “significant concerns as to the applicant’s credibility” with respect to her alleged desire to study nursing in the future, finding that “[i]f she had wanted to be a nurse she could have undertaken nursing training potentially many years ago”. Importantly the Tribunal specifically addressed her evidence about the advice from the migration agent at [29] finding that:

Nor is the tribunal satisfied that the business courses have any real relationship to the proposed nursing career. Whilst the applicant gave evidence that her migration agent didn’t tell her that nursing courses were available in Melbourne the tribunal considers if the applicant had any real interest in pursuing a nursing degree she would have made clearer enquiries, even prior coming to Australia or certainly, subsequently. The failure to do so indicates, in the tribunal’s view, she is not sincere about pursuing that career. The evidence indicates to the tribunal that student visa program is being used to circumvent the intentions of the migration program.

25    The findings on each of these matters were open to the Tribunal on the material before it and I can see no jurisdictional error in the Tribunal’s consideration of Ms Kaur’s evidence on these issues. That being so, this Court has no jurisdiction to inquire into whether or not it agrees with those factual findings for the reasons I have earlier explained.

26    Insofar as Ms Kaur appears to make a broader submission in this Court that her migration agent advised her that she did not need to study, there is no evidence that that claim was advanced before the Tribunal and in any event it is not appropriate for this Court to consider the claim again for the reasons set out in [22] above.

27    Thirdly, once the Tribunal found that Ms Kaur did not satisfy the criteria in cl 572.223(2)(a)(ii), it had no option but to refuse to grant the visas irrespective of whether or not Ms Kaur satisfied the financial and language requirements. The question of whether or not refusal of the visa was fair in those circumstances could not have any bearing on the outcome of the Tribunal’s decision: see also above at [9].

28    Fourthly, there is no evidence that the “compelling circumstances” on which the appellants sought to rely on the appeal were raised before the Tribunal. Moreover those circumstances were directed at matters other than whether Ms Kaur is a genuine applicant for entry and stay as student and therefore appear to assume that the Minister had a discretion as to whether or not to grant the visas despite finding that the criterion in cl 572.223(2)(a) is not met. However as the primary judge held at [6], the Tribunal had no discretion to grant the visas because of compelling circumstances: see above at [9].

29    Finally, no error in the manner in which the Tribunal interpreted and applied cl 572.223(2)(a) was identified by the appellants or is apparent from the Tribunal’s reasons, as the primary judge held.

6.    CONCLUSION

30    For the reasons given above, the appeal must be dismissed. As the Minister has successfully defended the appeal, the appellants should pay the Minister’s legal costs as agreed or assessed.

Associate:

Dated:    11 August 2016