Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 712
•13 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 712
File number(s): SYG 1084 of 2019 Judgment of: JUDGE STREET Date of judgment: 13 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary)(Class TU) Visa – whether the Tribunal failed to comply with a mandatory requirement– whether the Tribunal misapplied the relevant visa criteria– no jurisdictional error made out – amended application dismissed. Legislation: Migration Act 1958 (Cth) ss 360(1), 425, 476.
Migration Regulations 1994 (Cth) rr 500.212(a), 500.212(b).
Cases cited: SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Inderjit v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217
Badaeo v Minister [2018] FCA 1973
Sanje v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966
Number of paragraphs: 22 Date of hearing: 13 April 2021 Place: Sydney Counsel for the Applicant: Mr R. Chia Solicitors for the Applicant: Jessie Icao Solicitors Counsel for the First Respondent: Mr J. Tay Solicitors for the First Respondent: HWL Ebsworth Lawyers ORDERS
SYG 1084 of 2019 BETWEEN: ROSALINA REYES DAIT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
13 APRIL 2021
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
2.Leave is granted to the applicant to rely upon the amended application dated 12 April 2021 and the Court dispenses with the need for the filing of the same.
3.The amended application is dismissed.
4.The applicant pay the first respondent’s costs fixed in the amount of $5,600.00
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) on 1 April 2020 affirming a decision of the Delegate of the minister (“the Delegate”) not to grant the applicant a Student (Subclass 500) (Class TU) Visa (“the Visa”). The applicant applied for the Visa on 10 March 2017. The Delegate, on 21 June 2017, declined the grant of the Visa having found the applicant was not a genuine temporary entrant in accordance with the criteria.
The applicant is a citizen of the Philippines and first came to Australia on 18 November 2011 as the holder of a subclass 676 Visa. The applicant returned to her home country in February 2012 and returned in August holding a subclass 572 Visa. The applicant has not returned to her home country since that time. The applicant completed a certificate, diploma and an advanced diploma in the course of business, and certificate and diploma in courses of marketing and, at the time of the hearing, was the subject of starting a certificate IV in project management and was approved to study a diploma of project management.
The applicant applied for review of the Delegate’s decision on 10 July 2017. The applicant was invited to and attended a hearing on 23 January 2019. The transcript of that hearing has been tendered into evidence. At the commencement of the hearing, the Tribunal member explained that the Delegate wasn’t satisfied that the applicant met the criteria of a genuine temporary entrant for study. The Tribunal member expressly referred to the applicant having to be a genuine applicant for entry and stay as a student and that the Visa holder must intend to stay in Australia temporarily.
The Tribunal member referred to having to assess whether the applicant is a genuine temporary entrant and referred to the criteria that would need to be considered, including the circumstances in the applicant’s home country and the circumstances in Australia, the immigration history and the value of the course that the applicant was studying to her future, and, in particular, her future employment in her home country. It is apparent, on a fair reading of the transcript, that the applicant had a real and meaningful hearing before the Tribunal where the Tribunal explored with the applicant the matters that had been identified at the outset in respect of whether the applicant was a genuine temporary entrant.
The questions from the Tribunal clearly identified that that remained a live issue in the course of the hearing.
THE GROUNDS
The Grounds in the amended application are as follows:
(1)The second respondent (Tribunal) failed to comply with the mandatory requirement, under s 425 of the Act, to “invite” the applicant to give evidence and present arguments in relation to the issues arising on review.
Particulars:
The applicant was not given notice that:
(a)Her ability to support herself in Australia by working as a cleaner would be considered a “further incentive... to seek to remain”; or
(b)Her “now undertaking her third subject area, beginning at Certificate level” indicated that she was not “continuing to study for genuine purposes”.
(2)Further or in the alternative, the Tribunal misconstrued and misapplied the Visa criteria.
Particulars:
The Tribunal did not consider or make any finding in relation to paragraph 500.212(b) of Schedule 2 to the Migration Regulations 1994.
Clause 500.212 required the Tribunal to ask whether the applicant was a genuine applicant for entry and stay as a student “because” of all the reasons set out in paragraphs (a) to (c) of that clause. The factors set out in those paragraphs were required to be considered jointly.
GROUND 1
Mr Chia, of counsel on behalf of the applicant, contended that this was a case where the Tribunal member had reasoned in a way which required the issue to be raised with the applicant as to whether the applicant’s working as a cleaner would be considered a further incentive to remain in Australia, and whether the applicant’s undertaking of a third subject at a certificate level indicated that she was not continuing to study for genuine purposes.
The applicant was clearly on notice as a result of the Delegate’s decision as to the issue of being a genuine temporary entrant. The Tribunal, in its reasons, identified the background to the Visa application and referred to the criteria under cl 500.212 of the Migration Regulations 1994 (“the Regulations”). The Tribunal made reference to the applicant’s background having lived in Taiwan from 2005 to 2008 working in electronics and having arrived in Australia in 2011 as a tourist and returning in 2011 holding a student Visa. The Tribunal referred to the applicant having two sisters in Australia and other family members in the Philippines.
Having weighed the evidence in that regard, the Tribunal considered that the applicant has ties with Australia in the form of immediate family members and employment that act as a strong incentive to remain. The Tribunal referred to the applicant’s visits from her parents and accepted that the applicant appears to have few ongoing ties to her home country and little incentive to return. The Tribunal referred to the courses that the applicant had successfully undertaken, and found that they are primarily lower level qualifications and that there had been a successive number of programs taken over the course of the last six years.
The Tribunal considered that the applicant had spent sufficient time improving her qualifications during the time in Australia and was not satisfied that she is continuing to study for genuine purposes. The Tribunal also made reference to the value of the courses that the applicant is studying in relation to her goal of being a manager in the area of business process outsourcing. The Tribunal, took into account the courses that the applicant had completed to date, and found that the applicant’s qualifications achieved so far are sufficient for the applicant to pursue her career in her home country.
The Tribunal was not satisfied that the applicant demonstrated a need to undertake further vocational studies in project management in addition to her qualifications in business and marketing. It was in those circumstances, taking into account Direction 61, that the Tribunal was not satisfied the applicant met the genuine temporary entrant criteria. The Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that the applicant didn’t meet the criteria in cl 500.212(a) of the Regulations.
The Tribunal was not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 of the Regulations and affirmed the decision under review. Mr Chia, of counsel, submitted that the Tribunal did not question or challenge the applicant or ask her to elaborate in relation to the economic incentive to remain in Australia in respect of her employment. Mr Chia contended that the applicant was not on notice that her employment as part-time cleaner in Australia would be considered a strong incentive not to return to the Philippines.
Mr Chia also submitted that the applicant was not on notice that changes in the subject area of her studies identified by the Tribunal would be an issue on review. The Tribunal complied with its statutory obligations in respect of the invitation to appear before the Tribunal under s 360(1) of the Act, and the Court finds that the applicant had a meaningful and real opportunity to present her case on the evidence before the Court. The Court accepts the first respondent’s submission that the transcript demonstrates that the Tribunal member referred to the Delegate’s decision and invited the applicant to comment on the Delegate’s findings regarding the applicant’s ties to Australia and lack of incentives to return to the Philippines.
It is apparent, from the transcript that the Tribunal specifically queried the applicant about her work history in Australia and engaged in detailed discussion with the applicant regarding the study she was undertaking. The Court does not accept that the Tribunal failed to identify the dispositive issue as to whether the applicant is a genuine temporary entrant. The Court does not accept that the matters referred to by Mr Chia are of a kind in respect of which the decision of SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”) has application.
The applicant was clearly on notice of the issues relating to her incentives to remain in Australia as well as the value of the courses she was undertaking. The applicant was clearly on notice of the issue as to being a genuine temporary entrant. The reasoning of the Tribunal was not a matter that the Tribunal had to put to the applicant in respect of the adverse findings made concerning the issue as to being a genuine temporary entrant. The matters raised by the applicant were not the dispositive issue, and, in substance, what the applicant was seeking to contend is that there should have been a commentary in relation to the reasoning process. That is not as what is required by SZBEL.
Accordingly, no jurisdictional errors in Ground 1 is made out.
GROUND 2
In relation to Ground 2, Mr Chia, of counsel, referred to the reasoning of the Full Court in Inderjit v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 (“Inderjit”) and, in particular, the passage starting at paragraph 31. Mr Chia, of counsel, submitted that the Tribunal had failed to take into account and deliberate upon essential mandatory criteria in respect of cl 500.212(b) and (c) of the Regulations. It’s apparent from the Tribunal’s reasons that the Tribunal made express reference to the whole of the provisions of cl 500.212 of the Regulations in its reasons.
The passage relied upon by Mr Chia is one in respect of which was qualified by the words, “So far as it may apply in the circumstances…” While (c) is a general catchall in the same form as the content of paragraph (a)(iv), paragraph (b) concerns the intent to comply with any conditions the subject of a Visa. It is not advanced, that this was an issue that applied in the circumstances of the present case. Mr Chia is correct that there is no express reference in the reasoning itself to paragraph (b) and paragraph (c).
There are, however, two decisions of the Federal Court to which the Minister refers to as binding upon this Court, which have held there is no requirement to do so, being: Badaeo v Minister [2018] FCA 1973 at paragraph 28 and Sanje v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966 at paragraph 18. The Full Court’s decision in Inderjit does not, on its face, overrule the reasoning adopted in those two decisions that would otherwise be binding on this Court unless the Full Court had overruled the same. The Court does not accept the reasoning in the Full Court in Inderjit has overruled the same.
The reference to, “So far as it may apply in the circumstances…” clearly envisages that paragraph (b) and paragraph (c) may not require express further reference in particular circumstances. Given the content of paragraph (c) overlapping with paragraph (a)(iv) and the absence of any issue concerning compliance with the condition in the present case, the Court is not satisfied that there is any jurisdictional error of the kind alleged by Mr Chia in the circumstances of the present case.
The Court notes that in that decision, the Full Court made clear that it was concerned with the circumstances of the particular case, and it is apparent that the Full Court focused on the four criteria in cl 500.212(a) of the Regulations in determining whether or not there was any jurisdictional error. There was no requirement in the circumstances of the present case for the Tribunal to make further express reference to paragraphs (b) and (c). There was no jurisdictional error of the kind alleged in Ground 2 in these circumstances.
Accordingly, the amended application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 13 April 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 28 May 2021
1
4
0