Shah v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellants pay the first respondent's costs, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 The first appellant, a citizen of India, applied on 7 May 2013 for a Student (Temporary) (Class TU) visa. The second appellant, the first appellant's husband, was a dependant applicant for such a visa. 2 On 7 November 2013, a delegate of the first respondent (the Minister) decided to refuse the grant of such a visa to the first appellant and, consequently, to the second appellant. 3 The appellants applied to the Migration Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal) for review of the delegate's decision. 4 On 2 September 2014, the Tribunal wrote to the appellants inviting them to appear at a hearing before the Tribunal. The letter requested the appellants to provide certain information, including an "explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation". The letter stated that the Tribunal would "assess whether you intend genuinely to stay in Australia temporarily as required by cl 572.223(1)(a) of the Migration Regulations". After stating that a direction from the Minister known as Direction No. 53 was relevant to this requirement, and noting that a copy of the Direction was attached, the letter requested the appellants to provide "a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53". 5 On 3 October 2014, the Tribunal received a written submission and supporting documents from the appellants' agent. A further written submission was received on 9 October 2014. 6 On 10 October 2014, the appellants appeared before the Tribunal. 7 On 16 February 2015, the Tribunal decided to affirm the decision not to grant the appellants Student (Temporary) (Class TU) visas. I note the following in relation to the Tribunal's decision: (a) The Tribunal set out in some detail, at [6]-[11], the information and submissions provided by the appellants. (b) At [16], the Tribunal stated that the issue in the case before it was whether the first appellant met the criteria in cl 572.223 (as it stood at the relevant point in time) of the Migration Regulations 1994 (Cth). Clause 572.223(1)(a) relevantly stated: (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant mater; and (b) … (c) The Tribunal referred to Direction No. 53 and set out matters to which the Tribunal was required to have regard (at [17]-[18]). (d) The Tribunal referred to some factual matters concerning the first appellant's studies at [19]-[21]. At [23], the Tribunal stated that, in "the absence of evidence to the contrary, the Tribunal considers it unlikely that the [first appellant's] chronic cough, which she had before she started the hospitality course in April 2009, required treatment such that she had to cease her studies in the Advanced Diploma of Hospitality in early 2011". After referring to a claim by the first appellant that her education provider would not allow her to complete the Advanced Diploma of Hospitality because of her cough, the Tribunal stated that the first appellant "did not provide the Tribunal with documentary evidence that she was refused re-entry to the hospitality course because of her cough". (e) At [24], the Tribunal stated that the first appellant said that she did not study from 22 January 2011 to 27 February 2012 (the first study gap) due to her persistent cough. The Tribunal then stated: "She did not provide any evidence from a doctor to the effect that her cough, which was being treated as asthma, made her unfit to study for that period of time." (f) The Tribunal accepted, at [28], that the first appellant injured her shoulder in a workplace accident in October 2012 and that she had ongoing investigations and treatments for the shoulder until late 2014. At [29], the Tribunal stated that the first appellant did not study from November 2013 until 6 October 2014 (the second study gap), when she commenced a Diploma of Business. The Tribunal stated that, given that the first appellant came to Australia to study, and given that her shoulder pain prevented her from studying, "it was open to her to return to her home country until she was fit to resume her study, but she remained in Australia without studying". (g) The Tribunal found, at [34], as follows: Given the length of time she has been in Australia, documentary evidence which shows that she has only completed two short courses, the variety of courses she has undertaken and the significant gaps in her studies during which time she remained in Australia, the Tribunal is of the view that the applicant has been using a student visa to maintain ongoing residence in Australia. (h) The Tribunal concluded that it was not satisfied that the first appellant intended genuinely to stay in Australia temporarily and thus did not satisfy the criteria in cl 572.223(1)(a). 8 The appellants applied to the Federal Circuit Court of Australia (the Federal Circuit Court) for judicial review of the Tribunal's decision. 9 On 16 May 2016, a hearing took place before the Federal Circuit Court. Both the appellants and the Minister were represented by counsel. 10 On 17 June 2016, the Federal Circuit Court published reasons for judgment and ordered that the application for judicial review be dismissed. In the reasons, the primary judge considered and rejected each of the grounds raised by the appellants.