FEDERAL COURT OF AUSTRALIA

Gupta v Minister for Immigration and Border Protection [2016] FCA 1004

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent fixed in the sum of $4200.

THE COURT NOTES THAT:

3.    The appellant did not appear at judgment delivery and did not have the opportunity to be heard on the amount of costs fixed in Order 2 above in accordance with the first respondent’s submissions.

4.    The appellant has the right to apply to set aside Order 2 in the event that the appellant so decides.

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 (the Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant, Mr Gupta, a Student (Temporary) (Class TU) visa (the visa).

2    While four grounds of appeal are identified in notice of appeal, at the heart of the appeal is Mr Gupta’s challenge to the Tribunal’s decision on the ground that the Provider Registration and International Student Management System (PRISMS) which recorded courses undertaken by the appellant and on which the Tribunal relied, wrongly recorded that he had completed an earlier course in business studies.

3    For the reasons that follow, Mr Gupta seeks to take issue with findings of fact made by the Tribunal which are beyond the jurisdiction of the Court below and this Court to review. It follows that the appeal must be dismissed with costs.

2.    BACKGROUND

2.1    The application for the visa

4    Mr Gupta is a citizen of India and arrived in Australia in February 2007 on a student visa. He was subsequently granted two further student visas and a further Temporary Graduate (Class VC subclass 485 visa), the latter being valid until 18 March 2014.

5    Mr Gupta applied for the visa the subject of these proceedings on 17 March 2014. The relevant subclass in his case was Subclass 572. At the time of the visa application cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) was a mandatory time of decision criterion for primary applicants for the grant of a Subclass 572 visa and provided that:

(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

(b) the applicant meets the requirements of subclause (2).

6    In his application Mr Gupta identified his intended course as “Cert-IV Diploma in Business” for the period 15 March 2014 to 14 April 2015.

2.2    The delegate’s decision

7    On 20 March 2014, the Department of Immigration and Border Protection (the Department) wrote to Mr Gupta requesting that he provide further information on a list of matters attached to the letter. The information requested included a statement of purpose setting out his reasons for undertaking the course of study specified in his application including “why you are studying a Diploma of Business when information available to the department indicates that you finished this course in November 2010.”

8    On 17 April 2014, Mr Gupta provided the Department with a statement of purpose in response to the letter. Mr Gupta explained that he had completed a diploma in Hospitality Management and Certificate IV in Hospitality but claimed that his “knowledge of hospitality was not enough in order to manage and run a business”. Mr Gupta further claimed:

…I choose to do this diploma as I feel that diploma will enable me to secure a better carrier in my future and I am try to learn something more in in which I found my interests and related to my future career. …

I wish to open my own restaurant in the future and this course will certainly enable me to progress in this direction. Hospitality is a booming industry in my country India and I am excited with the prospect of opening my own restaurant and being united with my family members.

(Errors in original.)

9    On 16 July 2014, the delegate refused to grant the visa on the ground that the delegate was not satisfied that Mr Gupta was a genuine applicant for entry and stay as a student and that he intended genuinely to stay in Australia only temporarily. Accordingly, the delegate found that the requirements of cl 572.223(1)(a) of Sch 2 of the Regulations had not been met. In reaching this conclusion, the delegate stated that:

With your application, you had provided evidence of completion of Diploma in Hospitality Management from Chisholm Institute. PRISMS also seemed to indicate you had completed a Diploma of Business at Iascend TAFE on 19 September 2010 for which the comments from the provider are “The student has completed all the required units to complete the course.”

PRISMS indicated that you last concluded studying on 19 September 2010 and recommenced studying in a Certificate IV in Business at Barkly College on 15 March 2014. Your current enrolment in a Certificate IV in Business and a Diploma of Business are similar to the course which appears to have been completed at Iascend TAFE on 19 September 2010. Therefore the value of this new course to your future is in question.

10    While the delegate took into account Mr Gupta’s statement of purpose, the delegate also took into account among other things that he had not provided his reasons for re-attempting studying the Diploma of Business considering he appeared to have already completed the same course in the past. It is clear from the letter from the Department and the reasons of the delegate that Mr Gupta was on notice of the issue raised by evidence that he had already completed a Diploma of Business and as to the relevance of that issue to a consideration of his application.

2.3    The Tribunal’s decision

11    On 30 July 2014, Mr Gupta applied to the Tribunal for review of the delegate’s decision.

12    The Tribunal wrote to Mr Gupta on 12 December 2014 inviting him to attend a hearing before it on 18 February 2015. In the letter, the Tribunal requested that Mr Gupta provide information including “Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.” (Emphasis added). The hearing invitation also explained that:

The Tribunal will assess whether you intend to genuinely stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations.

Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.

Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53.

13    Mr Gupta appeared at a hearing before the Tribunal on 18 February 2015 and gave evidence and presented arguments with the assistance of an interpreter in the Punjabi and English languages. At the hearing, Mr Gupta also submitted documents including various certificates from educational institutions. Among those certificates was a Statement of Attainment dated 3 April 2014 purportedly from iAscend certifying that Mr Gupta had been assessed as achieving competency in two units, namely “Manage recruitment selection and induction processes” and “Manage projects”. The Statement of Attainment does not identify the course pursuant to which the units were undertaken and does not contain any information about whether or not that course was ultimately completed by Mr Gupta.

14    On 18 February 2015, the Tribunal affirmed the delegate’s decision not to grant Mr Gupta the visa. The Tribunal also concluded that Mr Gupta did not meet the mandatory requirement in cl 572.223(1)(a) on the basis that it was not satisfied that Mr Gupta genuinely intended to stay in Australia temporarily.

15    The Tribunal identified the issue on the review as whether Mr Gupta met the criterion in cl 572.223(1)(a), having regard to the factors in Direction No. 53, Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (at [7]-[9]).

16    In the course of considering Mr Gupta’s immigration and study history, the Tribunal rejected his evidence in relation to his earlier studies for a Diploma of Business, finding that:

12.    The applicant told the Tribunal that he previously undertook a Diploma of Business but he did not complete it. However, this is contrary to Provider Registration and International Student Management System (PRISMS) records, cited in the delegate’s decision (a copy of which was submitted to the Tribunal), where the educational provider Iascend TAFE commented in relation to a Diploma of Business he undertook in 2010 that he had completed all the required units to complete the course. Given this information, the Tribunal does not accept the applicant’s statement that he has not previously completed this course. The applicant has not provided any satisfactory reason as to why he again has enrolled in a Diploma of Business for the period of 15 October 2014 to 14 April 2015.

17    The Tribunal also considered that Mr Gupta’s failure to complete his last course added to its view that he did not intend to stay in Australia temporarily. The Tribunal found at [14] that:

Taking out the period where the applicant was on a skilled visa, the applicant has still been in Australia for a very long time and in this period he has been undertaking a series of short, inexpensive courses at the VET level without progressing to higher level courses. He has not provided the Tribunal with any reasonable explanation as to why he is repeating studies at the same level in Business. The Tribunal has taken into account that the applicant has worked in the hospitality industry and it accepts that this is a field he wishes to work in. However, the Tribunal is not satisfied that the proposed studies in Business will assist him to obtain employment or improve his employment prospects in his home country. He told the Tribunal that he was from New Delhi and that he wanted to open up a restaurant in Australia rather than there. As to where in Australia, his answer was vague and undetailed as he said somewhere in the countryside where there are not many restaurants. The Tribunal has taken into account that he currently has no family in Australia but his answers that he wanted to make a future here and bring a family to Australia did not indicate that he intends to stay in Australia temporarily. It notes that he has provided a statement of attainments in first aid, managing recruitment selection and projects and a certificate of responsible serving of alcohol but these do not overcome the Tribunal’s concerns.

18    The Tribunal stated that it had considered carefully all the factors set out in Direction No. 53 including the value of the course to Mr Gupta’s future and considered that Mr Gupta was using the student visa programme to maintain ongoing residency. The Tribunal concluded that it was not satisfied that Mr Gupta intended genuinely to stay in Australia temporarily and accordingly found that he did not meet the essential requirement in cl 572.223(1)(a) or the identical requirement contained in the other subclasses (aside from Subclass 580 (Student Guardian) within visa Class TU). In respect of Subclass 580, the Tribunal found that there was no material suggesting that Mr Gupta met the prescribed criteria for that subclass.

2.4    Proceedings in the Federal Circuit Court

19    Mr Gupta raised three grounds of review of the Tribunal’s decision in the Court below:

The tribunal made a decision without considering all facts and information and disregarding the evidence it had on file.

The Tribunal failed to accord me the applicant procedural fairness and justice.

The Tribunal failed to provide natural justice to the applicant.

20    Mr Gupta did not file written submissions in the Court below. In oral submissions before the primary judge, Mr Gupta raised only the issue which he seeks to raise also on this appeal, namely, that the Tribunal had concluded that he had earlier completed the Diploma of Business course when in fact he had only partially undertaken it. The primary judge explained at [22] that:

At the heart of Mr Gupta’s complaint is the proposition that the course that he was seeking to undertake pursuant to his visa application was a course that he had not previously undertaken. The Tribunal reasoned that Mr Gupta was repeating previous studies because the previous course had been completed.

21    In support of his argument, Mr Gupta sought to tender in Court a certificate from iAscend indicating that only two units had been completed. The primary judge found, however, that the certificate also appeared at page 98 of the Court Book and was available to the Tribunal (at [23]).

22    On 14 April 2016, the Federal Circuit Court dismissed Mr Gupta’s application for judicial review. The primary judge held first that, by reason of the delegate’s decision which Mr Gupta had provided to the Tribunal with his review application, Mr Gupta was on notice of the issue that the PRISMS database recorded that he had completed all of the required units to complete the Diploma of Business course. As such, the primary judge held that no issue arose in relation to the application of s 359A of the Migration Act 1958 (Cth) (the Act)(at [24]).

23    Secondly, the primary judge held that:

25.    The issue was argued before the Tribunal, which weighed the evidence. The Tribunal concluded that it would rely upon the information derived from the PRISMS database.

26.    In the absence of any cogent evidence that the database was wrong, there was, in my opinion, no obligation on the Tribunal to make any further inquiry. Mr Gupta maintains that the database is wrong and that he did not complete the course. That was why he was seeking to enrol in essentially the same course. That is a matter that the Minister’s department could investigate, and I have suggested to Mr Gupta that he raise the matter with the department. To the extent that there is a factual error based upon the PRISMS database, it does not, in my opinion, support a contention that the Tribunal fell into jurisdictional error. The conclusion reached by the Tribunal was, in my opinion, open to the Tribunal on the information before it.

24    While Mr Gupta did not put any arguments in support of the remaining grounds in the application for judicial review, the primary judge considered that none of those other grounds established that the Tribunal decision was affected by any jurisdictional error.

3.    CONSIDERATION

3.1    The issues

25    Mr Gupta raises four grounds of appeal:

1.    The Federal Circuit Court failed to assess the evidence which was bases for refusal of my visa for not meeting requirements of Cl 572.223(1)(a) of Schedule 2 of the Migration ACT

2.    Federal Court made a decision without considering new evidence I offered. It included Certificate from my education providers that I did not complete my course but delegate of Minister wrongly assessed I have

3.    The Federal Circuit Court disregarded the new evidence which was bases of the original decision

4.    The Federal Circuit Court failed to accord us, the applicants, procedural fairness and natural justice.

(Errors in the original.)

26    As noted earlier, underlying each of these grounds is Mr Gupta’s complaint that the Tribunal was in error in concluding that he had completed the Diploma of Business based upon the PRISMS report. As Mr Gupta stated in oral submissions, the only reason why he was fighting this case was because of the error alleged in the PRISMS report.

3.2    Further evidence sought to be relied upon

27    In support of his arguments, Mr Gupta sought to rely upon further evidence, namely, an affidavit sworn by him on 6 June 2016 in which he deposed that he had not completed the earlier Diploma of Business course and now had the documents to prove that claim which he annexed to his affidavit. The Minister objected to the Court receiving this further evidence. I received the evidence provisionally subject to relevance on which I indicated that I would rule in my final decision after hearing the whole of Mr Gupta’s arguments. Having done so, I find that the evidence is not relevant and should be excluded. The evidence was not before the Tribunal on the review or the Court below, and was relied upon by Mr Gupta only to challenge the correctness of a factual finding by the Tribunal. However, it is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal unless it bears on a jurisdictional error: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (Nicholson J); SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] (McKerracher J). This is because neither this Court nor the Federal Circuit Court has jurisdiction to correct mistaken findings of fact by the Tribunal but rather only to consider whether the decision of the Tribunal is invalid by reason of a jurisdictional error: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 240 [65] (Sackville J), 257 [146] (Kenny J). A decision-maker makes a jurisdictional error where, for example, the decision-maker misunderstands the applicable statutory criteria or fails to hear and determine an application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court).

28    I have, however, had regard to the body of the affidavit (as opposed to the annexures) as submissions by Mr Gupta.

3.3    Ground 1: alleged failure by the Court below to assess the evidence

29    As the Minister submitted, to the extent that ground 1 alleges error by the Court below in failing to assess the evidence before the Tribunal for itself, the ground misunderstands the function of the Federal Circuit Court on judicial review. As explained in my ruling on Mr Gupta’s further evidence, the function of the Court below was limited to determining whether the Tribunal’s decision was invalid by reason of jurisdictional error. The Court below had no jurisdiction to assess for itself whether, on the evidence, Mr Gupta satisfied the criteria for the grant of the visa, including whether he genuinely intends to stay in Australia temporarily. Nor is that the function of this Court on appeal. As Kirby J explained in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1184 [114]:

Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power.

3.4    Grounds 2 and 3: Alleged failure by the Court below to consider new evidence

30    By grounds 2 and 3, Mr Gupta contends that the Court below did not consider or disregarded “new” evidence on which he sought to rely, including the certificate from his education provider alleged to show that he did not complete his course contrary to the Tribunal’s findings. I understand the reference to “new” evidence to be the Statement of Attainment from iAscend dated 3 April 2014 which recorded that Mr Gupta had been assessed as competent in two units. However, as noted earlier, the Court below found that that evidence was in fact before the Tribunal and contained in the Court Book. Furthermore, the Tribunal expressly considered the Statement at [14] of its reasons where it noted that Mr Gupta had provided a “[sic] statement of attainments” in, among other things, “managing recruitment selection and projects”, these being the units described in the Statement of Attainment, but found that the statements of attainment did not overcome its concerns.

3.5    Ground 4: alleged failure by the Court below to accord the appellant procedural fairness

31    While the ground is not particularised in the notice of appeal, in his affidavit (which I have received as a submission) Mr Gupta contends that:

I did not get procedural fairness and the fact that a Federal circuit court failed to rectify the mistake by AAT as required under Section 359A of the Migration Act

32    Section 359A(1) imposes an obligation on the Tribunal to give to an applicant information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. Specifically, s 359A(1) provides that:

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.

33    However, the section does not impose any procedural fairness requirements upon the Federal Circuit Court. As such, to the extent that the Court below is alleged to have failed to comply with the provision, the ground is misconceived.

34    It is more likely that Mr Gupta seeks to challenge the finding by the Court below that no issue arose which attracted the obligation upon the Tribunal to give information to Mr Gupta under s 359A of the Act. However, I can find no error in the decision of the primary judge on this issue. By virtue of s 359A(4), relevantly the obligation in subs (1) “does not apply to information… (b) that the applicant gave for the purpose of the application for review”. It has been held that this exception is not limited to information that advances the visa applicant’s case or information on which the visa applicant relies in support of the application: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [22] (Sundberg J) (approved in Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240 at 259 [74](the Court)). It is apparent from the reasons of the Tribunal at [12] that Mr Gupta gave a copy of the delegate’s decision to the Tribunal for the purposes of the review and it will be recalled that the delegate’s decision contained the information that the PRISMS report indicated that he had completed the Diploma of Business at iAscend on 19 September 2010 (see also the reasons of the primary judge at [24]). Accordingly, the Court below did not err in finding at [24] that no issue arose as to the application of s 359A of the Act as the information had been given by Mr Gupta to the Tribunal for the purposes of the exception in s 359A(4)(b).

3.6    The additional issue: whether there was a duty to make inquiries

35    Finally, Mr Gupta submitted at the hearing that the Tribunal should have called iAscend to check whether or not he completed the course and not simply relied upon the PRISMS report. However, as the Minister submitted, the Tribunal is under no general duty to make inquiries. As the High Court held in Minister for Immigration and Citizenship v SZIAI, the duty imposed upon the Tribunal is a duty to review, not necessarily a duty to make inquiries: [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) at 1129 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). As their Honours continued:

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

36    In Jahangir v Minister for Immigration and Border Protection [2014] FCA 218; (2014) 222 FCR 91 at 100 [56], Katzmann J held that the exception in SZIAI is:

…concerned with situations in which there is insufficient information or material before a decision-maker and where, in the absence of such information or material, the making of a decision might constitute jurisdictional error.

37    Mr Gupta has not established that the present case is one where exceptionally the Tribunal should have made further and obvious inquiries in line with these principles. It had sufficient information or material before it to make the decision. The obligation lay upon Mr Gupta to give the Tribunal the evidence upon which he relied upon in support of his visa application and to do so in circumstances where both the delegate and the Tribunal had given him notice of the contents and relevance of the PRISMS report issue to their consideration of his application. Ultimately Mr Gupta’s complaint is concerned with the decision by the delegate and the Tribunal to prefer the evidence afforded by the PRISMS report over the evidence on which Mr Gupta sought to rely which was matter exclusively for the Tribunal to assess for the reasons I have earlier given at [29] above.

4.    CONCLUSION

38    The appeal should be dismissed with costs.

Associate:

Dated:    24 August 2016