FEDERAL COURT OF AUSTRALIA

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 made by the Federal Circuit Court of Australia on 18 November 2019 be set aside and in lieu thereof it be ordered that:

(a)    The decision of the Administrative Appeals Tribunal, Migration and Refugee Division made on 9 January 2019 be set aside, and the application for review of a decision of a delegate of the Minister on 22 February 2017 to refuse the applicants Student (Temporary) (Class TU) Subclass 500 (Student) visas be remitted to the said Tribunal for rehearing according to law.

(b)    The first respondent pay the applicants’ costs.

3.    The first respondent pay the appellants’ costs of the appeal.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal against orders of the Federal Circuit Court of Australia dismissing an application for judicial review. The first appellant, Ms Eros, was denied a student visa by a delegate of the Minister in February 2017. That decision was affirmed by the Administrative Appeals Tribunal in January 2019. The Federal Circuit Court dismissed her application for review in November 2019. The second appellant is the husband of Ms Eros and his application was secondary and dependent upon his wife’s application.

2    I will first examine the approach of the Tribunal, because the essential submission of the appellants is that the primary judge erred in failing to conclude that the Tribunal’s decision reflected a misunderstanding of the relevant clause of the Migration Regulations 1994 (Cth) governing the grant of the visa, and thereby involved legal unreasonableness in the approach and reasoning to its conclusion.

3    There are other complaints as to the Tribunal’s procedure with which it will be necessary to deal.

4    Also, there was a complaint as to the failure of the primary judge to provide, on a timely basis, his settled written reasons for an extempore judgment. Though no criticism of the primary judge can legitimately be made in this case on this subject, it will be necessary to say something of the procedural approach that he followed.

5    The application of Ms Eros was for a Student (Temporary) (Class TU) Subclass 500 (Student) visa under s 65 of the Migration Act 1958 (Cth).

6    Under s 65 the Minister (here, the delegate and then the Tribunal) is required to consider whether he or she or it is satisfied that the criteria prescribed by (relevantly here) the Regulations have been satisfied.

7    The relevant Regulations setting out the criteria to be satisfied include, most relevantly, cl 500.212 of Sch 2 to the Regulations which is in the following terms:

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a)    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 intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)    the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)    the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)    of any other relevant matter.

8    It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: “a genuine applicant for entry and stay as a student”. This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.

9    The expression is followed by the word “because” and a list of various matters in subcll (a)(i)–(iv), (b)(i)–(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise. That said the width of subcll (a)(iv) and (c) are to be recognised: that is “any other relevant matter”. Such a wide frame of reference is, of course, limited by reference to the subject matter, scope and purpose of cl 500.212: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505.

10    For reasons that will become apparent, the terms of cl 500.212 can be compared with the terms of prior regulations for a previous Subclass 572 (Vocational Education and Training) visa, being cl 572.22 and cl 572.223, as follows:

572.22—Criteria to be satisfied at time of decision

572.223

(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.

11    One can see the textual similarities and differences between cl 500.212 and former cl 572.223: each is directed to the applicant being a genuine applicant for entry and stay as a student; and each requires the assessment of that by (through the word “because”) the satisfaction of the criteria in (1)(a), and (2) (the latter through (1)(b)) in cl 572.223, and (a), (b) and (c) in cl 500.212.

12    In Saini v Minister for Immigration and Border Protection [2016] FCA 858; 245 FCR 238, Logan J dealt with cl 572.223. Significant reliance was placed on his Honour’s judgment by the Minister in this case. I will deal with those submissions in due course. As shall be seen from the discussion of the Tribunal’s reasons shortly, that decision, and this appeal, turn on the meaning of, and what can be used to inform a conclusion about the question whether, “the applicant intends genuinely to stay in Australia temporarily” in subcl (a). In Saini 245 FCR at 245 [28] Logan J said the following about that part of the equivalent provision in subcl 572.223(1)(a) (with which I agree in relation to the equivalent words in subcl 500.212(a)):

The words … are concerned with how long the visa applicant intends to stay in Australia and nothing else.

13    The proper approach to the application of the clause requires an appreciation of the relationship between the disaggregated elements of cl 500.212 in subcll (a), (b) and (c), and the whole question requiring evaluation in the chapeau. There are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for subcl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. Those considerations will be taken up in (a)(ii) and (iii) and especially (iv) insofar as they relate to the applicant’s intention as to how long to stay; and in (b) and (c) (especially (c)) as to whether the applicant is genuine in his or her desire to be a student. But subcl (a) is concerned, as Logan J said in Saini, with the genuine intention as to length of stay, and nothing else.

14    The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student.

15    The clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations.

The Tribunal’s statement of decision and reasons

16    The Tribunal based its entire decision on whether Ms Eros had satisfied subcl (a): whether she intended genuinely to stay in Australia temporarily. This can be seen from the heading above [9] of the reasons, the conclusion at [31] and the reasoning between those two paragraphs. The conclusion in [31] was as follows:

On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a). Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review, in respect of both applicants, must be affirmed.

17    The Tribunal commenced its reasons by recognising that it was obliged to have regard to Direction Number 69 made under s 499 of the Migration Act. In [9] the Tribunal identified four features taken from Direction 69 to examine:

•    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.

18    It should be noted parenthetically that these considerations would also be relevant to subcl (c) in cl 500.212, but, as will become apparent, no findings were made about such matters and how they may inform any conclusion that Ms Eros did not genuinely intend to be a student for the purposes of the ultimate evaluative question in the chapeau.

19    The reasons reveal that Ms Eros openly placed her circumstances before the Tribunal. They can be taken from the following paragraphs of the reasons:

[11]    The applicant is a 45-year-old Hungarian mother who first arrived in Australia on a tourist visa on 2 November 2016. The second named applicant is her husband.

 [12]    In her application for a tourist visa, the applicant wrote:

I would like to go on a holiday for two months with my family, Rebeka, Mate and with my husband, Jozsef. My son has just graduated from high school and we would like to celebrate with this holiday. In Sydney we would like to see the Opera House with the Harbour Bridge, visit the Taronga Zoo and have a rest at Bondi Beach. We are planning to rent a car and spend some time in the Gold Coast, too. We would like to explore several cities in Australia, visit also the Australia Zoo, hold a koala and see kangaroos.

[13]    The applicant asked the Tribunal to accept that she arrived in Australia for a short holiday with her family and shortly thereafter decided that she would study here. Whilst the Tribunal accepts that plans can change, the Tribunal does not accept the applicant’s evidence. The Tribunal considers that the applicant used the visitor visa program to circumvent the more rigorous student visa assessment process.     

…

[15]    The applicant provided a document entitled “genuine temporary entrant criterion statement” dated 9 November 2016 to the Department (df 26). In this document the applicant outlines her reasons for proposing to study an English language course and how she came to identify a course provider. She explains that, as at 9 November 2016, her son and daughter were due to begin their own studies in Australia and “I would like to be next to them in the first few months to ensure a smoother adjustment to this new environment and culture”. The applicant asserted that English language study would assist her in her own business back in Hungary.     

…

[17]    The Tribunal has also read and had regard to the written submission of the applicant’s representative dated 22 October 2018. The applicant is currently enrolled in a vocational level Certificate IV in Marketing and Communication. This course commenced on 23 July 2018 and is due to finish on 30 June 2019. In her oral testimony the applicant said that she would find it difficult to find a similar course in Hungary where the instruction was in English. She also said that such a course would be expensive in terms of tuition. Whilst the Tribunal accepts that the applicant might benefit from a higher quality education in Australia, the Tribunal is unconvinced in relation to the value of the course to the applicant’s future. The Tribunal observes that, in her application to the Department, the applicant listed her occupation as a “financial consultant” and her highest level of education as that of a chartered accountant. The representative’s submission dated 22 October 2018 makes the broad claim that “improved knowledge of the English language coupled with greater business, marketing and communication skills will enhance the family business and lead to greater opportunities throughout Europe”.     

[18]    It is convenient to observe that the applicant has completed the English-language courses that she proposed at the time of application to the Department. The Tribunal considers that the value of the vocational Certificate IV qualification to the applicant’s future would be marginal. The Tribunal considers the Certificate III in Business which the applicant has already achieved should provide the applicant with a knowledge base that may be deployed to solve disparate business challenges, including in relation to marketing and communication. As such, the Tribunal does not consider that the course proposed will really assist the applicant to obtain employment or improve her employment prospects in Hungary.

[19]    The applicant’s pattern of behaviour since first applying to the Department on 16 November 2016 has involved always identifying a further course, further extending her stay in Australia each time. The Tribunal observes that the applicant completed an English language course at Ability English between 14 November 2016 and 19 May 2017. The applicant completed a further English course between 25 September 2017 and 15 December 2017. Between 5 February 2018 and 1 July 2018 the applicant completed the vocational level Certificate III in Business.     

[20]    The applicant told the Tribunal that she has not returned to Hungary since arriving in Australia as a tourist more than two years ago. The applicant gave evidence that her son completed a diploma in Australia before returning to study medicine in Romania. The applicant could not tell the Tribunal the discipline of the diploma which her son completed. The applicant said that here daughter has recently completed a Master of Business Administration degree in Australia and     wants to stay in Australia for at least two years. The applicant explained how she understood her daughter to be eligible for a graduate visa to remain in Australia to work.

[21]    The applicant’s evidence is that the balance of her family, and her friends, remain in Hungary. In this case the Tribunal does not consider the before mentioned personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia. The Tribunal acknowledges the family who remain in Hungary but at the same time considers the presence of her immediate family in Australia is significant. The Tribunal considers the presence of the applicant’s daughter in Australia a strong incentive for the applicant to remain in Australia, particularly when coupled with the other incentives which exist to remain in Australia.     

[22]    The Tribunal has had regard to the applicant’s evidence in relation to real estate holdings in Hungary, including a small business. The Tribunal has had regard to the web extracts provided concerning the business. The Tribunal considers that real estate can be readily sold for cash, or indeed, may never be sold and may instead produce income in the form of rent. The applicant also provided evidence concerning owing a vehicle. Such assets are no real incentive to cease residence in Australia.

…

[24]    It is common knowledge that there is an economic disparity between Australia and Hungary. In these circumstances, the Tribunal questioned the applicant about her economic circumstances. She told the Tribunal that she is supported by the second named applicant who works in self-employed carpentry type jobs. The applicant provided a copy of the second named applicant’s taxation documentation. On the applicant’s evidence, the Tribunal considers that the second named applicant could earn more in Australia compared to Hungary. The Tribunal considers this presents a significant incentive for the applicant not to return to Hungary.

…

[26]    In accordance with the ministerial direction, the Tribunal questioned the applicant concerning any circumstances in her home country that may induce her to apply for a student visa as a means of remaining in Australia indefinitely. The applicant told the Tribunal that there aren’t any reasons why she cannot return to Hungary and that she does not have any concerns in relation to military service, political or civil unrest. The Tribunal accepts this and considers that she simply chooses not to return.

[Footnote omitted.]

20    One can see in these paragraphs consideration of factors that might inform some conclusions about various aspects of the chapeau, such as whether she intended genuinely to be a student, in particular, through the operation of subcl (c). But the Tribunal made no finding that she did not genuinely intend to stay as a student. To do so it would have had to grapple with the apparent genuineness of Ms Eros in undertaking the courses, even if they were a way she would be able to remain in Australia. The dispositive reasoning so far as it concerns subcl 500.212(a) is to be found in [30] of the reasons:

The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In our view, the applicant has an intention to remain in Australia, at least while her daughter is here, but she did not articulate a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.

21    The express finding is that Ms Eros intends to remain in Australia while her daughter is here. The evidence was that this was for two years: see [20] of the reasons. On any view that is a temporary stay, by reference to the accepted meaning of the word “temporary” referred to by Wilcox J in the context of construing the phrase “temporarily absent from Australia” in Hafza v Director-General of Social Security [1985] FCA 201; 6 FCR 444 at 451, applied by Logan J in Saini 245 FCR at 243 [19] and [20]:

The Shorter Oxford Dictionary defines “temporary” as “Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”. The Macquarie Dictionary definition is to similar effect, with the addition of “not permanent”.

…

I think that the adjective “temporary” was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.

22    What the Tribunal appears to have done in its reasoning is to raise doubts about the primary purpose or motivating purpose of staying in Australia (to be with her family, now specifically her daughter) and treat it as relevant to the meaning of “temporary stay”. Of course, those matters could be so relevant. If they informed a finding that Ms Eros intended to stay indefinitely in Australia (as the discussion in [19] hinted at, but without any conclusion) then plainly she would not genuinely intend to stay temporarily in Australia. But no such finding was made. The concern in the last sentence of [30] is not a finding. It is an expression of a concern. Subclause (a) is concerned and only concerned with the intention as to length of stay. The finding is not that she genuinely intends to stay indefinitely but for a defined, relatively short period related to an apparent desire to be near her daughter and to study. There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses.

The Federal Circuit Court decision

23    The appellants’ initial application for review complained of five errors, all linked to an asserted misunderstanding of cl 500.212, as follows:

1.    The second respondent failed to properly interpret and apply cl. 500.212 of the Migration Regulations 1994.

2.    The second respondent failed to take relevant considerations into account in its consideration of claims and evidence to satisfy cl.500.212 of the Migration Regulations 1994.

3.    The second respondent’s decision was unreasonable and failed to take into [account] the materials and evidence before it in support of her claim.

4.    The second respondent took into account irrelevant considerations in conducting its review of the application and its decision record dated 09 January 2019.

5.    The second respondent’s decision was otherwise an unlawful exercise of its power.

24    An amended application for review was far less focused and ranged over many aspects of the decision in an unstructured body of complaints about factual findings. The appellants’ written submissions contained an additional ground: that the Tribunal’s use of a ‘group introduction’ was unreasonable, illogical and an unlawful exercise of its power. The primary judge gave leave to the appellants to argue the additional ground. It should be said at the outset that the primary judge was called upon to grapple with the long and unfocused amended application. He may have had far less chance of falling into error if he had been assisted by the focus reflected in the initial application.

25    The learned primary judge delivered an extempore judgment in respect of the amended application. Embedded within the grounds remained the complaint that the Tribunal had misunderstood the word “temporarily”: see the reasons [2009] FCCA 3805 at [21]–[32]. The primary judge considered that the Tribunal had not erred by considering that time was not the only consideration in the word, saying at [30]–[32]:

It does not seem to me though that the Tribunal has misconstrued what the word “temporarily” is all about. The word “temporarily” has to be seen in context of the person being the student. That is, that they will be here to complete a genuine course of study, and then will leave once the course of study is done.

The intention to stay here temporarily is something that needs to be seen in the context of all the circumstances. There are many occasions where persons keep studying for the sake of studying, so it is that they can stay in Australia longer. That may not mean because they intend to be here permanently, but it means that they are not genuinely here temporarily; that is, that they have identified a course of study, and then will leave once that course of study has finished.

In that respect, the interpretation that was used by the Tribunal is a correct interpretation, and there has not been a jurisdictional error in that respect.

26    With respect, that is to read more into the word “temporarily” than the word permits. If the kind of reasoning that is revealed by the Tribunal and the primary judge is to found the visa refusal, there has to be a treatment of the material whether by way of findings or conclusions as to lack of satisfaction concerning matters such as whether the person is a genuine student or intends to undertake a course of study. That is, relevant findings or consideration need to be made or undertaken, based on considerations made relevant by subcl 500.212(c), to the effect that the chapeau is not met. That was not done. Matters were hinted at. But the reasoning was based on Ms Eros not intending to stay temporarily, when the factual finding was such that she was intending to stay temporarily.

27    The notice of appeal to this Court had three relevant grounds. Grounds 1, 3 and 4 focused, as argued, on the misconstruction of cl 500.212. These grounds were as follows:

1.    The learned trial judge erred by not finding that the AAT had misconstrued cl 500.212 of the schedule 2 to the Migration Regulations 1994.

…

3.    The learned trial judge erred by failing to find that the decision of the AAT was infected with jurisdictional error through the decision being unreasonable;

4.     The learned trial judge erred by failing to find that the decision of the AAT was infected with jurisdictional error by the AAT not having a [sic] conducted a proper view in that it did not give a proper genuine and realistic consideration of the merits.

28    The Minister argued that one did not look to questions of time alone to determine satisfaction with subcl (a). It was necessary, it was submitted, to read subcl (a) in the context of the chapeau and it could be established that the Tribunal concluded that Ms Eros was not a genuine student. It was submitted that to do otherwise was to read the decision with an eye overly-directed to the finding of error, contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It was submitted that the decision of Logan J in Saini supported these submissions.

29    I reject these submissions. There is nothing in the decision of Saini which is contrary to the approach that I have already discussed. As Logan J said in Saini 245 FCR at 245 [28] about the relevant words of the predecessor to subcl (a), the words “are concerned with how long the visa applicant intends to stay in Australia and nothing else”.

30    The Tribunal’s finding at [30] was that, or was consistent only with a finding that, Ms Eros intended to stay temporarily. There was no finding that she would stay longer.

31    There may well be seen to be material before the Tribunal (relevant under subcl (a)(iv)) that may have permitted a finding of an intention to stay indefinitely, but that finding (and any supporting findings) was (and were) not made.

32    There may well be seen to be material before the Tribunal (relevant under subcl (c)) that may have permitted a finding that Ms Eros was not a genuine student and her stay was not “as a student”, but no such finding (and any necessary evaluation of evidence and supporting findings) was (and were) not made, or undertaken.

33    For these reasons, the Tribunal misdirected its consideration by asking the wrong question, and by failing to reveal a rational and intelligible reasoning process to its conclusion. These features arose from a misconstruction of cl 500.212.

34    For these reasons, the appeal should be allowed, and the orders of the Court below and the Tribunal’s decision should be set aside.

The two other grounds of appeal

35    Ground 2 of the notice of appeal was in the following terms:

The learned trial judge erred by failing to find that the review by the AAT was contaminated by the ‘group introduction’ process, in the particular circumstances of this case, where:

(a)    Both the appellant and the representative were participating in the hearing by telephone and were largely unaware of the group introduction process until it began;

(b)    There was no notice that there would be a ‘group introduction’ process;

(c)    No consent was sought from the appellant to conduct a ‘group introduction’ process.

(d)    There is nothing in the rules or the practice directions of the President to alert an applicant to the AAT that a ‘group introduction’ process would take place.

(e)    Part of the ‘group introduction’ was not interpreted into Hungarian (or indeed any other language);

(f)    The role of having two members, hearing the matter (and the group of matters) but only one was the presiding member, but the non-presiding member was conducting the hearing, added to the confusion;

(g)    There was a risk of a momentum effect of hearing a bunch of matters in this way, an adverse decision in one or more matters may consciously or subconsciously affect the decision making in this particular matter.

36    Apparently, the two Tribunal members who heard and decided the appellants’ case conducted a general introduction to a number of cases being heard that day contemporaneously. The matters discussed were general, with no specific matter relevant to the appellants’ case being dealt with. The appellants may not have heard all of it, although the Minister submits that the group introduction was translated into Hungarian and the transcript supports this.

37    Whilst I say nothing of the wisdom, or unwisdom, of this practice, the appellant did not point to any injustice, or unfairness or defect in the hearing. It was not submitted on any coherent basis that the substance of what occurred was not a review under the Migration Act or that there was procedural unfairness. For these reasons there was no basis to impugn the decision and I dismissed this ground on the day of the hearing of the appeal.

38    Ground 5 was a complaint about the primary judge’s failure to provide settled reasons after the delivery of his extempore reasons in time to allow a notice of appeal to be filed. A notation to the orders made by the primary judge on the day of the hearing (presumably announced orally after delivery of reasons) stated:

NOTATION:

A.     That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

39    Ground 5 read as follows:

The Federal Circuit Court did not properly exercise its jurisdiction under section 476 of the Migration Act 1958, in that:

(a)    An ex tempore decision as [sic: was] given;

(b)    No notice was given prior to pronouncing the reasons for decision ex tempore that no written reasons for decision would be supplied to the applicant prior to the expiry of the time limit for appeal to the Federal Court (which had the result that the appellant and her representatives did not take notes while the learned trial judge was delivering the ex tempore reasons).

(c)    The appellant has no ability prior to the expiry of the time limit for appeal to the Federal Court, to obtain a transcript or audio recording of the reasons for decision delivered ex tempore;

(d)    As at the time of filing this notice of appeal, no written reasons for decision by the Federal Circuit of Australia have been supplied;

(e)    To properly exercise its jurisdiction under s 476 of the Migration Act, justice must not only be done it must be seen to be done;

(f)    In the particular circumstances outline above, justice has not been seen to be done.

40    The primary judge delivered extempore reasons. Counsel was present. He and his solicitor had a duty to take a note of the reasons. They obviously did so because a coherent notice of appeal was filed, in time, and without the need for an extension of time. Settled reasons were supplied. There was no assertion that they departed from the oral reasons in any material respect. For these reasons I dismissed this ground at the hearing of the appeal.

41    An extempore judgment delivered immediately after the hearing can be a salutary means of promptly resolving a case when the judge has considered the matter and is in no doubt as to its result. The delay and further work of writing a reserved judgment when the matter may not be fresh in mind is obviated. A settled and accurate written record of an extempore judgment may, however, in many cases, be important for the litigant to understand why he or she has won or lost, the latter in particular. Transcript can be defective or inaccurate. In a busy practice court with knowledgeable and skilled practitioners, the need for the reduction of extempore judgments to settled written reasons can, perhaps, be seen as unnecessary as a matter of course, depending on the nature of the list and the relationship between bench and bar. But applications for the review of refusals of visas are not matters of practice and procedure, they are important substantive matters, affecting (quite often fundamentally and irrevocably) the rights, liabilities, lives and futures of litigants, and their families. Such importance is not diminished, or to be seen to be diminished, by perceived lack of legal merit. Many such applicants are unrepresented, many lack English language skills, many are of little means. Clarity and fairness in the despatch of judicial business is especially important in such cases, for such litigants. Here, there was no unfairness, and the judge should not be criticised. However, following a procedure in accordance with the terms of the notation which appears under the orders made on the date of the hearing might, in other cases, lead to some difficulty, indeed perhaps injustice, particularly if an applicant is unrepresented, lacks English skills, or is confused as to why he or she has won or lost. Why, one may ask, should an applicant be expected to put on an appeal (as opposed to indicating a desire to consider an appeal) before being entitled to settled reasons? Or, why should an applicant not have access to settled reasons so as to allow him or her to contemplate sensibly and responsibly an appeal in an informed manner? It may be difficult in any particular case to determine whether there has been prejudice or unfairness. It is not possible to prescribe a rule with defined consequences. Measures of efficiency, whilst important, can never be more important than the proper fairness to be afforded to litigants before the court, which involves recognising that, if a party is to lose, he or she should know why, which in turn may involve the recognition of the social or language disadvantages many litigants face.

42    This was not a case of a refusal to provide any form of written reasons. If, as revealed in CQX18 v Minister for Home Affairs [2019] FCAFC 142; 372 ALR 137, an unrepresented non-English speaking litigant was faced with extempore reasons not interpreted or ordered not to be interpreted (or perhaps read at such a pace as to make the interpretation difficult or impossible) and no settled reasons were to be provided, questions may arise as to whether the litigant had been afforded procedural fairness, and as to whether the judicial task has been completed. This was not such a case.

Possible referral of grounds 1, 3 and 4 to a Full Court

43    At the hearing of the appeal, I raised with the parties the question whether I should refer grounds 1, 3 and 4 to a Full Court. I did so because I was concerned as to whether the decision of Logan J in Saini should be followed and whether Direction 69 was in conformity with cl 500.212. On reflection, and in the preparation and writing of these reasons, neither consideration became relevant.

Orders

44    For the above reasons I would make the following orders:

(1)    The appeal be allowed.

(2)    Orders 2 and 3 made by the Federal Circuit Court of Australia on 18 November 2019 be set aside and in lieu thereof order:

(a)    The decision of the Administrative Appeals Tribunal, Migration and Refugee Division made on 9 January 2019 be set aside, and the application for review of a decision of a delegate of the Minister on 22 February 2017 to refuse the applicants Student (Temporary) (Class TU) Subclass 500 (Student) visas be remitted to the said Tribunal for rehearing according to law.

(b)    The first respondent pay the applicants’ costs.

(3)    The first respondent pay the appellants’ costs of the appeal.

Associate:

Dated:    28 July 2020