Halim v Minister for Home Affairs
[2019] FCCA 2290
•20 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALIM v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2290 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.422B, 357A, 359, 360, 424, 499 Migration Regulations 1994 (Cth) |
| Cases cited: Ghimire v Minister for Immigration [2014] FCA 899 Lee v Minister for Immigration [2005] FCA 464 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SCAA v Minister for Immigration [2002] FCA 668 SZCIJ v Minister for Immigration [2006] FCAFC 62 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 |
| Applicant: | HENDRA SETIAWAN HALIM |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2983 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2019 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms A Zinn |
| Solicitors for the Respondents: | Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2983 of 2018
| HENDRA SETIAWAN HALIM |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Halim, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 October 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Halim a temporary student visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 13 August 2019.
Mr Halim is a male citizen of Indonesia who first arrived in Australia on 26 November 2005 as the holder of a Student (Subclass 573) visa.[1]
[1] Court Book (CB 97)
On 7 October 2016, Mr Halim applied for a student (Subclass 500) visa to undertake a Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality.[2] He appointed an authorised recipient to communicate with the Minister’s Department on his behalf[3] and provided a written statement in support.[4]
[2] CB 1-21
[3] CB 22-26
[4] CB 27-28
In response to a request for more information sent by the Minister’s Department on 25 October 2016,[5] Mr Halim’s representative submitted a number of documents in an email sent on 3 November 2016[6] including a genuine temporary entrant statement,[7] confirmation of enrolments,[8] various academic transcripts and course completion certificates,[9] an offer of employment[10] and evidence of finances.[11]
[5] CB 35-41
[6] CB 42-44
[7] CB 45-48
[8] CB 49-54
[9] CB 55-73
[10] CB 85
[11] CB 86
It was a criterion for the grant of the student visa that Mr Halim satisfy the primary criteria including clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required Mr Halim to be a genuine applicant for temporary entry and stay as a student.
On 23 January 2017, the delegate refused to grant Mr Halim a student visa.[12] The delegate was not satisfied that Mr Halim genuinely intended to stay in Australia temporarily, and found he did not meet clause 500.212.[13]
[12] CB 91-99
[13] CB 91-99
The Tribunal proceedings
On 8 February 2017, Mr Halim applied to the Tribunal for review of the delegate’s decision, appointed a registered migration agent as his representative and provided a copy of the delegate’s refusal notification and decision record.[14]
[14] CB 100-101
On 22 February 2018, Mr Halim was invited to attend a hearing before the Tribunal scheduled for 19 March 2018.[15] Mr Halim’s migration agent emailed a completed response to the hearing invitation on 1 March 2018.[16]
[15] CB 111-126
[16] CB 127-130
On 12 March 2018, Mr Halim’s representative provided written submissions[17] and a bundle of documents in support of the review application, including a current certificate of enrolment, evidence of previous studies, evidence related to employment, an offer of employment in Indonesia and various identity documents.[18]
[17] CB 136-144
[18] CB 145-220
Mr Halim and his migration agent attended the hearing on 19 March 2018.[19]
[19] CB 221-224
On 2 October 2018, the Tribunal affirmed the decision under review.[20]
[20] CB 225-233
The Tribunal identified the issue arising in relation to the decision under review was whether Mr Halim was a genuine applicant for entry and stay in Australia.[21] The Tribunal correctly observed that in assessing whether Mr Halim met the genuine temporary entrant criterion it was required to have regard to Direction No. 69 (Direction) made under s.499 of the Migration Act 1958 (Cth) (Migration Act), and assess Mr Halim against the list of factors in the Direction.[22] The Tribunal also observed that the factors in the Direction should not be used as a checklist but are intended to guide decision makers to weigh up an applicant’s circumstances as a whole.[23]
[21] CB 230, [15]
[22] CB 231, [17]
[23] CB 231, [18]See: Item 1, Part 2 of Direction No. 69; Ghimire v Minister for Immigration [2014] FCA 899 at [3]
The Tribunal had regard to Mr Halim’s stated plan to return to Indonesia after completing his studies in 2019 to work as a manager in his brother’s restaurant to gain the relevant experience so he could eventually open his own restaurant. The Tribunal accepted that Mr Halim had returned to Indonesia approximately eight times since his arrival in 2005 but noted that he had not left Australia since February 2015, when his father died. The Tribunal concluded that this indicated Mr Halim’s ties to Indonesia had diminished over time and having regard to the time Mr Halim spent away from his home country, the Tribunal was not satisfied that an offer of employment in Indonesia or the presence of his two brothers represented a strong incentive for him to return.[24]
[24] CB 231, [19]
The Tribunal considered Mr Halim’s study history and noted that he had completed studies in English, Accounting, Management, Business, Tourism, IT, Web Development and Commercial Cooking. The Tribunal found that by the time Mr Halim would have completed the proposed courses, he would have been a student for approximately 14 years, which was in addition to the qualifications he obtained prior to arriving in Australia. Whilst the Tribunal accepted that the qualifications would “no doubt be of some benefit to him”, it was not satisfied that he had satisfactorily demonstrated the value of undertaking such a wide range of vocational courses.[25]
[25] CB 232, [20]
The Tribunal considered Mr Halim’s reasons for choosing to study Commercial Cookery as stated in the student visa application. The Tribunal was not satisfied the stated goal to “gain skills and knowledge…to be competent as a qualified cook” was consistent with his claim that he would be employed as a manager for a branch of an existing restaurant of which his brother was a shareholder. The Tribunal also found that it was not credible that he needed to invest such extensive time and cost to study formal courses in all possible aspects of a hospitality business.[26] Whilst the Tribunal considered Mr Halim’s job offer[27] it was not prepared to accept that a business would offer the position of a restaurant manager to an unqualified candidate two years in advance. For those reasons, the Tribunal was not satisfied that Mr Halim was continuing his studies for a genuine purpose.[28]
[26] CB 232, [21]
[27] CB 157
[28] CB 232, [21]
The Tribunal found that Mr Halim had minimal experience in the hospitality industry, noting that his only declared experience was 900 hours as part of his Certificate III in Commercial Cookery. The Tribunal found Mr’s Halim’s employment as a shelf filler at Coles since 2006 represented an incentive for him to remain in Australia. The Tribunal was also not satisfied Mr Halim had undertaken a “natural progression in his studies”, finding that he had undertaken courses up to an Advanced Diploma and regressed to a Certificate III. The Tribunal further noted that he enrolled in tertiary level courses however they were subsequently cancelled.[29]
[29] CB 232, [22]
The Tribunal was not satisfied Mr Halim pursued employment experience relevant to his stated goals or in line with his studies, noting his ongoing employment at Coles and limited hospitality experience. Based on the evidence before it, the Tribunal did not accept that Mr Halim was a genuine student and attached weight to the circumstances that indicated he was using the student visa primarily for maintaining residency in Australia.[30]
[30] CB 232, [23]
The Tribunal was not satisfied Mr Halim genuinely intended on staying in Australia temporarily and therefore found he did not meet clause 500.212 of the Regulations.[31] The Tribunal affirmed the decision under review.[32]
[31] CB 232, [24]
[32] CB 233, [27]
The present proceedings
These proceedings began with a show cause application filed on 24 October 2018. Mr Halim continues to rely upon that application. There are four grounds in it:
1. Under Section 424 of the Migration Act 1958 (Cth), the Tribunal is obliged to consider all relevant circumstances when considering any application. However, I believe that the Tribunal failed to thoroughly consider all circumstances relevant to m matter.
2. Additionally, I believe that I have been denied access to the natural justice hearing rule, pursuant to section 422B of the Migration Act 1958 (Cth).
3. For the reasons stated in the Tribunal’s decision, I believe that the Tribunal member had erred in is finding of facts that I am not a genuine student and I intend to use the student visa to reside in Australia.
4. There were also instances where the Tribunal member drew wrong inference from the facts and arrived at the wrong conclusion.
The application is supported by a short affidavit filed with it which I have received. I also have before me as evidence the Court book filed on 12 December 2018.
Both Mr Halim and the Minister filed pre-hearing written submissions and made oral submissions at today’s show cause hearing.
Although in his written submissions, Mr Halim asserts a want of procedural fairness before the Tribunal, his real complaint as explained orally is that the information he provided to the Tribunal and the arguments put in support of his visa application were not accepted. Mr Halim is concerned that his information and arguments were not properly considered and that the Tribunal’s decision was against the weight of evidence. In my view, those assertions are not sustainable. The Tribunal considered information put by Mr Halim but was not satisfied that that information established that he is a genuine temporary entrant for study.
The Minister’s submissions deal with the grounds advanced by Mr Halim as augmented by his written submissions. I agree with the Minister’s submissions.
Ground 1
Ground 1 alleges that the Tribunal breached s.424 of the Migration Act by failing to “thoroughly consider” “all relevant circumstances” in Mr Halim’s matter. This ground is meaningless in the absence of any supporting particulars. Section 424 of the Migration Act has no application to reviews conducted under Part 5 of the Migration Act and the emulating section is s.359. No invitation was issued pursuant to s.359 and there is nothing to suggest that the Tribunal somehow breached s.359.
The Tribunal comprehensively considered the documentary evidence provided prior to the hearing, afforded Mr Halim an opportunity to give evidence and present arguments at the hearing, and had regard to his evidence in its decision.[33] The Tribunal comprehensively considered Mr Halim’s circumstances against the factors in the Direction that were raised “by the evidence”[34] and gave reasons for finding that he was not a genuine temporary entrant and did not meet clause 500.212 of the Regulations.[35] Mr Halim’s complaint that the Tribunal failed to “thoroughly consider” his circumstances is effectively an invitation for the Court to undertake impermissible merits review and must fail.
[33] CB 230, [10] and [11]
[34] Minister for Immigration v Khadgi (2010) 190 FCR 248 at [65]
[35] CB 232, [23]
Ground 2
In Ground 2, Mr Halim complains that he has been “denied access to the natural justice hearing rule, pursuant to s.422B”. Mr Halim has again referred to a section that does not apply to migration reviews. Mr Halim is only entitled to the rights afforded to him under Part 5 of the Migration Act and even if he intends to refer to s.357A, it is unclear what the substance of the allegation is. The Tribunal complied with its procedural fairness obligations by issuing a valid hearing invitation,[36] putting Mr Halim on notice of the requirements for a grant of a student visa and by giving Mr Halim an opportunity to attend the hearing to give evidence and present arguments.[37] This ground cannot succeed.
[36] CB 111-114
[37] Section 360(1)
Mr Halim’s written submissions
Mr Halim’s submissions expand upon Ground 2 by contending that the Tribunal “denied the applicant’s access to natural justice and procedural fairness” (sic) and “failed to endorse the rule against bias” and denied him of “his right to a fair hearing”.[38] Mr Halim contends that the Tribunal “erred by failing to identify the link” between his studies and future business plan; his 14 year study period was “reasonably justified” to equip him with necessary skills in all “possible aspects of hospitality”; and that it was “prejudicial” for the Tribunal to consider his length of study as a factor weighing against him.[39]
[38] Mr Halim’s submissions at [6]
[39] Mr Halim’s submissions at [6]
Mr Halim’s submissions also take issue with the Tribunal’s findings that:
a)an employer would not keep a position vacant for two years;[40]
b)his ties to Indonesia seemed to have “diminished over time”[41] and;
c)his employment at Coles represented a significant incentive for him to remain in Australia.[42]
[40] CB 232, [21]
[41] CB 231, [19]
[42] CB 232, [23]
Mr Halim’s submissions make various contentions as to why the Tribunal should have arrived at a different conclusion in respect of the above findings and essentially invite the Court to undertake impermissible merits review.[43] Mr Halim also contends that the Tribunal made a “false inference without supporting evidence and biasness” in finding that his employment at Coles was a significant incentive.
[43] at [2]-[4]
These complaints fail to identify any jurisdictional error on the part of the Tribunal and are essentially an expression of disagreement with the Tribunal decision. The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.[44] The Tribunal considered Mr Halim’s evidence and circumstances against the Direction and gave reasons for its findings, which were open on the material and for the reasons given.[45]
[44] Lee v Minister for Immigration [2005] FCA 464 at [27]
[45] CB 231-232, [19]-[23]
Mr Halim’s submissions extract s.422B of the Migration Act[46] and contend that the issue in the matter was whether the Tribunal “demonstrated biasness” when it made an inference about Mr Halim’s intention to use the ongoing study to maintain residency in Australia.[47] It was open for the Tribunal to consider the value of the proposed courses in Cookery and Hospitality to Mr Halim’s future under clause 12 of the Direction and whether they were consistent with his current level of education and would assist him in obtaining employment or improving on his employment prospects in his home country.[48] The Tribunal correctly considered these factors under the Direction when assessing whether he was a genuine temporary entrant as required by clause 500.212 of the Regulations. No error is demonstrated in the Tribunal’s findings in this regard.
[46] at [7]
[47] at [8]
[48] clause 12(a) of the Direction
It was also open for the Tribunal to consider Mr Halim’s stated intention of managing a restaurant and not accepting that it was credible that he would therefore need to invest time and costs to study “all possible aspects of the hospitality business” or that he would be personally responsible for cooking, management, tourism, marketing or accounts.[49]
[49] CB 232, [21]
Mr Halim has made no attempt to substantiate the allegation of bias, which is a serious allegation that must be firmly and distinctly made and clearly proven.[50] It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons and no inference of bias or pre-judgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[51] The allegation that the Tribunal “demonstrated biasness” cannot succeed.
[50] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531
[51] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
Mr Halim’s submissions refer to, and summarise, the legal principles derived in a number of cases addressing procedural fairness or natural justice and reasonableness in administrative decision making.[52] Whilst Mr Halim has cited a number of authorities, he has failed to explain the relevance of the authorities to the Tribunal’s decision or apply the authorities to the circumstances in his case. In the absence of any explanation or application to the present case, the submissions can be characterised as bland statements of legal principles that fail to advance Mr Halim’s case or the grounds raised in any meaningful way.
[52] at [9]-[16]
Mr Halim concludes that the Tribunal had an “obligatory duty” to “act reasonably and accord with the requirements of the natural justice hearing rule” and that the Tribunal should not be “prejudicial or biased when making its decision”.[53] Again, Mr Halim has failed to provide particulars to how the Tribunal failed to comply with these principles. Whilst the Tribunal must not be biased, it was not required to afford Mr Halim common law natural justice.[54] Mr Halim was only entitled to the rights afforded to him under Part 5 of the Migration Act and for the reasons outlined at [24], there is nothing in the materials to suggest that the Tribunal did not comply with its statutory procedural fairness obligations.
[53] at [17]
[54] Minister for Immigration v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration [2006] FCAFC 62
Ground 3
Ground 3 contends that the Tribunal erred in its finding of fact that Mr Halim was not a genuine student. This ground it not a proper ground of judicial review, fails to identify how the Tribunal erred in its decision-making and taken at its highest, goes no further than an invitation for the Court to undertake impermissible merits review.[55]
[55] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Ground 4
Ground 4 complains that “there were also instances where the Tribunal member drew wrongful inference from the facts and arrived at the wrong conclusion”. Again, this complaint appears to take issue with the Tribunal’s factual conclusions about Mr Halim’s claims and evidence and invites the Court to undertake impermissible merits review.[56] Mr Halim’s disagreement with the outcome of the Tribunal’s review does not form a basis for contending that the decision is affected by jurisdictional error.
[56] Ibid
Mr Halim has been studying in Australia for a long time. The problem is not that he has been a bad student. On the contrary, he appears to have been a diligent one. The problem is that he has remained studying in Australia for a long time leading to a concern that he has been using the student visa program in order to extend his stay in Australia. Mr Halim told me today from the bar table that since the Tribunal decision, he has been able to successfully complete his studies. He will graduate in October, only two months away. His only desire now is to remain in Australia for that graduation and then to return to Indonesia.
As I put to him, that seems to me to be a reasonable expectation and provided that Mr Halim can demonstrate to the Minister’s Department that he is making arrangements to return to Indonesia following his graduation, it would seem to me entirely reasonable for him to continue to hold a bridging visa for that relatively short period. That is, of course, a matter for the Minister and his Department.
I conclude that Mr Halim is unable to demonstrate that the decision of the Tribunal is affected by any arguable case of jurisdictional error.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Halim sought a waiver of costs because of his financial difficulties. As has been repeatedly stated, however, impecuniosity is not a reason for the Court to refrain from making a costs order. Nevertheless, and as I explained to Mr Halim, it is possible for the Minister’s Department to waive the debt created by the costs order in the event that Mr Halim establishes incapacity to pay.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 August 2019
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