Cho v Minister for Home Affairs
[2019] FCCA 3158
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHO v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3158 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Temporary) (Class TU) (Subclass 500) visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student – no jurisdictional error identified by the applicant – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 |
| Applicant: | SEUNGCHAN CHO |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1629 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 23 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms A. Zinn |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 12 June 2018 is dismissed.
The Applicant is ordered to pay the First Respondent's costs of the proceeding in the sum of $5,400.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 2 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1629 of 2018
| SEUNGCHAN CHO |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of South Korea aged 41 years, having been born on 2 May 1978.
By Application filed in this Court on 12 June 2018 he seeks to quash and have re-determined according to law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 10 May 2018 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 8 March 2017 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa).
Background
The Applicant arrived in Australia on 18 June 2016 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa which ceased on 18 September 2016, stating in the application that he wished to visit Australia for no longer than three months. On 11 September 2016 he applied for the Student visa and in support lodged a Written Statement dated 5 September 2016 (First Statement). In the First Statement the Applicant explained his reasons for applying for the Student visa in Australia as being, in short:
a)he had formed a very impressive view on Australia, and it is a better place to study when compared with Korea;
b)he wanted to become a business owner in the future and was thinking of opening an international trade business with his step-brother who lived in Australia which could connect both Australia and Korea and trade each country’s products;
c)his step-brother has encouraged him to study an accounting course which could be the foundational knowledge when he and his step-brother open their business together;
d)he intended to return to Korea after he completed the proposed courses, and he could set up and manage his “business in Korea with what I have learned in the college in Australia”.
The study courses intended by the Applicant under the Student visa were a General English course, a Certificate IV of Accounting course, a Diploma of Accounting course and an Advanced Diploma of Accounting course, which courses were due for completion on 3 January 2020.
The Applicant’s background as given in his Student visa application form was that he was divorced, had attained year 12 in secondary school in terms of education, had been currently unemployed in Korea and that “after completion of the enrolled courses, I intend to go back to Korea and start my own business with my step-brother who lives in Australia”.
Relevant Statutory Requirements for the Grant of a Student Visa
Relevantly to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), which required, inter alia, that he be what is known as a “genuine applicant for entry and stay as a student”.
Clause 500.212 at the time of decision provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) 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 intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Decision of Delegate
In her Decision Record the Delegate set out cl.500.212 of the Regulations and summarised Ministerial Direction No. 69 which was mandatory for her to consider and the factors to be taken into account in assessing the temporary entrant criterion. The core of the Delegate’s decision was then as follows:
You are now proposing to study General English, Certificate IV, Diploma and Advanced Diploma of Accounting, which are due for completion 03/01/2020 extending your period of stay in Australia for a further 3 years. In your application you attached your statement addressing the Genuine Temporary Entrant (GTE) criteria.
You declared in the application form that you are unemployed despite declaring on your incoming passenger card that you are a businessman. You stated after completion of the enrolled Accounting courses you intend to go back to Korea and start your own business with your step-brother who lives in Australia. You did not, however, provide details as to how this Australian degree would assist you in achieving this goal in comparison to a qualification which could be acquired domestically. Based on the available information I do not find compelling cause for you to travel to Australia at significant expense to pursue the proposed courses of study. Accordingly I find that you were unable to provide details as to how the proposed study would substantively improve your future career prospects and remuneration. The significant cost of the course is unlikely to be offset by the potential income derived by you in your expected employment field. I find that there is no need for you to pursue the proposed course at great cost given your career ambitions and based on the statement provided I consider that your motivation is other than the quality of education in Australia.
I am not satisfied that a person travelling on a visitor visa, leaving family in their country of usual residence, would make such a significant change from their initial intentions to visit for 90 days. I believe the stated intent in this application would have included a greater level of planning and preparation before arriving in Australia. I also question the value of the proposed study to your future. I cannot reconcile that the cost of three and half years of education and living expenses in Australia is fully justified given the nature of the future employment you seek.
Accordingly, the Delegate refused to grant the Student visa to the Applicant.
Tribunal Decision
The Applicant applied to the Tribunal for merits review of the decision of the Delegate on 19 March 2017 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time. He later submitted a further Written Statement dated 27 April 2018 (Second Statement) and an offer of employment by a company in Korea known as HANA Tax Accounting & Consulting dated 17 April 2018 offering him a position as an administrator and assistant accountant for a guaranteed minimum period of one year, which letter had been signed by the Applicant by way of acceptance of the offer.
The Applicant appeared before the Tribunal at a hearing on 4 May 2018 to give evidence and present arguments and was accompanied by his registered migration agent.
In its Decision Record the Tribunal recorded at [14] that the Applicant had told it that before travelling to Australia that he had worked for about 10 years as a delivery driver and that he had quit this job in around February 2016, being about four months before he travelled to Australia. At [16] the Tribunal foreshadowed in the following terms its ultimate conclusion which led it to affirm the decision of the Delegate not to grant the Student visa to the Applicant:
[16] The Tribunal has arrived at the view, when all relevant facts and matters have been considered individually and cumulatively, that the applicant is [not] a genuine applicant for entry and stay as a student. This is notwithstanding that he has engaged in study and provided evidence of satisfactory results.
I note that I find that there is a typographical error in [16] of the Tribunal’s Decision Record by the omission of the negative “not” between the words “is” and “a” in the first sentence because otherwise [16] is completely inconsistent with the other findings of the Tribunal and would render its reasoning incoherent: see Marshall J’s consideration of the same typographical error in CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 at [27] – [29].
Then at [17] of its Decision Record the Tribunal stated:
[17] Of additional concern is that the applicant has not satisfied the Tribunal he has a clear career goal or plan, he is divorced from his Korean wife and he has a stepbrother, Being Kuk Kim, who lives in Sydney and is a permanent resident. He has given evidence that he is residing with this stepbrother and is planning to start a business with him. Both these matters suggest significant familial and economic ties between the two siblings. No evidence has been provided that the applicant has such ties with his family in Korea.
At [24] – [25] of its Decision Record the Tribunal referred to inconsistencies in the Applicant’s claims and statements with respect to his future job and career plans in Korea, as follows:
[24] There are some inconsistencies in the applicant’s claims and statements with regard to his future job and career plans. For example, at the time of application he said he planned to get an accounting qualification and open a business with his stepbrother who lives in Australia. At the time of this decision, he has now provided evidence that he has instead sought and been offered employment in an accounting role with a company in Korea in 2020. The Tribunal has had regard to the letter of offer of employment and is not persuaded that a company in Korea would be offering the applicant a job as an assistant accountant in a letter that does not make it a condition that he completes formal study in that area. He has not studied accounting before and has provided no evidence that he has any relevant work experience. The applicant’s past work history, on the evidence he has provided, is that before coming to Australia he was a delivery driver who had completed his education to year 12 equivalent, many years ago. He said he has had a little bit of administration and accounting experience when he did door to door delivery work. Even if it is accepted that this is the case, the Tribunal does not consider this to be significant or relevant work experience for him to be offered a job two years into the future in an accounting role. He has provided no evidence that intends to seek relevant work in the future before taking up the job offer in 2020. The Tribunal does not consider the copy of the letter of a job offer in Korea in 2020 to be reliable evidence.
[25] There was internal inconsistency in the applicant’s stated career goal from the time of application to the time of decision. He said, at the time of application, that once he finished studying in Australia he was planning to return to Korea and open a business with his stepbrother, the one who lives in Australia. He gave no details, nor did he provide any reliable or corroborative evidence that he and his stepbrother had a plan to establish such a business in Korea. The applicant now says that when he returns to Korea in 2020 he plans to work for Hana Tax Accounting and Consulting. The view the Tribunal now holds, having considered the additional documentary evidence – specifically the job offer in Seoul – is that this offer has been obtained for the purpose of supporting his student visa application and not because he genuinely intends to return to Korea and work for Hana Tax Accounting & Consulting. And, in any event, it is a different career plan to his stated plan at the time of application. No satisfactory explanation was given why the plan has changed. The applicant said his stepbrother is an Australian permanent resident with his own tiling company, who resides in Australia with his wife and two children. It seems an implausible suggestion that the applicant’s stepbrother, who the applicant said has lived in Australia for 11 years, would be looking to start a business in Korea.
At [27] of its Decision Record the Tribunal recorded its finding that the Applicant was using the Student visa program to maintain residence in Australia, and at [30] recorded that it did not consider the Applicant “as being an overall credible witness” and that “his evidence was, at times, vague and non-responsive”, although in his favour, the Tribunal noted that “he did provide some oral evidence that was spontaneous and cogent”.
In the result the Tribunal affirmed the decision of the Delegate not to grant the Student visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied on the following Grounds:
1. The Tribunal erred by reasoning that the applicant is not genuine temporary entrant student without considering he has engaged in study and provided evidence of satisfactory results.
2. The Tribunal erred by finding that the applicant has not satisfied he has a care goal or plan without considering the particular fact or circumstances that he is planning to do business by himself.
3. The Tribunal erred in exercising its discretion by failing to consider that the applicant was enrolled and studied a Diploma of Accounting and was approved an Advanced Diploma of Accounting.
Consideration
Ground 1
This Ground fails at a simple factual level because at [16] of its Decision Record the Tribunal expressly referred to, and took into account that the Applicant “has engaged in study and provided evidence of satisfactory results” whilst studying in Australia since his arrival and at [26] stated “he continued to study in Australia and some positive weight is given to his study history and satisfactory results”. At [27] the Tribunal further stated:
[27] …Notwithstanding that the applicant has continued to study during the period he has held a bridging visa, to which some positive weight has been given, because he is not required to study…
Ground 1 is not factually made out. Rather, the Tribunal has considered the fact that in Australia he had engaged in study with satisfactory results.
Accordingly, Ground 1 is not made out.
Ground 2
This Ground contends that the Tribunal found that the Applicant did not have a clear career goal or plan, without taking into account the fact that the Applicant was “planning to do business by himself”. However, the Applicant never made “…a substantial, clearly articulated argument relying upon established facts” to that effect. Rather, the Applicant's claim before the Delegate had been that he had intended after study in Australia to return to Korea to “start my business with my step-brother, who lives in Australia”.
By the time of the Tribunal hearing the Applicant's claim was that he had sought, been offered and accepted employment as an administrator and assistant accountant with HANA Tax Accounting & Consulting in Korea. Both of these alternative claims of the Applicant's immediate employment plans upon his return to Korea were meaningfully considered and dealt with by the Tribunal at [24] – [25], with the first alternative regarded as implausible and the second rejected as having “been obtained for the purpose of supporting his student visa application and not because he genuinely intends to return to Korea and work for HANA Tax Accounting and Consulting”.
There was no freestanding and independent claim in the foreseeable or reasonable future that the Applicant was “planning to do business by himself”. The closest that he ever got to referring to himself alone and singlehandedly starting up a business was in the Second Statement, where he stated:
I strongly believe that studying English in Australia would be very helpful when I look for new jobs in Korea. I have been offered a job position recently. Please find the attached job offer letter.
Right now in Korea, not only big company but small scale of business request excellent English skills. Higher level of studies and length of my studying and qualification in Australia plus many other things that I have done in Australia will be a great support of my job experiences.
As I go back to Korea, I am wishing to get a new job in relation to accounting based on my previous work experience and what I’ve done in Australia. Also I am thinking of my own business in the future.
I will be studying hard and diligently also to attend school steadily during the course that will make bright my future in Korea.
(emphasis added)
In my view it was not necessary for the Tribunal to expressly consider and deal independently with the Applicant's musing at some indeterminate and indefinite time in the future that he was “thinking of my own business in the future”. The Tribunal did not misconstrue, misunderstand or ignore the actual claims made by the Applicant. As the Full Court of the Federal Court of Australia said in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at 363 – 364 [45]:
[45] Subsequent cases have endorsed the principle that when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection (2016) 71 AAR 11 at [24]-[26] per Collier J; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2017) 344 ALR 511 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
Ground 2 is not in my view made out.
Ground 3
This Ground also fails at a factual level. At [23] of its Decision Record the Tribunal stated as follows:
[23] The Tribunal has considered the evidence the applicant provided to the delegate and also the oral evidence given at the hearing, together with the additional documents provided to the Tribunal, including:
a. Completed Certificate IV of Accounting, from 2 January to 31 December 2017.
b. A COE and other evidence indicating he is currently studying a Diploma of Accounting that finishes on 4 January 2019.
c. Evidence that the applicant has approved an Advanced Diploma of Accounting from 7 January 2019 to 3 January 2020.
d. Offer of employment letter, dated 17 April 2018, indicating the applicant has been offered employment as an administrator and assistant account by HANA Tax Accounting & Consulting, Seoul, from February 2020 with an annual salary of 30,000,000 KRW (about $37,000 Australian at the time of this decision,
Further, at the paragraphs of its Decision Record referred to at [18] above the Tribunal took into account the successful studies the Applicant had undertaken whilst in Australia. The Tribunal did not fail to consider the Applicant’s studies and study plans in Australia since his arrival here. Otherwise, this Ground invites impermissible merits review of the Tribunal's decision which is not available in this Court.
Accordingly, Ground 3 is not made out.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 4 November 2019
1
9
3