Minister for Immigration and Border Protection v Khanna

Federal Court of Australia|2016-02-26|Before: Reeves J

THE COURT ORDERS BY CONSENT (IN REPLACEMENT OF ORDER 1 OF 26 FEBRUARY 2016) THAT:

Order 1 of the orders made on 26 February 2016 is vacated and in its place, the Court orders that: (a) The appeal be allowed. (b) The orders of the Federal Circuit Court made on 21 July 2015 be set aside and in their place this Court orders that the application be dismissed, with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

The appeal 1 The Minister has appealed against a decision of a judge of the Federal Circuit Court: see Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388, [2015] FCCA 1971 (Khanna). He relies upon the following three grounds of appeal: 1. The Federal Circuit Court erred in concluding that … the Tribunal fell into jurisdictional error because it asked itself the wrong question in determining whether [Ms Khanna] was a 'genuine applicant for entry and stay as a student because ... [Ms Khanna] intends genuinely to stay in Australia temporarily' for the purposes of cl 573.223(1) of Schedule 2 of the Migration Regulations 1994 (Cth). 2. The Federal Circuit Court erred in concluding that the Tribunal determined [Ms Khanna's] review application on the assumption that [her] wish to settle in Australia in the long term, if given the opportunity, implied [she] did not have an intention genuinely to stay in Australia temporarily. 3. The Federal Circuit Court erred in concluding that the terms of cl 573.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) required the Tribunal to consider whether [Ms Khanna] intends to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.

The factual background 2 Ms Khanna is a national of India. She entered Australia on 19 August 2009 on a student visa that was valid until 25 October 2011. On 13 November 2011, she applied for a Subclass 573 student visa. On 20 December 2011, a delegate of the Minister refused that application. Ms Khanna then sought to have the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), conduct a merits review of the delegate's decision.

The proceeding before the Tribunal 3 Before the Tribunal, the issue was whether Ms Khanna met the criterion prescribed by cl. 573.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations). That clause relevantly states: (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor- the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter; and (b) the applicant meets the requirements of subclause (2). 4 In determining Ms Khanna's application, the Tribunal was required to have regard to Ministerial Direction 53 made under s 499 of the Migration Act 1958 (Cth) (the Act). In relation to this direction, the Tribunal noted in its decision record that: 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. 5 In its decision record, the Tribunal accepted that Ms Khanna was a good student who had passed the majority of the courses she had undertaken. However, the Tribunal was not satisfied that Ms Khanna had a genuine intention of staying in Australia temporarily. It "based [this finding] on several factors", including (at [22] of the Tribunal's decision record): [Ms Khanna's] evidence that she wishes to settle in Australia in the long term if given the opportunity, her immigration history which shows she had spent only a limited amount of time outside Australia since first arriving on 19 August 2009, the fact that [she] does not have a current confirmation of enrolment for a course of study in Australia, and the limited and unconvincing evidence regarding the value of further study in Australia towards [her] long-term future. 6 The parts of Ms Khanna's evidence to which the Tribunal referred above appears in the following paragraphs of its decision record (at [12]-[15]): 12. The Tribunal raised that one of the issues before it was whether the applicant was a genuine temporary entrant to Australia for the purpose of study. During the hearing the applicant said that she would like one further the chance to continue her studies, and she had a young son and she would like the chance to make a future. Later in the hearing the Tribunal asked applicant what her future intentions were, and the applicant said she would like to stay and make a future and settled in Australia if given the chance. 13. The Tribunal asked applicant about her long-term intention in relation to her study. The applicant said that she has qualifications as a hairdresser from overseas and she would like to open her own business as a hairdresser either in Australia or overseas. The applicant went on to say this was why she had enrolled in a Bachelor of Business. The Tribunal raised that the applicant had already completed three business-related courses in Australia and, as she was a qualified hairdresser (according to her own evidence), it found it difficult to accept that the applicant would require a Bachelor of Business in order to open a hairdressing business. The applicant responded by saying she is it genuine student in Australia and she has never failed her courses. 14. The Tribunal stated that it accepted that the applicant had been a good student prior to 2013 but it needed to assess whether she was as genuine temporary entrant for study and stay in Australia temporarily, or whether she was studying in Australia for the sole purpose of remaining in Australia. The applicant said she would like to obtain a new confirmation of enrolment, but she could not at the moment because she does not have a Student Visa. The Tribunal raised doubts as to this evidence, that is, it indicated that it was difficult to accept that the applicant had been prevented from obtaining a confirmation of enrolment because she did not have a current Student Visa. 15. The Tribunal raised that since the applicant had entered Australia in 2009 she had only travelled overseas on two relatively brief occasions. The Tribunal noted that it was within its scope to consider things such as the applicant's movement records, and on the face of it, these indicated that her long-term intention was to stay in Australia. The applicant responded by saying that Australia is safe and she would like to settle in Australia in the long term if given the chance. (Errors and omissions in original) 7 The Tribunal therefore affirmed the delegate's decision not to grant Ms Khanna a student visa.

The decision of the Federal Circuit Court 8 Ms Khanna then sought judicial review of the Tribunal's decision in the Federal Circuit Court. In her application, she raised the following sole ground of review: "The Tribunal made a jurisdictional error whilst making a decision on application." However, in a supporting affidavit, she relied on a number of alleged failings on the part of the Tribunal. They may be summarised as follows: (a) failure to consider evidence of enrolment; (a) failure to consider capacity to travel to India; (b) misplaced reliance on her intention to stay permanently in Australia if given the opportunity; (c) bias; and (d) failure to grant her time to secure enrolment. 9 The primary judge decided to treat all these matters as grounds of review (see Khanna at [3]) and proceeded to reject all but ground (c) above. Since the other grounds of review are not material to this appeal, it is unnecessary to outline how the primary judge disposed of them. 10 Verbatim, ground (c) above, or what his Honour described as "the third ground of review", was as follows [Khanna at [23]]: In the subject decision of the [Tribunal] paragraph 22 the Tribunal find [sic] that I am not a genuine student and intend to live in Australia. 5.1 Even if I accept this finding, I would argue that nothing wrong with this intension[sic]. Australia offer skilled Migration Program and I will apply to stay here under this program if I qualify. (Emphasis in original) 11 After recording the contentions made by the Minister and Ms Khanna on this ground and stating the effect of the Tribunal's decision at [22] (see at [5] above), the primary judge turned to consider the proper construction of the expression in clause 573.223 "intends genuinely to stay in Australia temporarily" (Khanna at [25]-[26]) as follows: 25. The starting point is the word "intends". According to the Oxford English Dictionary, the chief current sense of the word "intend" is to "have in the mind as a fixed purpose; to purpose, design". Thus, on this meaning, a person "intends…to stay in Australia temporarily" if that person has in his or her mind as a fixed purpose to stay in Australia temporarily. The word "genuinely" does not seem to add much to the word "intends"; a person who holds an intention that is not genuine cannot be said to hold the intention. 26. Next, there is the word "temporarily". By itself it signifies ''for a time (only); during a limited time". The expression "intends genuinely to stay in Australia temporarily", therefore, means "intends to stay in Australia only during a limited time". Clause 573.223 of Schedule 2 does not, however, specify what that limited time is. At the very least, it is reasonable to suppose that "temporarily" is the period for which the Subclass 573 visa applied for is valid. If "temporarily" is so understood, the expression "intends genuinely to stay in Australia temporarily", when used in relation to a person who applies for a Subclass 573 visa, means "intends to stay in Australia only during the time for which a subclass 573 visa applied for will be valid" (573 visa period). (Emphasis in original) 12 His Honour then posed the question to be addressed in the following terms (Khanna at [27]): The question that must be addressed, then, is this: does the fact that a person who applies for a Subclass 573 visa intends to reside permanently in Australia, if the person so qualifies, imply that that person does not intend genuinely to stay in Australia temporarily for the 573 visa period? The key to answering this question is to recognise that the fulfilment of such person's intention to reside permanently in Australia is conditional; it is conditional on the person later applying for and being granted a permanent residence visa, or being granted a temporary visa which could lead to the person being granted a permanent residence visa. 13 Thereafter, his Honour set out his reasoning as to how this question was to be answered in the following terms (Khanna at [28]-[31]): 28. That a person's intention to do X is conditional on the happening of some event does not necessarily prevent the person from being treated as having the intention to do X. A person who conditionally intends to reside permanently in Australia, therefore, can be said to have an intention to reside permanently in Australia, whether or not the person ultimately succeeds in being granted a permanent residence visa. On its face, that would be inconsistent with an intention to stay in Australia temporarily. But there must also be considered the person's intention if he or she is not to succeed in being granted a permanent residence visa. If the person's intention would be to return to his or her country at the end of the 573 visa period if the person does not obtain permanent residency in Australia, or some other visa that would entitle the person to stay in Australia beyond the 573 visa period, then it could equally be said that the person intends to stay in Australia temporarily, that is, only for the 573 visa period. On this approach, a person who intends to stay permanently in Australia, if a visa to that effect is granted to him or her, but who also intends to leave Australia at the end of the 573 visa period if the person does not obtain any visa that will entitle the person to stay in Australia beyond the 573 visa period, would hold apparently inconsistent intentions. 29. In truth, there would be no inconsistency between these two intentions. That is so because the intentions would be directed to two mutually exclusive states of affairs. A person's intending to stay permanently in Australia, if qualified to do so, is directed to a state of affairs that assumes the person has been granted a permanent residence visa. On the other hand, a person's intention to leave Australia at the end of the 573 visa period, if no permanent residence visa or some other visa is granted to the person during that period, is directed to a different state of affairs, namely, the person's having obtained no further visa to stay in Australia beyond the 573 visa period. A person, therefore, may consistently intend both to reside permanently in Australia, if the person obtains a visa to do so, and to leave Australia at the end of the 573 visa period if, by the end of the period, the person obtains no further visa that would permit him or her to stay in Australia beyond the 573 visa period. It follows, then, that a person who intends to stay permanently in Australia, if qualified to do so, does not by itself imply the person does not intend to stay in Australia temporarily. 30. This conclusion is consistent with the policy underlying the introduction of c1.573.223 into Schedule 2 to the Regulations. That clause was introduced on the recommendations made in the Strategic Review of the Student Visa Program 2011 prepared by the Hon Michael Knight (Report). The Report said: Unlike a tourist visa where it is a basic criterion that an applicant must be a temporary entrant who intends to return home, there is no explicit requirement to assess a student visa applicant the same way. The first item of business in assessing a student visa application should be whether or not the applicant is a genuine temporary entrant. Are they someone who will come, study and go home afterwards (unless there is a legitimate pathway to staying longer)? 31. The words "unless there is a legitimate pathway to staying longer" suggests the Report contemplated that an applicant will be a genuine temporary entrant even if he or she is to come and study in Australia with the intention of taking advantage of legitimate pathways to staying longer in Australia. That the Report so contemplated is further supported by the following passage (emphasis added): Regrettably we can't have it all. Huge student numbers and no risk to Australia's migration controls are simply not possible. Even with the demise of the shonkiest operators, who were really selling migration outcomes while masquerading as education providers, there is still substantial risk in the system. At one end of the spectrum educational providers have a financial interest in having more international students. At the other end of the spectrum, DIAC has the responsibility to only allocate visas to students who will return home (except when offered a legitimate pathway to permanent residence). It is also DIAC officers who have the difficult task of removing those who overstay their visa period. Unfortunately, the people who are the hardest to remove are often the people Australia would be least likely to choose if they were applying for migration from their home countries. (Emphasis in original) 14 Applying this reasoning to Ms Khanna's matter, his Honour concluded (Khanna at [32]-[35]): 32. The applicant, therefore, is correct in her submission that her having an intention to reside permanently in Australia, if she were to qualify, does not imply that she has no intention to stay in Australia temporarily. Did the Tribunal, however, determine the applicant's case on the assumption that a person who holds an intention to reside permanently in Australia, if he or she were to qualify, implies that the person does not intend to stay in Australia temporarily? And, if it did, has the Tribunal made a jurisdictional error? 33. In my opinion, the Tribunal determined the applicant's case on the assumption that the applicant's wish to settle in Australia in the long term, if given the opportunity, implied the applicant did not have an intention genuinely to stay in Australia temporarily. That is apparent from the Tribunal's relying on the applicant's evidence that she wishes to settle in Australia in the long term if given the opportunity. That, in turn, led the Tribunal to make a jurisdictional error. The jurisdictional error is that the Tribunal did not in truth undertake the inquiry c1.573.223 required it to undertake, namely, to consider whether the applicant intended to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid. 34. In particular, the Tribunal did not ask the applicant - and it did not, therefore, consider - what the applicant intended to do if, by the end of the period for which the Subclass 573 visa she applied for would be valid, the applicant will not have obtained a visa that would entitle her to remain permanently in Australia, or which could legitimately set her on a path that could lead her to becoming entitled to remain permanently in Australia. If the Tribunal asked the applicant a question to that effect, and the applicant had answered she intended to return to India, then, if the Tribunal would have accepted the applicant's evidence, the applicant should have established to the Tribunal's satisfaction that she intended genuinely to stay in Australia temporarily, notwithstanding her intention to stay in Australia permanently, if given the opportunity. 35. The applicant, therefore, succeeds on this ground. (Emphasis added)

The contentions 15 The Minister contended that the primary judge erred in two broad ways, as follows: (a) First, [at [33] of Khanna, his Honour] proceeded on the assumption that [Ms Khanna's] wish to settle in Australia in the long term, if given the opportunity, implied that she did not have an intention genuinely to stay in Australia temporarily. (b) Secondly, [his Honour] erred in concluding that a proper construction of cl 573.223 [required] the decision-maker to focus solely on whether a visa-claimant intends to stay in Australia only during the time for which the subclass 573 visa applied for will be valid. It will be noted that these two broad errors reflect grounds of appeal 2 and 3, respectively. Ground 1 is consequential. That is, that there was therefore no jurisdictional error in the Tribunal's decision and the primary judge erred in concluding there was. 16 With respect to the first broad error above, the Minister submitted that the Tribunal took account of all the factors set out in [22] of its decision record (see at [5] above), not just the first factor, which became the focus of the primary judge's conclusion in Khanna at [33] (see at [14] above). The Minister submitted that the factors in [22] of the Tribunal's decision record, in combination, supported its conclusion that Ms Khanna did not genuinely intend to stay in Australia temporarily for the purposes of study. 17 As to the second broad error above, the Minister submitted that the primary judge had placed an impermissible gloss on the meaning of the words in cl 573.223(1) (see Khanna at [26] set out at [11] above) rather than applying the plain meaning of those words as the Tribunal had clearly done. The primary judge had therefore erred, so the Minister contended, in concluding that cl 573.223(1) "only required that there be consideration of what [Ms Khanna] intended to do following the expiration of the visa for which she applied". The Minister submitted that the Tribunal's approach of applying the plain meaning of the words of the clause was confirmed by the Explanatory Statement that accompanied the introduction of cl 573.223 of Schedule 2 (and cognate provisions) which described the intended effect of that clause as follows: The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home. Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily. Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay. The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 573.223(2) to be a genuine student. 18 The Minister submitted that the Tribunal was required to undertake "an impressionistic assessment of the primary visa-claimant's circumstances" and was not required to take the "limited focus" outlined by the primary judge. In that assessment, he submitted the Tribunal was permitted to have regard to Ms Khanna's evidence about her long term intentions to remain in Australia permanently, if given the chance. The Minister submitted that the primary judge was wrong to conclude that the Tribunal should have asked Ms Khanna about her intentions to return home following the expiration of her student visa, if granted, and that its failure to do so was indicative of error. He submitted that it was for Ms Khanna to make out her case for a student visa and it was open to her to give evidence about those matters if she thought they would advance her case. 19 Ms Khanna submitted that the Minister had "muddled" sub-clauses (a) and (b) of cl 573.223(1) throughout his submissions. She submitted that those two sub-clauses were directed to different considerations. The matters in sub-clause (a) are, so Ms Khanna submitted, directed to whether "the applicant intends generally to stay in Australia temporarily" and are therefore directed to the time for which the applicant intends to stay in Australia. According to Ms Khanna, they are not directed to the applicant's purpose of staying. On the other hand, Ms Khanna submitted the matters in sub-clause (b) are, in turn, directed to the matters contained in cl 573.223(2). Those matters, she submitted, are directed to whether the applicant intends to stay in Australia as a genuine student and are therefore directed to the applicant's purpose in staying. While there may be an overlap between the facts or matters relevant to the questions addressed by each of these two sub-clauses they were still, so Ms Khanna submitted, directed to two separate questions. Ms Khanna also relied upon the Explanatory Statement. She submitted that that Statement, and particularly the last paragraph thereof (see at [17] above), supported this construction of cl 573.223. 20 Ms Khanna submitted that, in its decision, the Tribunal had expressly disavowed reliance on sub-clause (b) and had instead focused on sub-clause (a). She submitted that the primary judge had also properly focused on sub-clause (a) in his reasons for decision. Ms Khanna submitted that the primary judge had correctly identified the jurisdictional error that was present in the Tribunal's decision at [33] of Khanna (highlighted at [14] above). In this respect, she relied upon Craig v South Australia (1995) 184 CLR 163 at 179. She submitted that the primary judge was correct in reaching this conclusion because sub-clause (a) required the decision-maker to consider, at the time of the decision, "whether the applicant intends to return home at the end of the period for which the Subclass 573 visa the subject of the visa application would be valid". She submitted that the Minister's submissions did not submit to the contrary. She submitted that the primary judge was therefore correct when he said at [33] of Khanna that the Tribunal did not "in truth" undertake this inquiry. She submitted this was apparent from [22] of the Tribunal's decision and particularly its reference to the first of the four factors set out therein (see at [5] above). She submitted this conclusion was also supported by the absence of any mention in the Tribunal's reasons for decision of any evidence related to the question identified at [34] of Khanna (highlighted at [14]) above). She also submitted that none of the factors described by the Tribunal at [22] of its decision record (see at [5] above) addressed the central question of "whether the applicant intended to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid".

No jurisdictional error demonstrated in Tribunal's decision record 21 To succeed before the primary judge, Ms Khanna had to show that the Tribunal had committed a jurisdictional error. Ms Khanna sought to do that by relying upon what the Tribunal said, or did not say, in its decision record. As highlighted above (see at [14]), in Khanna at [33] the primary judge relied upon the Tribunal's decision record to identify the jurisdictional error made by the Tribunal as: not undertaking "the inquiry cl.573.223 required it to undertake, namely, to consider whether the applicant intended to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid". As appears from his reasons, his Honour appears to have based this conclusion on three factors. First, what he considered to be the proper construction of cl 573.223 (see Khanna at [25]-[31] set out at [11]-[13] above). Secondly, that the Tribunal determined Ms Khanna's case "on the assumption that [her] wish to settle in Australia in the long term, if given the opportunity, implied [she] did not have an intention genuinely to stay in Australia temporarily" (see Khanna at [33] set out at [14] above). Thirdly, that the Tribunal had not asked Ms Khanna "what [she] intended to do if, by the end of the period for which the Subclass 573 visa she applied for would be valid, [she] will not have obtained a visa that would entitle her to remain permanently in Australia" (see Khanna at [34] set out at [14] above). 22 In my view, each of these propositions does not withstand scrutiny. As to the first, there is no indication from the Tribunal's decision record that it asked itself the wrong question. It did not make any attempt anywhere in its decision record to analyse, parse, or otherwise express any view about the meaning of the words of cl 573.223. Instead, it asked itself the question it had to consider by stating verbatim the terms of that clause. By doing that, it is implicit, in my view, that it adopted the plain meaning of the words of the clause in question. However, that aside, there is nothing in the Tribunal's decision record to indicate that it misconstrued cl 573.223, or failed to consider the question that that clause required it to consider. 23 As to the second proposition, the single factor identified by the primary judge is, as the Minister correctly submitted, one of "several factors" upon which the Tribunal stated it based its decision. Those several factors included the four factors set out at [22] of its decision record: the single factor identified by the primary judge; Ms Khanna's migration history; the fact Ms Khanna did not have a current enrolment for a course of study; and the value of further study in Australia for Ms Khanna's long-term future (see the factors outlined at [5] above). It could not be suggested that, together, those four factors were not pertinent to Ms Khanna's intentions "genuinely to stay in Australia temporarily". Indeed, I do not understand Ms Khanna to be contending otherwise. 24 Finally, the third proposition can be answered at two levels. First, I consider the Minister is correct in his submission that it was incumbent on Ms Khanna to place that evidence before the Tribunal if she thought it would advance her case: see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] per Gummow and Hayne JJ. Secondly, even if that conclusion is not correct, I consider his Honour has placed an interpretation on the Tribunal's decision record that is not fairly open in all the circumstances. There were two mentions of Ms Khanna's intentions in the Tribunal's decision record. They occurred at [12] and at [15] (set out at [6] above). Each of those mentions, particularly the first, could, in my view, be fairly said to summarise Ms Khanna's response to questioning of the kind the primary judge said should have occurred about her intentions. To interpret them otherwise would, in my view, be to read them "overzealously" and "with an eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

Conclusion 25 I therefore consider that the primary judge erred in his conclusion that the Tribunal had demonstrated jurisdictional error in its decision record. Having reached this conclusion, it is unnecessary to consider Ms Khanna's other submissions, including those supporting the primary judge's construction of cl 573.223 and whether the Tribunal muddled sub-clauses (a) and (b). However, with respect to those submissions, it is worth adding that, even if the Tribunal had made an erroneous interpretation of cl 573.223, it is to be doubted whether that error would amount to a jurisdictional error: see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14 at [70] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. 26 For these reasons, I consider the orders made by the primary judge quashing the decision of the Tribunal and ordering that Ms Khanna's application be reconsidered according to law, must be set aside. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

SCHEDULE OF PARTIES NSD 927 of 2015 Respondents Fourth Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

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