Hinh v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 140
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hinh v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 140
File number(s): MLG 1132 of 2018 Judgment of: JUDGE DAVIS Date of judgment: 7 March 2022 Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) – where the Tribunal was not satisfied that the applicant was a genuine temporary entrant – where the applicant had changed his course trajectory – whether the Tribunal’s decision was open to it – where the Tribunal’s decision was open to it – application dismissed Legislation: Migration Act 1958 (Cth) ss, 360, 360A, s353, s357A
Migration Regulations 1994 (Cth) reg. 500.212
Cases cited: McKinney v Minister for Immigration and Border Protection [2015] FCCA 2377
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 9 December 2021 Place: Melbourne Solicitor for the Applicant: Mr Rajiv Dalal Solicitor for the Respondents: Ms Madlin Richardson ORDERS
MLG 1132 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HANG HOAI BAO HINH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
7 MARCH 2022
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.
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 DAVIS
APPLICATION
This is an application for review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 29 March 2018 (Application). By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent, the Minister, not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa).
By his Application, the Applicant seeks the following relief:
(a)An order that the decision of the Tribunal be quashed.
(b)A writ of mandamus directed to the Tribunal, requiring it to determine the Applicant’s Application according to law.
(c)An order that the Respondents pay the Applicant’s costs of and incidental to the Application.
BACKGROUND
The Applicant is a citizen of Vietnam who arrived in Australia on 24 June 2012 as the holder of a Student (Class TU) (Subclass 573) visa, which he was granted for the purpose of studying courses leading to a Bachelor of Business Administration.
On 29 August 2016, the Applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (Visa) to study a Diploma of Building and Construction (Building) due to be completed on 15 December 2018.
On 22 September 2016, the delegate refused to grant the Visa. The delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily and found that he did not satisfy cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Regulations).
Proceeding before the Tribunal
The Applicant applied to the Tribunal for review of the delegate’s decision on 22 September 2016.
On 20 February 2018, the Applicant was invited to a hearing by the Tribunal, scheduled for 22 March 2018, and was asked to provide information to it at least seven days prior to the hearing.
On 27 February 2018, the Applicant appointed a migration agent as his representative and authorised recipient for the review.
On 22 March 2018 the Applicant attended the Tribunal hearing with the assistance of his representative and a Vietnamese interpreter.
As the Tribunal observed in its reasons at [9], the central issue before it was whether the Applicant was a genuine applicant to enter and stay as a student under cl 500.212 of Schedule 2 of the Regulations.
The Tribunal ultimately found the Applicant was not a genuine temporary entrant. On 29 March 2018, the Tribunal affirmed the decision not to grant the Applicant a Visa on this basis.
In reaching its decision, the Tribunal had regard to Ministerial Direction 69, “Assessing the Genuine temporary entrant criterion for Student visa and Student Guardian visa applications”. In this regard, the Tribunal considered factors including the following:
(a)The length of the Applicant’s stay and, in particular, that he had resided in Australia for almost six years and had enrolled in various courses here over that time.[1]
(b)The Applicant’s Provider Registration and International Student Management System (PRISMS) records[2] and their indication of the Applicant’s course trajectory, non-commencement of studies and poor academic progress.[3]
(c)The Applicant’s Genuine Temporary Entrant (GTE) statement, including his claim that he wished to study in Australia in order to progress his career in Vietnam.[4]
(d)The Applicant’s maintenance of personal relationships overseas while living in Australia and that the Applicant’s personal connections overseas were not an incentive for him to cease residence in Australia.[5]
[1] Tribunal’s decision at [12]-[13].
[2] Tribunal’s decision at [23].
[3] Tribunal’s decision at [33].
[4] Tribunal’s decision at [27].
[5] Tribunal’s decision at [20].
The Tribunal noted that the Applicant had completed his English course and was due to complete a Diploma of Building and Construction on 15 December 2018.[6] However, this did not detract from the Tribunal’s finding at [35] of its reasons that:
The fact that the applicant instead proposes further study indicates to the Tribunal that the applicant’s intention is not to cease his temporary stay in Australia. It is the Tribunal’s view that the applicant’s main purpose in being granted a further student visa is to maintain ongoing residence in Australia
[6] Tribunal’s decision at [13].
Proceeding in this Court
On 27 April 2018, the Applicant filed his Application for review in this Court, together with an affidavit in support.
The Applicant’s grounds of review are as follows [errors in original]:
1.The tribunal failed to act according to substantial justice and merits of the case, in breach of s353(b) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of that Act.
2.The tribunals reasoning is unfairly based on unsound reasoning. The tribunal drew unreasonable inferences for example, on my difficulty with the English language. The tribunal member failed to take into account my circumstances since arriving in Australia - such as finding that a Bachelor of Business Administration was an unsuitable degree for my career choice and how I see a Diploma of Building and Construction (Building) as my foreseeable outlook.
3.Further, the tribunal member placed significant weight on my 'poor academic progress' and 'my change of career paths' concluding that I do not have the capability to successfully undertake higher education courses in Australia. This shows clear biasness, unfounded and illogical conclusions and unsupported reasons.
On 28 May 2019, Registrar Gitsham made procedural directions for steps to be taken prior to the final hearing. Those steps included that the Applicant file any amended application, affidavits, supplementary court book and written submissions, 28 days before the final hearing.
On 23 November 2021, the Minister filed his submissions.
On 8 December 2021, the Applicant’s solicitor filed his submissions on the Applicant’s behalf.
Besides filing his submissions, the Applicant did not take the other steps contemplated by Registrar Gitsham’s orders.
SUBMISSIONS
Applicant’s submissions
Written Submissions
The Applicant made submissions in writing. Some of those were directed to the background of the matter and others related to the orders which he sought.
I reproduce verbatim below those submissions to the extent that they were directly made in support of the orders sought.
Tribunal’s failure to consider the relevant facts of the matter
1.The applicant’s native language is Vietnamese. Prior commencing his building and construction course, he successfully completed a general English language course. He studied general English for one year (52 weeks).
2.The Applicant enrolled in Diploma in Building and Construction with Holmes glen institute in 2014 and was able to pass only 2 subjects of his course.
3.The Applicant then enrolled in diploma in Building and Construction in 2017 and successfully completed the same in 2018.
4.The applicant is currently enrolled in Bachelor of Civil Engineering.
5.The Tribunal has completely ignored the applicant’s positive intention to study in Australia and give more weightage to his poor academic records.
6.The applicant also had a positive intention to complete his current enrolled course.
Oral submissions of Mr Dalal
The Applicant’s solicitor, Mr Dalal, made further submissions orally to the effect set out below.
First, Mr Dalal submitted that the Applicant had initially struggled with his English language course by virtue of his native tongue being Vietnamese. This resulted in the Applicant having to take the English course a second time. In other words, the Applicant argued that the protraction of that course was not intended to lengthen the Applicant’s stay in Australia but was a product of his difficulty learning English.
Secondly, Mr Dalal submitted that the Applicant had changed his mind as to his course trajectory. He submitted that this was in part due to the fact that the Applicant recognised that his English would not be sufficient to undertake a bachelor’s degree. The Applicant also submitted that what he sought to characterise as a slight change is allowed under the Student Visa regime.[7] I understood the submission to be aimed to support the Applicant’s contention that the purpose of his stay was temporary study and that his choice of courses and other conduct was not designed to protract the duration of his stay in Australia or to render it other than temporary.
[7] In fact, the change was not slight. The change was from courses leading to a Bachelor of Business Administration to a Bachelor of Engineering Technology.
Thirdly, Mr Dalal submitted that since he had changed to his preferred area of study, the Applicant’s academic progress has improved. Mr Dalal submitted that, at the time of the Tribunal’s decision, the Applicant had completed 70-80% of his course.
During the course of the hearing, the Applicant’s representative received instructions from the Applicant as to the meaning of the document at page 81 of the Court Book: “Student Confirmation Sheet”. Mr Dalal confirmed that his instructions were that, properly understood, this document demonstrated that the Applicant had completed 13 out of 18 of the units in his course. He also told the Court that his instructions were that the document reflected that the Applicant had received either a distinction or high distinction in 7 of the units which he had completed. In effect, the Minister did not oppose the Court accepting these propositions.
Finally, Mr Dalal submitted that the Applicant always had a positive intention to study.
Minister’s submissions
Written Submissions
By his written submissions, the Minister submitted that the Applicant failed to establish jurisdictional error.
In broad terms, the thrust of those submissions was as set out below.
Ground 1
First, the Minister submitted that ground 1 was misconceived.
In support of this proposition, the Minister submitted in writing that:
(a)Section 353 of the Act serves a discretionary, rather than restrictive purpose: Minister for Immigration and Multicultural Affairs v Eshetu[8] and does not give rise to grounds for judicial review based on a failure to comply with an applicant’s demands.
(b)Section 357A of the Act provides that Division 5 of Part 5 of the Act is an exhaustive statement of the natural justice hearing rule and it is clear that the Tribunal complied with the requirements of the section. To this end, the Minister submitted that:
(i)The Applicant was invited to attend a hearing in compliance with ss 360 and 360A of the Act; and
(ii)The Tribunal put relevant matters to the Applicant and that he was on notice that whether he satisfied the GTE criteria was the determinative issue in his case.
[8] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ, McHugh and Hayne JJ.
Ground 2
Secondly, in effect the Minister submitted that overall ground 2 appeared to reflect a complaint that the Tribunal should have come to a different conclusion on the material before it. As such, it impermissibly takes issue with the merits of the Tribunal’s decision.[9]
[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 at [31].
Ground 3
Thirdly, as to ground 3, in effect the Minister submitted that it is for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.
The Minister submitted that, by this ground, the Applicant again had invited the Court to undertake impermissible merits review of the Tribunal’s decision.
Oral submissions
Orally, the Minister made the following general submissions which were relevant at least to grounds 1 and 2:
(a)In fact, the Tribunal did take into account the fact that he had completed his English studies and that he was progressing in his courses.
(b)The Tribunal had surveyed the trajectory of the Applicant’s studies since 2012. It recognised that he had completed various courses in English and Certificate and Diploma courses in building and construction.[10] In the circumstances, the Tribunal concluded that the Applicant was not in Australia as a genuine temporary entrant. In effect, the Minister submitted that this was a finding that was open to the Tribunal, having regard to factors such as the Applicant’s change in course trajectory and his length of stay in Australia.
[10] Tribunal’s decision at [13].
CONSIDERATION
After considering all of the submissions made by the Applicant and the Respondent orally and in writing I reject each of the Applicant’s grounds for the reasons set out below.
Ground 1
Section 353 of the Migration Act 1958 (Cth) (Migration Act) provides that:
The Tribunal, in reviewing a Part 5-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
Section 357A of the Migration Act provides that:
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
I reject ground 1 for the reasons set out below.
First, the Applicant’s contention appears to be that s 353 of the Act somehow confers upon the Tribunal an obligation to determine the merits review application before it on the basis of some amorphous overarching notion of ‘substantial justice and the merits of the case’. Contrary to this submission, the Tribunal was obliged to apply the considerations set out in cl 500.212(a) of Schedule 2 of the Regulations in deciding whether he was genuine applicant for entry and stay as a student. Clause 500.212 provides as follows:
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 must have regard to the following factors, as required by Ministerial Direction No.69 and, in particular:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
(b)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;
(c)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
(d)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.
The Tribunal had regard to those factors in reaching its decision.
The Applicant’s interpretation of s 353 of the Migration Act misunderstands the effect of that section. In Minister for Immigration and Multicultural Affairs v Eshetu,[11] the Full Federal Court described s 420 of the Migration Act, which was identical in terms to s 353, as:
… intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.
[11] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49].
In other words, the section is not intended to restrict the Tribunal or give rise to a ground of judicial review based on a failure to comply with an applicant’s exhortations.[12]
[12] McKinney v Minister for Immigration and Border Protection [2015] FCCA 2377 at [43], referring to Minister for Immigration & Citizenship v Li [2013] HCA 18.
Secondly, I find that the Tribunal complied with the natural justice hearing rule given that:
(a)the Applicant was invited to attend a hearing in compliance with ss 360 and 360A of the Act;
(b)the Applicant was on notice by the delegate’s decision, the hearing invitation and the Tribunal’s questioning at the hearing that the determinative issue on review was whether the Applicant satisfied the GTE requirement;
(c)pursuant to s 359AA, the Tribunal put the Applicant’s PRISMS records to him;
(d)the Applicant was represented at the Tribunal hearing by a registered migration agent; and
(e)the Applicant was invited to submit material to the Tribunal to support his case and did so.
Ground 2
I reject ground 2.
In essence, I do so because I consider that, as submitted by the Minister, there is no proper basis for an argument that the Tribunal’s findings, in particular, its finding that the Applicant did not satisfy the GTE criterion, were legally unreasonable, let alone ‘extreme’ or ‘illogical’. It could not be said that no rational or logical decision maker could draw the same conclusion as that reached by the Tribunal.[13]
[13] See, for example, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [86] per Heydon J and at [130] – [135] per Crennan and Bell JJ
I consider that on the evidence before it, the Tribunal’s findings were open to it. In my view this is so, amongst other things, having regard, to the following matters which were before it:
(a)The Applicant’s PRISMS record, which detailed his CoEs, states that he remained enrolled and the outcome of the courses which he had undertaken.
(b)The Applicant’s non-commencement of studies.
(c)His poor academic record and his lack of academic progress in the past.
(d)His change in academic pathway. Again, the Applicant had initially intended to pursue a bachelor of business administration. At the time he was before the Tribunal, he was studying a Diploma of Building and Construction (for the second time, having not completed it the first time)[14] and wished to study a Bachelor of Engineers Technology (civil), due to finish in December 2021.
(e)The Applicant’s inability to provide information as to his future plans in the building and construction field, other than that he thought he would be able to obtain a position in Vietnam.
(f)The fact that the Applicant had been in Australia since 24 June 2012.
(g)The Applicant’s ability to maintain personal connections overseas while in Australia.
[14] See [25] – [26] of the Tribunal’s decision.
In reaching the conclusion that there was no proper basis for claiming that the Tribunal’s relevant findings were unreasonable, I have considered the Applicant’s submissions that:
(a)he had initially struggled with English, which affected his academic progress;
(b)he had difficulties with the Bachelor of Business and wished to pursue a career in construction;
(c)he had begun to make progress in his building and construction course trajectory; and
(d)he has always had a positive intention to study and to return to Vietnam.
The Tribunal, likewise, considered those matters and yet was not satisfied that the Applicant was a genuine temporary entrant.
The Tribunal considered the Applicant’s difficulty with English but noted that he had in fact completed studies in English. When considering the Applicant’s difficulties in English the Tribunal questioned “why he had not attempted to study in Vietnam where the language problem would not be as great”.[15]
[15] See [30] of the Tribunal’s decision.
The Tribunal considered the Applicant’s difficulties in his Bachelor of Business course and his wish to pursue a career in construction.[16] However, it found that if the Applicant had been focussed on a career in construction he would have pursued that study on arrival instead of a Bachelor of Business and been able to provide more information for this chosen path and future career plans.[17]
[16] Tribunal’s decision at [25] to [28].
[17] See [30] – [31], [34] of the Tribunal’s decision.
The Tribunal noted the Applicant’s course progression at [25] and [26], including the fact that he re-enrolled to study a Diploma of Building and Construction (building) which began in 2017 and was due for completion in December 2018. At [34] it noted that the Applicant “claims that his intention has always been to stay in Australia temporarily and that intention is still held”. The Tribunal ultimately did not accept the Applicant’s evidence in this regard and found at [34] that:
If that was so, the Tribunal considers that the applicant would have known at what point he decided to pursue a career in building and construction and would have been focussed on beginning that once he arrived in Australia instead of pursuing a Bachelor of Business Administration. He also would have made more of an effort in his General English courses.
Given that the Tribunal's relevant findings were open, this ground effectively constitutes another attempt by the Applicant to seek to have this Court impermissibly engage in merits review.
Ground 3
I reject ground 3 for the reasons set out below.
First, there was no evidence led or submission put in support of the allegation of bias. I do not see any basis for the Applicant to have alleged that the Tribunal was biased.
Given my finding that the Tribunal’s conclusion that the Applicant did not satisfy the GTE criterion was open to it, it follows that – to the extent that ground 3 complains about undue weight being placed on matters such as the Applicant’s poor academic progress and change in career paths – it constitutes another attempt to have this Court impermissibly engage in merits review.
Even if I were to find that, as he submitted orally, the Applicant has always had a positive intention to study, this would not, without more, impugn the Tribunal’s finding that he did not satisfy the GTE criterion. That is, it does not necessarily meet the point. The Tribunal considered the Applicant's intention to study at [34]. It concluded that the Applicant did not intend to be a temporary student.[18]
[18] See [32] – [34] of the Tribunal’s decision.
DISPOSITION
For these reasons, I dismiss the Application.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 4 March 2022
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