FEDERAL COURT OF AUSTRALIA Liyanage v Minister for Immigration and Border Protection [2017] FCA 1333 Appeal from: Liyanage v Minister for Immigration and Border Protection [2017] FCCA 1922 File number: VID 848 of 2017 Judge: ALLSOP CJ Date of judgment: 10 November 2017 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of Tribunal decision affirming refusal of grant of student visa – whether the Tribunal improperly adopted a "checklist" approach to its consideration of the appellant's circumstances against the relevant Ministerial direction – whether the Tribunal failed to comply with the requirements of ss 359AA and 359A of the Migration Act 1958 (Cth) – appeal dismissed Legislation: Migration Act 1958 (Cth), s 499 Migration Regulations 1994 (Cth), sch 2, cl 572.223 Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549 Date of hearing: 10 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: Mr R Gordon Solicitor for the Appellant: PLS Lawyers Counsel for the First Respondent: Ms P Mitchell Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 848 of 2017 BETWEEN: SURANI SATHSARA WEIHENA LIYANAGE Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: ALLSOP CJ DATE OF ORDER: 10 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs, identified on a lump sum basis at $5,000.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) ALLSOP CJ: 1 This is an appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal Migration and Refugee Division, in which decision the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa. The relevant reason for the refusal of the student visa was the fact that the Tribunal, as the administrative review arm standing in the shoes of the Minister, was not satisfied of the necessary criterion in clause 572.223(1)(a) of schedule 2 to the Migration Regulations 1994 (Cth), to the effect that that criterion involved the satisfaction of the Minister that the applicant was 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; (ii) the applicant's immigration history; (iii) being irrelevant, referable to a minor; and (iv) any other relevant matter. 2 The appellant is a citizen of Sri Lanka, who came to Australia in July 2008 under a valid visa. She subsequently held a Graduate Temporary Class VC subclass 485 visa that expired in 2014 and, in October 2014, she applied for the visa in question. The delegate of the Minister refused to grant the visa in December 2014. That delegate made the decision on the basis that the appellant was not a genuine applicant for entry and stay as a student within the meaning of clause 572.223. Though it was not the decision of the delegate that was the subject of review by the Circuit Court, it is not irrelevant for this appeal as it will become clear that in the decision record of the delegate there was a reference to the invitation given to the appellant to provide documentary evidence and an explanation of various things. 3 The decision record contains the following: ... In the invitation for comment, you were invited to provide, including documentary evidence, an explanation or comment regarding: • your previous pattern of study in Australia and why you had chosen to enrol in your intended course days before your previous visa ceased and not anytime earlier • how your current enrolment related to your previous studies and your reasons to enrol in courses that are at the same level to studies completed in the past • the relevance of your courses of study to your academic and/or employment background and your future career/and or educational plans … While I take into account the above, • I give weight to the fact that you have only completed a short Certificate III in Food Processing and a Diploma of Business in the 75 months that you have been in Australia on temporary visas with no study restrictions. I do not consider this to be a reasonable completion level for a study whose primary purpose being in Australia is to study and progress academically. • You have not provided any substantial reasons or evidence as to why you have chosen to study these courses and the lack of progress to higher education sector. There is no strong indication or evidence from you on how the intended courses relate to your employment background or future career plans. There is also no evidence of limited opportunities available in Sri Lanka in the field of Hospitality you refer to in your statement. Therefore, I give weight to the lack of apparent value of the courses to your future which indicates that you do not intend to stay in Australia temporarily. • I also note that you applied for your Student visa on 16 October 2014 and applied for your enrolment in your course shortly before the application for this visa on 15 October 2014. Records indicate you last completed a course on 6 October 2010. Considering your lack of academic progress and timing of current application, it appears that you have recommenced studying for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in the area of study and overall academic progress. This is a further indication of you using the temporary visa program as a means of maintaining residence in Australia. • Even though you held a Student Visa (Class TU subclass 573) visa from 16 July 2008 until 11 August 2011, you never commenced a course at that level. Since your arrival you have maintained enrolment in short and inexpensive courses at the Vocational Education and Training sector and the courses chosen are typically of a short duration and low cost. Your lack of academic progress strongly indicates you are using the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress. 4 The purpose of the above would indicate that at least before the delegate, there was a recognition of the importance of the pattern of study and the time in Australia. As was required in the regulation governing the review of the delegate's decision by the AAT, the then applicant for review by the AAT (the appellant) provided the delegate's decision to the Tribunal. 5 The appellant was invited to attend a hearing before the tribunal in November 2015. She was asked to provide various information and attend at a hearing. The Tribunal's decision set out in uncontroversial terms the background of the matter and summarised the hearing before it. It set out the claims and evidence from paras [10] and following. No apparent misdirection or misstatement of material was made by the Tribunal in the short and clear set of reasons. Paragraphs [20] to [23], which are the focus of some submissions in the appeal, are fundamentally a part of a description as to what happened at the hearing. These paragraphs concern the time spent in Australia and aspects of the courses that she had undertaken. 6 I interpolate this point that, in the light of the material that is contained in the record of the delegate's decision and what apparently took place at the hearing before the Tribunal, a plain and evident consideration that must have been understood by anyone involved in the application, including the appellant, was that a concern or a subject of possible concern of the Tribunal in the light of the reasons of the delegate was the relationship between the time spent in Australia and the nature of and variety of courses undertaken during the period of years in this country. Paragraphs [20] to [23] were in the following terms: 20. The Tribunal observed that the applicant would have remained in Australia for approximately 8 years if she stayed until the completion of the Diploma of Hospitality in October 2016, which made it hard for it to accept that the applicant's intentions to remain in Australia were temporary. The applicant responded that she would have completed courses earlier but for the fact that her subclass 485 visa was delayed due to the difficulties getting her IELTS results and the fact that the appeal to the Tribunal on this took 12 months to be finalised. Once this issue was resolved, she could plan and move on, and that is why she enrolled in the Commercial Cookery/Hospitality courses. The applicant added that she had initially wanted to study Hospitality when she ceased her Bachelor of Business but her then education agent suggested the Certificate III in Food Processing instead because at that time, pastry cooks were on the Skilled Occupations List (SOL). 21. In relation to why she did not undertake a course in Commercial Cookery/Hospitality in Sri Lanka, the applicant and her agent said that in Sri Lanka, the only way to do so until recently was to enter a hotel school as an apprentice straight from school. There were some private cooking schools but they generally offered short courses only and were not as well regarded as Australian courses or Sri Lankan hotel schools. 22. The applicant said she had not applied for any other visas other than the student visas and the subclass 485 visa. She said that if she had wanted to remain here permanently, she would have tried to do so based on her patisserie qualifications or through the spouse visa category. However, she wanted to return to her family in Sri Lanka following the completion of her present courses. Her family support her to do so. She can fund this through her part time work and is living in shared accommodation to keep costs down. The applicant said that since coming to Australia in mid-2008 she had returned to Sri Lanka 3 times to see her family, usually when her mother was visiting from Italy. She has no family in Australia, only school friends. 23. The applicant denied that she was using the student visa program to maintain prolonged residence in Australia for economic reasons. She emphasised that she wanted to return with good qualifications, and it was important to her to have got good work experience in the meantime. She has just turned 30 and wants to finish her studies here and go home. 7 The structure of the balance of the reasons of the Tribunal from paras [24] to [41] are that the paragraphs are divided under three headings, the headings being the aspects of cl 572.223 that are referred to in the direction by reference to which the Tribunal is to assess the claim. Under s 499 of the Migration Act 1958 (Cth), the Minister may issue directions setting out the factors guiding decision-makers in assessing whether the applicant for a visa intends genuinely to stay in Australia temporarily for the purposes of the clause. The headings given by the tribunal are in terms of that direction. The three headings are as follows: 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 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 Paragraphs [24] to [29] contain a discussion by the Tribunal of the appellant's circumstances in her home country, potential circumstances in Australia and the value of the course to the applicant's future. It is unnecessary to set out that extensively. All that needs to be noted is that there is a discussion of those matters in a way that seeks to balance the relevant factors discussed against the courses taken and her future life in Sri Lanka. Perhaps para [29] is deserving of recitation: 29. Having considered the applicant's evidence on this issue, the Tribunal is not satisfied that the course that the applicant now proposes to undertake would be of any significant, realistic benefit to her in Sri Lanka. It further considers that her study history to date indicates a pattern of enrolment [in] a series of relatively short, inexpensive courses which were lower in level than the Bachelor degree she was originally granted a visa to undertake. The Tribunal accepts that many students may legitimately change their field of study as they work out what they truly wish to pursue, but it considers that this is typical of young students going straight from secondary education into tertiary education. In contrast, the applicant is a 30 year old woman. At the relevant time that she began undertaking study in Australia, she was 23. While the Tribunal accepts that she may have genuinely decided that pursuing a Bachelor of Business course was not the right choice for her, this is hard to reconcile with her subsequent decisions to study Business and Management courses at Diploma level, particularly since her stated aim was to pursue a career in the food and hospitality industry. 9 Importantly for the submissions, the Tribunal concluded at para [30] as follows: 30. This strengthens the Tribunal's view that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program. 10 Paragraphs [31] to [37] contain a recitation and discussion of the applicant's immigration history, her previous applications for a visa and previous travel to Australia. At paragraphs [36] and [37], the Tribunal said the following: 36. Based on the applicant's evidence and the Department's movement records, the Tribunal is satisfied that she has returned to Sri Lanka 3 times since 2008, each time for approximately 3 weeks. The fact that the applicant has largely resided in Australia since mid-2008 causes the Tribunal concern about whether she genuinely intends to return to Sri Lanka at the completion of her current course. 37. The Tribunal finds that the applicant has undertaken a series of low level, short, inexpensive courses for approximately 5 years (excluding the period during which she applied for, was granted and held a subclass 485 visa). The applicant is now seeking a further student visa to continue to study another Diploma level course, having completed 2 Diploma courses already. The Tribunal considered the length of time spent in Australia by the applicant studying a series of various inexpensive short courses, interspersed with a period working while waiting for the grant of, and holding, a subclass 485 visa, was indicative of the applicant seeking to maintain ongoing residence. 11 Under the third heading, paras [38] to [40] contained a statement that the Tribunal had considered the totality of the applicant's circumstances and considered various matters. Paragraphs [38] to [40] were in the following terms: 38. The Tribunal has considered the totality of the applicant's circumstances and considers that she has vocational qualifications in Business, Management, Commercial Cookery and Food Processing and some years of employment experience in the food industry in Australia. In view of this, it does not accept her explanation for her proposed further study in Australia as plausible or credible in relation to her future career prospects as it considers that the combination of qualifications she has already undertaken would easily fit her to pursue her stated goal without the necessity for undertaking a Diploma of Hospitality, which the Tribunal considers would to a large degree duplicate studies already undertaken by her. 39. On the basis of the above, and having considered the applicant's circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl. 572.223(1)(a). 40. The Tribunal has found the applicant does not meet an essential requirement of cl 572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review. 12 On appeal, two fundamental submissions were put. First, that contrary to the terms of the direction and, in a sense, contrary to proper decision-making, the Tribunal had used the elements of the direction as a checklist and had not made a holistic assessment of all the circumstances of the appellant in considering how it should approach the review. The learned primary judge was taxed with the same submission and drew the following conclusions at paras [9] to [11] of his Honour's reasons: 9. The Tribunal, in its decision, adopted the headings from the guidelines before discussing under each heading, in narrative form, the relevant facts and circumstances of the applicant's case, and making observations and findings with respect to the inferences that the Tribunal was prepared to draw from those facts and circumstances. For example, the Tribunal considered the economic situation in Sri Lanka, where the applicant had come from, and concluded that the economic situation in and of itself was not a significant disincentive for the applicant to return to Sri Lanka. 10. Similarly, they considered whether or not she had family ties in Sri Lanka, and noted that she had only returned to Sri Lanka three times for around three weeks on each occasion over the last eight or nine years which, not surprisingly, indicated to the Tribunal that her ties to family in Sri Lanka were not particularly strong. The Tribunal does not appear to have reached any specific binary conclusion with respect to each of the factors in the guidelines. Rather, they have discussed how those factors bear upon the applicant's circumstances and what inferences could be drawn from her circumstances. 11. I am not persuaded that the terms of the decision show that the Tribunal have adopted the guidelines as a checklist rather than properly considering the applicant's circumstances and utilising the guidelines as an aid to ensure that they did consider the true breadth of her own circumstances before making a decision. In these circumstances, I am not persuaded that the applicant has made out the second ground of her application. 13 If I may respectfully say so, it would be a work of supererogation to seek to restate those conclusions because I fundamentally agree with how the learned primary judge has put the matter. I do not see, in my reading of the Tribunal's reasons, any overly structured approach that would indicate that the Tribunal has in some form rigidly confined or limited the way in which all the circumstances of the appellant have been assessed. One aspect of the matter that was put in this regard was the way earlier valid stays in this country, pursuant to a student visa, were addressed in para [37]. This submission had some relationship to the next submission as to s 359AA of the Migration Act. The submission was that the Tribunal was drawing a conclusion adverse to the appellant about earlier courses when that truly had never been an issue. I do not see the matter in that light. Rather, I read the Tribunal's reasons as looking at the totality of the appellant's circumstances, including the length of time in Australia, the courses studied, and coming to the view in 2016 that was reached and expressed in para [37] as part of a lack of satisfaction of the primary criterion. 14 I am not persuaded that there is any error in the way the primary judge dealt with this argument. Indeed, I agree with the way the primary judge expressed himself, and my view is that there has been no error, certainly, no jurisdictional error, identified in, if I may use the expression, the checklist argument. 15 The second ground of appeal was an asserted failure to comply with s 359AA(1)(b)(i) to (iv) of the Migration Act. Two matters are said to be information that the Tribunal considers would be the reason or part of the reason for affirming a decision. Those matters are, first, the length of stay in Australia dealt with from paras [20] to [30], broadly, of the reasons of the Tribunal, and the second matter was the lack of frequency of return to Sri Lanka during the period of stay in Australia. 16 The relationship between ss 359AA and 359A is touched upon in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415, albeit by reference to the companion provisions in the Act and the refugee provisions in ss 424A and 424AA. Section 359AA was introduced after s 359A. Section 359A concerns information and invitation given in writing by the Tribunal. That provision was the subject of much jurisprudence and argument over a decade ago, in particular in relation to country information and information in respect of which the applicant had provided material. Further, there was a significant body of discussion in the cases as to the use of information in the decision-making process by way of mental process and inference, as opposed to information. These were statutory forms of natural justice provisions designed to provide to applicants information that they may not have appreciated was relevant to the decision-making process. 17 Section 359AA permits the Tribunal to provide orally to the applicant at the hearing information the Tribunal considers would be the reason or a part of the reason for affirming the decision. In circumstances where the Tribunal does so, the Tribunal must do certain things. For convenience, I set out in these reasons the full terms of ss 359AA and 359A: 359AA Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 360: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so—the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F). 359A Information and invitation given in writing by Tribunal (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non‑disclosable information. (5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F). 18 The terms of s 359A(4) are that this section does not apply to information, amongst other things, that the applicant gave for the purposes of the application for review or, under s 359A(4)(ba), that the applicant gave during the process that led to the decision that is under review. In SZMCD 174 FCR 415, the relationship between these two provisions is discussed. 19 From that case, one can conclude that in circumstances where there was no obligation on the Tribunal enlivened under s 359A, the Tribunal was under no obligation to put that same information permissively under s 359AA(1). The two pieces of information identified (if I may say, with clarity for the first time in oral hearing today) were, in one sense, provided by the appellant. Further, when one goes to paras [20] to [23], one sees, fundamentally, a discussion of those very matters in relation to the first piece of information, that is, the length of stay, in clear discussion between the Tribunal and the appellant. The question of the length of stay is a fundamental aspect of the circumstances of the appellant that was both formally provided to the Tribunal in the provision of information by the appellant and was before the appellant and the Tribunal as an essential structural aspect of the facts. 20 One other aspect of the operation of ss 359AA and 359A is that the Tribunal's appraisal and thought processes and consideration of the evidence and the submissions is not information for the purposes of the sections: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549. Neither of these matters was information that would have enlivened s 359A, because such was material and information that had been provided to the Tribunal by the appellant in that they were fundamental aspects of the circumstances of the appellant that she made clear to the Tribunal in the provision of her own circumstances and her own history. Further, at the least, the length of stay was the subject of discussion, and its relevance was manifest as part of her circumstantial history. 21 The relevance of the return on only three occasions to Sri Lanka that can be seen in the reasons at paras [36] to [37] was discussed by the Tribunal in para [25]. The terms of para [25], when understood, make clear that this information that was provided by the appellant was being used as part of the reasoning process, making of inferences and thought processes by way of consideration of the Tribunal. In my view, that paragraph makes clear how this aspect of the appellant's history struck the mind of the Tribunal in the Tribunal's consideration of the appellant's circumstances. Thus, in my view, the arguments based on s 359AA should fail. 22 Lest there be any doubt about it, to the extent it be relevant, both matters would appear to have been manifestly relevant to the consideration of the issues on review, bearing in mind that the appellant was complaining, if I may use that expression, about the lack of satisfaction of the delegate in circumstances where the delegate had focused upon, amongst other things, the length of stay and the type of course undertaken historically by the appellant. I say that only to identify, to the extent it might be relevant, the lack of any substantive unfairness in the absence of what is said to have been required; that is, identifying the relevance to the consideration of the facts of these two matters. 23 For those reasons, I would dismiss the appeal. The orders of the court are that the appeal be dismissed with costs identified on a lump sum basis and without objection as $5000.00. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate: Dated: 16 November 2017