Choi v Minister for Immigration

[2015] FCCA 983

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 983

Catchwords:
MIGRATION – Migration Review Tribunal – Student Temporary (class TU) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.476
Migration Regulations 1994 reg.1.15AA

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

First Applicant: SEUNG JOO CHOI

Second Applicant: YOUNG AE PARK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 693 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

Solicitors for the Applicant: Mr Kim
El Khan Legal

Solicitors for the Respondent: Ms E. Warner-Knight
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $900.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 693 of 2015

SEUNG JOO CHOI

First Applicant

YOUNG AE PARK

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal delivered on 26 February 2015 affirming a decision not to grant the applicant a Student Temporary (class TU) visa.  The application identifies the following:

   1. In deciding the Applicant's case, the Migration Review Tribunal (the Tribunal), failed to have regard to relevant considerations in determining clause 572.223(1)(a) of Schedule 2 to the Regulations.

   a. The Tribunal failed to have regard to Direction No. 53, Assessing the genuine temporary entrant criterion for student visa applications, made under Section 499 of the Act.

   2. In deciding the Applicant's case, the Migration Review Tribunal (the Tribunal) took unreasonably narrow view in determining Clause 572.223 (l)(a) of Schedule 2 a. The Tribunal failed to weigh up the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. 

2. The application also identifies on the first return date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court raised with Mr Kim, solicitor for the applicants, that having looked at the application decision the Court was minded to consider whether it should exercise its summary jurisdiction on the basis that the application failed to disclose any arguable jurisdictional error.  I take into consideration in respect of the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

4. Mr Kim did not seek to advance any submissions in that regard.  It is clear from the decision of the Tribunal that it had regard to the direction number 53 as identified in paras.10 and 11 and that ground 1 is clearly without substance.  Ground 1 is in reality an impermissible challenge to the finds of fact made by the Tribunal. 

5. In relation to ground 2, the question of weight in relation to the evidence before the Tribunal was clearly a matter for the Tribunal.  Ground 2 is an impermissible challenge to the findings of fact by the Tribunal.  To the extent it was suggested that the findings raised by ground 2 were unreasonable, for the reasons given, I am clearly satisfied that the findings made by the Tribunal cannot be said to lack an evident and intelligible justification. 

6. The Tribunal identified that the applicants applied for the visa on 17 February 2014 and the delegate refused to grant the visas on 22 July 2014.  Tribunal identified the reason for refusal by the delegate as follows:

   3. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the applicant had arrived in Australia in November 2004, had enrolled in a number of courses but had not conducted or completed all of them, he had two extended breaks from his studies, the courses chosen are of short duration and low cost, the courses studied lack apparent value to his future, he has studied courses that are not related, and has not gone back to South Korea for an extended period of time.

7. The applicants appeared before the Tribunal on 23 February 2015 to give evidence and present arguments, which hearing was conducted with the assistance of an interpreter as well as representation by a registered migration agent.  The Tribunal identified that the critical issue in the present case was as follows:

   9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that 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) …

8. The Tribunal identified the need to have regard to the direction made under s.499 in para.10 as follows:

   10. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·   the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·   the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·    if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·    any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

9. It is clear that those were factors to which the Tribunal had regard as identified in para.11 as follows:

   11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. Tribunal made adverse findings in relation to the evidence of the applicants as follows:

    15. The Tribunal then asked the applicant about the other courses he had completed. The applicant acknowledged that the automotive courses were a mistake. He had been advised wrongly, he had started a course and tried to change, but was told that he had done one month and that he could not change till after 6 months. The Tribunal found the applicant’s evidence in this regard very vague. The Tribunal does not accept that the applicant would unknowingly enter into an automotive course in 2012, especially as he was stating that he was in the process of gaining skills to establish his hospitality business in Korea. The Tribunal considers that this study was entered into to prolong his stay in Australia.

11. The Tribunal identified its concern as to the gap in the applicant’s study in para.18, and the Tribunal identified its further concerns at para.20:

    20. The Tribunal has considered the evidence before it. The applicant has very limited connection with his home country, South Korea. He has been resident in Australia since 2004, and has made very few trips back to Korea since his arrival in Australia. His last trip back was in mid-2009, for the passing of his father, he has not returned since. Subsequently his two adult sons have come to Australia to study, and presently live with the applicant and his wife, as does his nephew. The applicant has stated that he is considered a bad son by leaving his elderly mother, but the Tribunal notes that it is almost 6 years since he has returned to see her. The Tribunal considers that that there are very few family reasons for the applicant to return to South Korea, as his immediate family are all in Australia with him. That the applicant has been resident in Australia for such an extended period is a significant concern to the Tribunal. 

12. The Tribunal proceeded to make adverse findings as follows:

    22. The applicant’s study history also contradicts this plan to establish a café/restaurant in South Korea. The applicant stated that he had done a number of hospitality related courses, from 2004 to 2007. He then stopped studying. He then returned to study, a Bachelor of Hospitality management. The applicant stated that this was when his brother-in-law and he discussed the plans for the business in more depth. The applicant completed his Bachelor course, however, instead of departing Australia to utilise his knowledge from the extended program of hospitality courses, he remained in Australia, not studying. He then started an automotive course, which he completed, in 2012. This course has absolutely no relation to any of the purported reasons for the applicant to be studying in Australia, and the Tribunal considers that it is an example of the applicant seeking studies for the purpose of remaining in Australia. This failure to study, and then commencing and completing an unrelated course, leads the Tribunal to have further significant concerns about the existence of any plans to establish a business with his brother-in-law in Korea. The Tribunal considers that the vagueness of the plans, the extended delay in implementing any business arrangement, and the actions of the applicant not to pursue courses at all or that were relevant to the establishment of a café/restaurant business in South Korea, leads it to give no weight to the claim by the applicant that this is an incentive for him to return to South Korea.

    23. The Tribunal has considered the applicant’s current and proposed study, in human resources and human resources management. The applicant stated that he is getting taught more details, so he will have the courage to establish his business. The applicant also stated he had forgotten previous studies. The Tribunal does not accept this statement by the applicant, and considers that the studies that the applicant is presently doing and proposes to do are not related to his stated overall goal in the future, or related to previous studies. As detailed to the applicant, he has done a significant number of units on managing a hospitality business. He has had practical experience, including 10 years managing an entertainment business in Korea, his karaoke business, and now his own restaurant. The Tribunal considers that the courses that the applicant is presently studying do not add to his knowledge of hospitality of hospitality management. The Tribunal considers that the applicant’s involvement in this unrelated course has been entered into for the purpose of extending his stay in Australia.

    24. The applicant’s study history, of entering into further and further courses, with some link, in relation to his hospitality, but in others having limited connection, leads the Tribunal to consider that the applicant is entering into courses to extend his residence in Australia, and not for the purpose of studying.

    25. The applicant’s circumstances in Australia also cause the Tribunal to have a significant concern regarding his intentions. In 2014 the applicant and his wife have established their own business, a restaurant. They have invested money into this business. This is a significant step, and causes the Tribunal to have grave concerns about the applicant’s claim that he wishes to remain temporarily in Australia. The applicant and his agent have said that the business was established for the experience, and will be sold in the future. The Tribunal does not accept this explanation. The applicant has opened a business that his study would suggest he has been working towards. However instead of opening this restaurant in Korea, he has established it in a suburb of Melbourne. The Tribunal considers that the establishment and financing of such a business is further evidence of the applicant establishing roots in his community that are more permanent than temporary in nature.

13. In these circumstances the Tribunal made an adverse finding that it was not satisfied the first applicant intends generally to stay in Australia temporarily and accordingly does not meed the criteria under cl.572.223(1)(a) set out in para.26 as follows:

    26. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

14. The Tribunal noted that the other subclasses within class TU all contain identical requirements and that for the reasons given the Tribunal found that the first applicant did not meet the requirements of those subclasses.  It was in those circumstances the Tribunal found the first applicant does not meet the criteria for the grant of student visa and affirmed the decision under review.  The Tribunal found that the applicant’s wife didn’t meet the criteria for the grant of a student visa.  It is clear the applicants had a genuine hearing and that the Tribunal complied with its statutory requirements in respect of the review.  The adverse findings made were open.  The proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 April 2015