FEDERAL COURT OF AUSTRALIA Bayalkoti v Minister for Immigration & Border Protection [2017] FCA 217 Appeal from: Bayalkoti v Minister for Immigration & Anor [2016] FCCA 2492 File number(s): NSD 1824 of 2016 Judge(s): WIGNEY J Date of judgment: 23 February 2017 Catchwords: MIGRATION – judicial review – Student (Temporary) (Class TU) visa – refusal of visa – failure to meet genuine temporary entrant criterion – whether Migration Review Tribunal made jurisdictional error by failing to give consideration to appellant's immigration history – whether Migration Review Tribunal failed to apply an active intellectual process to the appellant's migration history Legislation: Migration Act 1958 (Cth), ss 368, 499 Migration Regulations 1994 (Cth), Sch 2 cl 573.223(1)(a) Cases cited: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Tickner v Chapman (1995) 57 FCR 451 Date of hearing: 23 February 2017 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: The First Appellant appeared in person and on behalf of the Second Appellant Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs ORDERS NSD 1824 of 2016 BETWEEN: TEK NARAYAN BAYALKOTI First Appellant ANZEE YONJAN BAYALKOTI Second Appellant AND: MINISTER FOR IMMIGRATION & BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: WIGNEY J DATE OF ORDER: 23 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) WIGNEY J: 1 Mr Tek Narayan Bayalkoti is a national of Nepal. He has resided in Australia since January 2009, pursuant to a succession of student visas. That state of affairs effectively changed when, in May 2013, the delegate of the Minister for Immigration and Border Protection refused his application for a further student visa. Mr Bayalkoti sought a review of that adverse decision in the Migration Review Tribunal. That application was unsuccessful. The Tribunal affirmed the delegate's refusal decision. 2 Mr Bayalkoti then challenged the Tribunal's decision in judicial review proceedings in the Federal Circuit Court of Australia. He alleged jurisdictional error on the part of the Tribunal. He contended that, in considering whether he had satisfied the necessary criteria for the grant of a student visa, the Tribunal failed to have regard to a mandatory relevant consideration, being his immigration history. The primary judge rejected that contention and dismissed Mr Bayalkoti's application. This is Mr Bayalkoti's appeal from the judgment of the primary judge. The main, if not only, issue raised by the appeal is whether the primary judge erred in rejecting Mr Bayalkoti's contention that, in considering his review application, the Tribunal failed to have regard to his immigration history. Background 3 The specific visa that was the subject of Mr Bayalkoti's unsuccessful application was a Student (Temporary) (Class TU) visa. At the time of the delegate's decision, the grant of that particular visa required Mr Bayalkoti to satisfy, amongst other criteria, what was referred to generally as the "genuine temporary entrant" criterion. That criterion was set out in the following terms in clause 573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth): 573.223 (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 4 Mr Bayalkoti lodged the relevant visa application on 14 March 2013. His visa application named his wife as a secondary applicant on the basis that she was part of his family unit. His wife is the second appellant in these proceedings. Mr Bayalkoti's wife's visa application hinged on Mr Bayalkoti meeting the criteria for the grant of the student visa. 5 A delegate of the Minister refused Mr Bayalkoti's visa application on 14 May 2013. The delegate was not satisfied that Mr Bayalkoti met the genuine temporary entrant criterion. As a result, Mr Bayalkoti's wife's visa application was also refused. Mr Bayalkoti promptly sought a review of the adverse visa decision in the Tribunal. The tribunal's decision 6 The Tribunal convened a hearing on 12 November 2013. Mr Bayalkoti gave evidence and presented arguments at the hearing. He was assisted by a migration agent. 7 The Tribunal was ultimately not satisfied that Mr Bayalkoti intended genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that Mr Bayalkoti did not meet the genuine temporary entrant criterion. It is unnecessary to rehearse the Tribunal's reasons for that finding. It is sufficient at this stage to note the following matters concerning the Tribunal's statement of reasons. 8 First, the statement of reasons is somewhat unsatisfactory. It certainly could not be held up as a model statement of reasons for administrative decision makers. For the most part, the statement of reasons simply comprises a recitation of Mr Bayalkoti's evidence, followed by the Tribunal's conclusion that the Tribunal was not satisfied that Mr Bayalkoti intended genuinely to stay in Australia temporarily. The reasons do interpose some limited observations about aspects of Mr Bayalkoti's evidence, and make a few findings of fact. A few limited findings in respect of some intermediate facts are also referred to. The reasoning is, however, at best sparse. 9 It is unnecessary to make a finding about whether the Tribunal's statement of reasons satisfied the requirement in s 368 of the Migration Act 1958 (Cth). Mr Bayalkoti has not at any stage alleged that the statement of reasons did not satisfy s 368. In any event, such a finding would not necessarily, of itself, result in a finding of jurisdictional error: cf. Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323. As will be seen, however, Mr Bayalkoti's case in the Circuit Court hinged on the contention that a fair reading of the Tribunal's reasons revealed that the Tribunal did not have regard to a mandatory relevant consideration. That argument hinged, to an extent, on the sparsity of the Tribunal's reasons. 10 Second, in its reasons the Tribunal expressly adverted to the fact that it was required to have regard to Direction No 53, issued by the Minister pursuant to s 499 of the Migration Act. The Tribunal stated (at [7]-[8]): [7] In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to: • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future; • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant. [8] The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. (Emphasis added) 11 The question whether the Tribunal had regard to one of the factors specified in Direction No 53, being Mr Bayalkoti's immigration history, lay at the heart of Mr Bayalkoti's challenge to the Tribunal's decision in the Circuit Court. It is also the central issue in this appeal. The Circuit Court proceedings and judgment 12 It is worthwhile recording the chronology of the Circuit Court proceedings, if only to reveal the ridiculous delays that frequently occur in the system of judicial review of migration decisions, particularly at the Circuit Court stage. That should not be taken to be a criticism of the Circuit Court, or any specific Circuit Court judge or judges. It may simply be a reflection of the workload and insufficient resources in that court. It remains, however, a most unsatisfactory situation. 13 Mr Bayalkoti filed his application in the Circuit Court on 19 December 2013. The first court date specified in relation to the application was 3 April 2014, over three months after the application was filed. The Minister's response, which was promptly filed on 10 January 2014, indicated that the Minister consented to the matter being listed for final hearing without the need for a show cause hearing. 14 It is unclear what, if anything, happened over the next 18 months. On 14 July 2015, Mr Bayalkoti, who at that stage appeared to be represented by a lawyer, filed an amended application. The amended application contained a single ground in the following terms: The Second Respondent made jurisdictional error by failing to give consideration (in the sense of applying an active intellectual process) to the Applicant's immigration history contrary to clause 573.223(1)(a)(ii) of the Migration Regulations 1994. (The handwritten grounds mentioned in the Originating Application of 19 December 2013 are not pressed.) 15 It is equally unclear what happened in the 14 months after that moment of brief activity on the file. Mr Bayalkoti's application was listed for hearing before the Circuit Court on 27 September 2016, just less than three years after an originating application was first filed in the Circuit Court. 16 It should be noted in this context that Mr Bayalkoti's visa application records that the course he intended to complete if his visa was granted would have concluded in February 2015, almost two years ago. Mr Bayalkoti could almost have completed a postgraduate degree, if not a doctorate, in the time it took for his judicial review application to wend its way through the court system. 17 The primary judge before whom the matter was ultimately listed for hearing, it appears, did not consider that the matter was particularly complex. His Honour appears to have delivered an ex tempore judgment on 27 September 2016. As will be seen, however, there is an issue about when the final written version of the judgment was made available online. 18 The judgment of the primary judge reveals that the main argument advanced on Mr Bayalkoti's behalf was that the Tribunal did not have regard to Mr Bayalkoti's immigration history. Mr Bayalkoti accepted that the Tribunal's reasons specifically referred to that matter. He contended, however, the reasons also revealed that there was no "active intellectual engagement" with that consideration. Mr Bayalkoti relied, in support of that argument, on paragraphs 13 and 14 of Direction No 53, which provided as follows: THE APPLICANT'S IMMIGRATION HISTORY 13. An applicant's immigration history refers both to their visa and travel history. 14. In considering the applicant's immigration history, decision makers must have regard to the following factors: a. Previous visa applications for Australia or other countries, including: i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused. ii. If the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal. a. Previous travels to Australia or other countries, including: i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control. ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances. iii. the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification. iv. if the applicant has travelled to countries other than Australia, whether they complied with the immigration laws of that country and the circumstances around any non-compliance. (Emphasis added) 19 It was submitted on Mr Bayalkoti's behalf that if there had been any intellectual engagement with paragraphs 13 and 14 of direction number 53, one would have expected to see reference to Mr Bayalkoti's compliance with his visa conditions. The Tribunal's reasons did not expressly refer to that matter. 20 The primary judge rejected that submission. His Honour concluded as follows (at [27]-[30]): [27] Mr Young took the Court to para.8 of the Tribunal's reasons that refers to Direction No. 53 not being used as a checklist, but rather being intended to guide decision-makers to weigh up the applicant's circumstances as a whole. Notwithstanding the eloquent submissions of Mr Young, it is apparent that the Tribunal properly understood the mandatory nature of the requirements in Direction No. 53 as identified in para.7 of the Tribunal's reasons. [28] Direction No. 53 does not expressly require mandatory reference to the proposition that the applicant has substantially complied with his visa conditions except in circumstances identified in para.14(b)(i). Mr Young accepted that the circumstances of the present case did not fall within that provision. It is not necessary for the Tribunal to refer to the whole of the submissions or evidence before it. It is apparent from the Tribunal's reasons that he had an active intellectual engagement with the submissions that were advanced dated 5 November 2013 and, relevantly, also that the Tribunal did have proper and adequate regard to the applicant's immigration history as required by para.13 of Direction No.53. [29] The omission of reference to the applicant having substantially complied with his visa conditions as referred to in the written submissions of the applicant to the Tribunal, is not a basis upon which this Court should infer that the Tribunal failed to have an active intellectual engagement with requirements of Direction No. 53. In respect of the applicant's immigration history, this was a consideration clearly identified by the Tribunal as being taken into account in its reasons. [30] I do not accept that the omission of express reference to substantial compliance with the applicant's visa conditions, as referred to in the applicant's submissions, as a basis upon which the inference should be drawn that the Tribunal had not engaged, as it purports to have done, with the applicant's immigration history. There was no failure by the Tribunal to give proper and adequate consideration to the applicant's immigration history in its reasons. The Tribunal applied an active intellectual process to the applicant's immigration history. Ground 1 of the amended application is not made out. 21 The primary judge dismissed Mr Bayalkoti's application with costs. Appeal grounds and submissions 22 Mr Bayalkoti's notice of appeal contains the following three grounds of appeal: 1. His Honour made error by failing to find that the Second Respondent did not give consideration (in the sense of applying an active intellectual process) to the Applicant's immigration history contrary to clause 573.233 (1) (a) (ii) of the Migration Regulations 1994. 2. His Honour made error by failing to publish reasons for his decision and thus limiting the Appellants' right to appeal. Particulars (a) His Honour did not publish his decisions or reasons online. 3. Further grounds to be provided once the decision is published. 23 Mr Bayalkoti did not file any written submissions. He appeared in person and unrepresented at the hearing of his appeal. 24 Mr Bayalkoti applied for an adjournment of the appeal to permit him to obtain legal representation. He claimed that his legal representative had gone on holidays and would be back shortly. The adjournment application was rejected for a number of reasons. The appeal was set down for hearing by a Registrar at a directions hearing on 27 October 2016, many months before the hearing date set for the appeal. Mr Bayalkoti and his solicitor had ample notice of the hearing date. Mr Bayalkoti gave no notice to either the Court or the Minister that he intended to apply for an adjournment of the appeal. He swore no affidavit and sought to tender no evidence in support of his adjournment application. The explanation he gave from the bar table was, to say the very least, less than satisfactory. As has already been noted, Mr Baylkoti's matter has already been the subject of significant delay, albeit that he appears not to be at fault in that regard. Nevertheless, an adjournment would result in further unjustified and unwarranted delay, not to mention unnecessary expense to both the Minister and taxpayers generally. 25 The adjournment application having been dismissed, Mr Bayalkoti was invited to advance any submissions or arguments he wished to advance in support of his appeal grounds. He ultimately advanced no submissions of substance in relation to the three grounds of appeal. Consideration 26 The expression "active intellectual process", when used in the context of a contention that a decision maker has failed to have regard to a mandatory relevant consideration, may be sourced back to the judgment of Black CJ in Tickner v Chapman (1995) 57 FCR 451 at 462. In Bat Advocacy NSW Inc v Minister for Environment, Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 at [44]-[45], a Full Court explained the obligation of "active intellectual process" as follows: [44] The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]–[59]). [45] Once a matter has been identified as a mandatory relevant consideration, it is the salient facts that give shape and substance to the matter that must be brought to mind. These are the facts which are of such importance that, if they are not considered, it could not be said that the matter has been properly considered (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 61). 27 Was the primary judge correct to conclude that the Tribunal did not fail to have an active intellectual engagement with the requirements of Direction No 53, in particular in relation to Mr Bayalkoti's immigration history? The short answer to that question is that the primary judge did not err, and was correct to find that the Tribunal did not fail to have regard to any mandatory consideration. His Honour's reasons disclose no error of any sort. 28 It may be true, as noted earlier, that the Tribunal's reasons are somewhat sparse and unsatisfactory. Nonetheless, a fair reading of the reasons reveals that the Tribunal did give genuine consideration to the facts and evidence relating to Mr Bayalkoti's immigration history. That is particularly apparent from paragraphs 9 and 16 of the Tribunal's reasons, which outline, in some detail, matters relating to Mr Bayalkoti's immigration history. The Tribunal also said, in paragraph 22 of its reasons, that it had considered Mr Bayalkoti's immigration history. There was and is no basis to conclude that the Tribunal, contrary to that statement, did not give genuine consideration to that matter. 29 Mr Bayalkoti's reliance on the fact that the Tribunal did not expressly refer in its reasons to whether Mr Bayalkoti had complied with his earlier visa conditions was misplaced, for the reasons given by the primary judge. Paragraph 14(b)(i) of Direction No 53 was, in terms, inapplicable to the particular facts and circumstances of Mr Bayalkoti's case. As the passage from Bat Advocacy, extracted earlier, indicates, the Court should not necessarily infer from the failure of a decision maker to refer to a matter that has no significance to the circumstances of the particular case, that the matter has been overlooked. 30 As for Mr Bayalkoti's second ground of appeal, Mr Bayalkoti swore an affidavit on 13 October 2016 deposing to the fact that he had not, as at that date, received the primary judge's judgment. He also asserted that the judgment was not available online at that time. There is no reason to doubt that evidence. Indeed, it would appear that, while the primary judge delivered an ex tempore judgment, the final form of his Honour's written reasons was not certified until 27 October 2016, two weeks after Mr Bayalkoti swore his affidavit. In any event, it is open to infer that the judgment would have been available online on, or shortly after, 27 October 2016. That inference is supported by the version of the judgment which is included in the Minister's appeal book. 31 In any event, nothing turns on the fact that the final written form of the judgment was not available until late October 2016. There is nothing to indicate that Mr Bayalkoti was not present when the ex tempore judgment was delivered on 27 September 2016, or that the written judgment ultimately published departed in any, or any material, way from the oral judgment. Mr Bayalkoti did seek at any time to amend or add to his grounds of appeal since the time the written judgment was published online. He has not asserted, let alone proved, any prejudice to his appeal arising from the fact that the judgment of the Circuit Court did not become available until late October 2016. 32 As for the third ground of appeal, Mr Bayalkoti did not seek to raise any additional grounds of appeal at the hearing. Conclusion and disposition 33 Mr Bayalkoti has failed to demonstrate any appealable error on the part of the primary judge. His appeal must accordingly be dismissed. 34 Mr Bayalkoti has not advanced any reason why the Minister, as successful party on this appeal, should not have his costs paid. Accordingly, it is appropriate that the appeal be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 9 March 2017