FEDERAL COURT OF AUSTRALIA

Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal the judgment of the Federal Circuit Court of Australia is dismissed.

2.    The applicants are to pay the costs of the first respondent 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 application for leave to appeal from a decision of the Federal Circuit of Australia (the FCC) given on 13 July 2018. By that decision, the FCC dismissed the application for judicial review on a show cause hearing under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (the FCC Rules). Specifically, the FCC was not satisfied that the applicants had raised an arguable case for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) dated 17 March 2017. By that decision, the Tribunal had affirmed a decision of a delegate of the first respondent, the (then) Minister for Immigration and Border Protection (the Minister), not to grant the applicant a Student (Temporary) (Class TU) visa (the visa) and, as a consequence, also to refuse the grant of visas to the second and third applicants.

2    Rule 44.12(1) of the FCC Rules provides that:

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

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

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

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

3    The applicants require leave to appeal to this Court because the decision below was interlocutory in nature: see r 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). A decision on whether to grant leave to appeal is discretionary. Relevant factors include: whether in all of the circumstances the decision is attended with sufficient doubt to justify its reconsideration on appeal; and whether substantial injustice would result if leave were refused, assuming the decision at first instance to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)).

4    Importantly, the question of whether an appeal would enjoy sufficient prospects of success to justify the grant of leave is approached at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62]-[63] (Mortimer J) (by analogy). The approach of Mortimer J in MZABP (FCA) in this respect was endorsed on appeal in MZABP v Minister for Immigration and Border Protection (No 2) [2016] FCAFC 110 at [38] (the Court).

5    For the reasons set out below, I do not consider that the decision of the FCC is attended with sufficient doubt to warrant the grant of leave to appeal. As such, the interests of justice would not be served by the grant of leave.

2.    BACKGROUND

2.1    The application for a visa and delegate’s decision

6    The first applicant, Ms Takhi, is an Indian national who arrived in Australia in 2008. The second applicant is her husband and the third applicant is their child. Ms Takhi applied for the visa on 4 March 2015, listing her husband and child as members of her family unit.

7    When the applicant lodged her visa application, there were a number of subclasses of Student (Temporary) (Class TU) visa. It was not in issue that, having regard to the applicant’s proposed course of study, the relevant subclass was subclass 572.

8    A delegate of the Minister refused to grant the applicants a student visa on 26 June 2015 for the reason that the delegate was not persuaded that the first applicant satisfied the criterion prescribed by sub-cl 572.223(1)(a) of Part 572 of Schedule 2 to the Migration Regulations 1990 (Cth) (the Regulations). Clause 572.223 relevantly provided at the time of the application 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 any applicant; and

(iv)    any other relevant matter; and

(b)    …

2.2    The decision by the Tribunal

9    The applicants, with the assistance of a registered migration agent, applied to the Tribunal on 10 July 2015 for review of the delegate’s decision. They were invited to appear before the Tribunal by a letter dated 16 December 2016 to give evidence and present arguments relating to the issues arising on the decision under review. They attended the hearing pursuant to that invitation on 23 February 2017 and, while the representative did not attend, indicated that they wished to proceed nonetheless in his absence.

10    The Tribunal affirmed the delegate’s decision on 17 March 2017 on the ground that it was not satisfied that Ms Takhi genuinely intended to stay in Australia temporarily and therefore that she did not satisfy the primary criterion prescribed by sub-cl 572.223(1)(a). In reaching that decision the Tribunal took into account a number of factors in Ms Takhi’s favour including her many family connections to India which it said was an incentive for her to return (Tribunal reasons that [54]). The Tribunal also took into account its finding that Ms Takhi has been committed to her studies and has successfully completed a number of courses in accordance with the purposes of the student visas, noting that this is indicative that the applicant had complied with the purposes of the student visas she had been granted in the past. On the other hand, the Tribunal considered that there were a number of other factors indicating that Ms Takhi did not genuinely intend to stay in Australia temporarily and these outweighed the other factors (Tribunal reasons at [56]). These factors included the following:

(1)    Ms Takhi has lived in Australia for nine years and only returned once to India;

(2)    the Tribunal did not accept that Mrs Takhi’s failure to visit more often was due only to the cost of travelling to India;

(3)    she has settled in Australia with her second husband who she brought to Australia to live, and has raised her son (who has never been to India) in Australia;

(4)    the applicant has completed multiple (8) low level courses in Australia of short duration;

(5)    Mrs Takhi’s history of studies in Australia did not demonstrate a clear commitment to a pathway to undertake studies with a view to achieving her stated intention of returning to India to open a restaurant;

(6)    while Ms Takhi said that she wished to undertake the marketing course with a view to securing a better job in India and enhancing her skills to open a restaurant, limited evidence was given of any attempts to find marketing employment in India and she did not change jobs in Australia to secure marketing experience but continued to work as a shift supervisor in a fast food chain;

(7)    the more recent enrolments in marketing and in human resources have only indirect relevance to Ms Takhi’s plans to open a restaurant in India and indicated an intention to use the Australian student visa program to remain in Australia;

(8)    Ms Takhi said that they did not have the financial resources to open a restaurant in India, but the applicants had never applied for a loan or returned to India with a view to obtaining employment to enhance their chances of obtaining a loan;

(9)    Ms Takhi has a financial incentive to remain in Australia as both she and her husband have ongoing employment in Australia which they have maintained for an extended period, and there is no evidence that they have maintained any financial ties to India; and

(10)    Ms Takhi has also taken various steps to seek to remain in Australia to work including undertaking a skills assessment to assist in making a skilled visa application, and applying for, and obtaining for a period of time, a skilled subclass 485 visa.

(Tribunal reasons at [57]-[63])

2.3    The decision by the FCC

11    The applicants filed an application for judicial review of the Tribunal’s decision on 6 April 2017. The affidavit affirmed on 6 April 2017 in support of that application did not provide any further evidence or otherwise inform the grounds of judicial review (FCC reasons at [17]). The Minister filed a response on 20 April 2017 contending that the application did not establish any jurisdictional error and sought its dismissal. An order was made on 20 October 2017 appointing Ms Takhi as the litigation guardian for the third applicant and setting the matter down for a show cause hearing.

12    The grounds of review in the FCC were that:

Tribunal failed to take the facts of application [into account] without giving me any sufficient opportunities to justify my claim.

Tribunal rushed up with it’s decision without following. The principle of Natural Justice.

The tribunal rushed to a decision and did not take my facts into consideration.

13    The primary judge held that he was not satisfied any of these grounds raised an arguable basis for review. Noting that the applicants were self-represented, his Honour also re-examined the applicants’ submission for the purposes of considering whether any other reason is shown as to why the Court should exercise its discretion to allow the matter to proceed to final hearing but did not consider that any reason is shown by that submission. As the primary judge was not satisfied that the applicants had raised an arguable case for relief or that discretionary considerations militated in favour of adjourning the application for a final hearing, the primary judge ordered that the application be dismissed.

3.    CONSIDERATION

3.1    The issues on the application for leave to appeal

14    As I earlier explained, it is necessary for the applicants to persuade the Court that it is in the interests of justice for leave to be granted to appeal the FCC’s decision. The Minister does not allege that he would suffer any prejudice if leave were granted but submits that there is insufficient merit in the proposed grounds of appeal to justify the grant of leave to appeal.

15    The proposed grounds are identified in the application for leave to appeal and supplemented by grounds identified in an affidavit affirmed by Ms Takhi on 23 July 2018. They are set out in full at [20] below. It is convenient to consider each of these in turn. However, a preliminary issue which arose in argument at the hearing must first be addressed.

3.2    A preliminary issue: the primary judge’s reliance upon the decision in Spencer in the context of a show cause hearing

16    A preliminary issue arises by reason of the primary judge’s reliance upon the test in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) in the context of an exercise of the power to dismiss a proceeding at a show cause hearing. Specifically, his Honour held at [25] that, “[a]s the power conferred by r 44.12 [of the FCC Rules] is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer…”

17    With respect, in my view there are doubts as to the correctness of that approach. The decision in Spencer concerned an appeal against an exercise of the power under subs 31A(2) of the FCA Act to summarily terminate proceedings on the ground that they had no reasonable prospects of success. The High Court held in Spencer that, by virtue of subs 31A(3) of the FCA Act, it was no longer necessary for a party seeking summary dismissal to demonstrate that the claim was hopeless or bound to fail, in order to satisfy the Court that an application had no reasonable prospects of success and should be summarily dismissed in the exercise of the power under subs 31A(1). Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) is relevantly in the same terms. However, it does not necessarily follow from the enactment of these provisions that the amended threshold for summary dismissal applications applies to the preliminary “gateway” through which an application for judicial review may have to proceed on a show cause hearing under r 44.12 of the FCC Rules. As I explained in BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514 in the context of considering the principles by which it is determined whether there is an arguable case in the context of an application for an extension of time:

38. The question of whether a claim has sufficient merit to warrant the grant of an extension of time is a different question from that considered in Spencer. In this regard, the applicant emphasised the low bar for determining whether grounds of appeal or judicial review have sufficient prospects of success in the context of an application for an extension of time. For example, French J (as his Honour then was) in Seiler v Minister of Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 (Seiler) at 98 explained that:

To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused.

(Cited with approval, e.g., in Mentink v Minister for Home Affairs [2013] FCAFC 113… at [37] (Griffiths J (with whose reasons Edmonds J agreed)) and [57] (Pagone J))

18    In this regard, I also note that at a hearing of an application for an order to show cause, the applicant is “confined to the relief sought and the grounds mentioned in the application” by virtue of r 44.13(1) of the FCC Rules subject to the discretion to dispense with compliance under r 1.06 of the FCC Rules. However, among other differences, an application for summary dismissal involves a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial, with the scope of the materials available being affected by the stage that the proceedings have reached: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (Perry J). It may be, for example, that an application for summary dismissal is allowed on the basis of unanswered or unanswerable evidence of a fact which would be fatal to the pleaded case, as opposed to a deficiency in the pleading: Spencer at [22] (French CJ and Gummow J). The onus is also different. In a summary dismissal matter, the onus lies upon the respondent as the moving party to persuade the Court that the application has no reasonable prospects of succeeding: Cassimatis at [45] (Reeves J). At a hearing of an application for a show cause order, however, the onus lies upon an applicant to demonstrate that an arguable case has been raised and, only once the Court is satisfied of that fact will an order be made under r 44.12(1)(b) requiring the respondent to show cause at a final hearing why the relief claimed should not be granted.

19    It is ultimately unnecessary, however, to determine this question here for the reason that, whatever test was applied, it could not be said that the application for judicial review in the FCC had any reasonable prospects of success for the reasons I set out below.

3.3    The proposed grounds of appeal identified in the application for leave to appeal

20    The application for leave to appeal identifies the following proposed grounds of appeal, namely:

1.    That the learned Judged erred by not finding that the AAT is affected by jurisdictional error.

2.    I do believe that the law incorrectly applied as the AAT did not attempt to follow the Ministerial Direction no. 69 & 65 along with cl 500.212. The jurisdictional error is that the AAT did not in truth undertake the inquiry as per cl500.212 and Direction 69 required to undertake, namely, to consider whether the applicant is a genuine applicant for entry and stay as student, to consider whether the applicant intends to return to his home country at the expiry of the period for which the subclass 500 visa he applied for would be valid.

3.    I feel that natural justice was denied to me as my application was decided without giving me any opportunity to comment on event during the time of refusal of my application

(errors in the original)

21    Proposed ground 1 simply asserts that the primary judge erred in failing to find that the Tribunal’s decision was invalid by reason of a jurisdictional error without identifying any jurisdictional error in that decision. As such, it does not identify any arguable error. I understand grounds 2 and 3 to identify the findings which the applicants say that the primary judge wrongly failed to make.

22    With respect to proposed ground 2, the real complaint is that the Tribunal did not properly apply cl 572.223(1)(a) and Direction No. 53, Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (Direction 53). As to the latter, subs 499(2A) of the Act imposes an obligation upon the delegate and the Tribunal to comply with any applicable ministerial direction made under that provision. A failure to do so would constitute a jurisdictional error. However, in its reasons at [9], the Tribunal expressly acknowledged that it must have regard to Direction 53 made under s 499 and that it required the Tribunal to have regard to a number of specified factors in relation to:

•    the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course of the applicant’s future;

•    the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other country;

•    if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

•    any other relevant information provided by the applicant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the applicant.

23    Furthermore, it is apparent from the Tribunal’s reasons that it had regard to those specified factors insofar as they were applicable to Ms Takhi’s case. As earlier explained, factors relating to Ms Takhi’s circumstances in India were considered including her financial and other ties to India, the value of the courses in which she had enrolled to her stated future intentions, and her previous immigration history including steps taken to remain in Australia to work. The Tribunal also took into account the evidence of Ms Takhi and her husband and their submissions including her stated intentions, her explanation of the relevance of the courses to those intentions, the difficulties encountered by her and her husband in financing a new restaurant in India, inquiries which Ms Takhi and her husband said they had made about how to get money, interest rates and what they needed to show to obtain a loan and so forth. Moreover, as the primary judge held at [32], the applicants did not identify any claims or evidence that they said had been overlooked by the Tribunal or not properly considered. In my view, proposed ground two does not have any reasonable prospects of success.

24    Secondly, as the primary judge held it is apparent that the Tribunal fulfilled its statutory obligations of procedural fairness under Division 5 of Part 5 of the Act. Ms Takhi was invited to appear to give evidence and make submissions which she did, she was represented by her migration agent prior to the Tribunal hearing, and the Tribunal’s reasons record that at the hearing potentially adverse findings were put to her by the Tribunal and she was afforded an opportunity to respond. No deficiency in procedure was identified by the applicants. As such, proposed ground 2 does not raise any arguable error in the decision of the FCC rejecting the allegation of a lack of procedural fairness.

3.4    The proposed grounds of appeal identified in the affidavit

25    The application is supported by an affidavit affirmed by Ms Takhi on 23 July 2018 in which she also alleges that:

I found that the learned Judged erred by not finding that the AAT is affected by jurisdictional error because of the following:

•    As per mentioned in the decision letter respected Judge notified about all the evidences provided to him but he claimed that the evidences are not enough to prove the genuine temporary residence criteria as per cl.500.212 and Ministerial Direction no. 69. I believe there was ample information and evidence provided to the court which more than satisfies genuine temporary entrant criteria required as per the applicable regulation and Ministerial Direction.

•    During the hearing the respected Judge had taken the irrelevant factors into its decision and failing to take into account relevant factors to refuse my application.

•    As per decision made by the case officer and AAT Tribunal are biased of nature so I request the Honourable court to intervene in the case and provide me the justice by approving my visa application. if any further documents required to confirm my claims made in the statement submitted to the AAT in case officer I would be happy to provide to the honourable court.

(errors in the original)

26    The first dot point proceeds on an understandable misunderstanding as to the function which the FCC undertakes on judicial review, given that the applicants have no legal representation. However, the FCC had no jurisdiction to grant the applicants a visa, to consider whether they satisfy the criteria for the grant of visas, or to correct mistaken findings of fact by the Tribunal, as the primary judge held at [44]. The oral submissions made by the applicants on the application for leave to appeal proceeded on the same incorrect assumption. The question of whether the applicants or the FCC disagrees, even strongly, with the Tribunal’s decision is not a basis on which the FCC could have granted the relief sought. The jurisdiction of the FCC is limited to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision was invalid by reason of a jurisdictional error.  This Court in turn must decide whether the FCC wrongly held that there was no jurisdictional error.  The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the applicants’ visa applications must be assessed under the Act, or if it failed to hear and determine their applications in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). 

27    With respect to the second dot point, the primary judge properly understood his discretion under r 44.12(1) of the FCC Rules, save arguably as to the relevance of the High Court’s decision in Spencer. However, even if his Honour fell into error in that respect, for the reasons I have already given no reasonably arguable error was raised by the application for judicial review. It was bound to fail.

28    With respect to the third dot point, nothing is pointed to which suggests that either the Tribunal member or the primary judge did not approach the resolution of the applications for review and judicial review respectively with an impartial mind open to persuasion. The careful and balanced reasoning applied by the Tribunal member and the primary judge in their respective decisions demonstrates the contrary. Ultimately, as the Minister submitted, the allegation of bias can be put no higher than the applicants’ emphatic disagreement with the Tribunal’s decision.

29    Finally, the Minister in compliance with his model litigant obligations, properly identified that the Tribunal had on its file a copy of a search conducted on the Provider Registration & International Student Management System (PRISMS) dated 15 December 2016. In certain circumstances the failure to put PRISMS records to an applicant can amount to a breach of subs 359A(1) of the Act. However, as the Minister submits, the Tribunal did not have regard to that record in affirming the decision under review so as potentially to enliven the obligation in subs 359A(1) of the Act: cf Kaur v Minister for Immigration and Border Protection [2016] FCA 132; (2016) 245 FCR 296 at [32]-[44] (Perry J). Subsection 359A relevantly provides that:

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

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

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

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

…

(4)      This section does not apply to information:

(a)      that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review;

or

(ba)      that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)      that is non-disclosable information.

30    In this case, the majority of the entries in the record were adverted to either in the earlier decision record of the Migration Review Tribunal which the applicant provided to the delegate or in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant. Furthermore, the summary in the Tribunal’s decision of the questions and answers given at the hearing make it clear that to the extent to which these matters were taken into account by the Tribunal, Ms Takhi apparently confirmed the periods during which she had studied in Australia and where there had been a gap in her studies and the courses which she had undertaken and enrolled in. As such to the extent to which subs 359A(1) might potentially have been engaged, that obligation was displaced by subss 359A(4)(b) and (ba).

4.    CONCLUSION

31    For the reasons set out above, the application for leave to appeal must be dismissed with costs.

Associate:

Dated:    18 December 2018