Choi v Minister for Home Affairs

[2019] FCCA 2079

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOI & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2079

Catchwords:
MIGRATION – Administrative Appeal Tribunal – application for a Student (Temporary) (Class TU) Student (subclass 500) visa – whether the decision is so unreasonable that no reasonable person from the Tribunal could have made the decision – whether the Tribunal made an illogical and/or irrational decision not to take into account the applicant’s submissions regarding Ministerial Direction 69 – whether the Tribunal was biased in making their decision – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.499
Migration Regulations 1994 (Cth), cl.500.212, 500.313

Cases cited:

Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

First Applicant: YOUNG SUN CHOI

Second Applicant: HYOUNGHO JEON

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 968 of 2018

Judgment of: Judge Humphreys

Hearing date: 30 July 2019

Date of Last Submission: 30 July 2019

Delivered at: Sydney

Delivered on: 30 July 2019

REPRESENTATION

The First Applicant appeared in person.

Solicitors for the Respondents: Ms Evans, Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 968 of 2018

YOUNG SUN CHOI

First Applicant

HYOUNGHO JEON

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicants are Korean citizens. On 7 October 2016 the primary applicant, Young Sun Choi, applied for a Student (Temporary) (Class TU) Student (subclass 500) visa. The primary applicant’s husband is the secondary applicant. On 5 January 2017, a delegate of the then Minister for Immigration and Border Protection (“the Minister”) refused the applications because the Minister was not satisfied that the primary applicant was a genuine applicant for stay and entry as a student. The primary applicant then sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). Following a hearing on 8 March 2018, which the primary applicant attended with her registered migration agent, the Tribunal affirmed the Minister’s decision on 9 March 2018. The primary applicant now seeks judicial review of the Tribunal’s decision.

Administrative Appeal Tribunal’s Decision

1. After some introductory paragraphs, the Tribunal at paragraph 10 of the decision sets out cl. 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”) and at paragraph 11 of the decision, the requirements under Direction No. 69 titled ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Migration Act 1958 (Cth) (‘the Act”).” At paragraph 13 of its decision, the Tribunal concluded that it had significant concerns that the primary applicant was using the student visa program for the purposes of maintaining residency in Australia.

2. At paragraphs 14 to 16 of the decision, the Tribunal sets out the relevant migration history of the primary applicant and her husband. The primary applicant first arrived in Australia in February 2007 and remained in Australia till September 2010 on a Student Guardian visa basis. The primary applicant departed Australia for two years and returned in July 2012 to study a Diploma of Ministry. The primary applicant completed that course in September 2014. From October 2014 until September 2015, the primary applicant completed an Advanced Diploma of Christian Ministry and Theology. From 1 October 2015 until 27 April 2016, the primary applicant completed the Graduate Certificate in Christian Ministry and Theology. From March 2016 to October 2016, she completed the Graduate Diploma in Christian Ministry and Theology. In October 2016, the primary applicant applied for a second visa to study counselling and enrolled in a Diploma of Counselling which was scheduled to run until the end of September 2019.

3. At the time of the Tribunal’s decision, the primary applicant was enrolled in a Graduate Diploma of Relationship Counselling. At paragraph 17 of the decision, the Tribunal noted the primary applicant had been compliant with her visa conditions and had satisfactorily completed the courses she studied.

4. At paragraphs 18 to 22 of the decision, the Tribunal examined the primary applicant’s family ties. The primary applicant’s youngest daughter resided with her parents in Australia from 2007 to 2010 and again from 2012 to 2017. The youngest daughter of the primary applicant apparently wishes to return to Australia to study a Masters Degree in Education and live and work in Australia long term if she is able to do so.

5. The primary applicant’s oldest daughter resided in Korea at the time of the Tribunal’s decision and was scheduled to be married. There was evidence that the primary applicant did not intend to return to Korea for the wedding ceremony. At paragraph 22 of the decision, the Tribunal concluded that the primary applicant did not intend to depart Australia if she could find a way to remain and that she considers Australia her home.

6. The Tribunal was not convinced that the primary applicant genuinely considers her residence in Australia to be temporary and that she intends to return to Korea in the near or distant future. At paragraph 25 of the decision, the Tribunal noted that the applicant is now aged in her 50s. The primary applicant told the Tribunal it is difficult in Korea for older women to get work. The Tribunal concluded it was not persuaded that the primary applicant genuinely intends to use the qualifications that she has obtained or intends to obtain and return to Korea and seek employment.

7. At paragraph 27 of the decision, the Tribunal was not satisfied the primary applicant could not study to be a counsellor in Korea and that she was using the student visa program to maintain residency in Australia. At paragraph 31 of the decision, the Tribunal concluded the primary applicant had not progressed academically at a rate the Tribunal considered to be satisfactory for her stated career goal of becoming a youth counsellor. The Tribunal found that it did not accept the primary applicant’s claim she could only study in Australia because her age made it too difficult to study in Korea.

8. Accordingly, the Tribunal found at paragraph 33 of the decision that the primary applicant did not meet the requirements of cl.500.212(a) of the Regulations. At paragraph 35 of the decision, the Tribunal found that as the primary applicant did not meet the primary requirement for the grant of a visa, her husband, Hyoungho Jeon Yung Jo Yong, the second applicant in the application before the Court, did not satisfy the criteria under cl.500.313 of the Regulations as a secondary applicant.

Grounds of Appeal

1. Three Grounds of Appeal are set out in the application to the Court. They are set out as follows without alteration:

   1)   The decision is so unreasonable that no reasonable person in the Second Respondent’s position would have made the decision. 

   Particulars

   i)The second respondent does not have evidence to support its conclusion and decision that the Applicant is not a genuine student.

   2) The decision of the Second Respondent is illogical and/or irrational.

   Particulars

   i)It was illogical and/or irrational for the Second Respondent not to take into account that “the applicant’s submission regarding Ministerial Direction 69”.

   3) The Second Respondent is biased. The Second Respondent is already made a decision before the hearing was held.

   Particulars

   i)  The Second Respondent’s remark on the hearing indicates the Second Respondent decided a decision already prior to the hearing.

The Applicant’s Submissions

1. The primary applicant appeared before the Court unrepresented, aided by a Korean interpreter. No written submissions were filed. There was, however, an affidavit from the primary applicant sworn on 17 September 2018, which provided material in support of her application. At paragraph 2 of the affidavit, the primary applicant confirmed her migration history and stated she complied with all the student visa conditions and satisfactorily completed all her courses. At paragraph 3 of the affidavit, the primary applicant stated that her youngest daughter’s intention to return to Australia was irrelevant and her family situation was not a significant consideration as to her study visa application.

2. At paragraph 4 of the affidavit, the primary applicant reiterated her intention to return to Korea once her courses are completed. At paragraph 5 of her affidavit, the primary applicant asserts that not returning to Korea for five years as a ground for refusing her student visa was a flawed ground and an irrelevant conclusion or consideration. At paragraph 6 of the affidavit, the primary applicant states that the fact the courses she undertook were taught in Korean in Australia, is an irrelevant matter. At paragraph 7 of the affidavit, the primary applicant asserts the reasoning in paragraph 26 of the Tribunal’s decision was flawed because although the subjects overlapped in some of the courses, they were separate courses in their own right.

3. At paragraphs 8 to 10 of the affidavit, the primary applicant asserts the Tribunal’s reasoning was flawed. The primary applicant regards Korea as a place where she can always go back to, as she has a place to live if she returns. The primary applicant asserted that the systems for counselling and welfare are different in Korea compared to Australia and that it is these differences that are important to her study. At paragraph 11 of the affidavit, the primary applicant argues the student visa system in Australia is flawed and she is in need of a visa to continue her studies.

4. In Court today, in the primary applicant’s oral submissions, she told the Court she wanted to pursue her dreams in Australia and that the issues raised by the migration history that were recited by the Tribunal, were not true. The primary applicant told the Court she did her best to study in Australia and wanted the Tribunal member to understand all the study she had achieved. The primary applicant felt that the Tribunal had not taken into account the work that she had completed and wanted the Tribunal to reconsider its decision based on all of her studies.

5. In the primary applicant’s response to the first respondent’s submissions, she reiterated that, in her view, the Tribunal was biased and the Tribunal discriminated against her because of her age.

The First Respondent’s Submissions

1. Ms Evans, who appeared on behalf of the first respondent, provided written submissions which were read to the primary applicant prior to the hearing commencing. The first respondent rejected the assertions by the primary applicant and submitted that the Court was being asked to engage in impermissible merits review.

2. In terms of the material contained within the affidavit that I have recited, the first respondent suggested that other possible contentions were raised, but those contentions were irrelevant to the decision of the Tribunal. The weight and preference given to particular evidence as compared to other evidence is a matter for the Tribunal and the affidavit, again, sought for the Court to engage in impermissible merits review. Ms Evans suggested that the submissions from the bar table also sought for the Court to engage in impermissible merits review.

Considerations

1. Grounds 1 and 2 in the application can be dealt with together. They together allege unreasonableness in the decision of the Tribunal and/or, that the decision was irrational or illogical (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) paragraphs [28] - [76]). The test for unreasonableness is a stringent test and will only apply in rare cases. It is not a means of challenging a Tribunal’s decision on the basis that a Court disagrees with the consideration of the matters, or the evaluative judgments made by the decision-maker (see Li paragraphs [30] - [31]).

2. Legal unreasonableness is “invariably fact-dependent” and requires a careful evaluation of the evidence (see Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 paragraph [38]). Irrationality or illogicality are a subset of unreasonableness (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, per Crennan and Bell JJ).

3. When I look at the reasoning of the Tribunal, I am not satisfied it is unreasonable, illogical or irrational. Having recited the relevant Regulations and Ministerial Directions, the Tribunal looked at the available evidence on the basis of each piece of evidence and then the cumulative effect of the totality of that evidence.

4. The Tribunal looked at the overall migration history of the primary applicant and the reasons given for her continuing to undertake study in a Christian Ministry and then counselling. It looked at the primary applicant’s personal and family circumstances and the value of the proposed course of study to the primary applicant’s future. All of the material the Tribunal looked at was relevant to the decision, given the contents of the Ministerial Direction 69, which sets out the material that the Tribunal was required to have regard to. I am satisfied the Tribunal’s analysis was open to it based on the information available and reasonable inferences that it could make from the primary applicant’s continued residence in Australia since 2012.

5. It was not unreasonable, illogical or irrational to conclude that the primary applicant’s continued study in Australia was for the purposes of supporting her continued residence in Australia. Grounds 1 and 2 do not establish any jurisdictional error.

6. Ground 3 alleges bias. A claim of bias is serious and requires evidence. The mere fact that the Tribunal makes a finding adverse to the primary applicant does not give rise to an inference of bias or that the decision-maker approached the task with anything other than an open mind (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 paragraph 38, per von Doussa J).

7. A fair reading of the Tribunal’s decision, in my view, does not disclose any prejudgment on the part of the Tribunal or that it approached its task other than with a mind open to persuasion. I am not satisfied on the basis of the material presented by the primary applicant in her affidavit that a claim for bias can be made out. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of the decision.

8. To the extent that the primary applicant’s affidavit raised any new material or contentions, I am satisfied that these have been covered in the grounds of appeal or are irrelevant to the task before this Court or, alternatively, ask the Court to engage in impermissible merits review. I am not satisfied that any jurisdictional error has been made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  25 September 2019