He v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 236
•5 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
He v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 236
File number(s): CAG 18 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 5 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the tribunal failed to consider or did not place sufficient weight on the following information that has been provided by the applicant – whether the Tribunal failed to notify the applicant that the following would be a reason for refusing the application and failed to give the applicant an opportunity to respond – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
ARG15 v Minister for Immigration and Border Protection [2016] FCFCA 174
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 21 October 2021 Date of hearing: 21 October 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Mr Taylor. ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)CAG 18 of 2021 BETWEEN: CHANGXIAN HE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs, fixed in the amount of $6000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 HUMPHREYS
INTRODUCTION
The applicant is a Chinese citizen in his early 30’s. The applicant first arrived in Australia on 26 October 2006 on a Student (Subclass 571) visa. The applicant has subsequently been granted five further Student visas under different subclasses. The applicant has now been in Australia for 15 years on various visas.
On 15 March 2017, the applicant applied for a Student (Temporary) (Class TU) visa to undertake further study.
A delegate of the Minister for Home Affairs (“the delegate”) refused to grant the applicant a further Student visa on 12 May 2017. The delegate was not satisfied that the applicant satisfied the primary criteria contained in cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”) that the applicant was a genuine applicant for entry and stay as a student temporarily. Since then, the matter has had a chequered history.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In an initial decision, the Tribunal found that it had no jurisdiction to hear the matter, as it found that the application had been lodged outside the requisite 21 day time limit. The applicant sought judicial review of the delegate’s decision by the High Court in its original jurisdiction. On 27 September 2017, the High Court made orders by consent quashing the delegate’s decision and remitting the matter back for further determination.
On 12 January 2018 a different delegate made a decision to again refuse the applicant a further Student visa. The Tribunal affirmed the delegate’s decision of 12 January 2018.
The applicant sought judicial review in this Court. On 27 May 2020, the Court (differently constituted) remitted the matter back to the Tribunal for reconsideration, finding that the Tribunal had failed to properly consider some of the applicant’s claims and committed jurisdictional error.
A further hearing took place before the Tribunal on 11 December 2020. The applicant attended and gave evidence. The applicant was assisted by a Migration Agent. In a decision dated 9 April 2021, the Tribunal again affirmed the delegate’s decision not to grant the applicant a further Student (Temporary) (class TU) visa.
The applicant now seeks judicial review of the Tribunal decision of 21 April 2021.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the history of the matter, at paragraphs 9 and 10 of its decision, the Tribunal set out the relevant considerations for the grant of a Subclass 500 (Student) visa. The Tribunal noted at paragraph 11 of its decision, that it was required to take account of Direction No 69. “Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications,” made under s 499 of the Migration Act 1958 (Cth) (“the Act”) in considering whether the applicant met the requirements of cl 500.212 of the Regulations. This requires the Tribunal to assess the following:
•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.
In paragraphs 17 through to 19 of its decision, the Tribunal set out the extensive material before it, which it considered. At paragraph 21 of its decision, the Tribunal noted that the applicant was currently enrolled in a Diploma of Building and Construction which was scheduled to conclude on 10 April 2022, thereby extending the applicant’s time in Australia utilising various temporary visas to approximately 16 years.
At paragraph 22 of its decision, the Tribunal set out the study history of the applicant, noting that he had completed various courses in management, business, accounting, carpentry and a course in building and construction that he did not complete, through no fault of the applicant.
The Tribunal was satisfied that the applicant had attended classes, completed numerous qualifications and showed himself to be a diligent student.
At paragraph 24 of its decision, the Tribunal found that while the applicant had demonstrated a commendable level of course completion, he had not demonstrated any significant academic progress beyond vocational level study. The Tribunal found that the current course remains at a modest vocational level. The Tribunal did not find this consistent with the behaviour of a genuine student in undertaking the sheer volume of vocational courses that he has completed since 2010, without progressing to a Bachelor level degree.
At paragraph 25 of its decision, the Tribunal concluded that the applicant’s proposed further vocational study was marginal, in circumstances where he had already successfully obtained several Certificates, Diplomas and Advanced Diplomas is in Australia.
The Tribunal took into account the applicant’s stated intention that he wants to get a Diploma in a field that he is more interested in and wants to go into the construction industry. At paragraph 27 of its decision, the Tribunal concluded that the applicant’s previous qualifications were sufficient to provide him with skills and knowledge that was able to be utilised in the building and construction industry and that the further proposed course would not likely assist the applicant obtain employment or improve his employment prospects in China, given the study and knowledge he already has.
The Tribunal was mindful of the applicant’s changed study direction and accepted that individuals may choose different areas of study on the basis of a change a decision as to career course. It was not satisfied however that the course in which the applicant was currently enrolled would further assist his career development are earning potential.
The Tribunal found that it was not consistent with behaviour of a genuine student to change course direction to the extent that the applicant has. Further, the current course was not consistent with his previous levels of education where he has obtained “Advanced Diplomas”.
At paragraph 33 of its decision, the Tribunal set out its findings in relation to the applicant’s circumstances in China including his reasons for not studying in his home country, and his personal ties to his home country. The Tribunal found that the applicant had sound reasons for undertaking study in Australia. The Tribunal found that the applicant’s family ties in China, although significant, in and of themselves, did not present a significant incentive for him to return to China when considering his personal circumstances in Australia, including that he is now seeking to extend his time in Australia to approximately 16 years. The Tribunal found that the applicant’s strong and consistent employment history presented as a significant incentive to remain in Australia on a more permanent basis, particularly bearing in mind that strong economic ties to the applicant’s home country were not in evidence.
At paragraph 41 of its decision and no onwards, the Tribunal considered the applicant’s personal circumstances in Australia, including his ties in Australia and evidence that the visa program was being used to circumvent the migration program. The Tribunal found that the applicant undertook significant research into his proposed course, course contents, the education provider and other material. The Tribunal however found that the applicant enrolled in his current course with the primary intention of attempting to subvert the intention of the student migration program and remain in Australia on a more permanent basis.
The Tribunal also noted that the presence of the applicant’s de facto partner in Australia was likely to present as an incentive for the applicant to remain in Australia on a more permanent basis. At paragraph 45 of its decision and onwards, the Tribunal considered the applicant’s immigration history. The Tribunal accepted that the applicant had demonstrated a reasonable awareness of his visa conditions, and had complied with his visa conditions. The Tribunal noted that the applicant could have applied for a visa, as a secondary applicant on his de facto partner’s visa. The Tribunal also accepted that the applicant, as his parent’s only son, would most likely be his parent’s primary care giver when his parents are elderly and that on that basis, he would return home to look after them.
At paragraph 50 and 51 of its decision, the Tribunal found that his length of stay onshore, being approximately 16 years, was simply not compatible with the notion that the applicant was a genuine temporary entrant.
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant his Student visa.
EVIDENCE BEFORE THE COURT
The Court Book was tendered and marked as Exhibit 1. An Affidavit of the applicant affirmed 12 May 2021 was tendered and marked as Exhibit 2. Material within the Affidavit, to the extent it sought to explain the applicant’s circumstances, was treated as argument and submissions and not fresh evidence. Material that was not before the Tribunal was ignored.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon by the applicant, are set out in an Initiating Application filed with the Court on 13 May 2021. There are as follows verbatim:
Ground One
I believe that the second respondent decision was erroneous in that the tribunal failed to consider or did not place sufficient weight on the following information that has been provided by myself or my representative:
Particulars
a. that I could have lodged a student visa as a secondary applicant if my main purpose was to remain in Australia;
b. that my study direction has changed three times, from IT to business management, and then to building;
c. that my proposed course is highly relevant to my recent years work experience; and
d. that the proposed course Diploma of Building and Construction is of great value to my future career plan, as shown in my statements, submission and supporting evidence.
Ground Two
The second respondent decision was unfair, because the Tribunal failed to notify me the following would be a reason for refusing my application and failed to give me an opportunity to respond;
a. that I provide no documents to suggest the completion of a diploma of building and construction will assist me in winning project contracts;
b. that my employment history in Australia presents as a significant incentive for me to remain in Australia on a more permanent basis; and
c. that the primary intention of my enrolment in the current course is to circumvent the intention of the student migration program.
Ground Three
I have suffered prejudice as a result of the decision to refuse the student visa application, and I’ve also now prevented, by operation of s48 of the Migration Act 1958 from lodging a further these are application while I am present in Australia (apart from a limited number of visas prescribed under r 2.12 of the Regulations, which do not apply to me and I will otherwise have to depart Australia, unless the decision is quashed by this honourable court
THE APPLICANT’S SUBMISSIONS
The hearing was conducted via video conferencing due to COVID 19 pandemic health restrictions.
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter in the Mandarin and English languages. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books, and that a copy of the first respondents written submissions had been interpreted to him.
The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he so wish to. At the commencement of the hearing, the Court carefully explained that it was undertaking judicial review not merits review and the difference between the two types of review as well as the process by which the Court hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided by the applicant in support of his case. The applicant told the Court that he believed that he had met all the conditions for the grant of a further student visa. The applicant said that it was unfair for the Tribunal to make a subjective decision as to whether he was a genuine student. Further, the Tribunal did not make him aware of the matters which they intended to rely upon and allow for him time to respond.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything in reply. The applicant answered that he was a genuine student. The applicant asked that if he was unsuccessful in his application whether he be allowed time to complete his current study in early 2022. The applicant was advised that was a matter for the Minister, not the Court.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one asserts that the Tribunal member failed to consider or place sufficient weight on the applicant’s claims that he could have applied as a secondary visa applicant if this reason was to remain in Australia.
This ground fails at a factual level. Relevantly, the Tribunal considered and accepted the claim that the applicant could have applied for a secondary visa dependent upon his de facto partner’s visa at paragraph 48 of its decision. Secondly, the Tribunal invited the applicant to comment at the hearing on its concerns about changes of study direction and expressly considered his response at paragraphs 28 to 29 of its decision. The Tribunal accepted that the applicant had work experience which was relevant to his proposed study in the field of building and construction. At paragraph 29 of its decision onwards, the Tribunal expressly considered his claimed career plan in the construction industry in China.
The allegation that the Tribunal failed to place “sufficient weight” on the applicant’s evidence is plainly an invitation for the Court to impermissibly review the merits of the Tribunal’s decision. The Tribunal was not obliged to accept the applicant’s claims or evidence uncritically. The findings that the applicant did not intend to genuinely stay in Australia temporarily were reasonably open for the Tribunal for the reasons it gave.
Ground two asserts that the Tribunal failed to put the applicant on notice of and failed to invite his comment on its dispositive findings that they did not provide documentary evidence in support of his claim that he could secure work in China, that his employment history was a significant incentive to remain in Australia, and that his intention was to circumvent the student migration program.
This complaint misconceives the Tribunal’s procedural fairness obligations which codified in Part 5 of the Act. The Tribunal is not in the position of a contradictor. It was for the applicant to advance whatever evidence and arguments that he wished to in support of his claim to be a genuine temporary entrant. The Tribunal was then required to decide whether not the claim is made out. The Tribunal was under no obligation to invite the applicant to comment on its objective appraisals, thought processes or determinations.
Ground three is not a proper ground of judicial review, but merely asserts that the applicant suffered as a result Tribunal decision because he is now the subject of a ‘section 48 visa application bar’. This ground does not identify a jurisdictional error in the Tribunal’s approach. The Court has no discretionary power to grant relief on compassionate grounds.
The applicant’s Affidavit contains a lengthy deposition and annexes 240 pages of documents relating to the application including the decision under review. For the most part it is procedural history but also complains that the Tribunal failed to consider the applicant’s explanation in response to its concerns about his multiple previous fields of study. The Tribunal expressly considered the applicants evidence at the hearing concerning his study history and his reasons for changing fields at paragraph 28 of its decision. These complaints, although not subject to a specific ground of appeal, fail to reveal any jurisdictional error.
The Tribunal had regard to the evidence and material submitted by the applicant and assessed his circumstances by reference to Direction No 69. It provided cogent reasons for its findings which were reasonably open for the Tribunal to find on the basis the evidence before it and for the reasons it gave that the applicant did not satisfy the genuine temporary entry criterion.
CONSIDERATION
The Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). The onus of proof, that an applicant meets the requirements for a particular visa, lies with the applicant: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Further there is no general obligation on a Tribunal to investigate an applicant’s claims: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). There is no obligation on the Tribunal to invite the applicant to comment on this objective appraisals, thought processes or determinations of the Tribunal during the course of the hearing or prior to making a final determination: (see; SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [18]).
The Court is restricted to judicial review and cannot undertake merits review of the Tribunal’s factual findings: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]).
The applicant’s oral submissions went no further than to insist the applicant met the criteria for the grant of another student visa and invited the Court to undertake impermissible merits review.
Ground one consists of assertion that the Tribunal either failed to consider or failed to place sufficient weight on his claims. This includes the fact that the applicant could have applied as a secondary visa applicant in relation to his de facto partner’s visa if it was his intention to remain in Australia other than as a genuine temporary entrant.
The Court is satisfied that the Tribunal’s findings in this regard were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, or did the Tribunal reach a finding without a logical or probative basis or one that was legally unreasonable: (see; ARG15 v Minister for Immigration and Border Protection [2016] FCFCA 174 at [83]). Each of the matters raised by the applicant was recorded and considered but rejected by the Tribunal. No claim was not considered. Ground one reveals no jurisdictional error.
Ground two is a general complaint that the applicant was not put on notice by or the Tribunal or it failed to invite him to comment on its dispositive findings. It is clear from the Tribunal decision record that the Tribunal raised, during the course of the hearing, its concerns regarding a number of aspects of his case, including the number of courses that he had undertaken, the fact that his courses were all at a relatively low vocational level, as well as the fact that the applicant had been in Australia for a significant number of years. The Court is satisfied that the applicant was clearly on notice, given the history of the matter, as to the evidentiary and legal issues in the matter. As indicated above, there is no obligation on the Tribunal to invite the applicant to comment on its objective appraisals, thought processes or determinations during the course of the hearing and prior to making a final determination. There was no breach of any statutory or other procedural fairness obligation in the manner in which the Tribunal undertook its review. Ground two reveals no jurisdictional error.
The Court agrees with the respondent to ground three is not a proper ground of judicial review and merely a complaint as to the impact of a ‘Section 48 visa bar’ on the applicant. The imposition of such a visa bar is clearly the legislative intent of the executive as expressed in the legislation. The fact that the applicant feels this may prejudice him is not a ground of judicial review. These are matters that the applicant should have considered prior to lodging his application for the further visa that he sought.
The Court is satisfied that the Tribunal properly considered all of the applicant’s claims, and made findings that were open to it on the evidence that was before it. There is nothing in the findings of the Tribunal that is illogical, irrational, legally unreasonable or lacking a logical evidentiary basis.
As the applicant is unrepresented, the Court has perused the decision record of the Tribunal, and is unable to find any jurisdictional error that has not been articulated by the applicant.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 5 November 2021
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