Guevarra v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 783
Federal Circuit and Family Court of Australia
(DIVISION 2)
Guevarra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 783
File number(s): SYG 2232 of 2018 Judgment of: JUDGE LAING Date of judgment: 19 September 2022 Catchwords:
MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal took into account irrelevant considerations and did not take into account relevant considerations – whether the Tribunal disbelieved evidence without providing reasons – whether error was shown by the Tribunal’s failure to inquire – application dismissed
Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 15 September 2022 Counsel for the Applicant: The applicant appeared in-person Solicitor for the First Respondent: Ms M Harradine (Mills Oakley) appeared in-person Counsel for the Second Respondent Submitting appearance, save as to costs ORDERS
SYG 2232 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EDMOND MANGALINDAN GUEVARRA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
19 September 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a national of the Philippines. On 2 February 2017, he applied for a student visa.
The Delegate refused the applicant’s visa application on 7 March 2017. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion) could not be met.
On 15 March 2017, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 8 May 2018.
On 12 July 2018, the Tribunal affirmed the Delegate’s decision.
ReLEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
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 compliance 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.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction), which was made under s 499 of the Migration Act 1958 (Cth) (Act). That Direction required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to their future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
The Direction indicated that it was not to be used as a checklist, but stated that the “listed factors 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”.
TRIBUNAL’S DECISION
At [1]-[22] of its decision, the Tribunal summarised the background to the matter as well as the material that was before it. This included the evidence given by the applicant during the hearing before the Tribunal.
The Tribunal set out the relevant criterion in issue and the effect of Direction No. 69 at [23]-[26].
The Tribunal then, at [27]-[33], assessed the applicant’s circumstances in relation to cl 500.212(a). As this part of the decision is reasonably concise, it is convenient to set it out in full:
27.The written statement which the applicant provided the Tribunal, on 4 May 2018, indicates he came to Australia in March 2012. He has provided evidence that he successfully completed: a Certificate III in Children’s Services course, which ran from April 2013 to October 2013; a Diploma of Children’s Services course, which ran from October 2013 to October 2014; and an Advanced Diploma of Management, which ran from October 2014 to April 2015. The applicant has also provided evidence of his study in the Bachelor of Business course he is currently undertaking. The Tribunal has some concern that the applicant has not provided evidence to demonstrate he was actively studying in the period from March 2012 up until when he commenced the Certificate III in Children’s Services course in April 2013, although it would appear he was on a student visa during this period.
28.The Tribunal also has concern about the applicant’s failure to work in the child care sector for more than a few months after he was granted the Subclass 485 Skilled Graduate visa in August 2015. In his written statement he indicates this was because he perceived a need to return to study a Bachelor degree, so as to improve his career prospects in his home country. The impression this conveys, that he did not continue to work in the child care sector in Australia because he decided he needed to undertake further study, is not consistent with the evidence he gave during the hearing, where he said he had not considered undertaking further study until his mother demanded he do so in early 2017. It is also not consistent with his oral evidence that he did not work in the child care sector whilst on the 485 visa, as he commenced employment in the construction industry as a customer service manager with Sydney Plaster. This latter claim, which the Tribunal has no reason to doubt, is of particular concern, as he said he commenced employment with Sydney Plaster in November 2014, some nine months before he was granted the 485 visa on the basis of an intention to seek work in the child care sector. The Tribunal considers the inconsistency in the applicant’s claims as to why he returned to study after his Subclass 485 visa ceased and his general migration history in Australia gives rise to a concern as to whether he has been a genuine applicant for entry and stay as a student, or whether he has another incentive to seek to maintain his residency in Australia. In forming this view the Tribunal was influenced by what it considers is the unconvincing claim that the applicant’s mother is unwilling to provide him with employment or a future in her child care business unless he undertook the Bachelor of Business course he is currently enrolled in. The Tribunal has reviewed the letter from the applicant’s mother, dated 30 April 2018, which makes reference to her offering him a place in her business when he completes his current studies, and has formed the view it was prepared to support his review application and has placed only limited weight upon it.
29.The Tribunal accepts the applicant has an option to return to the Philippines and work in his family child care business. The Tribunal is satisfied the applicant has acquired skills and experience as a consequence of his studies in children’s services and management whilst he has been in Australia. In conjunction with the accounting and psychology qualifications he achieved prior to coming to Australia, it would appear the applicant has more than adequate qualifications to return to his home country and take up work in the family business, or seek other suitable employment. It is not readily apparent why the applicant requires the further qualification he is now seeking.
30.The Tribunal has reviewed the account statement from the applicant’s CBA account, which he provided in support of his claim that he earns a weekly income of $500 from the job with Sydney Plaster. The bank records provide no indication of the applicant’s earnings from this job, but do show regular weekly amounts credited to his account from a restaurant business, which the Tribunal is satisfied reflects the applicant’s casual employment with that employer. The records do not provide any indication of his earnings from employment with Sydney Plaster and the applicant has provided no explanation for this. In the view of the Tribunal this gives rise to the concern his earnings from Sydney Plaster are paid to him through another account, or by some other means. The Tribunal accepts the applicant’s evidence he only works for Sydney Plaster on a casual basis, but this has not resolved the concern his employment earnings in Australia, since at least November 2014, in comparison to his past employment earnings in the Philippines, provide him with an economic incentive to maintain his residency in Australia.
31.The Tribunal accepts the applicant has family ties in the Philippines, in the form of his mother and siblings. He also has family ties in Australia, in the form of his aunt, with whom he resides in Meadowbank, NSW. Whilst acknowledging his family ties to the Philippines are likely stronger than those he has to his aunt in Australia, the Tribunal is not persuaded he has maintained a strong connection to his home country over the more than six-year period he has now remained in Australia on temporary visas.
32.The Tribunal accepts the applicant has no military service commitments that would present as a significant incentive for him not to return to the Philippines. The Tribunal also accepts the applicant’s oral evidence that he has no concern as to any political and civil unrest in his home country.
33.In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled and completing a Bachelor of Business, which finishes in March 2019, that he has stronger family ties in the Philippines than Australia, that he has successfully completed three of the courses he has enrolled in while on the student visas and all the other matters he has raised. However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
Based upon the above, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. Instead, the Tribunal formed the view that the applicant was only using the student program to maintain ongoing residence (at [34]). The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that the applicant was unable to meet cl 500.212(a) and affirmed the Delegate’s decision (at [34]-[37]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court on 10 August 2018, relying upon the following ground of review:
Jurisdictional error was made by AAT as it focused on my employment rather than my authenticity as a student which the Department of Immigration has pointed out on their refusal decision. I have been consistently completing all of my courses and I never had a gap of study, I always have a good academic and attendance records.
In an affidavit filed on 23 November 2018, the applicant additionally raised the following complaints (changed below where all capitals into sentence case):
1.AAT member failed to consider my genuine intention to study further.
2.AAT member failed to consider that the Bachelor of Business in Management will create an immense opportunity…
1)AAT member failed to consider my genuine intension to study further in Australia as he assumed I was working in Sydney Plaster in customer service whereas my prior studies were in Children Services sector.
2)AAT member failed to consider the fact that the Bachelor of Business Management studies will create further opportunities in finding jobs in the field of management and customer service aside from opportunity to work in my mother's child care centre.
3)My mother offered me the Director's position of her Childcare Care Centre business in the Philippines only if I complete the Bachelor of Business Management degree but the AAT member did not believe and did not provide any reason for not believing it !
4)During the hearing I was nervous and forgot to explain my job arrangements clearly. In fact, I was working in 2 different jobs during the 485 visa periods when I had unlimited work rights. Once my 485 visa expired and applied for student visa I was working only casually at Sydney plaster and working at a restaurant also casual. I provided the evidence and the explanation and it seems the member misunderstood and did not ask for further clarification.
The pleaded ground
The sole pleaded ground of the application complained that the Tribunal focussed upon the applicant’s employment rather than upon his authenticity as a student.
The Tribunal did consider the applicant’s employment in some detail in its decision. However, this was not to the exclusion of its consideration of cl 500.212. To the contrary, the Tribunal’s consideration of the applicant’s employment history was undertaken for the purposes of assessing the applicant against this criterion.
In particular, the Tribunal was concerned by the limited work undertaken by the applicant in the child care sector after he was granted a Subclass 485 visa (at [28]). The Tribunal was also troubled by inconsistencies in his evidence, including as to why he had returned to study after his Subclass 485 visa had ceased (at [28]) and also in relation to the evidence he had provided regarding his income from particular employers in Australia (at [19] and [30]). The Tribunal was additionally concerned that the applicant’s employment earnings were not fulsomely evidenced in the material before the Tribunal (at [30]). These matters informed the Tribunal’s concern that there may be an economic incentive for the applicant’s maintenance of residence in Australia, particularly in light of his evidence that his employment in Australia was considerably better paid than his employment in the Philippines (at [19], [30]).
These matters, and the Tribunal’s concerns regarding the potential for there to be an economic incentive for the applicant’s maintenance of residence, were logically probative of the Tribunal’s assessment of whether the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212. I therefore do not accept that the Tribunal erred in the manner contended.
In the sole pleaded ground, the applicant also referred to having consistently completed his courses, never having a gap in study and maintaining good academic and attendance records.
The Tribunal acknowledged at [27] of its decision that the applicant had successfully completed a number of courses. It also considered the timeframes in which those courses were undertaken. In this regard, the Tribunal did not accept that there was no gap in the applicant’s study. The Tribunal raised some concern at [27] that the applicant had not demonstrated active study in the period from March 2012 until April 2013, despite apparently having been on a student visa at the time. At the hearing before this Court, the applicant indicated that he could provide further evidence that he studied during this period. However, as I explained during the hearing, the role of this Court is not simply to revisit or remake the factual findings of the Tribunal. The Court’s role is more limited than this and focusses upon whether the Tribunal’s decision was open to it, on the material that was before it.
The applicant has not demonstrated that the above reasoning was closed to the Tribunal on that material. Nor has the applicant demonstrated any particular evidence or consideration that the Tribunal was bound to take into account but failed to do so.
Based upon the above, I am not satisfied that the pleaded ground raised by the applicant is able to succeed.
Matters raised in the affidavit
In his affidavit, the applicant further contended that the Tribunal failed to consider his genuine intention to study further. This complaint appeared to go no further than disagreement with the Tribunal’s decision. As set out above, the Tribunal assessed whether the applicant’s claimed intentions towards study were genuine. It was not satisfied that this was the case. This aspect of the applicant’s complaints does not appear to rise above an entreaty towards merits review. It is therefore incapable of establishing jurisdictional error.
The next matter raised in the affidavit is a complaint that the Tribunal failed to consider that the Bachelor of Business in Management would create “immense opportunity”. Relatedly, the applicant contended that the Tribunal failed to consider that his studies would create opportunities aside from those relating to his mother’s child care centre.
The Tribunal considered the applicant’s claims regarding his intended use of the degree in his mother’s childcare business at [11], [17], [20] and [29] of its decision. The Tribunal did not err in doing so, as this reflected the claims that were made by the applicant. In this regard, the Tribunal found it unconvincing that the applicant would require the proposed qualification in order to work in the family business (at [29]). However, beyond this the Tribunal considered that “it would appear the applicant has more than adequate qualifications to return to his home country and take up work in the family business, or seek other suitable employment” (at [29]) (emphasis added). The Tribunal found, therefore, that it was “not readily apparent why the applicant requires the further qualification he is now seeking”.
In light of these findings, I do not accept that the Tribunal failed to consider that the applicant’s proposed qualification may have a relevance beyond his mother’s child care business. However, within this context, I also consider that it was open to the Tribunal not to be satisfied that the applicant had demonstrated why the qualification was necessary or relevant to any other opportunities that he intended to pursue. The applicant has not identified any evidence that he provided to the Tribunal regarding other specific opportunities (such as in management or customer service) that required the degree and that the Tribunal failed to consider. In these circumstances, I am not satisfied that relevant error has been demonstrated in this regard.
The next complaint raised in the affidavit is that the Tribunal failed to consider the applicant’s genuine intention to study further. This is said to have occurred because the Tribunal “assumed” that the applicant was working in Sydney Plaster in customer service whereas his prior studies were in “Children Services”.
For the reasons I have given above, I do not accept that the Tribunal failed to consider the applicant against the genuine temporary entrant criterion. This part of the affidavit appears to seek to engage the Court in impermissible merits review.
To the extent that the applicant took issue with the Tribunal’s finding that he worked at Sydney Plaster in customer service, this appears to have been the effect of his oral evidence to the Tribunal (set out at [28] of the Tribunal’s decision). No transcript is in evidence contesting the accuracy of the exchange set out in that paragraph. The applicant also did not seek to challenge that this was the effect of his evidence at the hearing before this Court. It was open to the Tribunal to consider that the applicant’s cessation of work in the child care centre and work in an unrelated industry was relevant to its assessment of his claimed intention to be studying in order to build experience relevant to the child care sector. I do not see how any legally relevant error in the Tribunal’s decision could be said to have occurred in this regard.
The next issue raised in the affidavit concerned the Tribunal’s non-acceptance that the applicant’s mother had offered the applicant a position in her childcare business only if he completed his degree. The applicant complained in his affidavit that the Tribunal did “not provide any reason for not believing” this.
However, the Tribunal did provide reasons for not accepting this evidence at [28]-[29] of its decision. There, the Tribunal acknowledged a letter from the applicant’s mother supporting the applicant’s claims in this regard. The Tribunal was only prepared to place limited weight on this letter, in circumstances where it understood the applicant’s mother was motivated to support the applicant’s review application. At [29], the Tribunal considered that the applicant appeared to have more than adequate qualifications to return to his home country and take up work in the family business. In these circumstances, the Tribunal found that it was “not readily apparent why the applicant requires the further qualification he is now seeking”.
The Tribunal, therefore, gave two reasons for not accepting the applicant’s evidence in this regard: (1) the mother’s motives in giving evidence; and (2) that it was not evident why the qualification was required within the context of the applicant’s other qualifications and experience. Those reasons were intelligible.
The last matter raised in the applicant’s affidavit is that he had not explained his job arrangements clearly at the Tribunal hearing due to nerves. The applicant says that he was working casually at Sydney Plaster and at a restaurant. He contended that whilst he provided this evidence and explanation to the Tribunal “it seems the member misunderstood and did not ask for further clarification”.
It was not apparent from the affidavit what the Tribunal was contended to have misunderstood in this regard. At the hearing before this Court, the applicant did not meaningfully elaborate upon the basis of this contention when he was given the opportunity to do so.
At [12] of its decision, the Tribunal acknowledged the applicant’s post-hearing claim that he had not clearly explained at the hearing (due to nerves) that he only worked casually at Sydney Plaster and that he had also worked in the restaurant business. The Tribunal did not doubt that the applicant worked casually in these two roles. However, the Tribunal found that this did not resolve its concern that the applicant’s relative earning capacity in Australia may provide him with an economic incentive to maintain residence (at [30]). In circumstances where it does not appear that the Tribunal misunderstood the applicant’s evidence, it is not obvious that clarification ought to have been sought. There is no general obligation upon the Tribunal to make inquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1] and [25]). If the applicant wished to provide some further clarification in this regard, it would have been open to him to have done so before the Tribunal.
CONCLUSION
For the above reasons, I am not persuaded that jurisdictional error has been demonstrated in the approach or the decision of the Tribunal. It follows that the application must be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 19 September 2022
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