FEDERAL COURT OF AUSTRALIA Shah v Minister for Immigration and Border Protection [2017] FCA 183 Appeal from: Shah & Anor v Minister for Immigration & Anor [2016] FCCA 1369 File number: VID 769 of 2016 Judge: MOSHINSKY J Date of judgment: 2 March 2017 Legislation: Migration Act 1958 (Cth), ss 359A, 360, 368, 424A, 425, 430 Migration Regulations 1994 (Cth), Sch 2, cl 572.223(1)(a) Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 Kaur v Minister for Immigration and Border Protection [2015] FCA 1 Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Date of hearing: 29 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 31 Counsel for the Appellants: The first appellant appeared in person on behalf of herself and the second appellant Counsel for the First Respondent: Mr N Wood Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS VID 769 of 2016 BETWEEN: VAISHALI VIKAS SHAH First Appellant VIKAS SHAH Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MOSHINSKY J DATE OF ORDER: 2 MARCH 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MOSHINSKY J: Background 1 The first appellant, a citizen of India, applied on 7 May 2013 for a Student (Temporary) (Class TU) visa. The second appellant, the first appellant's husband, was a dependant applicant for such a visa. 2 On 7 November 2013, a delegate of the first respondent (the Minister) decided to refuse the grant of such a visa to the first appellant and, consequently, to the second appellant. 3 The appellants applied to the Migration Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal) for review of the delegate's decision. 4 On 2 September 2014, the Tribunal wrote to the appellants inviting them to appear at a hearing before the Tribunal. The letter requested the appellants to provide certain information, including an "explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation". The letter stated that the Tribunal would "assess whether you intend genuinely to stay in Australia temporarily as required by cl 572.223(1)(a) of the Migration Regulations". After stating that a direction from the Minister known as Direction No. 53 was relevant to this requirement, and noting that a copy of the Direction was attached, the letter requested the appellants to provide "a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53". 5 On 3 October 2014, the Tribunal received a written submission and supporting documents from the appellants' agent. A further written submission was received on 9 October 2014. 6 On 10 October 2014, the appellants appeared before the Tribunal. 7 On 16 February 2015, the Tribunal decided to affirm the decision not to grant the appellants Student (Temporary) (Class TU) visas. I note the following in relation to the Tribunal's decision: (a) The Tribunal set out in some detail, at [6]-[11], the information and submissions provided by the appellants. (b) At [16], the Tribunal stated that the issue in the case before it was whether the first appellant met the criteria in cl 572.223 (as it stood at the relevant point in time) of the Migration Regulations 1994 (Cth). Clause 572.223(1)(a) relevantly stated: (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 mater; and (b) … (c) The Tribunal referred to Direction No. 53 and set out matters to which the Tribunal was required to have regard (at [17]-[18]). (d) The Tribunal referred to some factual matters concerning the first appellant's studies at [19]-[21]. At [23], the Tribunal stated that, in "the absence of evidence to the contrary, the Tribunal considers it unlikely that the [first appellant's] chronic cough, which she had before she started the hospitality course in April 2009, required treatment such that she had to cease her studies in the Advanced Diploma of Hospitality in early 2011". After referring to a claim by the first appellant that her education provider would not allow her to complete the Advanced Diploma of Hospitality because of her cough, the Tribunal stated that the first appellant "did not provide the Tribunal with documentary evidence that she was refused re-entry to the hospitality course because of her cough". (e) At [24], the Tribunal stated that the first appellant said that she did not study from 22 January 2011 to 27 February 2012 (the first study gap) due to her persistent cough. The Tribunal then stated: "She did not provide any evidence from a doctor to the effect that her cough, which was being treated as asthma, made her unfit to study for that period of time." (f) The Tribunal accepted, at [28], that the first appellant injured her shoulder in a workplace accident in October 2012 and that she had ongoing investigations and treatments for the shoulder until late 2014. At [29], the Tribunal stated that the first appellant did not study from November 2013 until 6 October 2014 (the second study gap), when she commenced a Diploma of Business. The Tribunal stated that, given that the first appellant came to Australia to study, and given that her shoulder pain prevented her from studying, "it was open to her to return to her home country until she was fit to resume her study, but she remained in Australia without studying". (g) The Tribunal found, at [34], as follows: Given the length of time she has been in Australia, documentary evidence which shows that she has only completed two short courses, the variety of courses she has undertaken and the significant gaps in her studies during which time she remained in Australia, the Tribunal is of the view that the applicant has been using a student visa to maintain ongoing residence in Australia. (h) The Tribunal concluded that it was not satisfied that the first appellant intended genuinely to stay in Australia temporarily and thus did not satisfy the criteria in cl 572.223(1)(a). 8 The appellants applied to the Federal Circuit Court of Australia (the Federal Circuit Court) for judicial review of the Tribunal's decision. 9 On 16 May 2016, a hearing took place before the Federal Circuit Court. Both the appellants and the Minister were represented by counsel. 10 On 17 June 2016, the Federal Circuit Court published reasons for judgment and ordered that the application for judicial review be dismissed. In the reasons, the primary judge considered and rejected each of the grounds raised by the appellants. The appeal 11 The appellants appeal to this Court from the judgment of the Federal Circuit Court. The grounds set out in the notice of appeal, which in substance replicate the grounds that were before the Federal Circuit Court, are as follows: 1. The Federal Circuit Court erred in not quashing the decision of the Migration Review Tribunal on the ground that the decision of the Migration Review Tribunal is affected by jurisdictional error, as it failed to take into account a relevant consideration and/or by failing to consider the applicant's claims or their component integers. PARTICULARS a. The Minister has given Directions pursuant to s. 499 of the Migration Act 1958 (Cth) in relation to the assessment of whether an applicant meets the 'genuine temporary entrant criterion for a Student visa' (see Direction No. 53). b. Direction No. 53 requires a decision maker to "consider the applicant against all factors specified in this Direction". c. Direction No. 53 requires that decision makers should assess whether or not the genuine temporary entrant criterion is satisfied by, relevantly, taking into account any other relevant information provided by the applicant. d. The Tribunal noted that the Applicant received treatment for a workplace injury during the period of October 2012 to 6 October 2014 (see Tribunal decision at [28]-[29]) e. The Tribunal failed to have regard to the Applicant's evidence that her treatment for her workplace injury was being paid for by Workcover and that she would not continue to receive Workcover payments if she went offshore while she was not studying. 2. The Federal Circuit Court erred in not quashing the decision of the Migration Review Tribunal on the ground that the decision of the Migration Review Tribunal is affected by jurisdictional error, in that the Tribunal failed to comply with its obligations under ss. 424A and 425 of the Migration Act and/or failed to comply with its procedural fairness obligations. PARTICULARS a. The Tribunal failed to give the Applicant clear particulars of the following information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review and/or failed to advise the Applicant of the following issues which the Applicant could not reasonably be expected to have anticipated and/or failed to invite the Applicant to comment upon the following conclusions which were not obviously open on the known material: b. The Applicant had not provided the Tribunal with documentary evidence that she was refused re-entry to the hospitality course because of her cough. ([23]) c. The Applicant had not provided any evidence from a doctor to the effect that her cough, which was being treated as asthma, made her unfit to study for that period of time. ([24]) d. It was open to the Applicant to enrol and then defer her study or to remain in her home country until she was fit to study, which was the reason she held a student visa. ([24]) e. The confirmations of enrolment were obtained in response to the Tribunal's invitation, in order to obtain a favourable review decision. ([31]) f. The Applicant did not provide any evidence of the type of job she hopes to do upon her return to India or that the additional proposed business courses would assist her to obtain employment or increase her employment prospects in India. ([36]) 12 The first appellant appeared in person, on behalf of herself and the second appellant, at the hearing in this Court. An interpreter was present to assist if needed. Consideration Ground one 13 In their first ground of appeal, the appellants contend, in summary, that the Tribunal's decision was affected by jurisdictional error in that (in dealing with the second study gap) the Tribunal failed to have regard to the first appellant's evidence that her treatment for her workplace injury was being paid for by Workcover and that she would not continue to receive Workcover payments if she went offshore while she was not studying. 14 In my view, for the reasons that follow, the appellants have not established jurisdictional error by the Tribunal (or error by the primary judge in not concluding that there was jurisdictional error). 15 In Minister for Immigration and Citizenship v MZYZA [2013] FCA 572, Tracey J said at [30]: A reviewing Court will not lightly infer that relevant considerations or material have been overlooked by a decision-maker. In forming a judgment the Court will have regard to a range of factors. They include: • The terms of the relevant statutory requirement to provide reasons. • Whether what the Tribunal has supposedly failed to consider is a relevant consideration or an item of evidence. • The relative importance of the consideration or the evidence to the party's case. • Whether any reference is made to the consideration or the evidence in the tribunal's reasons. • The reason reliance is placed on the consideration or evidence by the party who asserts its significance. • The relative significance of the absence of reference to the consideration or evidence having regard to the tribunal's reasons as a whole. 16 The first of these factors is particularly important. Section 368 of the Migration Act 1958 (Cth) (Migration Act) did not require the Tribunal to refer to each item of evidence that the first appellant gave (written or oral). The Tribunal was only required to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision: see, in relation to s 430 of the Migration Act, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [68] per McHugh, Gummow and Hayne JJ. Accordingly, it does not follow from any failure by the Tribunal to refer to any particular strand of the first appellant's evidence about Workcover that the Tribunal did not in fact consider that evidence. 17 The evidence upon which the appellants rely comprised statements made by the first appellant in response to questions asked by the Tribunal member. The relevant part of the transcript is set out in the Federal Circuit Court reasons at [20]. The Tribunal member asked the first appellant what would happen to her medical treatment and compensation if she were to return to India. In response, the first appellant said that the payments for compensation had stopped about a year earlier and that she had received notice that the payments for medical expenses would stop from 16 October 2014 (a matter of days after the Tribunal hearing). 18 The appellants' argument (at least before the primary judge) sought to characterise this evidence as a "claim" (see Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] per Allsop J (as his Honour then was)) as to why she did not return to India for a period in the past (November 2013 to October 2014). But, in fact, the relevant evidence was merely a response to questions asked by the Tribunal as to what would happen in the future if she were to return to India. In response, the first appellant said that Workcover had ceased (or were ceasing) her payments anyway. 19 In light of the above, it is to be inferred that the Tribunal did not consider the part of the evidence relied on by the appellants (namely, that the first appellant thought that Workcover would stop paying her if she were to return to India in the future) to be material to its decision. For this reason, the Tribunal was not required to refer to this matter in its findings: Yusuf. 20 Further and in any event, the Tribunal specifically referred to the first appellant's evidence about Workcover and her medical expenses (see the Tribunal's reasons at [8](c), [9], [10](h)-(k), [13](t)). In these circumstances, it is improbable that the Tribunal did not consider the first appellant's evidence that Workcover would stop paying her if she were to return to India. 21 Finally, as the primary judge held at [31] of the Federal Circuit Court's reasons, the relevant exchange between the Tribunal member and the appellant evidenced on the transcript (set out in the reasons of the primary judge) did not represent a "claim"; it was no more than an inquiry initiated by the Tribunal member and responded to by the first appellant, with such response not being chronologically relevant to the issue. 22 Accordingly, ground one is not made out. Ground two 23 In this second ground of appeal, the appellants contend, in summary, that the Tribunal breached s 360 of the Migration Act by failing to identify certain alleged new "issues" arising in relation to the decision under review and providing her with an opportunity to give evidence or present arguments on these matters. The notice of appeal refers to s 425 of the Migration Act, but this must be an error; that provision applied to the Refugee Review Tribunal not the Migration Review Tribunal. The corresponding provision for the Migration Review Tribunal is s 360. The notice of appeal also refers to s 424A, which corresponds to s 359A of the Migration Act. However, at the hearing before the primary judge, the appellants abandoned a contention based on that provision. There is no reason why the appellants should be permitted to advance this ground on appeal. 24 The principles applicable to this ground were considered (in the context of s 425) in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL). See, in particular, at [33]-[35], [39] and [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. 25 In applying the principles in SZBEL, there can sometimes be some difficulty in ascertaining the degree of generality or particularity of the "issues" arising on the review: SZBEL at [38]-[40]; Kaur v Minister for Immigration and Border Protection [2015] FCA 1 at [58] per Robertson J. Ultimately, this question needs to be assessed by reference to the particular facts and circumstances of each case, guided by principles of fairness. 26 The appellants rely on the alleged new "issues" set out in paragraphs (b) to (f) of the particulars under ground two, set out above. 27 In my view, however, the issue arising on the review in this case may fairly be described as whether the first appellant intended genuinely to stay in Australia temporarily under clause 572.223(1)(a). Alternatively, the issue may be described as whether (as the delegate had found) the first appellant was using the student visa program as a means of maintaining ongoing residence in Australia. Either way, the very nature of the delegate's decision that was the subject of the review concerned the genuineness of the first appellant's intentions with respect to her use of the student visa program, including having regard to her past conduct. In circumstances where the delegate found that the first appellant had not genuinely been using the student visa program for its intended purpose, but had instead been using it to "maintain ongoing residence in Australia", the first appellant was clearly on notice that the genuineness of her past conduct was an issue arising on the review. 28 Further, by the Tribunal asking the first appellant various questions about the circumstances of her failure to study between April 2011 and February 2012 (ie, the first study gap), the first appellant was sufficiently on notice that the issue of the genuineness of her past conduct extended to that period of time. 29 As indicated in SZBEL at [48], the Tribunal was not obliged by s 360 to provide a "running commentary" on whether the first appellant's evidence was sufficient to satisfy it that her conduct during the first study gap was consistent with genuine use of the student visa program (rather than using the program as a means of maintaining ongoing residence in Australia). 30 For these reasons, no jurisdictional error is established by the Tribunal not raising the matters referred to in paragraphs (b) to (f) of the particulars under the second ground. The primary judge was correct to reject the corresponding ground before the Federal Circuit Court at [35]-[50] of the reasons. Conclusion 31 For these reasons, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the appellants pay the first respondent's costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate: Dated: 2 March 2017