FEDERAL COURT OF AUSTRALIA

Bishnoi v Minister for Immigration and Border Protection [2018] FCA 445

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicants’ pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The first applicant, Sudhir Bishnoi, and the second applicant, Sonam Gilla, are husband and wife. They are citizens of the Republic of India who applied for Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (Act) on 23 May 2013.

2    On 1 July 2013 a delegate (delegate) of the Minister of Immigration and Border Protection (then the Department of Immigration) (Minister) refused to grant the visas. The applicants then applied for a review of this decision to the Migration Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal), who remitted the decision for reconsideration by the delegate. The visas were again refused on 18 July 2014 on the basis of there being significant periods of non-study and no reasonable explanation for a number of matters outlined by the delegate. The applicants applied to the Tribunal for review, and the Tribunal affirmed the delegate’s decision on 11 March 2015. They then applied to the Federal Circuit Court of Australia (FCCA) for orders setting aside the 11 March 2015 decision of the Tribunal. That Court conducted a show cause hearing pursuant to Federal Circuit Court Rules 2001 (FCCR) r 44.12(1)(a) and on 8 August 2017 a judge of that Court dismissed the application.

3    On 21 August 2017 the applicants filed an Application for Leave to Appeal in this Court. The grounds of that application are as follows:

Grounds of application

1.    That His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider clause 572.223 (1) (a) and clause 572.223(2)(b)(ii) Migration Regulations 1994

Particulars

a.    The Tribunal erred in not considering cl 572.223(a)

b.    His Honour erred in not referring and applying clause 573.223(2)(b)(ii) any other relevant matter when clearly the applicant's circumstances and facts demands that the said clause be invoked in his favour

c.    The delegate misconstrued clause 572.223 (1) (a) in finding that the appellant was not a genuine temporary entrant (GTE)

d.    The Tribunal erred in not applying the facts when considering the cl 572.223

e.    That the learned Judge erred in not considering the delegate considered information from PRISM which was not put to the applicant. The information from PRISM was considered by the delegate when refusing the applicant's application for a visa.

f.    The Tribunal made jurisdictional error as it failed to accord to the Applicants procedural fairness and natural justice.

2.    His Honour erred in only referring to paragraphs [1] to [15] (by relying on the Minister's submissions) and not the entire reasoning process of the Tribunal. His Honour relied heavily on the case of Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 but that case can be clearly distinguished with the present case. In Tran the applicant was convicted with serious criminal offences and the Tribunal considered the facts leading to the offences that was committed by the applicant to which the Court held were matters solely for the Tribunal to identity as relevant to its reasoning.

3.    His Honour the Federal Circuit Court Judge erred in not looking closely at the structure of Tribunal's reasons in order to assess whether it truly has had regard to all the mandatory criteria applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.

4.    The appellant's application clearly raises an arguable case.

4    Mr Bishnoi filed written submissions in advance of the hearing, on behalf of himself and on behalf of Ms Gilla, and also made oral submissions on their joint behalf. The Minister filed written submissions and was represented by Ms Julia Lucas of counsel.

2.    THE DECISION OF THE TRIBUNAL

5    The applicants appeared before the Tribunal. They gave evidence and were represented by a registered migration agent.

6    The Tribunal correctly identified that the issue in the present case was whether the applicants meet the criterion in cl 572.223(2)(b) in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).

7    The whole of cl 572.223 provides:

(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).

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

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

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

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

(ii) any other relevant matter; and

(c) 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    The Tribunal observed that no evidence or submissions were advanced on behalf of Ms Gilla to the effect that she meets the primary criteria for a student visa. Instead, the Tribunal assessed her application against the secondary criteria set out in cl 572.322 of the Regulations. It said:

19. In respect of the second named applicant, there is no evidence or submissions that the second named applicant meets the primary criteria for a student visa. The Tribunal has assessed the second named applicant against the secondary criteria. One of the requirements at the time of decision is found in cl.572.322 which relevantly provides:

The applicant is a member of the family unit of a person (the primary person):

(b) who satisfies, or has satisfied, the primary criteria in Subdivisions 572.21 and 572.22 and who meets one of the following:

…

(iii)    the primary person:

(A)    will be, or has been, granted a visa in relation to a course of study that is, or to courses of study that are together, of a duration of 12 months or more; or

(B)    has been lawfully in Australia for 12 months or more.

9    No ground in the current application disputes that this was the correct course.

10    The Tribunal then considered whether it was satisfied that Mr Bishnoi met the requirements of cl 572.223(2)(b). The Tribunal based its conclusions on evidence given by Mr Bishnoi on a number of points. Some of these are relevantly as follows. First, that Mr Bishnoi completed a Bachelor of Arts/Law in India, secondly, that he arrived in Australia 2007 to do a Masters of Accounting, that he attended the course for 6 months but then stopped because he understood that it would not lead to his permanent residency in Australia. Thirdly, that in September 2007 Mr Bishnoi undertook a Diploma of Community Welfare Work which he completed in September 2009. Fourthly, that he then enrolled in a Diploma of Business because he wanted to obtain business skills to help him set up an old age home in his home town in India on land owned by his father, who is a farmer and has 20 acres of land, but that despite this aim, Mr Bishnoi did not attend the course because his education provider told him he did not need to do so because he had applied for a subclass 485 visa. Fifthly, during the 18 month period when he held the skilled subclass 485 visa he volunteered at a child care and disability services provider, but had not done paid work, although he had been driving cabs in Australia. Sixthly, that he said he had completed a certificate IV in Business. Seventhly, that evidence was provided that he had completed a Diploma and an Advanced Diploma of Management from 19 August 2013 until 22 February 2015 and that he had enrolled in marketing courses for the period from 16 March 2015 until 13 March 2016.

11    The Tribunal also noted that Mr Bishnoi has been in Australia for a long time and has attended only a number of short, inexpensive courses. He did not contact the Department of Immigration to inform it that he was not attending his Diploma of Business course. The Tribunal noted that Mr Bishnoi contended that he expected his education provider to inform the Department of this fact.

12     At [16] the Tribunal said:

16. The courses that he has been undertaking and proposes to undertake in Australia are unrelated to his higher qualifications in a Bachelor of Arts and Law which he obtained in India. Whilst he did some volunteer work in the child care and disability services in Australia during the period of his Skilled subclass 485 visa his other work in Australia driving cabs is unrelated to any of his past or proposed studies. Whilst the rest of his family is in India, his wife is working in Australia which is an added attraction to stay in Australia and to prolong his studies. The Tribunal found the applicant's [evidence] about his proposed employment and business career in India to be very vague and undetailed. It is not satisfied that he would be able to finance such an operation given his father only has a small farm as collateral. It does not accept that the proposed courses in marketing are consistent with his current level of education (which includes a Bachelor of Laws) or that such courses will assist him to obtain employment or improve his employment prospects in India. It is of the view that he is using the student visa programme to maintain ongoing residence rather than for reason of being a genuine student.

13    The Tribunal concluded that it was not satisfied that Mr Bishnoi is a genuine applicant for entry and stay as a student. It concluded that this finding leads to the conclusion that Ms Gilla also does not satisfy the requirements for the grant of a visa.

3.    THE DECISION OF THE FCCA

14    The applicants appeared and represented themselves before the FCCA. They relied on the following grounds:

1. My visa application for Subclass 572 Visa was refused by the Delegate of Minister for Department of Immigration and Border Protection for not being assessed as a genuine applicant for entry and stay as a Student. This same application has been refused twice by the department.

2. I have been a genuine student for entire duration of my student visa and finished all my studies that I enrolled for and have undertaken since I came to Australia.

3. Moreover I think I wasn’t given a fair assessment in finalising my visa application as it was refused twice.

4. After having a refusal at the Department of Immigration we lodged an application for review at Migration Review Tribunal for for [sic] my visa application and it was remitted back to the Department of Immigration by the Migration Tribunal Review [sic]. The Department of Immigration again refused my visa application for not being assessed as a genuine student.

15    The primary judge recited the procedural background to the application, summarised the relevant facts, and found that the applicants had not demonstrated an arguable case ([18]). He then addressed each of the grounds raised. For present purposes it is convenient to address the primary judge’s treatment of those grounds where it is necessary to do so in the context of the grounds advanced in the application before this Court.

4.    CONSIDERATION OF THE PRESENT APPLICATION

4.1    Introduction

16    The decision of the FCCA is interlocutory in nature; FCCR 44.12(2). Accordingly, the applicants require leave to appeal from that decision. A grant of leave to appeal will be made where it is established that the decision below is attended with sufficient doubt to warrant it being reconsidered on appeal and where substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; 104 ALR 621 at pages 398, 399.

17    Furthermore, the grounds of appeal sought to be relied upon in the present appeal bear little relationship to those advanced before the primary judge. Leave is accordingly also necessary before a proposed appellant can advance grounds on appeal for the first time. No explanation has been offered as to why many of the grounds raised were not advanced below.

18    It should be noted that an appeal (or application for leave to appeal) is not the occasion upon which the merits of the applicants’ application for the visa is to be considered. Just as for applications brought in cognate sections of the Act concerning refugee status, so too for appeals brought under the current provisions. Neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicants satisfy the criteria for the grant of the visa or to grant the applicants’ a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the visa to the applicants. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the applicants’ Visas is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).

4.2    Ground 1

19    In ground one the applicants contend that the primary judge erred in not holding that the Tribunal fell into jurisdictional error because it failed to consider clause 572.223(1)(a) and clause 572.223(2)(b)(ii) of the Regulations. In their particulars of this ground they contend that the primary judge made 6 different errors, each of which is addressed below.

20    In particular (a) the applicants contend that the Tribunal erred in not considering cl 572.223(1)(a). This ground was not raised before the primary judge. It has no merit. Clause 572.223 is set out in full above in [7]. It will be noted that cl 572.223(1)(b) requires that the applicant meet each of the requirements of subclause (2). The Tribunal decided that Mr Bishoi does not satisfy the requirements of cl 572.223(2)(b). The failure to meet that essential requirement was sufficient to result in the failure of his application. Having failed on that basis, it was not necessary for the Tribunal to go on to consider other requirements of the clause.

21    In particular (b) the applicants contend that the primary judge erred in not referring to and applying cl 573.223(2)(b)(ii), when (they contend) clearly the applicants’ circumstances and facts demand that it be invoked. That sub-clause requires that the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to the matters in (i) and “any other relevant matter”. Nowhere in the applicants’ written submissions do they identify what additional relevant matters ought to have been considered by the Tribunal or the primary judge. In oral submissions Mr Bishnoi contends that it was relevant for the Tribunal to take into account the fact that their applications has been rejected once before, that the rejection had been the subject of a review, and that the initial refusal had been reversed. The consideration by the delegate and the Tribunal amounts to a second refusal. In this regard, the applicants also submit that they have now been in Australia, hoping to obtain student visas, for many years. It would be unfair for them to be required to leave Australia after enduring such a protracted process.

22    Whilst the delays endured by the applicants might be regarded to be unfortunate, none of these matters are circumstances that rise above a request for a merits review of the applications. They raise no grounds upon which judicial review may be allowed.

23    In particular (c) the applicants contend that the delegate misconstrued clause 572.223(1)(a) in finding that the applicant was not a genuine temporary entrant. In the particular (e) the applicants contend that the delegate erred in taking into account certain information that was not put to them. Each particular contends that the primary judge erred by not considering the errors made by the delegate.

24    The grounds based on these particulars have no prospect of success. The decision of the delegate has been superseded by the decision of the Tribunal, which conducted a merits review of the visa applications made by the applicants. Neither the FCCA nor the Federal Court have jurisdiction to review the decision of the delegate; s 476(2)(a) and s 476A of the Act; AYE16 v Minister for Immigration and Border Protection [2018] FCA 108 at [35]. The role of the FCCA is to review the decision of the Tribunal. In that context, the matters decided or done by the delegate have no legal relevance.

25    In particular (d) the applicants contend that the Tribunal erred in not applying the facts when considering cl 572.223. The learned primary judge correctly observed at [29] that it is a matter for the Tribunal to identify such matters as it considers relevant to its reasoning and to give that material appropriate weight. At [30] the primary judge observes that in reality the applicants were seeking an impermissible merits review. I agree with these observations.

26    In particular (f) the applicants assert that the Tribunal denied the applicants procedural fairness and natural justice. This particular is somewhat similar to ground 3 considered by the primary judge. In his reasons, the primary judge notes the assertion by Mr Bishnoi that, in his opinion, he was not given a fair assessment of his visa application (at [35]), but that this assertion was not supported by any allegation as to how he was denied procedural fairness. In any event, the primary judge disagreed with the general assertion and found, having reviewed the materials, that the Tribunal’s conclusions were open on the basis of the evidence.

27    Having read the whole of the decision of the Tribunal, and considered the evidence and submissions I agree that no absence of procedural fairness is apparent. Accordingly, in my view ground one is not sufficiently arguable to warrant the grant of leave to appeal.

4.3    Grounds 2 and 3

28    In ground 2 the applicants contend first, that the primary judge erred in only referring to [10] – [15] of the Tribunal’s reasons and in not referring to the entirety of the Tribunal’s reasoning, secondly that the primary judge erred by incorrectly relying on the decision of this Court in Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (Tran). In ground 3, they contend that the primary judge erred in not looking closely at the structure of the Tribunal’s reasoning in order to assess whether it truly had regard to all the mandatory criteria (citing Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1).

29    These contentions have no substance. As to the first of these, the Tribunal’s decision was 21 paragraphs in length and addressed the substance of the applicants’ claims and evidence at [10] – [16]. The primary judge at [27] referred to paragraphs [10] – [15] of the reasons of the Tribunal in dealing with a submission made by the Minister that Mr Bishnoi had, inaccurately summarised his history of study in Australia. The primary judge addressed and rejected factual assertions made by Mr Bishnoi. In [28] – [31] the learned primary judge observed that Mr Bishnoi’s submission (that he was in fact a genuine student and had in fact completed all of the studies he had enrolled in) was in reality a request for the FCCA to conduct a merits review of the applications that could not be permitted in a case where the legal requirement on appeal is that there is a finding of jurisdictional error. No language used by the primary judge suggests that he did not consider the entirety of the Tribunal’s reasoning. To the contrary, the reasoning of the primary judge indicates that he closely reviewed the entirety of the decision of the Tribunal. The same observation is apposite to the rejection of the third ground of the applicants’ contentions.

30    The applicants’ criticism of the primary judge’s reliance on Tran is based on the contention that on the facts of that case, the appellant, Mr Tran had a criminal history and that this is a relevant point to distinguish that decision from the present case. However, the legal proposition upon which the primary judge based his reference to that decision (that it is a matter solely for the Tribunal to identify such material as it considers relevant to its reasoning and for the Tribunal to give that material the appropriate weight – see Tran at [29]) is correct, and not dependent on whether or not the appellant in that case had a criminal history. The primary judge was, with respect, correct to rely on it in the present case.

31    In oral submissions the applicants referred to the decision of the FCCA in Singh v Minister for Immigration & Anor [2017] FCCA 1901 where the Court overturned a decision of the Tribunal. They submitted that the primary judge ought to have similarly overturned the decision of the Tribunal in the present case. However, in Singh the Court found that the Tribunal had omitted to consider a medical diagnosis of depression on the part of the applicant in determining to reject the application. No relevant analogy may be drawn from that decision to the present case.

5.    DISPOSITION

32    For the reasons set out above, in my view the applicants’ have not established that the decision below is attended with sufficient doubt to warrant it being reconsidered on appeal.

33    Accordingly the application must be dismissed and the applicants’ must pay the costs of the first respondent.

Associate:

Dated:    4 April 2018