Choi v Minister for Immigration

[2014] FCCA 2050

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOI v MINISTER FOR IMMIGRATION [2014] FCCA 2050

Catchwords:
MIGRATION – Student dependant visa – invalid application.

ADMINISTRATIVE LAW – Decision-maker not required to consider the operation of a test which is not relevant to the facts as found.

Legislation:

Migration Regulations 1994, reg.1.12, item 1222 of sch.1

Applicant: YUNJUNG CHOI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2231 of 2013

Judgment of: Judge Cameron

Hearing dates: 14 August and 1 September 2014

Date of Last Submission: 1 September 2014

Delivered at: Sydney

Delivered on: 11 September 2014

REPRESENTATION

Solicitors for the Applicant: Mannings

Counsel for the Respondent: Ms A. Mitchelmore

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2231 of 2013

YUNJUNG CHOI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of South Korea, applied for a Student (Temporary) (Class TU) subclass 572 visa on 2 September 2013 on the basis that she was a member of the family unit of another student visa holder, her de facto partner, Mr Namwook Heo. By letter dated 5 September 2013 a delegate of the respondent (“Minister”) advised the applicant that her application was invalid because it did not satisfy item 1222(3) of sch.1 to the Migration Regulations 1994 (“Regulations”). The applicant has applied to this Court for judicial review of the decision that her visa application was invalid.

2. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Item 1222 of sch.1 to the Regulations sets out the requirements for a valid application for a Student (Temporary) (Class TU) visa. At the time the applicant made her application it relevantly provided:

   1222.    Student (Temporary) (Class TU)

   ...

   (3)    Other:

   ...

   (d)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Student (Temporary) (Class TU) visa may be made at the same time and place as, and combined with, the application by that person.

   (e)A person claiming to be a member of the family unit of the primary applicant must be included by the primary applicant in the application … except if the applicant became such a member of the family unit after the decision to grant the Student (Temporary) (Class TU) visa to the primary applicant was made. ...

2. Regulation 1.12 of the Regulations includes de facto partners in the definition of members of a family unit.

Background facts

1. Before the commencement of her de facto relationship with Mr Heo, the applicant had been visiting Australia on a working holiday visa.  She had arrived in Australia on 7 August 2011.

Student visa

1. On 2 September 2013 the applicant applied for a student subclass 572 visa.  She indicated in her application form that she was applying for the visa on the basis of her de facto relationship with Mr Heo, the holder of a student visa.  The applicant indicated that she and Mr Heo had commenced living together on 1 February 2012. 

2. The Department’s records, reproduced in the Court Book, indicate that Mr Heo applied for his student visa on 26 March 2012 and was granted the visa on 30 March 2013.  In the section of the visa application form requesting the details of his family members, Mr Heo did not provide the applicant’s name or any other person’s name.  He indicated that he had never been married.

3. On 13 September 2013, after his visa was granted, Mr Heo sent to the Department a “Notification of changes in circumstances” form notifying the Department that the applicant was his de facto partner.  Mr Heo also nominated the applicant as his dependant.

4. As already noted, the delegate found that the applicant’s visa application was invalid. This was on the basis that the applicant had not been included in Mr Heo’s application for a student visa and therefore she did not meet item 1222(3) of sch.1 to the Regulations.

Proceedings in this Court

1. In her amended application the applicant alleged:

   1.The Respondent applied the wrong test.

   Particulars

   a.The Respondent failed to ask himself all of the requirements of Item 1222(3) of Schedule 1 to the Migration Regulations.

   b.The Respondent only asked whether the Applicant was included in Mr Heo’s application of 26 March 2012 but, having found she was not, failed to ask whether she became a member of Mr Heo’s Family Unit after his visa was granted.

   2.There was no evidence to support the Respondent’s decision.

   Particulars

   a.There was no evidence to support the Respondent’s decision that the Applicant was a member of Mr Heo’s Family Unit on 26 March 2012.

2. Both allegations made in the amended application raise the same issues: did the Department consider whether the applicant and her partner Mr Heo had established their de facto relationship after the latter lodged his application for a student visa and, if it did not, was that an error which vitiates its conclusion that the applicant’s student visa application was not a valid application?

3. In its letter of 5 September 2013, the Department relevantly said:

   I wish to advise you that the application made by the following applicant was not valid.

   YUNJUNG CHOI

   Your application for a Student visa is invalid because it did not meet Item 1222(3) of Schedule 1 of the Migration Regulations 1994 (the Regulations).  That provision required you to have previously been included by the primary person in their application for a Student visa.

   Invalid applications cannot be accepted or processed.  Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal. …

Applicant’s submissions

1. As identified by the applicant, the evidence recorded the following chronology of events:

   a)1 February 2012 – the applicant and Mr Heo’s “cohabitation” commenced (according to the applicant’s student visa application lodged on 2 September 2013);

   b)23 March 2012 – Mr Heo left Australia and returned to South Korea, having lived in Australia since 21 March 2010 (according to his student visa application lodged on 26 March 2012);

   c)26 March 2012 – Mr Heo lodged his student visa application, recording that he had no spouse or de facto partner;

   d)23 April 2012 – Mr Heo returned to Australia (according to his passport);

   e)Post-23 April 2012 – various documents evidencing the couple’s cohabitation (reproduced in the Court Book which was exhibit A);

   f)27 April 2012 – the applicant advised her employer to deposit her salary into an ANZ bank account which she held jointly with Mr Heo; and

   g)2 September 2013 – the applicant lodged her student visa application.

2. The applicant submitted that the Department had determined the validity of her student visa application solely by reference to whether she had been included in Mr Heo’s visa application of 26 March 2012, i.e. the first part of the item 1222(3)(e) test.  She submitted that this involved an assumption that the cohabitation advised in her own application was still on foot on 26 March 2012.  She submitted that the Department did not consider the possibility of there having been a break in their relationship, reflected by Mr Heo’s time in Korea, and therefore whether she relevantly became a member of Mr Heo’s family after 26 March 2012, which was a question raised by the second part of the item 1222(3)(e) test. 

3. Referring to the fact that Mr Heo had been in South Korea at the time he applied for the visa, on a stay which lasted a month, the applicant submitted that none of the evidence before the Department supported a conclusion that she was a member of Mr Heo’s family unit on 26 March 2012.

4. The applicant submitted that the Department not only had to satisfy itself that she and Mr Heo were in a de facto relationship but it also had to ask, and presumably determine to its satisfaction, when the relationship commenced.

Consideration

1. The departmental officer who decided that the applicant’s student visa was not valid had no obligation to give reasons for her conclusion that the applicant did not meet item 1222(3) of sch.1 to the Regulations. However, it can be inferred from the little that the officer did say that she had concluded that the applicant and Mr Heo had been in a de facto relationship at the time he applied for his student visa. That was a conclusion that was plainly open to the officer, given that the applicant had said in her own visa application lodged on 2 September 2013 that she was in a de facto relationship with Mr Heo and had commenced cohabitation on 1 February 2012. The applicant also declared in her visa application that the information she was supplying was “complete, correct and up-to-date in every detail”. 

2. The officer having concluded that the applicant and Mr Heo had been in a de facto relationship at the time he applied for his visa, the only question relevantly presenting for her determination was whether the applicant had been included in Mr Heo’s visa application. The officer was not obliged to consider the second limb of the item 1222(3)(e) test because, on the facts as found, it did not apply.

Conclusion

1. As the officer did not err the relief sought by the applicant will be refused and the application dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  11 September 2014