Cheng v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 206
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cheng v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 206
File number(s): ADG 262 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 21 February 2025 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359AA, 476
Migration Regulations 1994 (Cth) Sch 2 cll 500.212, 500.212(a)
Cases cited: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Hoang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 554
Meerun v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 972
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Ramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 5
Tanada v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1321
Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 13 September 2024 Date of hearing: 3 February 2025 Place: Adelaide Counsel for the Applicant: Son Nguyen Solicitor for the Applicant: Son Nguyen Barrister & Solicitor Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 262 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAI HANG CHARLES CHENG
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Student (Class TU) (Subclass 500) visa (the visa). For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, his application cannot succeed.
BACKGROUND
The applicant is a citizen of Hong Kong and first arrived in Australia on 7 October 2012 as the holder of a visitor visa. The applicant has been studying in Australia since 29 January 2018, having completed a Certificate III in Commercial Cookery in July 2018 (Court Book (CB) 37).
On 28 June 2019, the applicant applied for the visa (CB 1-30). In support of his visa application, he provided a fee schedule and letters of offer for a Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality Management, which indicated a completion date of July 2020 (CB 22-24).
On 15 August 2019, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant had met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 35-39). That criterion relevantly provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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…
On 3 September 2019, the applicant applied to the Tribunal for review of the delegate’s decision and provided various documents in support of his review application (CB 40-82). In that application for review, the applicant appointed a migration agent as his authorised recipient (CB 41).
On 28 June 2021, the applicant was invited to attend a hearing scheduled for 21 July 2021 (CB 153-157). Accompanying this invitation, the Tribunal provided the applicant with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (CB 158-162).
On 21 July 2021, the applicant and his migration agent attended the hearing. The applicant was also assisted by a Mandarin interpreter (CB 196, 209).
On 3 August 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 202-220).
On 28 August 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visa under review, noting that the applicant applied for the visa on 28 June 2019. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]).
The Tribunal explained that a delegate of the Minister had refused to grant the applicant a visa because the delegate was not satisfied that he genuinely intended to stay in Australia temporarily as a student (as required by cl 500.212 in Schedule 2 of the Regulations) (at [3]).
The Tribunal set out that the applicant first arrived in Australia in October 2012 from Hong Kong and that he is in a de facto relationship. The Tribunal outlined that he applied for the visa in order to study a Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality Management, with an expected completion date of 3 July 2020 (at [5]).
The Tribunal then set out a summary of the reasons for the delegate’s refusal of the applicant’s visa (at [7]).
The Tribunal confirmed that it received an application for review from the applicant on 3 September 2019. The Tribunal confirmed the applicant’s representative also provided documents and submissions in respect of the applicant’s ties to his home country, financial circumstances, his parents’ assets in Hong Kong, reasons for studying in Australia, future plans, his partner and periods of unenrolment (at [8]).
Prior to the hearing, on 19 November 2020, the Tribunal confirmed that the applicant’s representative provided various documents including but not limited to bank statements, bills, payslips, tax return statements, unidentified photographs, letters from the Department of Home Affairs, university letters of offer, medical certificates, academic transcripts and certificates of enrolment (at [9]).
The Tribunal confirmed that it received additional documents and submissions from the applicant on three further dates prior to the hearing, namely, 28 December 2020, 5 March 2021 and 20 July 2021 (at [10]-[13]).
The Tribunal confirmed that the applicant appeared by telephone before the Tribunal on 21 July 2021 to give evidence and present arguments, with the assistance of a Mandarin interpreter. The Tribunal also confirmed that the applicant was assisted in relation to the review by his migration agent (at [14]).
The Tribunal considered that the issue in the present case was whether the applicant satisfied cl 500.212 of Schedule 2 to the Regulations (at [15]). The Tribunal set out the legislative provisions in that regard (at [16]).
The Tribunal explained that, in considering whether the applicant satisfied cl 500.212(a), the Tribunal must have regard to Direction 69. The Tribunal set out a number of factors it was required to consider, including the applicant’s circumstances in their home country, their immigration history, the intentions of a parent or legal guardian for an applicant who is a minor, and any other relevant information (at [17]). It emphasised that the factors specified should not be used as a checklist, but rather are intended to guide decision makers when considering the applicant’s circumstances as a whole (at [18]).
Against this background, the Tribunal made the following findings.
The Tribunal accepted that the applicant had completed a Certificate IV in Commercial Cookery, which was one of the courses he intended to do when he applied for the visa. However, the Tribunal noted the applicant’s claim that medical reasons and incomplete logbooks impacted his earlier enrolments, but he had not provided an explanation for his subsequent enrolment. The Tribunal raised questions as to whether the applicant was genuinely in Australia for the purpose of study, noting his “less than satisfactory record of academic performance” as well as pursuing a lower-level diploma than originally intended (at [20]).
The Tribunal noted that the applicant was not currently enrolled in a course of study at the time of the hearing. The Tribunal outlined the applicant’s claim that he was awaiting his graduation ceremony for his diploma in August 2021 and, depending on the success of his application for review, was contemplating further study in the Advanced Diploma. However, the Tribunal outlined that the applicant did not demonstrate where and when he would start this course. Consequently, the Tribunal was not satisfied he had a valid reason for not continuing his studies (at [21]).
The Tribunal set out the applicant’s claims in respect of reasons for not studying in his home country. The Tribunal confirmed that the applicant provided submissions which detailed differences between kitchen practices in Hong Kong and Australia, and “his lack of understanding in these matters”. The Tribunal found that if the applicant had an intention of opening a business in Hong Kong, and understood the difference in restaurant operations, it would be reasonable for him to undertake equivalent further study in Hong Kong. Therefore, it found that the applicant had not demonstrated that courses in hospitality are not available in his home country (at [22]).
The Tribunal further heard from the applicant in respect of his incentive to return home. The Tribunal found there was evidence to suggest a significant incentive to return to his home country, accepting that most of his family live in Hong Kong, his parents financially support him, he is likely to have a future interest in his parents’ assets, and he has visited his family on several occasions since his arrival. The Tribunal outlined that, whilst this weighs in favour of the visa grant, it was required to balance this against other factors and it had considerable regard to the applicant’s evidence about civil and political unrest in his home country. Ultimately, the Tribunal set out claims from the applicant stating that he was unsure whether it was a safe place to live in the future and form a career or business, and that his family did not wish for him to return due to COVID-19 and the political situation. Overall, on the evidence presented, it appeared to the Tribunal that the applicant was induced to continue seeking a student visa for the purposes of remaining indefinitely (at [23]).
The Tribunal noted that the applicant entered a relationship in 2015 and that his partner is also on a temporary student visa. The Tribunal set out the applicant’s evidence that they are in a committed relationship and intend to plan a future together in Hong Kong, but given his prior evidence regarding his desire to remain in Australia, the Tribunal gave little weight to this claim. Ultimately, it found that his circumstances in Australia, particularly his relationship with his partner, provided a strong incentive to remain in Australia (at [24]).
The Tribunal confirmed it was unable to make a positive assessment for the value of any future course in circumstances where the applicant has no current enrolment. Whilst the Tribunal had regard to the applicant’s stated intention to undertake an Advanced Diploma of Hospitality, it noted that the business plan the applicant submitted was in respect to opening a business in Adelaide, not in his home country. Thus, the Tribunal was not satisfied that the applicant had demonstrated that his past or any future courses would be relevant to his proposed future employment, or improved remuneration prospects, in his home country (at [25]).
The Tribunal then considered the applicant’s immigration history. It outlined its concern that the applicant had been in Australia on either a student visa or associated bridging visa for almost nine years with no immediate plans to return to Hong Kong. It also set out that the applicant conceded, in his submissions, that he had previously overstayed his visa and had a student visa refused, requiring him to apply for a further visa offshore. The Tribunal found, however, that this incident was not determinative and it held no other concerns regarding the applicant’s immigration history (at [26]).
The Tribunal also considered the applicant’s Provider Registration and International Student Management System (PRISMS) records. The Tribunal set out the applicant’s evidence that he had only enrolled in the Diploma of Business once, and the Certificate III in Commercial Cookery twice with two different education providers. However, the Tribunal found that the PRISMS records demonstrated the applicant had enrolled four times in the Diploma of Business, and seven times each in the Certificate III and Certificate IV in Commercial Cookery. In accordance with s 359AA of the Act, the Tribunal gave the applicant an opportunity to address his enrolment history, and an extension of time to do so, however he chose to comment immediately at the hearing. The Tribunal set out these claims, including that the applicant was not used to the study environment in Australia and that he had experienced hardship whilst studying his Certificate III. The Tribunal was not satisfied that the “excuses” offered explain all of his repeated enrolments, and it concluded that his various continued and extended enrolments suggest he had used the student visa program as a means to remain in Australia (at [27]).
The Tribunal was ultimately not satisfied that the applicant intended to genuinely stay in Australia as a student required by cl 500.212(a) of Schedule 2 to the Regulations, and consequently, the applicant did not satisfy cl 500.212 as a whole (at [29]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [30]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 28 August 2021 contains four grounds of review as follows (without alteration):
1. That the Tribunal failed to take into account the Applicant’s individual circumstances;
2. That the Tribunal erroneously assumed the application’s intention to reside in Australia and the purpose of the applicant’s stay;
3. That the Tribunal erred in inferring that the Applicant’s non-enrolment in the applicant’s intended course gave rise to other intentions other than for the purpose of his visa;
4. The Tribunal failed to take into account relevant considerations namely the compelling and compassionate circumstances leading to the major changes beyond the applicant’s control.
The applicant filed an affidavit in support of his application, annexing a copy of the Tribunal’s decision.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 28 August 2021 (the affidavit being taken as read and in evidence at the hearing on 3 February 2025), a Court Book numbering 220 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 29 August 2024, and written submissions filed on behalf of the applicant on 13 September 2024.
At the hearing of this matter on 3 February 2025, the Court raised with counsel for the applicant that he appeared to be relying on evidence annexed to the written submissions filed on 13 September 2024. Counsel for the Minister opposed this evidence being before the Court in circumstances where it was neither before to the Tribunal (relying on MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912), nor was it annexed to an affidavit with an explanation as to why it sought to be relied upon. In these circumstances, the applicant did not press for this evidence to be considered by the Court, and the Court did not consider it relevant to do so. That document was marked as ‘MFI1’ for identification purposes.
CONSIDERATION
As outlined above, the application for judicial review contains four grounds.
In written submissions, the Minister contended that all four of these grounds assert that the Tribunal’s factual findings were incorrect, or that the Tribunal failed to consider the applicant’s circumstances. The Minister submitted that these assertions are misconceived and are essentially an invitation to engage in impermissible merits review.
The applicant filed his written outline of submissions after the Minister had filed his submissions. Respectfully, those submissions did not clarify or elaborate upon these grounds. However, the applicant did develop his argument at the hearing.
Ground one
The first ground of the application simply asserts, without particularisation or further elaboration, that the Tribunal failed to take into account the applicant’s individual circumstances. There is no merit to this ground. As the Minister has submitted, the Tribunal plainly had regard to all of the applicant’s circumstances including his family in Hong Kong, his partner in Australia, his claim to have suffered medical issues which affected his studies, his poor academic record, and lengthy stay in Australia. The Tribunal’s consideration of those matters was guided by Direction 69.
It was put to counsel for the applicant that the Minister had identified where the Tribunal had considered the matters set out above and reached conclusions which appeared to be open to it. Counsel for the applicant conceded that the conclusions reached by the Tribunal were open to it but submitted that “the error is in the weight of the evidence that’s put forward”. The applicant further submitted that it “was unreasonable in the terms that it was not given significant weight as a whole with all the circumstances that has happened”. It is well established that the weight given to any particular piece of evidence is a matter for the Tribunal (see, by way of recent example, Meerun v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 972 at [82], citing NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).
In any event, it is clear that the Tribunal properly considered all of the applicant’s circumstances, guided by Direction 69 and making findings which were rational and clearly grounded in the evidence before it.
Ground one does not establish jurisdictional error.
Grounds two and three
Grounds two and three assert that the Tribunal erred in making findings about the purpose of the applicant’s stay, and in particular, that his failure to enrol in the intended course revealed an intention to reside in Australia other than for the purpose of his visa.
At the hearing of this matter, the applicant submitted that the Tribunal had committed the same error as was identified in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) in considering the genuine temporary entrant criterion as prescribed by cl 500.212 of Schedule 2 to the Regulations.
In Eros, the applicant sought to stay in Australia while her daughter was here for a period of approximately two years and enrolled in studies for that same length of time to enable her to stay with her daughter. The Federal Court found that the Tribunal made an error in finding that the applicant was using the student visa system to spend more time with family, rather than to study. The Court ultimately found that the Tribunal misdirected itself as to the meaning of the word “temporarily”, as there was no dispute that that visa application was only meant to be for the duration of the studies, which satisfied the criteria of a temporary stay. Clause 500.212 required the Tribunal to consider whether the intended duration was temporary irrespective of the reason for that temporary stay.
In oral submissions, the applicant sought to rely upon two recent cases applying Eros in this Court, namely, Tanada v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1321 (Tanada) and Ramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 5 (Ramanayake). Ultimately, in reliance of these authorities, the applicant submitted that the Tribunal had no basis, or evidence before it, to make a finding about the applicant’s stay being indefinite or his intentions to stay in Australia permanently.
In oral submissions, the Minister submitted that the circumstances in Eros (and similarly in Tanada and Ramanayake) with respect to the Tribunal’s determination of whether the applicant “is here temporarily as a student” were different from those in this matter. The Minister submitted that the Tribunal, in the present case, has not made a finding in respect of the applicant staying with a family member or spouse and assessing this against an intention to stay temporarily. The Minister submitted that the Tribunal had regard to the criteria within Direction 69, including the applicant’s circumstances, lack of academic progression, family ties and travel to Hong Kong, and balanced these findings to determine that it was not satisfied the applicant was a genuine temporary entrant, which was a finding open to it on the evidence.
Counsel for the Minister, in oral submissions, also sought to rely upon Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797 (Wu). The principle relied upon in Wu and relevant to these circumstances, the Minister submitted, is that there does not need to be “evidence of permanence”. The Minister sets out that, in Wu, the genuine temporary entrant criterion is a “satisfaction-based criterion”, and the decision-maker is required to decipher and analyse all the evidence to come to an evaluative judgement as to whether they are satisfied the person is here temporarily (at [40]-[41] per Judge Kendall).
As explained in Wu (at [40]), the Tribunal in this matter was required to be satisfied that the applicant met the criterion for being a genuine applicant for entry and stay as a student because the applicant genuinely intended to stay in Australia temporarily, or to be not satisfied that was the case. In Wu, Judge Kendall observed that there is a difference between being not satisfied that the applicant meets the criterion of not intending to stay in Australia temporarily and a positive finding that the applicant intends to stay in Australia permanently.
In this matter, the Tribunal approached its assessment of the Direction 69 factors in an appropriate manner. The Tribunal noted that the applicant had a less than impressive academic record, had been studying in Australia for nine years, was not enrolled in a current course, and was only “contemplating” further study. In the circumstances, it was open to the Tribunal to find that the applicant was not genuine in his reasons for studying in Australia and did not have an intention to genuinely stay in Australia temporarily to study.
In Wu, having regard to the Tribunal’s approach to the Direction 69 factors, the Court found that the Tribunal’s statement in that matter that the applicant may have been “using the student visa migration program as a means of maintaining residence” was a clear finding that the applicant did not intend to stay in Australia temporarily (at [44]). In this matter, again having regard to the Tribunal’s consideration of the Direction 69 factors, the Court similarly finds that the Tribunal’s finding that the applicant was using the student visa application “as a pathway to maintain residence in Australia” is equally a clear finding that the applicant did not intend to stay in Australia temporarily.
The Court is of the view that the Tribunal’s decision does not reveal an error of the kind identified in Eros.
The Court is satisfied that no error is demonstrated through the Tribunal’s reasons.
Ground four
Ground four appears to be advanced on the misapprehension that the Tribunal was required to assess “the compelling and compassionate circumstances leading to the major changes beyond the applicant’s control”. This appears to confuse the relevant considerations which may apply to the cancellation of a visa as opposed to the grant of a visa. Where, as here, the Tribunal was reviewing the refusal to grant the applicant a visa, the task for the Tribunal was to determine whether or not the applicant met the criteria for that visa.
In any event, as observed above, to the extent that the applicant’s circumstances were relevant to the matters the Tribunal was required to determine under Direction 69, the Tribunal did take them into account.
No error is established through this ground.
Materiality
The Minister further submitted that even if any of the grounds were made out, any such error could not have realistically affected the Tribunal’s decision. This was because the applicant was not enrolled in a course of study, as he was required to be, at the time of the Tribunal’s decision. In this respect, the Minister relied upon Hoang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 554 where the Court observed at [65]-[66] that non-enrolment was sufficient to dispose of the application as it is a requirement to satisfy the enrolment criterion and there is no discretion to waive that criterion.
The Court agrees with the Minister’s submission in this respect. The Tribunal made the only decision it could reasonably and rationally have made. In any event, for the reasons stated, the Tribunal’s decision does not reveal jurisdictional error.
CONCLUSION
The application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 21 February 2025
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