Aziz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

7 The appellant told the Minister's delegate and the Tribunal that she studied these courses in order to equip herself to commence a business in Pakistan, along with her brother, specialising in the manufacture and distribution of jams, juices, sauces, chutneys and like products. 8 The criteria for the grant of a Student visa applicable at the time relevant to the appellant's application were contained in subcl 572 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). Regulation 572.22 contained the criteria to be satisfied at the time of the decision. Clause 572.223 provided (relevantly): (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 (1A) or (2). … (Emphasis added) 9 The criterion in cl 572.223(1)(a) is known as the "genuine temporary entrant criterion". 10 It was common ground that the genuine temporary entrant criterion was applicable to all kinds of Student visas, other than one which need not be mentioned because it was not available in the appellant's circumstances. 11 The appellant's application for the Student visa lodged on 22 March 2016 failed because the Minister's delegate and the Tribunal were not satisfied that she intended genuinely to stay in Australia temporarily. Accordingly, they found that she did not satisfy cl 572.223(1)(a). In particular, the Tribunal was not satisfied that the appellant intended genuinely to stay in Australia temporarily having regard to a number of circumstances: (a) all seven courses which the appellant has studied and completed since first being granted a Student visa have been at the VET level and she has not progressed to the higher education level, at [17]; (b) having completed the Advanced Diploma of Business course for which she had sought the Student visa on 22 March 2016, the appellant had enrolled in another VET course (the Advanced Diploma of Marketing and Communication). Further, she had enrolled in that course only after receiving the invitation to appeal before the Tribunal for an interview. In the Tribunal's view, this suggested that the appellant had done so in order to extend her time in Australia, rather than because of a genuine interest in the subject, at [17]; (c) the proposed Advanced Diploma of Marketing and Communication course meant that the appellant's time as a student in the VET sector would extend to nine years, which the Tribunal member considered inconsistent with the purposes of a Student visa, at [17]; (d) the appellant owns real estate in Australia. The Tribunal said it was not persuaded by the submission that she intended selling the real estate when she returned to Pakistan, at [18]; (e) all the appellant's close family (apart from one brother who remains in Pakistan) are in Australia. Two siblings are Australian citizens, two of her children are permanent residents awaiting citizenship, and the third is in Australia as an international student, at [18]; (f) the appellant has since applied for a CA-143 Contributory Parent visa which, the Tribunal noted, would allow the appellant to live in Australia on a permanent basis. The Tribunal member was not persuaded by the appellant's claim that she applied for the Contributory Parent visa for the principal purpose of facilitating future business-related travel between Pakistan and Australia, at [18]; and (g) in the Tribunal's view, the appellant's evidence about the business she proposed to establish with her brother and her role in it was "vague" and was, in any event, conditional on her brother's retirement from his present employment at some unspecified time in the future, at [18]. 12 As the grounds of appeal to this Court largely replicate the several grounds on which the appellant sought judicial review at first instance, it is convenient to refer to the reasons of the FCC Judge when addressing the grounds of appeal. 13 The appellant had represented herself on her application in the FCC. She also represented herself on the appeal to this Court and, while having reasonable facility with the English language, made her submissions with the assistance of an interpreter. She also had the assistance of one of her sons.

Grounds 1 and 2 - the appellant's family ties, and the PAM3 Policy 14 These two grounds can be considered together. By Ground 1, the appellant contended that the FCC Judge should have recognised jurisdictional error by the Tribunal in reaching a conclusion "which was totally against the policy" contained in the Departmental Procedures Advice Manual (known as PAM3). By Ground 2, the appellant contended that the Tribunal had been in error by placing too much weight on the fact that all members of her immediate family, apart from one of her brothers, currently live in Australia. 15 For both grounds, the appellant relied on a passage in PAM3 concerning the significance to be attached to family ties in Australia. Neither the complete PAM3 nor the complete section concerning the assessment of family ties was in evidence. However, it seemed to be common ground that PAM3 indicated that family ties, when they exist, may provide a strong incentive for an applicant to wish to stay in Australia. As noted above, the Tribunal considered that the appellant's family ties were of that nature. 16 The extract in PAM3 on which the appellant relied is as follows Officers should be mindful that strong community or family links do not necessarily indicate that the applicant is not a genuine temporary entrant and will not depart at the end of the authorised temporary stay in Australia. In fact, family connection to Australia may be a positive factor and could have legitimately influenced the student's decision to study in Australia. 17 The appellant's former solicitor had drawn the Tribunal's attention to this passage in a submission made on the appellant's behalf on 2 December 2017. 18 The Tribunal member made no reference to PAM3 at all, let alone to the passage just quoted. 19 The FCC Judge noted that PAM3 is a guide to decision-making only and it is the facts of each case which must be assessed. Inferentially, the FCC Judge found (correctly) that PAM3 did not dictate that the Tribunal had to find that the appellant's family connections were a positive factor, could legitimately have influenced her decision to study in Australia or did not provide a strong incentive for her to wish to stay in Australia. The FCC Judge also noted, correctly, that the weight to be given to any particular factor was a matter for the Tribunal: NAHI v Minister Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] (French J). 20 In support of the Minister's submission concerning the status of PAM3, counsel referred to El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 in which Gray J said of the status of PAM3: [45] … PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. … PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 - 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error. 21 I take the same view. 22 Further, by virtue of s 499(2A) of the Migration Act 1958 (Cth) (the Act), the Tribunal was obliged to comply with Direction No.53 issued by the Minister concerning the assessment of the genuine temporary entrant criterion in applications for Student visas. That Direction stipulates that, in considering an applicant's circumstances in their own home country, decision-makers must have regard to the extent of the applicant's personal ties to their home country (for example, family, community and employment) and whether they would serve as a significant incentive to return to their home country (cl 9(b)) and that, in considering an applicant's potential circumstances in Australia, decision-makers must have regard to the applicant's ties with Australia, including family and community ties (cl 11a)), which would present a strong incentive for the applicant to remain in Australia. 23 Accordingly, the Tribunal member was not bound to have regard to, and to apply, the passage in PAM3 on which the appellant relied. Moreover, the Tribunal was positively bound to have regard to the appellant's family ties with Australia which would provide a strong incentive to remain in Australia. In addition, the Tribunal was bound in the appellant's case to have regard to the relative absence of her family ties in Pakistan. 24 As the decision of the Full Court in NAHI indicates, while the Tribunal was positively bound to have regard to those matters, the weight which it was to attach to them was a matter for it to determine. In this context, and contrary to the appellant's ground of appeal, it could not be concluded that the Tribunal's conclusion was "totally against the policy" stated in PAM3. That policy did no more than suggest one matter to which the Tribunal member may, but was not obliged to, have regard. 25 Although the appellant did not make a submission to this effect, I do not consider that the failure of the Tribunal to refer to the passage in PAM3 supports an inference, in the circumstances of this case, that it was not considered at all: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, (2014) 309 ALR 67, at [34]. 26 To the extent that Grounds 1 and 2 may raise complaints of unreasonableness or irrationality, they are not made out. 27 Accordingly, both Grounds 1 and 2 fail.

Grounds 3-5 - compliance with s 359AA of the Act 28 The review of the delegate's decision was undertaken by the Tribunal under Pt 5 of the Act. That Part contains a number of provisions concerning the conduct of the review. Relevantly for present purposes, s 360 of the Act obliged the Tribunal to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under the review. That obligation was subject to some qualifications which need not be mentioned presently. The Tribunal did invite the appellant to appear before it to give evidence and present arguments and the appellant responded to that invitation. The hearing took place on 12 December 2017. 29 Sections 359AA and 359A contain provisions concerning the provision of information to the appellant which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under the review. 30 Section 359AA provides: 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). (Emphasis added) 31 Section 359A provides (relevantly): 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. … (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. … (Emphasis added) 32 As is apparent, s 359A(1) imposes, subject to some qualifications, an obligation on the Tribunal to give an applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; to ensure, so far as is reasonably practicable, that the applicant understands why it is relevant to the review; and to invite the applicant to comment on or respond to it. Section 359AA allows the Tribunal to discharge the s 359A obligation by giving the particulars orally to an applicant who appears before the Tribunal.

Ground 3 33 By Grounds 3 and 5 in her Notice of Appeal, the appellant contends that the FCC Judge should have found that the Tribunal failed to comply with the obligation in s 359AA with respect to two matters. Although Ground 4 does not mention s 359AA or s 359A expressly, it seems implicitly to be a complaint of the same nature. Each ground also contends that, as the Tribunal had not given her information contemplated by ss 359AA and 359A, she had not had sufficient opportunity to respond to those matters and had thereby been denied procedural fairness. 34 By Ground 3, the appellant contends that the FCC Judge should have found that the Tribunal had not complied with s 359AA in not giving her the opportunity to respond to or comment upon its views concerning her agent's submission concerning two matters. First, that she envisaged selling the real estate she owns in Australia after she returns to Pakistan. Secondly, that she had sought the Contributory Parent visa for the purpose of facilitating the frequent business-related travel between Australia and Pakistan which she contemplated in the new business. 35 The counterpart of s 359A in Pt 7 of the Act (s 424A) was considered in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190. The plurality (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said: (a) section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review, at [15]; (b) the Tribunal's obligation is limited to written provision of particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review, at [15]; (c) the reason for affirming the decision under review is a matter which depends upon the criteria for the making of that decision in the first place, at [17]; (d) the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasons on the facts of the case, at [17]; (e) the Tribunal's disbelief of the appellant's evidence arising from inconsistency in that evidence should not be characterised as information for the purposes of s 424A(1), at [18]; (f) "information" does not encompass the Tribunal's subjective appraisals, thought processes or determinations. Nor does it extend to identified gaps, defects or lack of details or specificity in evidence or to conclusion arrived at by the Tribunal in weighing up the evidence by reference to those gaps, thereby endorsing the statement of Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123, (2004) 206 ALR 471 at 476-7, at [18]; and (g) however broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, and not to the existence of doubts, inconsistencies or the absence of evidence, at [18]. 36 Those principles can also apply to ss 359AA and 359A. 37 In the present case, the Tribunal complied with s 359A by two means: by notice in writing and by oral statements at the time of the appellant's interview. In its letter to the appellant of 7 November 2017 inviting the appellant to attend an interview, the Tribunal said (relevantly): We will assess whether you intend genuinely to stay in Australia temporarily. Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached. Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction. 38 The appellant was thereby directed to Direction No. 53 and to the potential significance of her ties to Australia, including her family ties. The Tribunal thereby drew attention expressly to the genuine temporary entrant criterion and the matters to which the Tribunal was required to have regard in relation to it. 39 The Tribunal repeated these matters in a letter to the appellant of 20 November 2017. 40 The written submissions provided by the appellant's lawyer dated 2 December 2017 addressed in some detail the matters which had been of concern to the Minister's delegate. Relevantly to Ground 3, the lawyer submitted that the appellant had plans to sell the real estate when she returned home to Pakistan and asserted that the Contributory Parent visa was sought in order to facilitate the appellant's travel between Pakistan and Australia. The appellant was aware that these were matters on which the Minister's delegate had relied in finding that she did not satisfy the genuine temporary entrant criterion because the delegate stated as much in her written reasons. 41 The Tribunal's reasons record that the Tribunal member had discussed with the appellant the reasons why she had been found by the delegate not to satisfy the genuine temporary entrant criterion, and had explored with the appellant her circumstances in Pakistan and Australia, her immigration and study history and other matters including the matters mentioned by the delegate. It was not suggested that there had been any shortcomings in the manner in which the Tribunal member had done so. 42 In these circumstances, it is plain that the appellant was both informed, and aware, that her failure to satisfy the genuine temporary entrant criterion would be a reason for the Tribunal to affirm the delegate's decision and, further, was both informed, and aware, of the particular matters of concern to the Tribunal in relation to her satisfaction of that criterion. These included her ownership of the real estate and her the application for the Contributory Parent visa. It was not necessary for the Tribunal to go further and inform the appellant of its evaluation of those matters or the conclusion which it had reached concerning them. 43 In short, the Tribunal complied with its obligations under s 359A in relation to the appellant's ownership of real estate in Australia and her application for a Contributory Parent visa. Contrary to Ground 3, the appellant not only had the opportunity to make submissions concerning those matters, she exercised that opportunity.

Ground 4 44 By Ground 4, the appellant contends that the FCC Judge should have found that she had not been given sufficient opportunity to respond to the Tribunal's conclusion that all the courses which she had studied in Australia were VET courses. 45 This complaint fails for the same reasons that Ground 3 fails. The Tribunal member did discuss with the appellant her study history including the value of her proposed courses, and whether she needed the additional qualifications in order to establish the business in Pakistan. In addition, the Tribunal's reasons indicate that it discussed with the appellant the reasons why her Student visa had been refused by the delegate and had noted in that discussion that the primary purpose of a Student visa is to allow an applicant to study and progress academically. Again, s 359A did not oblige the Tribunal to inform the appellant of its evaluation of the material. 46 I also note that the appellant's lawyer addressed in some detail the appellant's participation in the multiple VET courses and had sought to justify it. 47 In these circumstances, and contrary to the appellant's contention, she was given sufficient opportunity to respond to the fact that her courses had all been at the VET level.

Ground 5 48 By Ground 5, the appellant contends that the FCC Judge should have found that the Tribunal did not comply with s 359AA by its failure to give her notice that it regarded her evidence concerning the proposed business in Pakistan, and her role in it, as "vague" and further, that it was "conditional on her brother's retirement at an unspecified time in the future". 49 Again, for the reasons given above, it was not necessary for the Tribunal to inform the appellant of its subjective appraisal of the material which the appellant had provided, nor its thought processes, nor to inform her of identified gaps or deficiencies in the evidence and explanations which she had provided. 50 The FCC Judge said that the process of reasoning engaged in by the Tribunal "was certainly open to it, if not inescapable", at [21]. The appellant has not shown error in that conclusion. 51 For the reasons given earlier, Grounds 3, 4 and 5 are not established.

Ground 6 - the question addressed by the Tribunal 52 By Ground 6, the appellant contends that the Tribunal committed jurisdictional error by asking itself the wrong question. That was because the Tribunal had concluded that the appellant had engaged in the VET courses for the purposes of prolonging her stay in Australia, rather than considering how the knowledge which she gained from those courses was to be used by her in the future. 53 The FCC Judge considered that it had been open to the Tribunal to conclude that the appellant's evidence about her business plans in Pakistan was vague. Although this reasoning does not address directly Ground 6 as now formulated by the appellant, it was directed to the corresponding ground, expressed a little differently, in the FCC. 54 In my opinion, Ground 6, as expressed in this Court, cannot succeed. The Tribunal was obliged by Direction No. 53 to consider the purpose of the appellant's applications for Student visas. Clauses 11(b) and 11(c) obliged the Tribunal to have regard to any evidence suggesting that "the Student visa program is being used to circumvent the intentions of the migration program" and to consider whether "the Student visa is being used to maintain ongoing residence". Plainly, the extended study which the appellant had undertaken in Australia raised a question of whether she was using Student visas to maintain ongoing residence in Australia. That was a matter which the Tribunal was bound to consider. The evaluation of the evidence bearing on that matter was a matter for the Tribunal. It did not commit jurisdictional error by forming a view which was adverse to the appellant. 55 Ground 6 fails.

Ground 7 56 Ground 7 is not a ground of appeal. Instead, the appellant foreshadowed seeking leave to lodge amended grounds of appeal once a copy of the FCC ex tempore judgment became available to her. However, the appellant did not make any application to that effect and instead relied on the grounds contained in the Notice of Appeal originally filed.

General 57 During the course of the appeal hearing, the appellant submitted that she had had difficulties in the hearing before the Tribunal in understanding everything which was said. She attributed this to the fact that the interpreter assisting her was not certified as an interpreter by the National Accreditation Authority for Translators and Interpreters Ltd. 58 However, the appellant had not made this a ground of her application for judicial review in the FCC, nor a ground of her appeal. Nor did she provide any evidence to support this claim. I also note that the appellant had had legal representation in relation to her application to the Tribunal, although not at the Tribunal hearing itself. The appellant's lawyer had provided a written submission to the Tribunal on 2 December 2017 on behalf of the appellant addressing in some detail each of the matters on which the Minister's delegate had relied. Further, in the response to the Tribunal's invitation (which the appellant signed personally on 27 November 2017), she indicated that she did not need an interpreter. 59 In these circumstances, it seems unlikely that the Tribunal arranged the attendance of an interpreter or any other person on the appellant's behalf. I also note that the person in attendance at the hearing is described in the Tribunal record as "observer". Finally, I note that the appellant demonstrated an adequate, albeit not complete, grasp of the English language on the hearing of the appeal. 60 The Tribunal member did not record having had any communication difficulties. 61 Having regard to all these matters, I do not consider that it could reasonably be concluded that the appellant did not have the hearing in the Tribunal required by the Act by reason of communication difficulties.

Conclusion 62 For the reasons given above, none of the appellant's grounds of appeal succeed. Like the FCC Judge, one cannot help having some sympathy for the appellant. However, the appeal must be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.