FEDERAL COURT OF AUSTRALIA

Bhangu v Minister for Immigration and Border Protection [2017] FCA 108

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 15 July 2016 be set aside and in lieu thereof it be ordered that:

(a)    The decision of the Migration Review Tribunal dated 25 November 2014 be set aside.

(b)    The matter be remitted to the Administrative Appeals Tribunal, constituted by a different member, for hearing and determination according to law.

(c)    There be no order as to costs.

3.    There be no order as to costs in relation to the appeal (with the intent that each party bear the party’s own costs, including reserved costs).

4.    If any party seeks a variation of the costs orders referred to in paragraph 2(c) or 3 above, they may give written notice and file a short written submission within seven business days.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of India, applied on 17 September 2013 for a Student (Temporary) (Class TU) visa.

2    On 17 December 2013, a delegate of the first respondent (the Minister) decided that the appellant’s application should be refused.

3    The appellant applied to the Migration Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal) for review of the delegate’s decision.

4    On 25 November 2014, the Tribunal decided to affirm the decision not to grant the appellant a Student (Temporary) (Class TU) visa. The main issue considered by the Tribunal was whether the appellant met the criteria specified in cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) as it stood at the relevant point in time. That provision required the Minister to be satisfied that the applicant “intends genuinely to stay in Australia temporarily” having regard to certain matters. Although the Tribunal’s decision was to affirm the decision of the delegate, the statement of decision and reasons of the Tribunal (the Reasons) contains the following contradictory findings at [26]-[27]:

26.    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 the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant does not meet cl.572.223(1)(a).

27.    As the Tribunal has found the applicant meets the requirements of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

5    The appellant applied to the Federal Circuit Court of Australia (the Federal Circuit Court) for judicial review of the Tribunal’s decision. A hearing, at which the appellant appeared in person, took place on 20 June 2016.

6    On 15 July 2016, the Federal Circuit Court dismissed the application for judicial review.

7    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant appeared in person. On the hearing of the appeal, I raised with the solicitor for the Minister whether the contradictory findings in the Reasons, referred to above, constituted a jurisdictional error.

8    Subsequently, with leave, the Minister filed a supplementary submission in which he contended that the finding at [27] of the Reasons was a mere typographical error and not an error capable of affecting the exercise of the Tribunal’s jurisdiction.

9    In my view, for the reasons that follow, jurisdictional error is established in relation to the Tribunal’s decision. In summary, the contradictory findings, together with other aspects of the Reasons referred to below, indicate that the Tribunal fell into error by identifying the wrong issue, asking itself the wrong question, ignoring relevant material or relying on irrelevant material.

Background facts

10    On 25 July 2008, the appellant arrived in Australia, having been granted a Student (Class TU) (subclass 572) visa on 7 July 2008.

11    On 17 September 2013, the appellant applied for a further student visa. His application disclosed that he had undertaken the following previous courses of study in Australia:

(a)    Certificate III and IV in Hospitality at the Victorian Institute of Culinary Arts and Technology (VICAT);

(b)    Diploma of Hospitality at VICAT; and

(c)    Diploma of Management at VICAT.

12    The appellant nominated, as his intended course of study, Certificates III and IV in Information Technology at VICAT. Included in his application was a brief statement (comprising 23 lines of text) in which he addressed his reasons for undertaking the intended course of study.

13    On 20 September 2013, the Department of Immigration and Citizenship (the Department) wrote to the appellant seeking further information. One of the matters raised by the Department was that its records indicated that the appellant was not enrolled in a course of study between 26 May 2013 and 18 August 2013, a “study gap” of 85 days.

14    On 19 October 2013, the appellant responded to the Department’s request for further information. The materials provided included a two-page statement by the appellant. This addressed the purpose of the appellant’s future study in Australia and the study gap of 85 days between two past courses.

15    On 21 November 2013, the Department sent a further email to the appellant requesting information about two other study gaps.

16    On 13 December 2013, the appellant provided further information in response to the Department’s request. The materials he provided included a two-page statement regarding these other study gaps.

17    On 17 December 2013, a delegate of the Minister decided to refuse the appellant’s application for a student visa. The decision record stated that the appellant did not meet the requirement in cl 572.223 in Sch 2 to the Migration Regulations (set out below). The delegate referred to the various items of correspondence between the Department and the appellant regarding the study gaps and then stated that, while the delegate had taken the appellant’s statements into account, he was not satisfied that the appellant had “provided an acceptable explanation for the identified gaps in his studies”.

18    The appellant applied to the Tribunal for review of the delegate’s decision.

19    On 2 September 2014, the Tribunal wrote to the appellant’s migration agent, inviting the appellant to appear before the Tribunal to give evidence and present arguments. Enclosed was a copy of the Minister’s Direction No. 53. The appellant was invited to provide a statement addressing the issue of whether he was a genuine temporary entrant by reference to Direction No. 53.

20    On the day of the hearing before the Tribunal (7 October 2014), neither the appellant nor his migration agent appeared. No statement was provided by the appellant in response to the request dated 2 September 2014.

21    On 25 November 2014, the Tribunal decided to affirm the decision not to grant the appellant a student visa. The following matters are noted:

(a)    The Tribunal referred at [6]-[7] to the correspondence sent to the appellant’s migration agent regarding the hearing before the Tribunal and the failure of the appellant and his migration agent to attend. The Tribunal stated, at [8], that it was satisfied that the Tribunal’s letters were correctly sent to the address provided for correspondence and that the appellant had been given sufficient opportunities to provide material, give evidence and present arguments. Therefore, the Tribunal concluded that it was appropriate to proceed to make a decision on the basis of the material on the case files. No issue is taken on appeal regarding this aspect of the Tribunal’s decision.

(b)    At [9], the Tribunal stated that, for the following reasons, it had concluded that the decision under review should be affirmed.

(c)    The Tribunal stated, at [11], that the issue in the case before it was whether the appellant met the criteria in cl 572.223. Clause 572.223(1)(a) provided at the relevant time:

(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)    …

(d)    The Tribunal referred, at [12]-[13], to Direction No. 53, Assessing the genuine temporary entrant criteria for Student visa applications.

(e)    At [14], the Tribunal referred to the past courses of study completed by the appellant. At [15], the Tribunal referred to the statements provided by the appellant in response to the letters from the Department.

(f)    At [16], the Tribunal stated: “On the basis of the above alone and having regard to the criterion identified as the central issue in the review and the Minister’s Direction, I was not satisfied that the applicant was a genuine applicant for entry and stay as [a] student because I was not satisfied that he intends genuinely to remain in Australia temporarily.” (I note at this point that it is not clear why the Tribunal member would form this view on the basis of the matters set out in [14]-[15] alone.)

(g)    At [17]-[19], the Tribunal member referred to the appellant’s failure to provide a statement in response to the letters sent by the Tribunal to his migration agent, and that the Tribunal had had regard to “the applicant’s written statements and evidence of his academic achievements which he provided to the delegate”.

(h)    The Tribunal, at [20], stated that it accepted the appellant’s explanations, provided to the Department in response to its letters, regarding the study gaps. The Tribunal stated: “I accept the applicant’s explanation that he was in fact studying during those periods. I accept also that on the material before me he has not breached visa conditions.”

(i)    At [21]-[22], the Tribunal set out the various courses that the appellant had completed and proposed to undertake. At [23], the Tribunal paraphrased the appellant’s evidence as to why he wanted to undertake the course in information technology.

(j)    The Tribunal, at [24], said that it accepted that a young person could “change direction towards a pathway to a career”, but “it is not clear the direction the applicant is seeking to articulate”. At [25], the Tribunal said that the appellant’s desire now to undertake the information technology course “would mean that he has been studying in Australia for 6.5 years before making a start on a career path”.

(k)    The Tribunal then stated, at [25], as follows: “Having regard to the Minister’s Direction and the applicant’s history of changing course and career directions, I have formed the view that he is using the student visa for purposes other than its intended purpose and to circumvent the migration program and maintain ongoing residence in Australia.” (I note that, in view of the Tribunal’s conclusions at [20] of the Reasons, referred to above, it is difficult to understand how the Tribunal found that the appellant had been “using the student visa for purposes other than its intended purpose”.)

(l)    At the end of [25], the Tribunal stated that it was “not satisfied that the applicant is a genuine applicant for entry and stay as a student within the meaning of cl.572.223”.

(m)    Paragraphs [26] and [27] of the Reasons have been set out above.

(n)    The Tribunal, at [28]-[29], stated that it had found that the appellant “does not meet an essential requirement of cl.572.223” and that it affirmed the decision under review.

The proceeding in the Federal Circuit Court

22    The appellant applied to the Federal Circuit Court for judicial review. In his application he stated, in the section of the form headed “Grounds of application”, that he was “not satisfied” with the decision of the delegate or that of the Tribunal. He attached a one-page document headed “Grounds of application” setting out his grounds in more detail. The grounds were broadly expressed. It is fair to say that the main focus was on why the Tribunal had refused the appellant’s application for a student visa when he had provided “compelling reasons for any previous study gap”.

23    The primary judge set out the background to the appellant’s application at [1]-[4] and referred to the Tribunal’s decision at [5]-[8] of the reasons for judgment. The primary judge referred at [9]-[10] to the documents filed by the appellant in the Federal Circuit Court. The primary judge, at [11], accepted the submission of the Minister that the application sought review of the Tribunal’s factual findings and did not identify any legal error in the decision; the primary judge considered the application to involve an impermissible request for merits review of the Tribunal’s decision. After considering some other potential issues, which are not relevant for present purposes, the primary judge dismissed the application.

The appeal

24    The appellant’s notice of appeal, in the section headed “Grounds of appeal”, sets out in narrative form a number of complaints about the Tribunal’s decision. It is apparent from the form of the document that it was prepared without the benefit of legal assistance. In large part, the narrative is directed to the study gap issue and the evidence that the appellant had provided in that regard. The appellant complained that the decision of the Federal Circuit Court was “unjust”.

25    At the hearing of the appeal, the appellant made brief oral submissions with the assistance of an interpreter.

26    As noted above, at the hearing of the appeal, I raised with the solicitor for the Minister whether the contradictory findings in the Reasons, referred to above, constituted a jurisdictional error. The Minister submitted that [27] of the Reasons was a “typographical error” and that [27] had been included in the Reasons in error. I gave the Minister the opportunity to file a supplementary written submission in relation to this matter, which he did. (The appellant was given leave to file a responding submission but did not do so.)

27    The Minister did not contend, either at the hearing or in the supplementary submission, that this point could not be considered by the Court. Although it is a new point, not raised before the primary judge, in the circumstances of this case, including that the appellant was not legally represented before the Federal Circuit Court or this Court, it is expedient in the interests of justice for the point to be considered: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48] per Kiefel, Weinberg and Stone JJ; Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [90] per Flick and Rangiah JJ (Logan J agreeing at [1]).

Consideration

28    The Minister submits that paragraph [27] of the Reasons, which is referred to in the supplementary written submissions as the “template finding”, “is a ‘mere’ typographical error and is not an error capable of affecting the exercise of the Tribunal’s jurisdiction”. The Minister’s submissions can be summarised as follows:

(a)    The Tribunal will fall into jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material in a way that affects the exercise of powers, or, in some instances, makes an erroneous finding or reaches a mistaken conclusion: Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. Further, a Tribunal’s decision must be read as a whole (Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [14]), not with an eye too keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and having regard to the principles of construction that arise in light of s 368 of the Migration Act 1958 (Cth).

(b)    In CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682, Marshall J considered a finding that “the Tribunal is satisfied that there is a real chance that [CCC] faces persecution for reason of her race, should she return to Sri Lanka”. In circumstances where the Tribunal affirmed the refusal of the protection visa application, the Court held that the absence of “not” in this finding was a typographical error and did not amount to a jurisdictional error, referring to Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95 at [17]. The Court’s reasoning in CCC should be applied to the facts of this matter, and the template finding at [27] should be characterised as a defect due to “inadvertence, mistake, accident or clerical error” (Handa) and therefore disregarded.

(c)    The finding at [27] of the Reasons stands in stark contrast to SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 238 ALR 611, where Greenwood J found that the Tribunal’s erroneous reference to the appellant (who was from Pakistan) being from Indonesia, and its finding that the appellant did not face a real chance of persecution should he return to the People’s Republic of China, amounted to jurisdictional error and was not a mere typographical error. By way of contrast, the Tribunal’s template finding at [27] in this matter cannot be said to demonstrate that the Tribunal failed to discharge its statutory duty of review; that is, that it misunderstood or misapplied cl 572.223(1)(a), failed to consider the appellant’s claims and evidence, or that its findings were not open to it on the material before it.

(d)    In light of the number of findings made by the Tribunal in its Reasons that the appellant did not satisfy cl 572.223(1)(a), and reading the Reasons as a whole, the Tribunal’s findings at [27] are “template findings” and are completely unsupported by any other aspect of the Tribunal’s Reasons.

(e)    Additionally, it is difficult to understand how the inclusion of [27] in the Reasons is anything more than an “inadvertence, mistake, accident or clerical error”, in circumstances where the Tribunal invited the appellant to attend a hearing and provide further documents, on the basis that it was not satisfied, on the evidence before it, that the appellant met the relevant criterion. The appellant did not attend the hearing or provide further documents. In these circumstances, the Tribunal could not logically have arrived at the conclusion in [27] but for “inadvertence, mistake, accident or clerical error”.

29    In my view, jurisdictional error is established in relation to the Tribunal’s decision. My reasons are as follows.

30    The central issue before the Tribunal was whether or not the Tribunal was satisfied that the appellant was a genuine applicant for entry and stay as a student as set out in cl 572.223. That provision required the Tribunal to determine whether or not it was satisfied that the appellant “intends genuinely to stay in Australia temporarily”, having regard to certain matters. The Tribunal’s Reasons contain contradictory findings on this issue. At [26], the Tribunal stated that it was “not satisfied that the applicant intends genuinely to stay in Australia temporarily”. On the other hand, at [27], the Tribunal stated that it had found that “the applicant meets the requirement of cl.572.223(1)(a)” and that it would therefore remit the matter to the delegate for reconsideration.

31    This is not a case where a single word, eg “not”, has been inadvertently omitted. Rather, this is a situation where, within the one set of reasons, the decision-maker has set out two contradictory findings on the central issue to be determined.

32    It is not possible to establish how it is that the Reasons came to include two contradictory findings on the main issue. It is possible that a mistake occurred in a process of ‘cutting and pasting’ (cf SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [19]-[20] per Siopis, Perram and Davies JJ). In any event, the position is that the Reasons contain two inconsistent findings.

33    There are other aspects of the Reasons that cause concern as to the reasoning process of the Tribunal. At [16] of the Reasons, the Tribunal stated that “[o]n the basis of the above alone” and having regard to the criterion identified as the central issue, the Tribunal member was not satisfied that the appellant intended genuinely to remain in Australia temporarily. But, as noted above, it is not clear why the Tribunal member would form this view on the basis of the matters set out in [14]-[15] alone.

34    Further, having accepted (at [20]) the appellant’s explanation that he was in fact studying during the periods identified as study gaps by the Department (which was one of the main reasons the delegate decided adversely to the appellant – see AB 92), and having accepted (at [20]) that the appellant had not breached visa conditions, it is difficult to understand how the Tribunal found (at [25]) that the appellant had been “using the student visa for purposes other than its intended purpose”.

35    The contradictory findings at [26] and [27] of the Reasons, taken together with the matters referred to at [33]-[34] above, indicate serious problems in the reasoning process adopted by the Tribunal. They indicate that the Tribunal fell into error by identifying the wrong issue, asking itself the wrong question, ignoring relevant material or relying on irrelevant material: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163 at 179. In these circumstances, the Tribunal exceeded its authority.

36    Although the case is not on all fours with SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 238 ALR 611, some assistance is derived from that decision. The facts have been referred to above. Greenwood J concluded that the decision of the Tribunal was a nullity. His Honour stated at [44]: “The obligation to undertake an un-distracted, focussed and deliberative assessment of only those facts and circumstances referable to the case of the appellant is an essential element of the discharge of the review function.” In light of the matters referred to above, it appears that an error of this nature occurred in the present case.

37    For completeness, I note that the other matters raised by the appellant do not, in my view, cast doubt on the correctness of the decision of the Federal Circuit Court or the decision of the Tribunal.

Conclusion

38    It follows from the above that the appeal is to be allowed. I will make orders that the decision of the Federal Circuit Court be set aside and, in lieu thereof, it be ordered that the decision of the Tribunal be set aside and the matter be remitted to the Administrative Appeals Tribunal for hearing and determination according to law. In light of the circumstances discussed in this judgment, it is appropriate that the Administrative Appeals Tribunal be differently constituted.

39    Although the normal position is that costs follow the event, in circumstances where the appellant appeared for himself I assume that he did not incur any legal costs. I will therefore order that there be no order as to costs in relation to the appeal. In relation to costs in the Federal Circuit Court, the appropriate costs order in the circumstances would appear to be that there be no order as to costs. I will make an order to this effect. However, I will provide in the orders that either party may give written notice and file a short written submission (within a short period of time) if it seeks a variation of these costs orders.

Associate:

Dated:    17 February 2017