Chou v Minister for Home Affairs

[2020] FCCA 1314

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOU v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1314

Catchwords:
MIGRATION – Student (Temporary) (Class TU) Student (subclass 500) visa – decision of the Administrative Appeals Tribunal – whether Tribunal was biased – whether Tribunal took into account irrelevant considerations – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.500.212 of sch.2

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163

Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: TING YU CHOU

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 248 of 2019

Judgment of: Judge Kendall

Hearing date: 25 May 2020

Date of Last Submission: 25 May 2020

Delivered at: Perth

Delivered on: 29 May 2020

REPRESENTATION

Counsel for the Applicant: Mr N Wong

Solicitors for the Applicant: HRL Legal

Counsel for the First Respondent: Ms G Ellis

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Spark Helmore Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 248 of 2019

TING YU CHOU

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Taiwan. On 11 August 2016, the applicant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa (the “visa”) (Court Book (“CB”) 1-29). The applicant indicated that she intended to study a Certificate I in Spoken and Written English.

2. On 22 September 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 31-37). The delegate found that the applicant did not meet cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the delegate was not satisfied the applicant was a “genuine temporary entrant”.

3. The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 29 September 2019 (CB 38-40).

4. On 13 April 2018, the Tribunal sent the applicant an “invitation to provide further information” (CB 42-49). On 27 April 2018, the applicant’s representative provided a response to that invitation which attached a “letter of offer in a course” (CB 50-61).

5. The applicant attended a hearing before the Tribunal on 6 September 2018 (CB 77-81). Following the hearing (on 7 September 2018), the applicant was invited to provide further information to the Tribunal – specifically, bank statements from August 2016 to the current date, academic transcripts and a current confirmation of enrolment (CB 83-89). The applicant forwarded further information to the Tribunal on 20 September 2018 and 21 September 2018 (CB 91-180).

6. The applicant was again contacted by the Tribunal on 29 May 2019 and asked to provide information that she was currently enrolled in a course of study (CB 181-185). The applicant responded on 11 June 2019 with a letter of offer and an enrolment agreement (CB 186-196).

7. On 20 June 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 198-205).

Tribunal’s Decision

1. The Tribunal’s decision is six pages long and spans 34 paragraphs. The Minister’s written submissions (at [9]-[12]) filed 7 May 2020 accurately summarise the factual background to this matter. The Court adopts those submissions as its own. With some alterations, they provide as follows.

2. The Tribunal first set out the procedural background to the matter (at [1]-[6]). The Tribunal then outlined all of the materials and information it had before it, including the information contained in the applicant’s student visa application and her responses to the various requests for information (at [7]-[14]).

3. After identifying that the issue before it was whether the applicant was “a genuine temporary entrant” (at [14]), the Tribunal set out the relevant legislative provisions and summarised the matters in Direction 69, as follows:

   15.    Clause 500.212 requires as follows:

   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 compliat1ce 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.

   Does the applicant intend genuinely to stay in Australia temporarily?

   16.In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

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

4. The Tribunal then summarised the applicant’s evidence as follows (at [18]):

   The applicant gave evidence about her circumstances in home country and in Australia. Prior to arriving in Australia she did a number of jobs including her night market stall, packing herbs for her grandfather, restaurant work, and beauty therapy. She last studied in high school about 13 years previously and undertook some beauty therapy training at high school in Taiwan but does not have any formal certification or qualification. When she first came to Australia in 2012 she stayed in Northbridge with her cousin and worked in restaurants. The applicant’s working visa expired she left Australia in August 2014. She returned to Australia in May 2016 on a tourist visa and applied for the student visa on 11 August 2016. Her cousin has now returned to Taipei. Her mother, brother and extended family, all of whom she is close to, live in Taiwan. She has no family living in Australia. At the time of hearing she had a boyfriend for a little over a year but he has completed his studies and was due to return to Malaysia. The applicant visited her family between 9 October 2016 and 5 November 2016; 11 November to 25 November 2017 and 27 February 2019 to 3 April 2019. The applicant is not employed in Australia and all of her expenses are paid for by her boyfriend. On her return to Taiwan she would stay with her cousin in Taipei because there are lots of foreigners. She hopes to set up a shop.

5. The Tribunal then noted that it was concerned that the applicant had not disclosed any previous experience in the beauty therapy industry in her application and that her initial consideration for obtaining English was so that she could better explain what she was selling in her fashion shop (at [19]). The Tribunal described the applicant as vague about her future plans when asked how the proposed courses in English would benefit or assist her in obtaining employment.  The Tribunal noted that the applicant stated that they would assist her in being confident and improve her work prospects in the fashion and/or beauty industry (at [20]).

6. The Tribunal then considered the factors in Direction 69, as follows:

   Circumstances in home country

   22.The applicant gave evidence that she lacked confidence in speaking English and was too scared to speak publicly. Being in Australia she is forced to speak English and so it is better for her to study in Australia than in Taiwan. The Tribunal accepts as a general premise that there is an inherent benefit to be gained in studying English in a country where English is the primary language.

   23.The Tribunal finds that over her substantial stay in Australia the applicant has been able to manage her personal relationships in Taiwan by keeping in touch from Australia and by making periodic visits. The Tribunal does not consider the applicant’s personal ties overseas to be a distinct incentive for her to cease residence in Australia.

   24.The applicant does not have employment or a business to return to in Taiwan and receives financial support from her boyfriend in Australia which covers all her living expenses. The. Tribunal finds that the applicant’s economic circumstances in Taiwan, relative to those in Australia, are not an incentive for her to return to Taiwan.

   25.The applicant gave evidence, and the Tribunal accepts, that there are no areas of concern in relation to military service or political or civil unrest that would act as a disincentive to return to Taiwan.

   Potential Circumstances in Australia and Immigration and Study in Australia

   26.The applicant claims not to work in Australia. The applicant lives with her boyfriend who covers all of her Australian living expenses including rent, utilities and food. The Tribunal finds the applicant’s personal relationship with her boyfriend in Australia and his ability to provide financially is an incentive for her to remain in Australia.

   27.The applicant’s visa history shows that she was in Australia for nearly 2 years between 2012 and 2014 on a working holiday.

   28.The applicant said that initially she just wanted to study English so she could explain what she was going to sell. If she goes into fashion she will need to travel overseas and English would be an advantage. The Tribunal finds the applicant’s plans to enter into fashion or beauty therapy are ambiguous and non-specific. The applicant was unable to articulate any educational pathway or considered business plan for her return to Taiwan.

   Value of the course to the applicant’s future

   29.The applicant gave evidence that Taiwan has become a tourist attraction and English is being spoken more frequently. The applicant would be better able to explain her product if she had a better understanding of English.

   30.The Tribunal accepts as a general proposition that an understanding of English might broadly be of some benefit to the applicant on her return to Taiwan. The applicant’s business plan is to undertake fashion or beauty therapy. The Tribunal notes the applicant is enrolled in neither a fashion nor a beauty therapy course. The Tribunal is not persuaded the English courses enrolled in by the applicant have any intrinsic value to the vocational pathway the applicant proposes. The Tribunal concludes it is likely the applicant is using the student visa programme to maintain ongoing residence in Australia.

7. Overall, on the basis of the above, the Tribunal determined that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and, accordingly, cl.500.212(a) of the Regulations was not met (at [31]).

8. The Tribunal upheld the delegate’s decision not to grant the visa.

Proceedings in this Court

1. It is not disputed that to succeed in this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error.  The possible categories of jurisdictional error are not exhaustive and sometimes overlap but for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

   a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];

   b)where the decision-maker ignores relevant material: Craig at [198];

   c)where the decision-maker relies on irrelevant material: Craig at [198];

   d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];

   e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and

   f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

2. In determining whether the Tribunal fell into error, the Court cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.

3. The applicant’s judicial review application contains five grounds of review, as follows:

   1. The AAT has erred in law in finding that the evidence of her boyfriend’s financial supporting has indicated that my client will remain in Australia after her completion of her English study;

   2. The AAT has been biased against my client for not taking into the evidence of having been studying her English course while waiting for the outcome of her review application;

   3. The AAT has erred in law in finding that my client has not enrolled in any beauty courses while undertaking her English course;

   4. The AAT has failed to fully consider the circumstances in my client’s home country including her relatives in her home country;

   5. Further or alternatively, the AAT has been biased against my client to assume that the value of the English course to my client’s future is limited.

4. The applicant, who is legally represented, filed an affidavit on 27 April 2020 (six months outside of the time limit provided by the Court’s orders). The affidavit was affirmed by the applicant on 5 July 2019. The Minister objected to the Court receiving this affidavit. While not entirely satisfied with applicant’s solicitor’s explanation for the delay in filing, the Court nonetheless granted the applicant leave to rely on the affidavit.  The Court was satisfied that the Minister had addressed the issues raised in the applicant’s affidavit.

5. The affidavit provides as follows:

   1. On 11 August 2016, I applied for a student visa.

   2. On 22 September 2016, my visa application was refused by the Immigration Department.

   3. On 29 September, I lodged my review application at the Administrative Appeals Tribunal.

   4. On 6 September 2018, I attended the scheduled hearing at the Administrative Appeals Tribunal.

   5. On 1 October, I submitted all the evidence requested by the Administrative Appeals Tribunal.

   6. While I was waiting for the outcome of my review application, I enrolled in an English course to study English.

   7. I stated very clearly in my statement for my student visa application that English would be very useful and helpful for me to establish a beauty salon business or seek future employment in Taiwan as a beauty therapist.

   8. I have no intention of remaining in Australia should I complete my English courses in Australia.

   9. I understand if the Administrative Appeals Tribunal has not been biased, I am a genuine student in accordance to the student visa criteria.

   10. The Administrative Appeals Tribunal’s postponement to make a decision on my review application has a huge impact on my study plan and future plan in Taiwan.

6. The Court had before it the materials referred to above, a Court Book numbering 215 pages (marked as Exhibit 1), an outline of submissions from the applicant’s legal representative dated 27 April 2020 and an outline of submissions from the Minister dated 7 May 2020.

7. This matter was heard by videoconference on 28 May 2019.

Applicant’s Submissions

1. With respect, the submissions filed on behalf of the applicant are confusing and somewhat disconnected. They do not, for example, clearly identify which grounds of review are being addressed.

2. As a result, it is useful to provide portions of the submissions in their entirety.  Relevantly, they provide:

   14. The Tribunal has taken irrelevant information into consideration and its decision can be construed as an apprehended bias against the applicant where there is a mere link between the boyfriend’s financial capacity and my client’s incentive to remain in Australia. According to the information from my client, her boyfriend was an overseas student himself. Secondly, the mere fact that my client was getting financial support from her boyfriend certainly cannot be inferred or used as evidence to support the Tribunal’s assumption that the financial support rendered to my client by the boyfriend is an incentive for her to remain in Australia. As per the Migration Act 1958 (“the Act”) and the Migration Regulations 1994 (“the Regulations”), a spouse of a student who holds a subclass 500 visa is eligible to apply for a subclass 509 visa and the spouse can work in Australia during the entitled period when the student is studying in Australia and the wages made by the subclass 509 visa holder is a type of supplementary financial support to trade off some of the students education and living expenses in Australia. By the same token, we cannot assume that the financial support rendered by the subclass 509 visa holder is an incentive for the subclass 500 visa holder to remain in Australia and consequently, the subclass visa must be subject to cancellation since the visa holder has failed to meet the genuine entrant requirement. Based on the foregoing example, it is submitted that there is no direct link between the financial ability of the boyfriend and my client’s incentive to remain in Australia.

   In Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434-5, [27]-[28], the court states very clearly that the test for apprehended bias on the part of the Tribunal is whether a hypothetical, fair-minded lay person, who is properly informed as to the nature of the proceedings, the matters in dispute and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not have brought an impartial mind to the question to be decided. By failing to consider the fact that the applicant’ boyfriend is not an Australian citizen nor a permanent resident and assumptively linked the boyfriend’s financial ability and the applicant’s incentive to remain in Australia is a clear judicial error made by the Tribunal in the hearing as an apprehended bias against the applicant.

   15. The Tribunal has erred in law in taking into irrelevant information into consideration. The applicant was granted a working holiday visa in 2012 and was on and off in Australia till 2014. The information of the applicant’s visa history is not critical and irrelevant to decide whether the applicant is a genuine student or not.

   16. The applicant has continued to study her English course at the registered provider. Though the Tribunal did give a light weight on that fact, the Tribunal further assumed without any evidence that there was no persuasive value when the Tribunal reached its conclusion. It is thus submitted that the Tribunal’s attitude to the forgoing fact was an apparent bias against the applicant.

   17. When the applicant tried to enrol at a chosen school as a student, the applicant was asked to undertake a basic English test. Based on her test result, the applicant was told that she was not eligible to enrol in a fashion or beauty course until the applicant completed level I to V English course. Without taking this crucial information into consideration, the Tribunal has been actually biased against the applicant. The Tribunal has been further actually biased against the applicant when the Tribunal found that the English undertook by the applicant did not have any intrinsic value to the vocational pathway the applicant proposes.

1. At the hearing, Mr Wong for the applicant indicated that he only pressed grounds 1, 3 and 5 of the application.

2. Unfortunately, Mr Wong’s oral submissions were, again, rather confusing.  Some of what was advanced did not appear to relate to the grounds of review as articulated and Mr Wong appeared to struggle with the legal principles relevant to jurisdictional error.

3. In relation to the contention that the Tribunal was “biased” (arguably tied to ground 1), Mr Wong stressed that the Tribunal had found that the financial contribution “was an incentive” and this was evidence of “an impartial mind”. When the Court suggested that this did not really prove bias, Mr Wong then said that the Tribunal had looked at information that it should not have been looked at. Throughout his submissions, Mr Wong maintained that the Tribunal had acted without objectivity.  

4. In relation to grounds 3 and 5, Mr Wong stated that it was “very clear” that the applicant had to take English first and then the beauty therapy course. He submitted that at the time that the applicant applied for the visa, it was not necessary to have a business plan.  Alternatively, the English course and the planned beauty course were part of her “business plan”. When the Court asked whether what was being sought was merits review, Mr Wong submitted that this was jurisdictional error and evidenced “extra bias”.

5. The Court will address these issues below when addressing the applicant’s grounds of review.

Minister’s Submissions

1. In relation to ground 1, the Minister submitted as follows:

   a)the Tribunal placed weight on the applicant’s relationship with her boyfriend as a tie to Australia.  This is a factor the Tribunal was directed to consider under [11(a)] of Direction 69.  This cannot be said to have been an irrelevant consideration;

   b)the Tribunal’s finding at [24] that the applicant’s economic circumstances in Taiwan did not operate as an incentive for her to return to that country was open to it in circumstances where the applicant’s evidence to the Tribunal was that her boyfriend covered all of her living expenses in Australia and she did not have employment or a business to return to in Taiwan. Again, the Tribunal was directed to consider this factor under [9(c)] of Direction 69 and it cannot be said that this was an irrelevant consideration;

   c)insofar as the applicant relies on the analogy that, where the spouse of a student visa holder earns wages in Australia that go toward supporting the visa holder, this financial support cannot be seen as an incentive for the visa holder to remain in Australia the Minister disagrees. Paragraph [9(c)] of Direction 69 specifically directs the Tribunal to consider “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country.” Financial support from a spouse’s wages earned while in Australia can present as a significant incentive for the applicant not to return in circumstances where, as was the case here, the applicant did not have employment to return to in her home country;

   d)contrary to the applicant’s contention, the Tribunal did consider that the boyfriend was not an Australian citizen or permanent resident at [18]. Whilst it may have been open to the Tribunal to find that the boyfriend therefore presented less of a tie to Australia or his financial support offered less of an incentive for the applicant not to return on this basis, in circumstances where there was no evidence that the boyfriend had actually left Australia by the time of the Tribunal’s decision (some 9 months after the Tribunal hearing), nor any evidence that his financial support would cease even if he were to leave, the Tribunal’s findings in this regard were open to it;

   e)the applicant’s contention that the Tribunal’s decision ought to be vitiated for apprehended bias cannot be made out. Despite being legally represented, the applicant has made no attempt to provide any evidence to suggest that the Tribunal was biased and nothing arises on the materials before the Court to suggest such; and

   f)in circumstances where the applicant has been in Australia for a period of almost four years, her final English course would have finished in August 2019, yet she still remains in Australia.  The argument to the Court that the Tribunal erred in finding that she was not a genuine temporary entrant and would leave Australia at the conclusion of her studies rings hollow.

2. In relation to ground 3, the Minister submitted:

   a)there was no error in the Tribunal’s finding at [30] as this finding was factually accurate on the materials before the Tribunal, is not in dispute and cannot be impugned;

   b)the applicant’s submissions further allege that the Tribunal failed to take “crucial information into consideration” that the applicant sought to enrol in a fashion or beauty course, but based on her English test result was told that she was not eligible to enrol until she had completed further English studies. There is no evidence that this specific claim was raised before the delegate or the Tribunal. The only (oblique) mention of it was in the applicant’s statement dated 10 August 2016 submitted with the visa application;

   c)however, any allegation that the Tribunal should have taken this statement as evidence that the applicant had sought to enrol in a fashion or beauty course, but was not eligible to do so based on an English test result, is undermined by her statement in her visa application that she had not undertaken an English language test within the last 24 months;

   d)the Tribunal’s finding that the applicant’s plans to enter into fashion or beauty therapy were “ambiguous and non-specific, and that the applicant was “unable to articulate any educational pathway…” supports the conclusion that this specific claim was never raised; and

   e)in any event, the applicant’s submissions do not demonstrate that the Tribunal was guilty of actual bias against the applicant because of “any failure to consider”.

3. In relation to ground 5, the Minister submitted:

   a)it was patently open to the Tribunal to find that it was not persuaded that the applicant’s English courses had any “intrinsic value to the vocational pathway the applicant propose[d]”. The mere fact that the Tribunal made this adverse finding does not give rise to an inference of bias; and

   b)in substance, the applicant’s contention in ground five is merely an expression of emphatic and misguided disagreement with the Tribunal’s decision, and in essence, seeks impermissible merits review.

4. The Minister noted that an additional argument appears to have been raised at [15] in the applicant’s written submissions – i.e., that irrelevant information was considered by the Tribunal. In response, the Minister submitted:

   a)the argument seeks to impugn the Tribunal’s consideration of the applicant’s visa history on the basis that it was “not critical and irrelevant” to its consideration of whether the applicant was a genuine temporary entrant; and

   b)at [18] and [27], the Tribunal recorded that the applicant was in Australia on a working holiday visa for nearly two years from 2012 until 2014. Contrary to the applicant’s contention, the Tribunal was specifically directed to consider the applicant’s previous travels to Australia by [14(b)(iii)] of Direction 69. It therefore cannot be said that it was an irrelevant consideration, noting that a consideration can only be irrelevant if the applicable statute expressly or impliedly prohibits a Tribunal from taking it into account.

Consideration

Ground 1

1. For ease of reference, ground 1 provides:

   The AAT has erred in law in finding that the evidence of her boyfriend’s financial supporting has indicated that my client will remain in Australia after her completion of her English study;

2. The applicant appears to be referring to [24] and [26] of the Tribunal’s decision where the Tribunal states:

   24. The applicant does not have employment or a business to return to in Taiwan and receives financial support from her boyfriend in Australia which covers all her living expenses. The Tribunal finds that the applicant’s economic circumstances in Taiwan, relative to those in Australia, are not an incentive for her to return to Taiwan

   …

   26. The applicant claims not to work in Australia. The applicant lives with her boyfriend who covers all of her Australian living expenses including rent, utilities and food. The Tribunal finds the applicant’s personal relationship with her boyfriend in Australia and his ability to provide financially is an incentive for her to remain in Australia.

3. As is apparent from the above, the Tribunal did not find that the applicant’s evidence that her boyfriend provided financial support indicated that she would remain in Australia. Rather, the Tribunal found that this was an incentive for the applicant to remain in Australia when compared with her evidence about her circumstances in Taiwan if she were to return.

4. Contrary to the applicant’s submission, whether the applicant’s financial circumstances were an incentive to remain in Australia was a relevant consideration as per Direction 69. Relevantly, [24] of the Tribunal’s decision addresses [9(c)] of Direction 69 and [26] of the Tribunal’s decision addresses [11(a)] of Direction 69. Both of these matters were relevant and probative in relation to the Tribunal’s determination of whether the applicant met cl.500.212 of the Regulations.

5. Mr Wong appeared to suggest that a “boyfriend” is not “family” and, as such, the Minister’s reliance on [11(a)] of Direction 69 is incorrect. With respect, the applicant is adopting an overly narrow reading of Direction 69.  It was entirely open to the Tribunal to consider the boyfriend’s assistance as relevant to its overall consideration: Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [6].

6. The applicant also appears to submit that there is no direct link between the financial ability of the boyfriend and the applicant’s incentive to remain in Australia and that it was somehow “contradictory” for the Tribunal to rely on this information when there are other visa classes and provisions which allow for financial support of this sort.

7. Here, the applicant seems to have misunderstood the Tribunal’s decision and the approach taken. It is not the boyfriend’s financial ability that was the focus for the Tribunal.  Rather, what mattered was the applicant’s economic circumstances generally. In Taiwan, the applicant would be returning without employment and staying with her cousin. In Australia, the applicant had all of her expenses covered. Whether the economic circumstances arose because of her boyfriend or otherwise, the fact remains that the applicant’s economic circumstances in Australia were better than what her evidence indicated would be the case in Taiwan. Hence, it was not the “mere fact” that the boyfriend provided financial support to the applicant that mattered.  It was the comparison of the applicant’s circumstances (as explained by her in her evidence) that mattered to the Tribunal. This sort of analysis was entirely open to the Tribunal. 

8. The applicant also suggests that the Tribunal failed to consider the fact that the applicant’s boyfriend is not an Australian citizen nor a permanent resident and made an “assumption” that was biased.

9. The Tribunal made reference to the applicant’s boyfriend as follows:

   At the time of hearing she had a boyfriend for a little over a year but he has completed his studies and was due to return to Malaysia.

10. The Tribunal was clearly aware that the applicant’s boyfriend was not a permanent resident and that he was due to return to Malaysia. However, at no time was it advanced by the applicant that her boyfriend’s residency status was significant to, or was a factor in, whether she would continue to have personal ties to Australia if her boyfriend left or that his financial support would continue. Given that the only information before the Tribunal about the applicant’s financial circumstances was that the applicant’s boyfriend covered her expenses in Australia, it was entirely open to the Tribunal to rely on that evidence (as provided by the applicant), assume that it was accurate and that it would continue when assessing the applicant’s circumstances in Australia.

11. While it is equally the case that the applicant’s boyfriend may have continued to support the applicant financially if she returned to Taiwan, it was nevertheless still open for the Tribunal to consider that the circumstances as evidenced were an incentive for the applicant to remain in Australia.

12. It is well accepted that an allegation of bias must be clearly made and distinctly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (“Jia Legeng”). An allegation of bias is a serious allegation and one that should not be made lightly – particularly if it comes from a legal practitioner, as opposed to an unrepresented applicant. 

13. To prove bias, it is for the applicant to establish that:

    a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng; or

    b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].

14. Despite a number of prompts from the Court to explain how the Tribunal was actually “biased”, Mr Wong was unable to articulate in any meaningful way how bias arose here. He simply stated that the Tribunal was not impartial and pointed to “various findings”. That Mr Wong or the applicant disagreed with the Tribunal’s findings is not a basis for an allegation of bias. At its highest, what seemed to concern Mr Wong might be better framed as an error arising from the Tribunal taking into account an irrelevant consideration or, perhaps, illogicality – none of which can be seen to be the case here.

15. Mr Wong also made a submission that the Tribunal “was not impartial to the delegate”. It is unclear what was meant by this submission.  In any event, it is apparent that the Tribunal undertook a de-novo review of the application. The Tribunal’s decision was far more detailed than the delegate’s decision and made discrete findings based on evidence that was not before the delegate.

16. The Tribunal has not taken into account irrelevant considerations, failed to consider a relevant consideration or demonstrated that it was biased when it took into account the financial support of the applicant’s boyfriend. There was no error of law of the sort suggested by the applicant through her solicitor.

17. Ground 1 is, accordingly, dismissed.

Ground 3

1. For ease of reference, ground 3 provides:

   The AAT has erred in law in finding that my client has not enrolled in any beauty courses while undertaking her English course;

2. The applicant appears to be referring to [30] of the Tribunal’s decision, which states:

   The Tribunal accepts as a general proposition that an understanding of English might broadly be of some benefit to the applicant on her return to Taiwan. The applicant’s business plan is to undertake fashion or beauty therapy. The Tribunal notes the applicant is enrolled in neither a fashion nor a beauty therapy course. The Tribunal is not persuaded the English courses enrolled in by the applicant have any intrinsic value to the vocational pathway the applicant proposes. The Tribunal concludes it is likely the applicant is using the student visa programme to maintain ongoing residence in Australia.

3. The Tribunal was correct to note that the applicant had not enrolled in any beauty courses. The applicant was only enrolled in English courses. Hence, there is no error of law in this regard as, on the materials before the Court, the Tribunal was plainly correct in its observation.

4. Although not entirely clear, the applicant’s submissions also seem to suggest that the Tribunal failed to consider (and, in doing so, displayed actual bias) that the applicant was “unable” to enrol in fashion or beauty courses because her English was not at the requisite level and in finding that there was no intrinsic value in the English courses the applicant was undertaking.

5. There is nothing in the materials before the Court to indicate that the applicant had sought to enrol in a fashion or beauty course. The applicant’s statement (CB 21) states as follows:

   …While I am in Australia, I have got some information in relation to the beauty therapy course which I think is much better than the course in Taiwan. However, it appears that my limited English is the main barrier for me to study in a beauty therapy course ·in Australia. Therefore, I have decided to enrol myself in an English course first before undertaking a beauty therapy course in Australia which will be of great help to me to start a new business in Taiwan upon completion of the beauty therapy course in Australia.

6. Without a transcript, it cannot be said that the applicant ever raised or put to the Tribunal that English courses were “required” before she could undertake a beauty course. What is clear on the materials that are before the Court is that the Tribunal asked the applicant to explain how her courses of study in English would benefit or assist her in obtaining employment.  Her response (while vague) was that the English skills obtained in an English-speaking country would give her confidence and improve her work prospects in either the fashion industry or beauty industry. It was never stated that the English language courses were being taken in order to enable the applicant to complete the qualifications.

7. It cannot be said in this context that the Tribunal failed to address any issue or evidence relevant to the applicant’s proposed beauty course.  It assessed the evidence before it and was simply not persuaded that the English courses enrolled in by the applicant had any intrinsic value to the vocational pathway she was proposing.  Again, that finding was open to the Tribunal. 

8. To the extent that the applicant takes issue with the Tribunal’s finding that the courses had no “intrinsic value”, on the materials before the Court, the applicant does not appear to have suggested that the English language courses were in fact essential (in the sense that she was unable to partake in the beauty or fashion courses because of her ability to speak English) to her vocational pathway. The Tribunal accepted that as a general proposition English would broadly be of benefit to the applicant on return to Taiwan.  The Tribunal was not, however, satisfied that English language skills were of specific relevance, or value, to the applicant’s proposed vocational pathway. Rather, they were of “broad benefit” generally.  That finding was open to be made, particularly given the ambivalence as to the applicant’s future plans.  Further, there is no concern here that that in making this finding the Tribunal was so committed to a conclusion that, regardless of the evidence or arguments presented, it was not open to persuasion: Jia Legeng.

9. Ground 3 is, accordingly, dismissed.

Ground 5

1. For ease of reference, ground 5 provides:

   Further or alternatively, the AAT has been biased against my client to assume that the value of the English course to my client’s future is limited.

2. The Tribunal did not “assume” that the course was of little value. Rather it assessed whether, in light of the applicant’s evidence, the English course was of value to the applicant’s future plans. In circumstances where the applicant’s future plans and educational pathway were described as “vague”, non-existent (i.e., she had no plan), “ambiguous and non-specific” and unable to be articulated, it was entirely open to the Tribunal to find that the English course was of limited intrinsic value to the applicant’s future.

1. To the extent submissions were advanced at hearing generally about bias, the applicant has advanced no basis for any of these allegations. Mr Wong was unable to articulate the nature of the bias he was referring to with any precision. The only material before the Court relating to bias was a statement in the affidavit that the applicant understood that if the Tribunal were not biased, she would have been found to be a genuine student entrant. This assertion does not demonstrate bias. It is an opinion without foundation. 

2. Ground 5 is, accordingly, dismissed.

Paragraph 15

1. The Minister noted that [15] of the applicant’s submissions appears to raise a further argument that was not articulated in the grounds of review. For ease of reference, [15] provides:

   The Tribunal has erred in law in taking into irrelevant information into consideration. The applicant was granted a working holiday visa in 2012 and was on and off in Australia till 2014. The information of the applicant’s visa history is not critical and irrelevant to decide whether the applicant is a genuine student or not.

2. Direction 69 expressly refers to the applicant’s immigration history as a relevant consideration. On that basis, this was not irrelevant to any decision about whether the applicant was a genuine student. In any event, it does not appear the Tribunal placed any significant weight on the applicant’s migration history or considered it to be a “critical” factor. Rather, the Tribunal simply notes it.

3. There was no error in the Tribunal considering the applicant’s migration history.

4. No jurisdictional error arises from [15].

Conclusion

1. The applicant has failed to satisfy the Court that the Tribunal has fallen into jurisdictional error. The applicant’s affidavit also fails to identify any jurisdictional error.

2. The application is, accordingly, dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date: 29 May 2020