FEDERAL COURT OF AUSTRALIA Saini v Minister for Immigration and Border Protection [2016] FCA 858 Appeal from: Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379 File number: NSD 1105 of 2015 Judge: LOGAN J Date of judgment: 29 July 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where Minister's delegate refused to grant the first respondent a student visa subclass 573.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) – where decision of the Minister's delegate affirmed by the Migration Review Tribunal – where Federal Circuit Court judge dismissed application for judicial review of the decision of the Migration Review Tribunal – whether the Federal Circuit Court erred in construction of the clause "that the applicant intends genuinely to stay in Australia temporarily", in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994. HELD - dismissing the appeal, if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention "genuinely to stay in Australia temporarily". What is required is an evaluation by the decision-maker of intention as at the time of decision Legislation: Migration Act 1958 (Cth) ss 499, 499(1), 499(2) Migration Amendment Regulations 2011 (No. 6) (Cth) Migration Regulations 1994 (Cth), Schedule 2, cl.573.223, 573.223(1) Safety, Rehabilitation and Compensation Act 1988 (Cth) Cases cited: Comcare Australia (Defence) v O'Dea (1998) 87 FCR 451 Hafza v Director General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674 Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388; [2015] FCCA 1971 Khanna v Minister for Immigration and Border Protection [2016] HCASL 155 Minister for Immigration and Border Protection v Khanna [2016] FCA 142 Date of hearing: 25 February 2016 Date of last submissions: 4 April 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Appellants: Mr Radha Nair Counsel for the Respondents: Mr M Smith Solicitor for the Respondents: DLA Piper ORDERS NSD 1105 of 2015 BETWEEN: HARNEET SAINI First Appellant AVTAR SINGH Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 29 july 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LOGAN J: 1 The first appellant, Mrs Harneet Saini and the second appellant, Mr Avtar Singh are husband and wife. They are each citizens of the Republic of India. 2 Successively, a delegate of the Minister of State whose office is now known as the Minister for Immigration and Border Protection (the Minister), the Migration Review Tribunal (the Tribunal) and the Federal Circuit Court have each stated that the appellants arrived in Australia on "31 November 2007". Obviously enough, this cannot be right. For there are but 30 days in the month of November, the last being well known in Scotland and elsewhere, including Australia, as Saint Andrew's Day. 3 As it happens, nothing turns on this error in this case. It is sufficient background with respect to their arrival to record that the appellants entered Australia lawfully. Mrs Saini did so on a student visa issued to her pursuant to the Migration Act 1958 (Cth) (the Act). Her husband was a "secondary visa applicant", "secondary" in the sense that his immigration status and claim to a visa was derived from that of his wife. That has remained the case. Mrs Saini applied herself diligently to a variety of courses of study following their arrival in Australia. 4 On 17 May 2013, Mrs Saini applied to the Minister's department for that class of visa under the Act known as a Student (Temporary) (Class TU) visa (the visa). This was so she could undertake a Diploma of Human Resources Management and an Advanced Diploma of Management (Human Resources) from 2013 until 2015. On this occasion, her visa application was unsuccessful. 5 On 24 June 2013 a delegate of the Minister decided that Mrs Saini was not a genuine applicant for entry and stay as a student because she did not satisfy the requirements of cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) made under the Act. The delegate refused to grant her the visa sought. Mr Singh's visa application was consequentially refused. 6 The appellants sought the review of the Minister's delegate's decision by the Tribunal. On 10 December 2013, for reasons given in writing that day, the Tribunal decided to affirm the Minister's delegate's decision. 7 The appellants then sought the judicial review of the Tribunal's decision by the Federal Circuit Court. On 3 September 2015, that court dismissed with costs the appellants' judicial review application. It is from that judgement that the appellants now appeal to this Court. 8 Originally, there were two grounds of appeal. Only the first came to be pressed. That ground, as particularised, is as follows: Ground One: The Tribunal misconstrued and misapplied the law. The Tribunal misconstrued the phrase "that the applicant intends genuinely to stay in Australia temporarily", in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994. His Honour the learned Federal Circuit Court judge erred in not so finding. Particulars: 1. The phrase "intends genuinely to stay in Australia temporarily" should be construed as related to the fulfilment of the specific, passing purpose for which the stay granted by the visa is intended. The focus is on the primary use to which the period of stay granted is intended to be put. 2. The Tribunal construed misconstrued cl.572.223(1) as requiring the Minister to be satisfied that the applicant would leave Australia, or intended to do so, after the completion of the period for which the temporary student visa was granted. 3. The Tribunal asked the wrong question. This materially affected its purported determination. It is jurisdictional error. [sic] 9 It is necessary now to set out from the Regulations cl 572.223 as it stood at the time when the Tribunal gave its decision: Subclass 572—Vocational Education and Training … 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. 10 The summary offered by the learned primary judge, Cameron FCJ, of Mrs Saini's evidence before the Tribunal was this (at [10]): [She] claimed that she intended to return to India after she completed her human resource management studies and open a restaurant there. She claimed that the human resource management studies would assist her when she was recruiting for the restaurant. [She] also said that she would stay in Australia if she could obtain employment but that her intention was to return to India eventually. Neither party to the appeal gainsaid either the accuracy or fairness of his Honour's summary. 11 In reaching its decision, the Tribunal also looked to Mrs Saini's past studies in Australia. The Tribunal found that these had covered several fields, each at a similar level of academic achievement. The Tribunal also looked to her immigration history. The Tribunal was not satisfied that her proposed human resource management courses would be particularly useful to her in establishing and running a restaurant business in India. On the whole of the evidence, which included the statements made by Mrs Saini in her evidence at the hearing, the Tribunal concluded that she was seeking the visa so as to extend her stay in Australia and to seek employment opportunities here. On this basis, the Tribunal was not satisfied that she was, in terms of cl 572.223(1), a genuine applicant for entry and stay as a student. 12 Before the Federal Circuit Court, the appellants submitted that the phrase, "intends genuinely to stay in Australia temporarily" in cl 572.223(1)(a) was to be construed, "as related to the fulfilment of the specific, passing purpose for which the stay granted by the visa is intended" at [12]. Thus, so the submission went, if an applicant's purpose, at the time of the decision in respect of the visa application (or that of the Tribunal in place of the Minister or his delegate), was to engage in the study in Australia which the visa would permit and the applicant had a capacity to undertake the same, it was nothing to the point that, at that time, an applicant might also have an intention to stay in Australia after completing the course of study, if an opportunity presented itself. These submissions came to be repeated by the appellants on the appeal. 13 These submissions were rejected by Cameron FCJ. His Honour considered that such a construction was supported neither by text nor context, stating: 18. There is no textual basis for that construction. The words "intends genuinely to stay in Australia temporarily" are concerned with how long the visa applicant intends to stay in Australia and nothing else. The words are unconcerned with the motivation for the intention, only its genuineness. There is no reason to read into those words anything concerned with the purpose of the visa sought. 19. There is also no contextual basis for the contention. The subclause requires that the Minister be "satisfied that the applicant is a genuine applicant for entry and stay as a student" by reference to various criteria. The first of those criteria is that the applicant "intends genuinely to stay in Australia temporarily" but the Minister must also be satisfied that the applicant is a genuine applicant for entry and stay as a student because he or she meets the criteria in sub-clause (2). That sub-clause is concerned with English language skills, the applicant's stated intention to comply with visa conditions and his or her access to funds adequate for the stay. As the matters which the applicants submitted informed the expression "to stay ... temporarily" are dealt with in sub-clause (2), there is no contextual reason to construe sub-clause (1) as dealing with them too. I find that it does not. 14 His Honour further stated at [23], that cl 572.223(1)(a) did not contemplate, "anything other than an unqualified intention to stay temporarily". His Honour rejected the proposition that a finding of fact that, at the time of decision, "an applicant may harbour the hope of something more than a temporary stay" was inconsistent with an ability to be satisfied that a visa applicant "intends genuinely to stay in Australia temporarily". In so doing, Cameron FCJ expressly departed from a contrary view expressed by Manousaridis FCJ in Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388; [2015] FCCA 1971 (Khanna). 15 The nub of the contrary view expressed by Manousaridis FCJ in Khanna is to be found in the following extract (at 393-394, [28] – [29]) from his Honour's judgement: 28. That a person's intention to do X is conditional on the happening of some event does not necessarily prevent the person from being treated as having the intention to do X. A person who conditionally intends to reside permanently in Australia, therefore, can be said to have an intention to reside permanently in Australia, whether or not the person ultimately succeeds in being granted a permanent residence visa. On its face, that would be inconsistent with an intention to stay in Australia temporarily. But there must also be considered the person's intention if he or she is not to succeed in being granted a permanent residence visa. If the person's intention would be to return to his or her country at the end of the 573 visa period if the person does not obtain permanent residency in Australia, or some other visa that would entitle the person to stay in Australia beyond the 573 visa period, then it could equally be said that the person intends to stay in Australia temporarily, that is, only for the 573 visa period. On this approach, a person who intends to stay permanently in Australia, if a visa to that effect is granted to him or her, but who also intends to leave Australia at the end of the 573 visa period if the person does not obtain any visa that will entitle the person to stay in Australia beyond the 573 visa period, would hold apparently inconsistent intentions. 29. In truth, there would be no inconsistency between these two intentions. That is so because the intentions would be directed to two mutually exclusive states of affairs. A person's intending to stay permanently in Australia, if qualified to do so, is directed to a state of affairs that assumes the person has been granted a permanent residence visa. On the other hand, a person's intention to leave Australia at the end of the 573 visa period, if no permanent residence visa or some other visa is granted to the person during that period, is directed to a different state of affairs, namely, the person's having obtained no further visa to stay in Australia beyond the 573 visa period. A person, therefore, may consistently intend both to reside permanently in Australia, if the person obtains a visa to do so, and to leave Australia at the end of the 573 visa period if, by the end of the period, the person obtains no further visa that would permit him or her to stay in Australia beyond the 573 visa period. It follows, then, that a person who intends to stay permanently in Australia, if qualified to do so, does not by itself imply the person does not intend to stay in Australia temporarily. It was common ground on this appeal, and the position plainly is, that the references in the passage quoted to a "573 visa" are but an unintended error and should be read as "572 visa". 16 The Minister appealed to this Court against the judgement of the Federal Circuit Court in Khanna. That appeal was heard by Reeves J in late November last year. 17 As chance would have it, upon the hearing of the present appeal, it came to the attention of the parties that Reeves J was to hand down his judgement in respect of the appeal in Khanna the following day. Quite properly, they drew this to my attention at the commencement of the hearing. The costs of an appearance and preparation of related written submissions already having been incurred, neither party, understandably, was disposed just to seek an adjournment of the hearing of the appeal. Accordingly, I heard their submissions but gave leave to both the appellants and the Minister to make, within nominated times, such supplementary submissions, if any, as they may be advised concerning the ramifications of this Court's judgement in the appeal in respect of Khanna. The parties having lodged consequential supplementary submissions, it transpired that the judgment delivered by Reeves J (Minister for Immigration and Border Protection v Khanna [2016] FCA 142 (Khanna Appeal)) had become the subject of an application by the respondent to that appeal, Kamna Khanna, for special leave to appeal to the High Court. At the consensual request of the parties, I agreed to defer handing down judgment until the result of the special leave application was known. On 21 July 2016, the High Court dismissed with costs that special leave application: Khanna v Minister for Immigration and Border Protection [2016] HCASL 155. What follows takes account of the judgement of Reeves J in the Khanna Appeal, the consequential supplementary submissions of the parties and those earlier made by them. 18 As it happened, though the Minister's appeal in Khanna was allowed, Reeves J felt able to do this without expressly addressing the correctness of the construction of cl 572.223(1)(a) promoted by Manousaridis FCJ. A particular, though not the only, reason for this was that Reeves J did not consider that there was any indication on the face of the Tribunal's reasons in that case that the Tribunal had done other than state verbatim the terms of the clause. His Honour considered (Khanna Appeal, at [22]) that it was implicit that the Tribunal had adopted the plain meaning of the clause. His Honour further considered (Khanna Appeal, at [23]) that evidence given before the Tribunal by the visa applicant in that case that she wished to settle in Australia in the long-term if given the opportunity was pertinent in the context of whether she intended "genuinely to stay in Australia temporarily". 19 The appellants placed particular reliance upon the citation, with apparent approval, by the Full Court in Comcare Australia (Defence) v O'Dea (1998) 87 FCR 451 (O'Dea) of observations made by Wilcox J in Hafza v Director General of Social Security (1985) 6 FCR 444 at 451; (1985) 60 ALR 674 at 682-683 (Hafza) as to the meaning of the word, "temporary" in the context of construing the phrase "temporarily absent from Australia": 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. In O'Dea, it was necessary to consider the meaning of the adverb "temporarily", as it appeared in the context of a definition of "place of residence" cast in these terms as the Safety, Rehabilitation and Compensation Act 1988 (Cth): (a) the place where the employee normally resides; (b) a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purpose of his or her employment … 20 Context does not dictate that, as it appears in cl 572.223(1)(a), the adverb, "temporarily" should bear other than the dictionary meaning, as set out and further expounded upon by Wilcox J in Hafza. So I accept that "intends genuinely to stay in Australia temporarily" carries with it, via the presence of the adverb, "temporarily", the notion of a specific, passing purpose. That passing purpose is the stay in Australia. The purpose would be fulfilled upon departure. 21 It does not follow from an acceptance of the appellants' submission as to the meaning of "temporarily" that the appeal must succeed. For cl 572.223(1)(a) is not to be read in isolation from the overall context in which it is found. 22 As to overall context, the Minister placed particular emphasis in his submissions upon the introductory paragraph in cl 572.223(1), which is known in parliamentary drafting terminology as the "chapeau" and which governs the clause of which cl 572.223(1)(a) forms a subsidiary part. This emphasis was not misplaced. 23 The introductory paragraph specifies a subject of overarching satisfaction which the Minister must hold in order for a "Student visa" to be granted. That satisfaction is that the applicant is a genuine applicant for entry and stay "as a student". Further, the presence of the conjunction, "because" indicates that this overarching satisfaction must be reached by reason of particular criteria specified in cl 572.223(1)(a) and (b). By virtue of the reference to "any other relevant matter" in cl 572.223(1)(a)(iv), the criteria relevant to satisfaction that an applicant "intends genuinely to stay in Australia temporarily" are limited only by relevance to the subject matter, scope and purpose of cl 572.223. That subject matter, scope and purpose is to establish a class of visa to enable a person to enter and stay temporarily in Australia as a student. This is apparent not just from the presence of the adverb, "temporarily" but also from the repetition of "genuine" or a derivative both in the chapeau and in cl 572.223(1)(a) and also the adjectival clause, "as a student" which governs "stay", in the chapeau. 24 The appellants put that there are two elements in cl 572.223(1), a genuine applicant for entry and stay, and a genuine student. I do not accept this. There are two subsidiary elements which, if present, supply the reason for the overarching satisfaction. The subsidiary elements are those specified in cl 572.223(1)(a) and (b). The content of the latter as a subject for satisfaction is supplied by cl 572.223(2). 25 The appellants sought to derive assistance for their submission and for the correctness of the interpretation offered by Manousaridis FCJ in Khanna from statements made by the Minister in Direction No. 53, issued by the Minister pursuant to s 499 of the Act. In particular, reliance was placed upon a statement in that Ministerial Direction (para 8) that, "[w]eight should be placed on an applicant's circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia". This submission was followed by reference to case law concerning the meaning of the word, "primarily". As I understood it, this was to the end of putting that it was not a disqualifying factor if, at the time of decision, the Minister or the Tribunal in his place was satisfied that an applicant also had a purpose of staying in Australia other than temporarily if it were possible to secure employment here after the completion of the course of study concerned. 26 An immediate difficulty with this reliance is found in s 499(2) of the Act, which qualifies the Minister's power conferred by s 499(1) to give directions about the performance of functions or the exercise of powers under the Act. The qualification is that the Minister is not empowered "to give directions that would be inconsistent with this Act or the regulations". Further, the task is not to interpret the Ministerial Direction but the terms of cl 572.223(1)(a). And the word, "primarily" does not appear in that clause. There is no warrant for interpreting that clause as if it were there. 27 The Minister put that it was "possible for a visa-applicant to hold simultaneously an intention to remain in Australia temporarily and a desire to remain in Australia permanently if an opportunity arises". The submission had its confessed origins in another statement in Direction No. 53, this time in its "Preamble", where it is stated: An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to enter and remain in Australia temporarily, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period or permanently. 28 It is to be remembered that the satisfaction described in cl 572.223(1) is satisfaction at the time of decision. One is either satisfied, at that time, that the visa-applicant "intends genuinely to stay in Australia temporarily" (emphasis added) or one is not. If, at the time of decision, the decision-maker is satisfied that the applicant's intention is not to stay in Australia temporarily, the criterion will not be met. I agree with Judge Cameron's statement at [18], based on textual analysis, that, "[t]he words 'intends genuinely to stay in Australia temporarily' are concerned with how long the visa applicant intends to stay in Australia and nothing else." 29 It follows that, to this extent, I do not accept the Minister's submission. That does not mean that the statement in the "Preamble" is necessarily inconsistent with cl 572.223(1)(a), for that statement speaks of a "potential for this intention to change over time". If there is evidence that, at the time of decision, an applicant harbours an intention to seek employment or undertake further study here that may well mean, in conjunction with other factors referred to in cl 572.223(1)(a), that a decision-maker is not satisfied that the visa-applicant "intends genuinely to stay in Australia temporarily". 30 Equally, that an applicant for a Student visa may, at the time of decision, hope, for example, to undertake post-graduate study if successful in respect of the study for which the particular visa is sought, but nonetheless still leave once any further study is completed, it may be open to conclude that the visa-applicant does still have, at that time, an intention, "genuinely to stay in Australia temporarily". The Regulations do provide for other classes of visa which may be sought on-shore so as to permit the holder of a Student visa to seek a visa which would permit a longer stay for further study or for employment. That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention "genuinely to stay in Australia temporarily". What is required is an evaluation by the decision-maker of intention as at the time of decision. 31 I was also taken to a statement in the explanatory statement issued by the Minister (Select Legislative Instrument 2011, No. 199), in respect of the Migration Amendment Regulations 2011 (No 6) (Cth) by which, materially, cl 572.223(1) came to be in the form found at the time of the Tribunal's decision. It is there stated (Attachment C, page 8), "The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study, and then return home." I was initially attracted to this as an accurate statement of the effect of cl 572.223(1) but, for the reasons given in the preceding paragraph, the prescription, "and then return home" (emphasis added) is too restrictive. It is possible, at the time of decision, to harbour an intention to seek some other visa which would extend residence as a student for a further, finite period and still "intend genuinely to stay in Australia temporarily". 32 It necessarily follows from this that I respectfully disagree with the views expressed by Manousaridis FCJ in Khanna in the passage which I have quoted above. 33 The Tribunal found as a fact, that, at the time of decision, Mrs Saini had an intention of seeking employment opportunities in Australia (Reasons for Decision at [16]). In conjunction with the other matters to which the Tribunal adverted, that was sufficient, reasonably, for the Tribunal not to be satisfied that, at that time, she intended, "genuinely to stay in Australia temporarily" and thus not to be satisfied that she was a genuine applicant for entry and stay as a student. In approaching the question of whether or not it held the satisfaction specified in cl 572.223(1), the Tribunal did not thereby address itself to the wrong question. All it did was to apply cl 572.223(1) according to its terms so as to make a decision reasonably open on the facts. 34 For these reasons, the appeal must be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 29 July 2016