Chen (Migration)

Chen (Migration) [2023] AATA 297 (11 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Yongliang Chen
Ms Meng Hu
REPRESENTATIVE:  Mr Jia (Jack) Li
CASE NUMBER:  2109772
HOME AFFAIRS REFERENCE(S):          BCC2019/1586882
MEMBER:David Barker
DATE:11 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 11 February 2023 at 10:08am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – person associated with proliferation of weapons of mass destruction – PhD student in photonics and optical thermometry – extension of time granted to allow for internal review of DFAT determination – determination not revoked – not appropriate to go behind DFAT determinations or grant further extension of time to allow for second review – no explanation for DFAT determinations – study grant from Australian government – thesis submitted but associated projects in progress – consequences of refusal for future travel for study or work – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 362A, 363(1)(b), 375A
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.217, Schedule 4, criterion 4003(b)
CASES
MIAC v Li (2013) 249 CLR 332
MIBP v Singh (2014) 231 FCR 437
Yu (Migration) [2022] AATA 2730
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 29 July 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy public interest criterion (PIC) 4003(b), with the result that the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) were not met.
The applicant appeared before the Tribunal on 7 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were assisted in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a 32-year-old Chinese national. He first came to Australia on 29 October 2017 on a Subclass 500 Student visa, which was valid until 27 April 2020. He has subsequently been granted a Bridging E visa on 29 March 2019, which remains in effect. The applicant has been a lawful non-citizen at all relevant times since his arrival in Australia. The Bridging E visa currently held by the applicant allows him to continue studying in Australia while he seeks review of the decision to refuse to grant him the Student visa.
The second named visa applicant is also a Chinese national and she is 28 years old. Information provided in association with the visa application indicates she came to Australia on a Visitor visa, granted on 5 December 2017 and subsequently married the applicant, in Melbourne, in January 2018.
Information provided in association with the visa and review applications indicate the applicant completed a Bachelor of Chemical Engineering from Shanghai University in July 2014[1] and followed this up by undertaking studies as a graduate student at Donghua University, leading to a PhD in March 2016.[2] The applicant came to Australia to undertake research at Deakin University, sponsored by the China Scholarship Council and was subsequently offered a place and enrolled in a Doctor of Philosophy (PhD) at the University of Technology Sydney (UTS), with that program commencing in July 2019 and finishing in June 2023. At the time of application, the applicant provided the following description of the research he proposed to undertake in the PhD program at UTS:
My proposed research topic at University Technology of Sydney is “Single photon emitters from functionalized layered hexagonal boron nitride for potential application in photonics”, which mainly focus on the preparation and chemical surface modification of boron nitride (one of 2-dimentional materials) and related application in photonics. The project is also a continuation of the research work at Deakin University, as I have been studying another 2-dimentional material (MXene) at Deakin where I have acquired rich knowledge about the preparation and chemical modification of 2- dimentional materials.[3]
[1] Shanghai University Bachelor’s Degree Certificate.
[2] Donghua University – Certification of Master – Doctor Continuous Study.
[3] Letter statement of Genuine temporary Entrant, filed with Department on 29 March 2019.
At hearing the applicant gave evidence that the focus of the actual research undertaken in the course of preparing his thesis, now submitted, had changed, with the title of the thesis now being ‘Synthesis of Quantum Emitters in Hexagonal Boron Nitride and Their Application in Optical Thermometry’.[4]
The delegate’s decision
[4] Thesis submitted by applicant in June 2022.
The applicant provided the Tribunal with a copy of the decision record of the delegate in association with his review application. This document explains that the Department of Home Affairs (DHA) received information that the applicant has been determined by the Foreign Minister or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction (the PIC 4003(b) Determination).
A Student visa applicant does not meet PIC 4003(b) if they are an applicant who is determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.
On 19 July 2021, DHA sent the applicant a natural justice letter inviting his comment on the Determination by the Foreign Minister, or a person authorised by the Foreign Minister that he is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction. In response the applicant, on 22 July 2021, provided the following documents:
·Response letter from applicant;
·A letter from Professor Milos Toth, UTS, dated 21 July 2021;
·A letter from Professor Anthony Dooley, Head of School, dated 20 July 2021;
·A letter from Professor Joselito Razal, Institute for Frontier Materials, Deakin University, dated 21 July 2021;
·A letter from Professor Chunju HE, Donghua University, dated 21 July 2021;
·A letter from Dr Trong Tran, UTS, dated 19 July 2021;
·Research article co-authored by applicant.[5]
[5] Yongliang Chen, Xiaoxue Xu, Chi Li, Avi Bendavid, Mika T. Westerhausen, Carlo Bradac,
The delegate noted that the information provided in response to the natural justice letter did not change the PIC 4003(b) Determination made by the Foreign Minister, or a person authorised by the Foreign Minister and as a consequence the applicant failed to meet PIC 4003, resulting in a required criterion for the Student visa, cl 500.217, not being satisfied.
On 1 July 2022 the Tribunal wrote to the applicant’s migration agent, inviting submissions or documentary evidence they would like the Tribunal to consider in the course of undertaking the review. This was followed by a further letter from the Tribunal, sent on 27 July 2022, inviting submissions or comment from the applicant with regard to the validity of a nondisclosure certificate issued by DHA under s 375A of the Act. Any written comments or submissions were asked to be provided by 10 August 2022. On 27 July 2022 the Tribunal received an extension of time (EOT) request from the applicant’s migration agent, who indicated the applicant was seeking legal representation to assist him with the review. The Tribunal consented to a two week EOT for comment or submissions regarding the validity of the s 375A certificate and for any other documents or submissions the applicant wished to file in support of the review.
On 2 August 2022 the Tribunal received a request from the applicant for the release to him of the DHA and Tribunal files, pursuant to s 362A the Act.
On 10 August 2022 the Tribunal received an email from the applicant’s legal representative indicating that the applicant was not able to provide submission or comments in relation to the s 375A certificate and requested a further EOT in which to provide comment.
On 19 August 2022 the applicant was provided with partial access to the DHA and Tribunal files, in response to the s 362A information release request.
On 29 August 2022 the Tribunal, by way of an email to his representative and a copy of the relevant document, drew the attention of the applicant to a Tribunal (otherwise constituted) decision[6] which shared some relevant common features with the Student visa refusal decision the applicant has asked the Tribunal to review in the current matter. The Tribunal invited submissions or comment from the applicant in relation to the suggested impact, if any, of this decision on his case.
[6] Yu (Migration) [2022] AATA 2730 (22 August 2022).
On 6 September 2022, the Tribunal received an email from the applicant’s representative advising that the applicant was applying to the Department of Foreign Affairs and Trade (DFAT) for the revocation of the PIC 4003(b) Determination and asked that a decision be delayed in order to provide time for the applicant to receive a response from DFAT. The Tribunal considered this request reasonable and requested that it be provided with monthly updates as to the progress of the request to DFAT.
On 16 January 2023 the Tribunal received an email from the applicant’s representative which in part stated:
We are writing to inform you that the outcome regarding to the request to review made by Mr Yongliang Chen to DFAT has been finalised on 13 January 2023.
The decision maker from DFAT affirmed the determination under review about PIC 4003(b) in Schedule 4 of the Migration Regulations 1994.
On 16 January 2023, the Tribunal wrote to the applicant inviting him to a hearing on 7 February 2023.
On 3 February 2023 the Tribunal received a further email from the applicant’s representative which in part stated:
We are instructed by Mr Yongliang Chen to inform the Tribunal that he has requested another review of the determination made by DFAT about PIC4003(b) on 03 February 2023.
Prior to and at the hearing on 7 February 2023, the applicant provided the Tribunal with a copy of his UTS PhD thesis, a copy of a published article co-authored by him[7] and a copy of his written response to an invitation to comment, dated 6 January 2023.
[7] Yongliang Chen,1 Chi Li, 1 Tieshan Yang, 1 Evgeny A. Ekimov, 2, 3 Carlo Bradac, 4 Milos Toth,1, 5 Igor Aharonovich,1, 5 and Toan Trong Tran,1,* Real-time ratiometric optical nanoscale thermometry.
Following the hearing and at the request of the Tribunal the applicant provided the Tribunal with a copy of the DFAT document, dated 13 January 2013, with the title ‘Outcome of review of PIC 4003(b) determination’.
Certificate issued by the Department
DHA issued a Certificate under s 375A of the Act on 26 July 2022, which certified that disclosure otherwise than to the Tribunal, of the information described, would be contrary to the public interest because the certificated documents contain details of a DHA Officer and the disclosure of this information for purposes other than to the Administrative Appeals Tribunal should remain confidential. The Certificate also states that the disclosure of this information may also lead the applicant to find out how DHA conducts their internal processes and may affect the future capacity to obtain information using these methods.
As discussed above no written submissions contending that the Certificate lacked validity were received by the Tribunal. At hearing neither the applicant nor their representative raised any concern as to the validity of the Certificate. The Tribunal, after careful consideration of the Certificate is satisfied that it is appropriately dated and signed by an officer of DHA with the delegated authority of the Minister. The Tribunal is also satisfied that the Certificate identifies a valid reason as to why the release of the certificated documents would be contrary to the public interest. The Tribunal therefore found the s 375A Certificate is valid.
The Tribunal does not however consider that information contained in the certificated documents, in and of itself, provides the reason or part of the reason for affirming the decision under review. This is because they include copies of documents provided by the applicant himself and those dealing with departmental procedures, or the identity of delegated offices within DHA. These are not the determinative issues before the Tribunal in this matter, which as will be outlined in more detail below, are restricted to whether the applicant is the person named in the PIC 4003(b) Determination issued by DFAT and if that determination remains in effect at the time of the Tribunal’s decision in this matter. For this reason, the Tribunal did not take the view that there was information in the documents covered by the s 375A certificate that needed to be put to the applicant for his comment or response pursuant to the provisions of s 359A of the Act.
The Tribunal notes that information in the certificated documents sheds no light on why DFAT had assessed the applicant to be a person whose presence in Australia may be directly, or indirectly associated with the proliferation of weapons of mass destruction, merely that the determination had been made that he was such a person.
THE HEARING
The applicant’s evidence at hearing and oral submission from his representative is summarised as follows.
The applicant confirmed that his name is Yongliang Chen and that his date of birth is 15 September 1991. He indicated that he is not known by any other name.
The applicant gave evidence that he has now submitted his thesis but has projects associated with his PhD research that will take approximately another six months to complete and that he wants the opportunity to complete these projects. He said that he is worried that if he is refused he will not have this opportunity and that given the reason the visa will be refused, his future capacity to attend conferences or undertake academic work in countries other than China would be severely compromised.
The applicant confirmed that he asked DFAT to review the determination made by them that he was a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction and that on 16 January 2023 he was notified, by way of an email to his representative, that they had decided to not revoke the PIC 4003(b) Determination.
The applicant gave evidence at hearing that he wants another opportunity to have his case reviewed and that following his instructions to this effect his representative had sent a request yesterday for a second review.
The applicant’s representative submitted that whilst he received an email from DFAT on 16 January 2023, the DFAT decision to not revoke the PIC 4003(b) Determination was made on 13 January 2023. He drew the attention of the Tribunal to errors made by DFAT in the invitation to comment document they sent to the applicant, as detailed in the applicant’s written response and submitted that the cumulative effect of these errors raised the possibility that DFAT had assessed that the PIC 4003(b) Determination was unwarranted on the basis of incorrect information. The applicant’s representative submitted that the applicant’s research should be assessed by somebody who is in a position to understand it and noted that the applicant was in receipt of a financial grant from the Australian government to assist him undertake research. He submitted that it is implausible that the applicant would have been assessed as warranting a grant from the Australian government if his research was controversial or in any way associated with the proliferation of weapons of mass destruction.
The applicant’s representative requested that the Tribunal further delay making a decision until the applicant has one more chance to have the DFAT review their determination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4003(b) as required by cl 500.217(1) of the Regulations for the grant of the visa.
PIC 4003 provides:
The applicant:
(a) is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests; and
(b) is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and
(c) either:
(i) is not declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; or
(ii) if the applicant is declared - is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011
Regulation 1.03 provides the following definitions:
Foreign Minister means the Minister for Foreign Affairs.
…
proliferation of weapons of mass destruction includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of:
(a) weapons that may be capable of causing mass destruction; or
(b) missiles or other devices that may be capable of delivering such weapons.
The Tribunal is not aware of the reasons that the determination was made.
The Tribunal is of the view that there are only two circumstances where, after a PIC 4003(b) determination has been made, the Tribunal can set aside a delegate’s decision made on that basis:
·Firstly, if the applicant can positively establish that the determination was not made in respect of them i.e. a case of mistaken identity; or,
·Secondly, if the determination is rescinded or revoked and evidence of this is provided to the Tribunal.
Has a PIC 4003(b) determination been made about the applicant?
The Tribunal finds based on information in the delegate’s decision record, submissions from the applicant and his representative and in the determination itself[8] that on 9 July 2021 a delegate of the Foreign Minister made the following determination:
[8] provided to the Tribunal by DFAT.
DETERMINATION UNDER THE MIGRATION REGULATIONS 1994
I, [name and details deleted by the Tribunal] in the Department of Foreign Affairs and Trade, do hereby determine in accordance with Public Interest Criterion 4003(b) in Schedule 4 to the Migration Regulations 1994, that Yongliang CHEN (born [deleted by the Tribunal] is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.
[Signed]
[Name deleted by the Tribunal]
9 July 2021
There is no evidence or claim before the Tribunal that the determination was made with respect to a person other than the applicant.

There is no evidence or claim before the Tribunal that the determination was made with respect to a person other than the applicant.
Should the Tribunal’s decision be further delayed?
The Tribunal acknowledges that it is within its power to adjourn the review[9] and that this is a discretionary power for the Tribunal to exercise reasonably.[10]
[9] Section 363(1)(b) of the Act.
[10] MIAC v Li (2013) 249 CLR 332.
In Minister for Immigration and Citizenship v Li [2013] HCA 18, the High Court of Australia gave consideration to the factors relevant in a request for adjournment of a hearing. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
The Tribunal accepts that legal unreasonableness is invariably fact dependent, and that it can attach to the unreasonableness of the process or to the unreasonableness of the result.[11]
[11] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437.
In the particular circumstances of this case the Tribunal is of the view that it has given the applicant a reasonable opportunity to progress his request to DFAT and for DFAT to review its determination that in accordance with PIC 4003(b) in Schedule 4 to the Regulations, the applicant is a person whose presence in Australia may be directly, or indirectly associated with the proliferation of weapons of mass destruction.
In forming this view the Tribunal has taken into account that it consented to the initial request made to it in on 6 September 2022 that a decision be delayed until the outcome was known from the DFAT review requested by the applicant into the PIC 4003(b) Determination with respect to him. The Tribunal considered this request to be reasonable and that it provided the applicant with a fair and just review opportunity in relation to the visa refusal decision he has asked the Tribunal to review. On the basis of the evidence before it, the Tribunal is satisfied that the DFAT review is now complete, with the outcome being that the PIC 4003(b) determination has not been revoked or rescinded. It was following on from the applicant’s representative notifying the Tribunal of this outcome that a hearing date was set down, so as to provide the applicant with the opportunity to put before the Tribunal any further arguments and evidence that he wished considered.
Whilst understanding why it may have been made, the Tribunal does not accept the contention that the Tribunal should further delay its decision on the review in order to provide the applicant with one more chance to have the PIC 4003(b) Determination reviewed. It is not for the Tribunal to question the reasons why the determination was made and then affirmed through an internal review process within DFAT. To further delay a decision would in the view of the Tribunal implicitly have this result and would be in my view contrary to the Tribunal’s statutory powers and the intentions of the Commonwealth in enacting the legislative provisions encompassed by PIC 4003. The decision to consent to the initial postponement request was not through the Tribunal adopting a view as to the validity of the DFAT assessment leading to the determination made on 9 July 2021.[12] Rather, the postponement request was granted so as to provide consistency with a decision to remit by consent made in the Federal Circuit and Family Court of Australia on 2 August 2022 on the basis that the applicant in that case had been denied procedural fairness through not having the opportunity to have an internal review within DFAT of a PIC 4003(b) determination.
[12] The date of the DFAT determination that the applicant did not satisfy PIC 4003(b).
The tribunal is not persuaded by the contention that the Tribunal should delay a decision because the applicant’s research should be assessed by somebody who understands the nature of the research. It is not for the Tribunal to go behind the making of a PIC 4003(b) determination and to accept the logic behind this submission would involve doing just this.
The Tribunal acknowledges the power given to the Foreign Minister[13] in relation to making a determination covered by PIC 4003(b). It is not the role or appropriate action of the Tribunal to unduly forestall or delay the consequence of the Minister for Foreign Affairs making the determination, which results in the applicant not meeting PIC 4003(b), beyond what is appropriate in providing the applicant with a meaningful opportunity to put before the Tribunal arguments and evidence in support of his claims. To do so would, in the view of the Tribunal potentially subvert the intention of the Commonwealth’s inclusion of this PIC in the Regulations. The tribunal considers that the applicant has had the opportunity for an internal review of the PIC 40039B) Determination within DFAT and to put before the Tribunal arguments and evidence in support of his claims.
[13] or a person authorised by the Foreign Minister.
The Tribunal acknowledges that the consequences of the refusal of the applicant’s Student visa application are very significant to the applicant and that they have broader implications for the applicant’s migration and career opportunities. The Tribunal is not, however, persuaded that this or the other factors discussed establish that the Tribunal proceeding to make a decision is unreasonable in relation to either process or result.
Is there evidence before the Tribunal that the determination is revoked?
At hearing and in written submissions received by the Tribunal the applicant confirms that he requested DFAT to review its determination made with respect to him under PIC 4003(b).
On 13 January 2023 DFAT sent the applicant a letter which in part stated:
Dear Mr Chen
Outcome of review of PIC 4003(b) determination
On 30 November 2022 this Department wrote to you notifying you that a decision maker authorised by the Foreign Minister was reviewing the determination made on 9 July 2021 by [name withheld by Tribunal] under Public Interest Criterion (PIC) 4003(b) in Schedule 4 to the Migration Regulations 1994.
The decision maker has now completed that review.
Determination affirmed
The decision maker has determined you to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.
This determination means that you do not satisfy PIC 4003(b).
Conclusions
After considering the totality of the evidence before it, the Tribunal finds that the Foreign Minister or a person authorised by the Foreign Minister has determined the applicant to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.
The requirement in PIC 4003(b) is that the applicant is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.
If the applicant wished to avoid the operation of PIC 4003(b) it would be necessary for the applicant to show the determination was not made in respect of the applicant, whether due to a case of mistaken identity or otherwise or has been withdrawn or revoked. The Tribunal has found that none of these circumstances apply in the applicant’s case.
For these reasons, the Tribunal is not satisfied that the applicant meets PIC 4003(b) for the purposes of cl 500.217(1) of Schedule 2 to the Regulations.
There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass within the class of visa sought.
The second named visa applicant
As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant is unable to meet the criteria because they are not a member of the family unit of, and have not made a combined application with, a person who satisfies the primary criteria in cl 500.217.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Barker

Member

Milos Toth, Igor Aharonovich, and Toan Trong Tran, Bottom-Up Synthesis of Hexagonal Boron Nitride Nanoparticles with Intensity-Stabilized Quantum Emitters’,

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Immigration
Administrative Law

Legal Concepts

Judicial Review
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Citations

Chen (Migration) [2023] AATA 297

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Yu (Migration) [2022] AATA 2730

BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508

[2023] AATA 297

11 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Appeal