FEDERAL COURT OF AUSTRALIA Muker v Minister for Immigration and Border Protection [2016] FCA 609 Appeal from: Muker v Minister for Immigration & Anor [2016] FCCA 204 File number(s): SAD 59 of 2016 Judge(s): CHARLESWORTH J Date of judgment: 31 May 2016 Catchwords: ADMINISTRATIVE LAW – appeal from judgment of Federal Circuit Court –Federal Circuit Court dismissed an application for judicial review of a decision of the Tribunal – Federal Circuit Court erroneously attributed to the Tribunal a finding adverse to the applicant –Tribunal did not make the adverse finding attributed to it – appeal dismissed MIGRATION – appeal from judgment of Federal Circuit Court –Federal Circuit Court dismissed an application for judicial review of a decision of the Tribunal – Federal Circuit Court erroneously attributed to the Tribunal a finding adverse to the applicant –Tribunal did not make the adverse finding attributed to it – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 65, 499, subs 476(1) Migration Regulations 1994 (Cth), cl 572.223(1)(a) Cases cited: Craig v South Australia (1995) 184 CLR 163 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Date of hearing: 25 May 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr B Hornsby Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondents: The Second Respondent filed a submitting appearance ORDERS SAD 59 of 2016 BETWEEN: ANKUSH MUKER Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: CHARLESWORTH J DATE OF ORDER: 31 May 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to pay the respondent's costs of the appeal, to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHARLESWORTH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia published as Muker v Minister for Immigration & Anor [2016] FCCA 204. The Federal Circuit Court Judge dismissed an application for judicial review of a decision made by the then-named Migration Review Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the First Respondent (Minister) to refuse to grant the appellant a student visa under s 65 of the Migration Act 1958 (Cth) (Act). 2 The appellant is a 28 year old citizen of India. He arrived in Australia in January 2010 as the holder of a student visa to study a Masters degree in Information Technology. He withdrew from the Masters program in July 2010 because he found the course of study too difficult. Whilst the holder of his original student visa, he nonetheless completed a Diploma of Business, a Certificate III in Automotive Specialist and a Diploma of Automotive Technology. On 30 December 2013, the appellant applied for a Student (Temporary) (Class TU) visa (Visa) for the purpose of undertaking an Advanced Diploma of Management, a Diploma of Marketing and an Advanced Diploma of Marketing. 3 Having regard to the course of study intended to be undertaken by the appellant, the Minister's delegate, and the Tribunal on review, applied the criteria applicable to the grant of a subclass 572 (Vocational Education and Training Sector) visa. It was a criteria for the grant of such a visa that the Minister be satisfied that the appellant intended genuinely to stay in Australia temporarily: cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). 4 The Minister's delegate found that the appellant did not satisfy the criteria in cl 572.223(1)(a). The Tribunal affirmed the delegate's decision. The Federal Circuit Court held that the decision of the Tribunal was not infected with jurisdictional error and, accordingly, dismissed the appellant's application for judicial review. 5 For the reasons expressed below, the appeal must be dismissed. The delegate's decision 6 Subclause 572.223 (1)(a) of Schedule 2 to the Regulations provides: 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; … 7 In her reasons for decision, the Minister's delegate said (emphasis added): Since your arrival in Australia in January 2010 as the holder of a student visa, you have completed a Diploma of Business, a Certificate III in Automotive Specialist and a Diploma of Automotive Technology. You now wish to undertake an Advanced Diploma of Management, a Diploma of Marketing and an Advanced Diploma of Marketing. I note that you were initially granted a student visa to study a Master of Information Technology, however, you withdrew from this course in July 2010. To date, you have applied for or undertaken courses within 4 unrelated fields of study, including Information Technology, Automotive, Business/Management and Marketing. You have not provided sufficient reasoning for this significant change in your study pathway and I have serious concerns that you are utilising the student visa program as a means to prolong your stay in Australia. 8 After weighing those findings with other considerations, the delegate stated that, after weighing up a number of factors as a whole, she was not satisfied that the applicant intended genuinely to stay temporarily in Australia and that, accordingly, the applicant did not satisfy the criterion in cl 572.223(1)(a). The Tribunal's decision 9 The appellant appeared before the Tribunal at a hearing conducted on 8 December 2014. He also provided written submissions to the Tribunal which appear to have been drafted on his behalf by a Migration Agent. 10 The Tribunal referred to a Statement of Purpose provided by the appellant to the delegate. In that document, the appellant had expressed his reasons for his proposed course of study as follows (original spelling and grammar retained): My long-term goal is to be successful manager in automotive industry. I already have technical knowledge about Automotive industry and feel with knowledge of marketing I will get added advantage to satisfy my long term goal. I feel no one can become successful manager without technical Knowledge and combination of marketing with the technical background is promising and can satisfy my long-term goal. … I opt for this course of marketing has gained immense popularity especially among auto dealerships and auto marketers. … I can get employed as marketing manager in some automotive company or can be product manager in so. There could be a lot of opportunities for me. 11 The appellant's written submissions reinforced the statements made in his Statement of Purpose: the appellant's goal was to be a successful manager in the automotive field. 12 At [11] to [14] of its reasons, the Tribunal summarised the statements that the appellant had made at the Tribunal's hearing as to his reasons for his proposed further studies. The appellant told the Tribunal that his father owned a menswear business in India, that it was his duty as the eldest son in his family to "fulfil his parents' dreams" and that his "main reason" for the further studies was to obtain skills for the expansion of his father's business to "fulfil his father's dream". 13 The Tribunal decided that the statements the appellant had made in his written submission and in his Statement of Purpose about his reasons for studying marketing were inconsistent with the statements he made before the Tribunal on that topic. The Tribunal said (emphasis added): [17] The applicant's claims regarding his duty as eldest son to assist his father's business as the reason why he is engaging in his present studies were pressed by him on three occasions. I raised with the applicant that his repetition of these claims did not assist him and the fact that he kept doing so may cause me to doubt them. I accept, of course, that participating in a hearing can be a nerve-wracking experience for an applicant, however, in the applicant's case I assess that he has rehearsed his evidence in an effort to persuade me as to the genuineness of his reasons for studying marketing. I am not so persuaded, particularly in light of his previous statement of purpose set out in the primary decision: Your 'long term goal is to be a successful manager in the automotive industry' and that your proposed study will give you a 'competitive edge in securing employment in India' [18] Whilst I give the applicant some credit for obtaining qualifications as an international student in Australia, namely a Diploma of Business, a Certificate III in Automotive Specialist and a Diploma of Automotive Technology, by the same token I share the delegate's concerns that he is now proposing to engage in another field of study, marketing, which will have him residing here until April 2017. Given that he has now changed his reasons for studying marketing, I am of the view that the applicant is applying for the visa primarily as a means of prolonging his stay in Australia. The judgment appealed from 14 On 23 December 2014 the appellant filed an application for judicial review in the Federal Circuit Court. The single lengthy ground of review stated in the judicial review application was (original grammar and spelling retained): Tribunal member refused my case stating that he is not satisfied that I am genuine student and I do not satisfy subclass cl.572.223(1)(a). I have been a genuine student in Australia since my arrival thats the reason I was able to complete my studies in Automotive and business. Tribunal officer stated in his decision that I applied for or undertook 4 unrelated courses. Information technology, Automotive, Business/Management and Marketing. I had explained member that I withdrew from IT course as I found it very difficult. Automotive, Business/Management and marketing are closely related subjects. When I work in Automotive industry I would require management and marketing knowledge. I had clearly said that I will be manager in automotive industry or might help my parents in the business. In both cases I would require management/business and marketing knowledge. Member failed to put weight on the fact that Manager has to perform various duties in business including management and marketing along with technical work hence made and 'Jurdictional error in his decesion'. 15 Subsection 476(1) of the Act confers on the Federal Circuit Court the same original judicial review jurisdiction in relation to the Tribunal's decision as the High Court has under paragraph 75(v) of the Constitution, subject to some exceptions that are not presently applicable. The Federal Circuit Court's jurisdiction to grant relief by way of prohibition or mandamus, or to issue certiorari to quash the Tribunal's decision, could only be exercised if the Tribunal was shown to have made a jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76], 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. 16 In Craig v South Australia (1995) 184 CLR 163 (Craig) (at 179), the High Court said that an administrative tribunal will make a jurisdictional error if it: … falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 17 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ said (at [82]), that the list of errors embraced by the phrase "jurisdictional error" is not exhaustive. Their Honours continued: [82] … Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. … 18 The Federal Circuit Court correctly identified that the lengthy ground of review before it appeared to complain that the Tribunal had accorded insufficient weight to considerations that favoured the grant of the Visa (at [7]). It held that the weight to be accorded to evidence was clearly a matter for the Tribunal and not for the Federal Circuit Court. 19 The Federal Circuit Court went on to consider the appellant's complaint that the Tribunal had made an erroneous finding that his various courses of study were "unrelated". It dealt with that issue at [17] and [18], which are alleged in this Court to demonstrate an appealable error: [17] The first respondent submits that the comment in the decision record of the Tribunal about the somewhat disparate nature of the courses the applicant has studied, and proposes to study, was nothing more than an observation and not the crux of the Tribunal's reasoning. If anything, it simply lent some support to the conclusion the Tribunal had reached as to the credibility of the applicant's version, but that credit finding was not dependant on the view taken by the Tribunal that the proposed courses were unrelated to his previous studies. I accept this submission. The Tribunal considered the claims and the evidence of the applicant having regard to the matters set out in Direction No. 53, and having done so was not satisfied that the applicant had a genuine intention to stay in Australia only temporarily. This conclusion was open to it on the facts and was not illogical or irrational. [18] The grounds advanced by the applicant do not establish any basis of jurisdictional error. Essentially the applicant disagrees with the finding of the Tribunal and has attempted before this Court to re-agitate the facts. This is clearly a merits based argument and not an appropriate matter for judicial review. 20 The effect of that passage is that the Federal Circuit Court Judge: (a) accepted or assumed that the Tribunal had stated that the appellant's various courses of study were "disparate" or unrelated; (b) characterised the Tribunal's statement as one in the nature of a "comment or observation"; and (c) found that the Tribunal's "comment or observation" did not form the crux of the Tribunal's decision, and that the real crux of the decision was the Tribunal's adverse findings as to the appellant's credibility. 21 Before turning to the grounds of appeal, it should be noted that "Direction No. 53" to which the Federal Circuit Court Judge referred to is a direction dated 3 November 2011, made pursuant to s 499 of the Act. It is titled Assessing the genuine temporary interest criterion for Student visa applications. It required the Tribunal to have regard to a number of factors in its assessment of whether a visa applicant fulfils the "genuine temporary entrance" criterion prescribed in Schedule 2 to the Regulations. The appellant did not claim before the Federal Circuit Court that the Tribunal inflexibly applied Direction No. 53, nor was it alleged that Direction No. 53 was ultra vires the Act. Grounds of appeal 22 In this Court, the appellant relies on a single ground of appeal, expressed as follows (original spelling and grammar retained): In the decision record of court paragraph 17 and 18, The Respected judge considered the submission of the First respondent. It stated that 'The tribunal considered the claims and evidence of the applicant having regard to the matters set out in direction no 53, and having done so was not satisfied that the applicant had a genuine intention to stay in Australia only temporarily. This conclusion was open to it on the facts and was not illogical or irrational.' Respected Judge failed to realise the fact that though the matter is open to Tribunal but deriving a conclusion based on facts derived on his own conclusions is wrong. Many trades person go and study management and marketing courses. This is a normal course which trades person take. If this is the case then there should be blanket ban on all the tradies. If there is merit then it should be same for all why only for me. I believe the judgment is wrong and there is error in tribunals decision. 23 On the hearing of this appeal, I suggested to the parties that it was appropriate for the Court to characterise the single ground of appeal as alleging the following two errors on the part of the Federal Circuit Court: (1) an alleged failure to find that the Tribunal committed jurisdictional error in determining that the appellant's proposed course of study was unrelated with his previous course of study; (2) an alleged failure to find that the Tribunal committed jurisdictional error in taking into account its erroneous finding that the courses of study were unrelated when reasoning to its ultimate conclusion that the appellant did not satisfy the criterion in cl 572.223 (1)(a). 24 The parties agreed that the errors alleged on the appeal should be understood in this way. For convenience, I will refer to the alleged errors as the first and second ground of appeal respectively. 25 The appellant cannot succeed the first ground of appeal without first demonstrating that the Tribunal did in fact determine that his proposed new course of study was unrelated with his previous course of study. 26 There is no clearly expressed statement in the Tribunal's reasons to the effect that the Tribunal itself regarded the courses that the appellant had previously studied, and those that he now proposed to study, were "disparate". Although the Tribunal stated that it shared the delegate's concerns, its statement in that regard should not be read as an adoption of all of the concerns or findings previously expressed by the delegate. The Tribunal's reasons expressly described the particular concern as one that the proposed course of study in marketing was "another field of study which will have him residing here until April 2017". 27 The particular passage complained of by the appellant is to be read in the context of the particular question with which Tribunal was immediately concerned, namely the appellant's reasons for undertaking the course, rather than the differential nature of the course itself. The Tribunal did not reject the proposition that a course of study in marketing might assist the appellant to expand his father's business, nor did it reject the proposition that such a course of study might also assist the appellant to forge a career in the automotive industry. Rather, it determined that, by reason of the inconsistencies in the appellant's stated intentions, it could not be satisfied that the appellant was not using his application for the Visa merely as a means of prolonging his stay in Australia. When fairly read in this context, the Tribunal's use of the phrase "another field of study" should be understood as a reference to a further course, rather than an unrelated course. To interpret the reasons otherwise would, in my opinion, be to impermissibly scrutinise the reasons with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272. 28 The Federal Circuit Court accepted a submission made on behalf of the Minister to the effect that the Tribunal had in fact made a finding that the appellant's courses of studies were "disparate". For the reasons I have given above, that submission ought not to have been accepted. The Federal Circuit Court ought to have dismissed the appellant's application for judicial review on the basis that a finding attributed to the Tribunal was not in fact made by it at all. 29 Had the Tribunal made a finding that the appellant's proposed study in an Advanced Diploma of Marketing was unrelated to his previously completed Diploma of Business, a question might have arisen on this appeal as to whether the Federal Circuit Court erred in failing to find that such a decision involved jurisdictional error, in the sense described in Craig and Yusuf as alleged in the first ground of appeal. A related question might also have arisen as to whether the Federal Circuit Court properly characterised such a finding as a "comment" or an "observation" upon which no material issue turned, as alleged in the second ground. It is not necessary to determine those questions. 30 Insofar as the Tribunal's decision involved the evaluation and weighing of countervailing considerations, it is not correct to say in absolute terms, that a failure to accord sufficient weight to a relevant consideration could never amount to a jurisdictional error. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J, as he then was recognised that there may be cases whether failure to give adequate weight to a matter of great importance might justify the setting aside of an administrative decision on the grounds that it was "manifestly unreasonable" (at 41). See also Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Hayne, Kiefel and Bell JJ at 365-6 [72]). No error of that kind of the kind described by Mason J was alleged on the appeal. 31 As a crucial underlying assumption in the first ground of appeal is not made out, neither ground of appeal can succeed. I will order that the appeal be dismissed. 32 The parties agreed that the costs of the appeal ought to follow the event. The appellant is to pay the respondents costs of the appeal, to be agreed or taxed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate: Dated: 31 May 2016