Baldado v Minister for Immigration

[2020] FCCA 2903

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALDADO v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2903

Catchwords:
MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal to refuse the applicant a student visa – where the Tribunal was not satisfied the applicant genuinely intended to stay in Australia temporarily – where the applicant alleges the Tribunal ignored critical and relevant material and reached an irrational or illogical conclusion – not satisfied the Tribunal ignored a critical factor – satisfied the conclusion of the Tribunal was open to it – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), sch.2 cl.500.212

Applicant: LINDY JUNE BALDADO

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 237 of 2019

Judgment of: Judge Young

Hearing date: 15 October 2020

Date of Last Submission: 15 October 2020

Delivered at: Darwin

Delivered on: 15 October 2020

REPRESENTATION  

Counsel for the Applicant: Ms Gabito

Solicitors for the Applicant: Gabito Lawyers

Counsel for the First Respondent: Ms Ashby

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

3. The applicant pay the first respondent costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 237 of 2019

LINDY JUNE BALDADO

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for review for jurisdictional error of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 June 2019 to refuse the applicant a student visa. The Tribunal was not satisfied, as required under the Migration Regulations, that the applicant genuinely intended to stay in Australia temporarily having regard to the criteria set out in clause 500.212 of schedule two to the Migration Regulations.

3. The background to the matter is as follows.  The applicant arrived in Australia in 2011 pursuant to a student visa.  She studied and completed a number of courses between 2011 and her application for a further visa in March 2017.  She had studied and obtained, as I understand it, a Certificate in Aged Care over two years.  She then did a Certificate in Aromatherapy which took 18 months.  She then completed a course in remedial massage at a TAFE which lasted 18 months and that appears to have taken her to the beginning of 2017.

4. She proposed at that stage to study for a Diploma in Early Childhood Education and Care at a TAFE.  She proposed that that course would start in February 2017.  As I understood it, the course would have been completed by December 2018.  In fact, I think at the time she appeared before the Tribunal she told the Tribunal the completion date for that was expected to be December 2019. 

5. I asked Ms Gabito, who appeared for the applicant, whether she had in fact completed that course.  Ms Gabito told me that her instructions were that her client had not completed that course and the reason was related to the illness of her sister with whom the applicant lives.  Those are matters that I was told but I do not otherwise take them into account.

6. The Tribunal proceeded by reference to the criteria set out in the Migration Regulations, particularly clause 500.212, having regard to the applicant’s circumstances, her immigration history and any other relevant matter.

7. I might say that, having regard to the Tribunal’s reasons, there is no suggestion that the applicant has not complied with any visa condition or that there is anything untoward about her immigration history.  She has apparently, certainly up to the time of the Tribunal’s consideration, complied with her visa requirements.

8. The Tribunal was principally concerned with whether or not the applicant’s circumstances, particularly her study history and her proposal for a further study, combined with her circumstances in Australia and at least prospective circumstances in the Philippines, indicated that the applicant genuinely intended to stay in Australia temporarily. The Tribunal was not satisfied that was the case.

9. In particular, the Tribunal was concerned that despite the applicant having been in Australia since 2011 she had not completed anything beyond a diploma course.  It was also concerned that the applicant said that should she obtain her proposed Diploma in Early Childhood Education, on the completion of that course, she proposed to apply for a further visa to study beauty therapy. 

10. The Tribunal asked the applicant how those two matters were consistent, that is a qualification in early childhood education, which the applicant had said she intended to use in the Philippines, and a qualification in beauty therapy.  The Tribunal clearly considered that the applicant’s explanation that she intended to combine those matters in a single business, appeared implausible and impracticable.

11. In considering that matter, the Tribunal received a submission from the applicant that she proposed to operate a kindergarten should she return to the Philippines.  That was the context of the question, and the submission to that effect is contained at court book page 131 and 132, where the applicant said that the passage of legislation in the Philippines in 2012 meant that kindergarten was “compulsory and mandatory” in the Philippines education system.  The applicant expected that opportunities would be opened in the Philippines as a result of that legislation for someone with such a qualification, intending to open a business in that field.

12. The Tribunal clearly recorded the essence of that submission at paragraph 42 of its reasons where the Tribunal said of the applicant:

    She said that there has been a change in opportunities in the Philippines since 2012 when a change to local laws had the effect of expanding the need for kindergarten.  She said she hopes to take advantage of that expansion.

13. I am satisfied that records the essence of the submission made by the applicant.  As I have said, the Tribunal was not satisfied that the applicant’s explanation in relation to the kind of business she would open, particularly a business relating to early childhood development and beauty therapy, was plausible.  Though the Tribunal did not use that word, I am satisfied that that was the essence of the concern.

14. The Tribunal also went on to record in the following paragraphs at paragraphs 43, 44 and 45 that the applicant did not know what would be involved in setting up such a business:

    …[the applicant had] not done any research about that. 

    …the applicant not know what her potential earnings are and does not have a settled plan for her career upon return to the Philippines. 

    …the applicant does not have a firm idea of her likely economic circumstances and cannot exclude economic difficulties there.

15. The Tribunal was clearly concerned that there was no clear or definite plan for returning to the Philippines and opening a business of the kind the applicant said she would open. 

16. The other area of concern related to the applicant’s circumstances in Australia.  The applicant lives with her sister and her brother-in-law.  The Tribunal noted that the applicant pays no board, though she makes a contribution to the cost of petrol.

17. The applicant is apparently employed in Australia.  She works some 20 hours a week and is or was paid 29 dollars an hour.  She told the Tribunal she wasn’t sure how much she received, but it was in the order of 600 to 800 dollars per fortnight.  The applicant also said that in addition to her employment and living with her sister and brother-in-law, she had four close friends in Australia with whom she spent time.

18. The Tribunal recorded the fact that the applicant had family in the Philippines and at paragraph 30 recorded that the applicant had “said that most of her family lived in the Philippines.”  Her sister and brother‑in‑law of course live in Australia but otherwise all her family and friends are in the Philippines.  She visits the Philippines about once a year.

19. The Tribunal found that the applicant has personal ties and, in particular, family ties to the Philippines but was not satisfied those family ties would serve as a significant incentive for her to return to the Philippines.  That is, in summary, the findings the Tribunal made about the applicant’s circumstances in conformity with or while addressing the guidelines set out in Ministerial Direction Number 69 which sets out in some detail a guideline for an approach to the consideration of applications of this kind. 

20. The applicant amended her grounds of review at the commencement of the hearing and the three grounds are set out at paragraph 17 of the applicant’s submissions and they are as follows:

    The Tribunal committed jurisdictional errors because:

    (1)It unexplainably ignored a critical and relevant matter, Republic Act 10157 (Kindergarten Education Act) in the Philippines, which was appropriately raised by the applicant as one of her reasons for her to study Diploma of Early Childhood Education and Care 

    (2)It made an irrational or illogical conclusion that the applicant’s sister’s presence in Australia and to a certain degree her relationship with four of her workmates proves that she has no intention to return to the Philippines [and] 

    (3)It made an irrational or illogical assumption that the possibility of facing economic difficulties in the Philippines proves that the applicant is not a genuine temporary entrant. 

21. In my view, a fair reading of the Tribunal’s reasons show that it did not ignore the applicant’s submissions that a change of legislation in the Philippines had expanded the need for kindergarten education in the Philippines and I am satisfied that paragraph 42 properly summarises the submission.  It did not ignore that submission, even though the Act is not referred to in the decisions by name. 

22. While it may be a relevant matter I am far from satisfied, as was submitted, that this was a critical factor which required some greater examination or consideration than that which was given by the Tribunal.  Ms Gabito made oral submissions on that point.  Having heard her submissions about that I am not satisfied that the existence of such legislation in the Philippines is a critical factor in considering whether or not the applicant is a genuine temporary entrant.

23. It appears to me that the fact that there may be opportunities and an expansion of opportunities in the Philippines is relevant to the question of whether or not the applicant has an incentive to return to the Philippines, but it is merely a factor.  It is hardly, in my view, a critical factor, and I do not accept that as a factor it outweighed any of the other factors that were considered by the Tribunal, particularly when combined with the evidence from the applicant that on the completion of her Diploma of Early Childhood Education she intended to seek a visa to complete a two year beauty therapy course in Australia.

24. That fact raises a very significant concern about whether the existence of opportunities for kindergarten teaching or operating a kindergarten in the Philippines was in any sense relevant to the applicant’s plans and whether or not in any sense it provided an incentive for her to return.  I am not satisfied that it was a critical factor.  On all the material in front of me it was not a critical factor.  I am not satisfied that the ground one constitutes an error, still less a jurisdictional error, by the Tribunal.

25. In relation to ground two, ground two does not accurately describe the Tribunal’s conclusions about the applicant’s familial connections in the Philippines and Australia.  The Tribunal did not find that the applicant has no intention to return to the Philippines.  The finding was rather that after an examination of the applicant’s familial circumstances in Australia and the Philippines, that is the fact that she lived with her sister and her brother-in-law, that she was not required to pay board though she made some contribution to expenses and the fact that her family were in the Philippines who she visited once a year – simply did not provide a significant incentive for her to return to the Philippines.  In my view, that was a conclusion that was open on the evidence before the Tribunal.

26. It was put in oral submissions that the Tribunal found that the applicant’s ties in Australia, that is with her sister and four close friends, those ties were stronger than her ties to the Philippines.  That was not the finding or the conclusion of the Tribunal.  It did not make a finding of that nature.  In my view, the finding made by the Tribunal was open to it on the material.

27. In relation to ground three, I am not satisfied there is anything in the decision of the Tribunal to support the assertion made in that ground.  Ministerial Direction Number 69 at a number of paragraphs guides the decision‑maker in considering certain factors in deciding whether or not an applicant is a genuine temporary entrant.  Paragraph 6 requires:  

    Decisions makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

28. Paragraph 9(c) requires the decision maker to have regard to the:

    economic circumstances of the applicant that would be present as a significant incentive for the applicant not to return to their home country.  These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia.

29. And paragraph 12(c) requires the decision maker to have regard to:

    remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

30. In her written submissions the applicant went considerably further than the ground as in ground three, and it was alleged that the Tribunal was in error in considering:

    …the general economic condition of the entire country in determining the genuine intention of a visa applicant to study in Australia.

31. It was also alleged that the Tribunal considered:

    …the economic difficulty being experienced by the majority of the population in the Philippines is to create bias against, if not exclude all together, genuine foreign students … 

32. Further the applicant went on to submit that:

    …the economic condition prevailing in the applicant’s home country cannot and should not be the primary consideration in determining whether a student visa applicant is a genuine foreign student.

    I think “genuine temporary entrant” is intended there.

33. Those allegations are not borne out by a reading of the decision.  The Tribunal did not at any point consider the general economic conditions in the Philippines.  It did not consider or refer to any economic difficulty being experienced by the general population of the Philippines.  The Tribunal’s consideration of economic opportunities or financial matters was quite specific to the applicant and is set out at paragraphs 40 to 45, which I will summarise, where the applicant said that she was unsure of her potential earnings in the Philippines, presumably if she returned to self-employment or sought to operate a business. 

34. She acknowledged there would be costs involved.  She acknowledged that if she did set up a business there would be some time before she could make a regular income and did not know how likely that would be.  She said that she did not know what was involved in setting up a business and had not done any research and did not know what her potential earnings might be.  The conclusion at paragraph 45, in my view, was therefore open:

    The Tribunal finds that the applicant does not have a firm idea of her likely economic circumstances in the Philippines and cannot exclude economic difficulties there.  This may provide a significant incentive not to return to her home country.

35. In my view, the submissions that I have referred to were not merited by the decision.  Further the ground, while it misstates the case – that the Tribunal found that the possibility of facing economic difficulties proved that the applicant is not a genuine temporary entrant – ignoring that, I am not satisfied the Tribunal’s consideration of that issue was in any sense illogical, irrational or not based on an evident and intelligible justification.  That ground is not made out and the application is dismissed.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 26 October 2020