FEDERAL COURT OF AUSTRALIA

Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 424

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court dated 18 June 2018 be set aside and in lieu thereof, it be ordered that:

(a)    the decision of the Administrative Appeals Tribunal dated 1 September 2017 be set aside and the matter remitted to the Tribunal for rehearing according to law; and

(b)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal including the costs on the application for an extension of time.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    Before the Court is an amended notice of appeal from a decision of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 1 September 2017 which affirmed a decision of a delegate of the Minister not to grant the appellant a Student (Temporary) (Class TU) visa. The history of the matter is contained in an earlier judgment late last year, Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1887, in which I granted an extension of time in which to file and serve a notice of appeal from the decision of the Federal Circuit Court of Australia which had dismissed the original application for review: see Plaza v Minister for Immigration & Anor [2018] FCCA 1641. In connection with that extension of time I directed the Registrar to make contact with the Queensland Bar Association for the assistance of pro bono counsel. Since then, counsel appearing together with instructing solicitors have focused and reformulated the original arguments in the application to focus on one issue to which I will come in the amended notice of appeal.

2    Before commencing with these reasons, may I express the Court’s gratitude to Mr Colditz and his solicitors for their participation and submissions in the proceeding. The Court has been greatly assisted by them and by Mr Byrnes and his instructors in an area of debate which is not without its subtlety. As will be clear shortly, there is no debate that there was error in the Federal Circuit Court in failing to identify that the Tribunal made a finding of fact without any basis in the material before it such that there could be said to be a finding of fact without evidence or material or, alternatively, a conclusion which was illogical. As was discussed in debate with counsel, there is some danger in taxonomy of separate and individual grounds as if they would necessarily lead to different bodies of reasoning towards some conclusion of a defined concept of jurisdictional error. Sometimes there are and their description and operation overlap. That is the case here. There was, as we shall see, an error in the Tribunal. The real question is whether there has been jurisdictional error.

3    Let me, however, commence by setting out some of the background. The appellant is a citizen of Peru. He arrived in Australia in October 2012 to study business, having had over a decade’s experience travelling and working around the world in many different countries. After studying business, the appellant then decided to pursue studies in cooking and culinary pursuits.

4    On 7 March 2016, the appellant applied to the first respondent, the Minister, for a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth). The basis of the application was the appellant’s enrolment in a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality.

5    The appellant was requested on 23 June 2016 to provide additional information in relation to whether he genuinely intended to stay in Australia temporarily and he provided a response in July 2016.

6    On 16 August 2016, the delegate of the Minister refused to grant the student visa because the delegate was not satisfied that the appellant did genuinely intend to stay in Australia temporarily and therefore the appellant did not satisfy cl 572.223(1)(a) of Sch 2 of the Migration Regulations 1994 (Cth). Stripping this criterion of its negatives or perhaps putting different negatives in, the delegate was not satisfied that the appellant would leave Australia. In this respect, it is and will become important to identify three parts of Ministerial Direction No 53: Assessing the genuine temporary entrant criterion for Student visa applications summarised in the reasons of the delegate of the Minister for refusing the appellant’s application. What is to be taken into account includes the following:

(1)    The applicant’s circumstances in their home country including the applicant’s economic situation, political and civil unrest in the applicant’s home country, the extent of the applicant’s personal ties to their home country, whether the applicant has sound reasons for not studying in their home country if a similar course is available, and military service commitments that would present as a significant incentive for the applicant not to return to their home country.

(2)    The applicant’s potential circumstances in Australia, including the extent of the applicant’s ties with Australia that present as a strong incentive to remain in Australia, evidence that the student visa program may be used to circumvent the intention of the migration program, whether the student visa is being used to maintain ongoing residence and the applicant’s knowledge of living in Australia.

(3)    The value of the course to the applicant’s future, including the course’s consistency with the applicant’s current education level, whether the course will assist the applicant to gain employment in their home country, relevance of the course to the applicant’s past and future employment in their home country, and remuneration and career prospects in the applicant’s home country or a third country to be gained from the course.

7    Thus, it was the second of these matters that the delegate focused upon. Of course, the Tribunal’s decision was a review afresh.

8    The Tribunal affirmed the delegate’s decision. There was an application to the Federal Circuit Court for judicial review. Relevantly for this appeal, there was a complaint about a finding of fact as to the courses that had been undertaken in Australia. In aid of brevity, I will not deal with the grounds for review that were dealt with by the learned Circuit Court judge other than the ground relied upon here.

9    The Tribunal's record of decision is, if I may respectfully say so, admirably succinct. After setting out a summary of the evidence of the visa applicant, his sister and some of the further evidence led, the Tribunal turned to the consideration of the claim.

10    In [19] the Tribunal summarised relevant parts of the Ministerial Direction to which I have referred. In the first dot point of that paragraph there was a short and succinct summary of the first, second and third points to which I have referred. That is, the Direction requires 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 course to the applicant's future. Paragraph 19 was in the following terms:

In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires 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 to 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 countries;

•    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.

11    The phrase "potential circumstances in Australia" when used in the reasons of the Tribunal was a shorthand reference to the kinds of considerations referred to in the second aspect of Ministerial Direction No 53 referred to above.

12    The reasons of the Tribunal extend a little over one page. They should not be parsed and analysed with a view to discerning of error, as is well settled. Nor should they be boxed and separated as if each paragraph were a self-contained and quarantined body of reasoning. For that reason, and because of the admirable succinctness of the reasons, I set out the full terms of [21]–[27]:

21. The Tribunal considered the applicant’s circumstances in Peru, his potential circumstances in Australia, his immigration history and other relevant information in making its decision. The evidence submitted to both the Department and the Tribunal has been taken into account. After the hearing, the applicant submitted further information in support of his review, in particular, a letter confirming completion of Certificate IV in Commercial Cookery; a letter of offer of employment from Central Restaurante in Lima, Peru and a second letter the owner of the restaurant, a letter of support from Imagine Education in Queensland, letters from the applicant’s sister and father, a further submission from the representative and several untranslated documents in Spanish which appear to relate to properties owned by the applicant’s family in Peru and the Tribunal has considered this evidence in making its decision.

22. The applicant first arrived in Australia in August 2012 as the holder of a Subclass 572 visa with an intention to study Business. After completing a Diploma of Business, he later changed direction and decided to pursue Cooking and Hospitality. According to the evidence submitted post-hearing, the applicant has completed the Certificate IV in Commercial Cookery and plans to start a Diploma of Hospitality Management in September. The applicant declared he plans to return to Peru in March 2018 as he has a job offer from the Chef/Owner of the Central Restaurante in Lima, Peru. It was also submitted by the applicant’s sister Claudia Acuna Plaza that the applicant wishes to start a business in Peru at one of the properties owned by his father.

23. On the evidence available to the Tribunal, the applicant’s circumstances in his home country are that he has his parents and sister there. His sister Claudia stated the applicant is expected to return to his own country in 2018 because their parents are elderly and she is currently managing the family properties herself and wants her brother to take responsibility. Since his arrival in Australia the applicant said he had returned to Peru once for his father’s 80th birthday but has otherwise been living away from the country for 17 years. Before leaving Peru he had worked as a chef and assistant chef according to his resume that was submitted in evidence to the Department. The applicant then worked as a cook or chef on cruise ships and spent time in the United States, also working as a chef. The applicant said he chose to study in Australia as he had visited during his cruise ship work and he found the food to be more ‘pure’.

24. The applicant’s potential circumstances in Australia are that he has been in the country for more than four years and has completed course in Business and Commercial Cookery. Based on information in his resume, he has been employed in restaurant positions in Australia as a casual chef, sous chef (including senior sous chef) and head chef.

25. The Tribunal considered the value of the courses undertaken in Australia to the applicant’s future. As outlined, the applicant has undertaken courses in Business Studies to Diploma level and Commercial Cookery to Certificate IV during his time in Australia. Based on the subjects undertaken during his Business programs, the applicant has studied general business management subjects in addition to his cooking qualifications. The applicant claimed he was required to obtain a Diploma in Hospitality in order to take up the offer of a chef’s position in Peru, which was supported by a letter from the owner of the business concerned. Based on the applicant’s past work history which indicates wide ranging experience as a chef at different levels, and on his studies to date, the Tribunal is not satisfied the addition of a further Diploma in Hospitality Management will be necessary, or of benefit to his career. The letter from Mr Martinez, owner of the Central Restaurante in Lima says the applicant needs to have a Diploma in Hospitality or higher qualification but there is no evidence his past work history has been considered. In addition, Mr Martinez’s letter states that once the applicant finishes his Diploma in Hospitality, he will be a fully qualified chef. In fact the applicant has already studied Commercial Cookery at Certificate III and IV level. Since the profession of chef does not necessarily require formal certification, he already has already obtained Australian vocational qualifications in addition to his extensive practical experience.

26. The Tribunal accepts the applicant has some ties to Peru due to his parents and sister residing there but this does not accepted as sufficient incentive for him to return. He has been away for 17 years, living and working internationally and has only returned once since coming to Australia. Whilst the applicant’s sister gave evidence about her desire for him to return and assist her in managing property her family owns, the Tribunal is not satisfied that applicant genuinely intends to return to his own country once he completes a further Diploma course. The applicant himself did not refer to the issue of the family’s properties, or plans to turn one of them into a restaurant or hotel until asked to comment on his sister’s evidence. On balance, the Tribunal is not satisfied the applicant satisfied the genuine temporary entrant criteria.

27. 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).

13    The essential complaint is that there was an error in saying or in finding that the appellant had completed a Diploma of Business. He had not. He had at least partially completed a Certificate IV at Shafston School of Business in 2013 which is set out on page 58 of the appeal book. The subjects completed were preliminary and introductory, being the following: monitor a safe workplace; promote innovation in a team environment; develop teams and individuals; make a presentation; show leadership in the workplace; implement and monitor environmentally sustainable work practices; promote products and services; undertake marketing activities; and undertake small business planning.

14    The appellant had begun a Diploma of Business at the same college, but had not completed it. Some courses were completed, being: manage meetings; manage workforce planning; manage recruitment, selection and induction processes; manage diversity in the workplace; identify and evaluate marketing opportunities; and manage risk. Other courses had not been completed for the diploma.

15    The complaint of jurisdictional error was that that finding without foundation that there had been a Diploma of Business completed, was sufficiently central to the decision-making process as to infect the decision with jurisdictional error. Both Mr Colditz and Mr Byrnes helpfully addressed the question of jurisdictional error. There was a significant degree of agreement and conformity in the principles to be applied.

16    There is a growing volume of expressions by judges of the court, both at Full Court level and single judge appellate level, as to legal unreasonableness in the fact-finding process. As displayed in judgments of the High Court such as in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, and of this Court, such as in the important decision of Robertson J in Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317; 212 FCR 99, neither findings of fact nor conclusions as to credit are immune from review for jurisdictional error. Both sides referred me to a number of cases. The most succinct, if I may respectfully say so, summary of the submissions before me was at [36] of the submissions of Mr Byrnes before Mr Colditz came into the case:

In essence, these grounds appear to raise a complaint as to illogicality infecting the Tribunal’s decision. Findings of fact are the exclusive province of the Tribunal, subject to issues of unreasonableness. The first respondent accepts that illogicality “on the way” may amount to a jurisdictional error. However, such errors of fact will be within the Tribunal’s jurisdiction if they are not critical to, or are immaterial, to the final outcome. The threshold is very high and it is useful to ask whether it was open to the Tribunal to engage in the process of reasoning it did and making the findings it did on the material before it. A decision may be illogical if it was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

17    On behalf of the appellant, Mr Colditz referred in particular to a series of cases in this court, both single judge appeal and Full Court, which have sought to articulate the matter. I refer to the influential decision of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210, as well as CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81; Johnson v Minister for Home Affairs [2018] FCA 1940 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1, not to mention Li in the High Court and Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; 357 ALR 408 in the High Court. Mr Colditz helpfully summarised the matter when he said that it is enough for the finding to have been carried into the decision, that it flowed into the decision or affected the decision in a not immaterial way, or is sufficiently part of the reasoning to the outcome, or is a finding on which the ultimate conclusion was predicated, not being severable for the decision to be seen as tainted jurisdictionally.

18    The submission admirably encapsulates some of the attempts by judges to give a certain clarity to the process. I do not take Mr Colditz to be seeking to define that which the High Court has said cannot be defined. Nor do I see in the submissions of Mr Byrnes the same attempt to create concrete the notion that is involved in jurisdictional error. As the High Court made clear in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 by its reference to Professor Jaffe's article, as a reading of Robertson J’s decision in SZRKT will reveal, and as was discussed in Li, Stretton and SZVFW, the task begins with understanding the statutory requirements and examining the error that has been made to see whether in its context it is sufficiently grave as to warrant the conclusion that the authority and the source of the power, the jurisdiction, has not in law been exercised.

19    Thus, taking Mr Colditz's helpful articulation and distillation from the cases which was not substantively disagreed with by Mr Byrnes, I will turn to the reasons. Before doing so, when I say that it was not substantively disagreed with by Mr Byrnes, Mr Byrnes rightly, if I may say so, said that that was a matter of degree, and that the error that has admittedly been made had to be sufficiently central and sufficiently important or sufficiently material to the decision of the Tribunal such that it can be seen to be an exercise of decision-making power not in accordance with what is required under the statute.

20    Looking at the matter as a whole, one can see the following features of the decision. First, early in the reasoning in the second sentence of [22], the clear error is made in the context of describing a change of direction; the Tribunal found that Mr Acuna Plaza had completed a Diploma of Business. He then moved on to cooking and completed a Certificate IV in Commercial Cookery, and the plans to commence the diploma which was the subject of the visa application.

21    In [23], the Tribunal then turned to the applicant's circumstances in his home country. This is the matter to which the first aspect of the Ministerial Direction No 53 referred to above is directed. No particular complaint is made about those matters.

22    In [24], the Tribunal then directs itself to the second aspect of Ministerial Direction No 53 referred to above. It does so by using the shorthand “potential circumstances in Australia”. It is important to understand the subject to which [24] is directed. It is the appellant’s potential circumstances in Australia which is the matters referred to in that second point and, that is, that the Tribunal is looking at matters that may direct the incentive to remain in Australia, and the Tribunal says what it does in [24]. There is some doubt pointed to by Mr Byrnes as to what “course in Business and Commercial Cookery” meant. It can be accepted that, as I have said, there had been a completed or partially completed course in business in the Certificate IV in Business. However, I think that is to be overly precise and textual for the reference to “course in Business” only being a reference to the certificate course.

23    The Tribunal had already said that he had completed a Diploma of Business and so I would take it that the phrase in [24], he “has completed course in Business” is a reference to at least the Diploma of Business wrongly found or the Certificate IV and the Diploma of Business (the latter wrongly found). Thus, in [24], the Tribunal is identifying as one of two or three considerations the circumstances concerning matters of incentive to remain in Australia. The logical and reasoning process is not entirely clear but at this point at least one can see, in [22] and [24], the Tribunal saying he has completed a Diploma of Business, then he has changed direction and now wants to pursue cooking and has completed cooking and now wants to go further in cooking, because that, apart from the error, is exactly what had happened. So I see more significance to [24] than the submissions of Mr Byrnes would admit.

24    We then move to [25], the “value of courses undertaken in Australia”. Now, the Tribunal is directing itself to the third aspect of Ministerial Direction No 53 to which I have referred. And the first matter that is referred to here is the undertaking of “courses in Business Studies to Diploma level and Commercial Cookery to Certificate IV”. Again, I am unpersuaded about being too textually precise here. I think that is another occasion in which the completion of the Diploma of Business is finding its place in the evaluation of the Tribunal. And relevant to the consideration is that the appellant has studied general business management studies as well as cooking.

25    That is, it can be accepted that that focus of that language is on the study of the subjects as opposed to the completion of the course, but I think the language is fairly clear that it is the subjects in a completed course that is being referred to. Importantly, in Mr Byrnes’ submissions, in the middle of [25] the Tribunal directs itself to his past work history, a wide ranging experience as a chef at different levels and his studies to date. The Tribunal is not satisfied that the addition of a further diploma will be necessary or of benefit to his career. That should be seen in the lack of emphasis given to the references; the letter from Mr Martinez and his possible prospective employer in the restaurant in Peru. It can be accepted that the rest of the paragraph is an indication that the Tribunal is not fully persuaded that further cooking qualifications are necessary.

26    When one moves to [26], which cannot be divorced from the whole of the above, Mr Byrnes put some emphasis on [26] as showing that the fundamental reason in his submission why the lack of satisfaction expressed was what can be seen at the commencement of [26]: there are some ties to Peru but he has not been there for approximately 17 years, living and working internationally. But I think there is some importance in what the Tribunal says that the Tribunal is not satisfied the applicant genuinely intends to return once he completes a further diploma. I am not focusing on the word “further”, but the difficulty that I see is a theme reflected in the reasoning which sees as adequate for his future the completion of a Diploma of Business and the completion of Certificate IV in Commercial Cooking, and that a further diploma, another diploma, informs an undivided consideration about the first and second aspects of the Ministerial Direction No 53 as reflected in [24] and [25] of the reasoning in the decision.

27    It is to be recalled that this is a question of lack of satisfaction. True it is that there was the ability to see and assess the visa applicant and his sister, but no particular credit finding is made. This is not a case founded on disbelief. It is founded, however, on a lack of satisfaction overall that this man will return to Peru and not seek to remain in Australia. As required by Ministerial Direction No 53, the Tribunal looks to, amongst other things, the three points that I have identified. In my view the second and third points are difficult to disentangle and the second point as reflected in [24] is, I think, importantly based on the taking of another course when a Diploma of Business and a Commercial Cookery course have already been obtained (when the former had not been finished).

28    In these circumstances, I have come to the view, assisted by the submissions of counsel, that the error that was made was sufficiently central within the meaning of the authorities to which I was taken as to reflect jurisdictional error in the Tribunal. For these reasons, I will allow the appeal and set aside the orders of the Federal Circuit Court made on 18 June 2018. In their place, it will be ordered that the decision of the Administrative Appeals Tribunal dated 1 September 2017 be set aside with costs, and the matter remitted to the Tribunal for rehearing. The order for costs will be the first respondent pay the appellant's costs of the appeal, which pursuant to the previous order will include the costs of the extension of time application.

Associate:

Dated:    1 April 2019