Hoang and Anor v Minister for Immigration and Anor
[2020] FCCA 3302
•4 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOANG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3302 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 572) visas – whether the First Applicant had ‘exceptional reasons’ for the grant of the visa – Tribunal not satisfied that ‘exceptional reasons’ was established – Applicants seeking merits review – no jurisdictional error established – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.368D |
| First Applicant: | HUYEN DIEM NGOC HOANG |
| Second Applicant: | HARISH KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 803 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 19 November 2020 |
| Date of last submission: | 19 November 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2020 |
REPRESENTATION
| Advocate for the Applicants: | The First Applicant appearing in person and on behalf of the Second Applicant |
| Solicitors for the Applicants: | None |
| Solicitor Advocate for the Respondents: | Ms Roberts |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The Application filed on 21 April 2017 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 803 of 2017
| HUYEN DIEM NGOC HOANG |
First Applicant
| HARISH KUMAR |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 30 March 2017. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants Student (Temporary) (Class TU) (Subclass 572) visas (‘visas’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The First Applicant, who is the primary applicant for the purposes of the visas, is a Vietnamese citizen (‘Applicant’). The Second Applicant is her husband and is a citizen of India. He makes an application for the visa on the basis that he is as a member of the Applicant’s family unit.
The Applicant made the application for the visa on 3 June 2016 (Court Book 1 – 22). The Applicant indicated that she intended to study a Diploma of Project Management.
On 21 June 2016, a letter was sent to the Applicant’s migration agent by way of email, requesting more information with respect to the visa application. Specifically, the letter annexed a ‘request checklist’, outlining that the Applicant would need to provide ‘a statement explaining [the] exceptional reasons for the grant of an initial student visa in Australia and any supporting evidence’ (Supplementary Court Book 6). The Applicant was also advised that the Confirmation of Enrolment (‘COE’) certificate that she had provided with the application had expired, and that a current and valid COE was required.
The Applicant’s migration agent responded to the request on 28 June 2016, advising that the Applicant’s ‘baby [was] due’ and attaching a Certificate of Confinement from the Applicant’s doctor (Court Book 36 – 38).
A further response was received from the Applicant’s migration agent on 30 June 2016, in which an Overseas Student COE was provided (Court Book 39 – 41).
On 2 September 2016, a delegate of the Minister refused to grant the Applicants the visas (Court Book 47 – 50). The delegate found that the Applicant did not meet the requirements contained within cl.572.227 of sch.2 to the Migration Regulations 1994 (‘Regulations’). In particular, the delegate was not satisfied that exceptional circumstances existed pursuant to the requirement contained within cl.572.227(c)(iv) of sch.2 to the Regulations.
On 16 September 2016, the Applicants sought review of the delegate’s decision in the Tribunal.
On 28 February 2017, the Applicants were invited to appear at a hearing before the Tribunal on 30 March 2017. The Applicants attended the hearing on 30 March 2017 with their migration agent.
At the conclusion of the hearing, the Tribunal affirmed the decision of the delegate and provided oral reasons. Written reasons were subsequently provided to the Applicants.
On 3 April 2017, after the Tribunal had given its decision orally, the Applicants’ migration agent provided written submissions to the Tribunal (Court Book 92 – 98). The Applicants’ migration agent was informed by the Tribunal on 6 April 2017 that it could not take any further submission into account as the final decision had been made on 30 March 2017.
The Applicants filed the application for review in this Court on 21 April 2020. The Applicants were, and remain, unrepresented. The Applicant filed an affidavit in support of the application, annexing the decision of the Tribunal.
Orders were made by Registrar Luxton on 8 November 2017 concerning the future conduct of the proceeding. The Minister filed a Court Book, Supplementary Court Book and written submissions pursuant to those orders. The Applicant did not file any further material.
The Application for Review
The Application contains three asserted Grounds of Review. These are as follows:
‘1. AAT decision is not acceptable. AAT member didn't consider my immigration history and bona fide study records in Australia. As per the GTE criteria, I fulfil the GTE terms and conditions. Decision is full of discrepancies.
2. AAT decision was not taken in fairly manner. AAT should have accepted my evidence and submission of my adviser. Member didn't bother to understand my situation and exceptional circumstances. If Member needed further evidence then they could have given me another hearing date. Unfortunately member gave me oral decision to affirm the decision.
3.I am not happy with the decision of AAT. In decision AAT didn't consider my bona fide intention to complete Diploma of Project Management at MIVS.’
At the hearing, the Applicant stated, among other things, that she did not know why her case had been rejected, that she had a degree, a job and became pregnant, and that she had not been permitted to explain matters.
In order to obtain the visa, the Applicant needed to satisfy cl.572.227 of sch.2 to the Regulations. Clause 572.227 is as follows:
‘If:
(a) the application was made in Australia; and
(b) subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
(c) at the time of application, the applicant met the requirements of clause 572.211:
(i) as the holder of a visa of one of the following classes or subclasses:
(A) Border (Temporary) (Class TA);
(C) Cultural/Social (Temporary) (Class TE);
(D) Educational (Temporary) (Class TH);
(E) Electronic Travel Authority (Class UD);
(IA) Maritime Crew (Temporary) (Class ZM);
(J) Medical Practitioner (Temporary) (Class UE);
(K) Retirement (Temporary) (Class TQ);
(LA) Superyacht Crew (Temporary) (Class UW);
(N) Temporary Business Entry (Class UC);
(NA) Subclass 400 (Temporary Work (Short Stay Activity));
(NB) Tourist (Class TR);
(NC) Visitor (Class TV);
(O) Working Holiday (Temporary) (Class TZ);
(P) Temporary Work (Long Stay Activity) (Class GB);
(Q) Training and Research (Class GC);
(QA) Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;
(R) Temporary Work (Entertainment) (Class GE);
(S) Special Program (Temporary) (Class TE);
(T) Subclass 600 (Visitor); or
(ii) as the holder of a special purpose visa; or
(iii) as the holder of a visa of one of the following subclasses:
(A) Subclass 303 (Emergency (Temporary Visa Applicant));
(B) Subclass 427 (Domestic Worker (Temporary)—Executive);
(BA) Subclass 485 (Temporary Graduate);
(C) Subclass 497 (Graduate—Skilled); or
(iv) as a person:
(A) who was not the holder of a substantive visa; and
(B) who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);
the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.’
Importantly, for the purposes of the present matter, the Applicant was required to demonstrate ‘exceptional reasons’ for the grant of the visa. The Applicant was required to demonstrate ‘exceptional reasons’ for reasons that include the following:
a)she was an applicant for the visa;
b)the application for the visa was made in Australia;
c)the Applicant was subject to the highest assessment level for the relevant course of study as she was the holder of a temporary graduate subclass 485 visa; and
d)at the time of the application, the Applicant met the requirements of cl.572.211.
In respect of the above, the highest assessment level for the Applicant was assessment level 3 based on her nationality: see reg.1.41 of the Regulations and instrument IMMI 14/014.
That the Applicant was required to demonstrate ‘exceptional reasons’ was a matter that was drawn to her attention prior to the determination of her visa application by the delegate: see Supplementary Court Book (‘SCB’) 4 – 10. In response to that invitation, the Applicant sent to the Department a certificate relating to the impending birth of her child, and an Overseas Student COE (see Court Book 36 – 38, and 39 – 41). Ultimately, the delegate found the Applicant did not have ‘exceptional reasons’ and refused the application for the visa. The delegate, in his reasons, recorded that ‘no response has been received from you to address the exceptional reasons for the grant of your first Student visa onshore. Therefore I am not in a position to consider your viewpoint regarding exceptional circumstances.’
When the matter came before it, the Tribunal affirmed the decision of the delegate. In its decision, the Tribunal:
a)identified that the Applicant was in Australia as the holder of a subclass 485 (Temporary Graduate) visa when she applied for the subclass 572 Visa: at [4];
b)recorded that the Applicant had been invited to submit evidence and had not provided any exceptional reasons to the delegate: at [5] – [6];
c)observed that the Regulations require the Applicant to provide ‘exceptional reasons’ for the grant of the visa in the circumstances of the case, and that ‘exceptional reasons’ is a relatively high threshold requirement: at [8] – [9];
d)noted the reasons provided by the Applicant to the delegate as well as reasons provided to the Tribunal: at [10]; and
e)found that the Applicant had not provided ‘any reasons that could be classified as exceptional and in the circumstances, the Tribunal finds you have failed to provide evidence of exceptional reasons for the grant of a Subclass 582 Visa and therefore you do not satisfy the requirements of clause 582.227’: at [11].
It is to be observed that the Tribunal in paragraph [11] refers to a subclass 582 visa and the requirements of cl.582.227. I consider this to be nothing more than a typographical error when the decision is read in context, and one that does not affect the Tribunal’s decision.
Turning then to the grounds of review, a consideration of all three grounds discloses that the Applicant has either misunderstood the Tribunal’s decision, or misunderstood the Tribunal’s role.
In respect of Ground 1, the Tribunal did not make any finding as to whether the Applicant satisfied the GTE criteria (which I take to mean genuine temporary entrant criteria). The Tribunal was concerned with whether there were ‘exceptional reasons’ in respect of the Applicant’s application for the visa. Further, the complaint that there was a failure to consider the Applicant’s immigration history is plainly incorrect. The Tribunal records the Applicant’s immigration history at paragraphs [3] – [4] of its reasons.
In respect of Ground 2, the Applicant complains about the Tribunal not accepting her evidence. This ignores the fact that the Tribunal was not under any obligation to accept the Applicant’s evidence alone. The complaint, such as it is as advanced before this Court, also would appear, on one view, to invite the Court to entertain a review on the merits. That is not the role of this Court. Ultimately, as the correspondence from the Department to the Applicant made clear, the Applicant was required to advance evidence and submissions to enable the grant of the visa and, in the circumstances of this case, that included that there were exceptional reasons as required by the Regulations.
Embedded within Ground 2, and the oral submissions made by the Applicant, is an apparent complaint about fairness. At the hearing, the Applicant stated that she was not allowed to give an explanation of her case. The Applicant did not place before the Court any transcript or recording of the hearing before the Tribunal to support her claim that she was not allowed to adequately explain her case. Further, I have already observed that the Applicant was notified early on of the need to establish ‘exceptional reasons’. Finally, it is plain from the face of its decision at paragraph [10] that the Tribunal considered the arguments advanced by the Applicant during the hearing before it. In particular, the Tribunal noted that the Applicant indicated obtaining her qualification would give her an advantage in the job market on her return to Vietnam. The Tribunal found that not to be an ‘exceptional reason’.
It is not clear under this ground whether the Applicant also complains about the post-hearing submissions sent to the Tribunal. To the extent that any complaint is made about any failure to take account of those submissions, it cannot be sustained. By the time the submission was sent, the decision had already been made. The Tribunal’s decision is taken to have been made on the day and at the time the oral statement is made: see s.368D(1) of the Migration Act1958 (‘Act’). The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally: see s.368D(3) of the Act.
In respect of Ground 3, the Tribunal did not make any decision or finding in relation to the Applicant’s intentions with respect to completing her Diploma.
The Applicant has not established jurisdictional error. For the reasons set out above, the Application must be dismissed.
The Minister seeks costs in the amount of $5,400. I will award costs to the Minister.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 4 December 2020
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