HU v Minister for Immigration

[2017] FCCA 1785

FEDERAL CIRCUIT COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1785

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa application – review of decision of Administration Appeals Tribunal – whether the Tribunal’s decision was affected by an apprehension of bias or actual bias – whether the Tribunal failed to consider relevant facts – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations1994 (Cth), sub-cl.573.223(1)(a) of sch.2

Cases cited:

Attorney-General of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21

Applicant: JUN HU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 336 of 2016

Judgment of: Judge Smith

Hearing date: 21 June 2017

Date of Last Submission: 21 June 2017

Delivered at: Sydney

Delivered on: 21 June 2017

REPRESENTATION

Solicitors for the Applicant: The applicant appeared in person.

Solicitors for the Respondents: Ms S. He, Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 336 of 2016

JUN HU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of China who arrived in Australia on 18 November 2007 on a student visa. On 5 March 2015, he applied for a student (Temporary) (Class TU) higher education sector (subclass 573) visa, on the basis of his enrolment in an Advanced Diploma of Management and Bachelor of Business at the Australian Institute of Professional Education. One of the criteria for the grant of that visa was found in sub-cl.573.223(1)(a) of sch.2 to the Migration Regulations1994 (Cth) (Regulations).

2. That sub-clause provides:

   573.223

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   a)the Minister is satisfied that 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

   …

3. On 6 March 2015, an officer of the Department of Immigration (Department) wrote to the applicant requesting further details concerning his application.  Amongst those details was information concerning the criterion I have just referred to.  In other words, the genuine temporary entrant criteria.  The applicant replied to that request through his migration agent on 11 March 2015, setting out his study history, as well as referring to his parents’ business, and stating that he would return to his country to continue that business.

4. On 30 July 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa, and the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision.  The applicant was invited to attend a hearing on 2 December 2015.  On 1 December 2015, the applicant provided a submission through his agent to the Tribunal which essentially repeated what he had sent to the Department in support of his visa application.  The applicant attended the hearing and gave evidence, and made submissions in support of his claims.

5. The Tribunal handed down its decision on 28 January 2016, affirming the decision of the delegate not to grant the applicant a student visa.  Essential reasons and findings of the Tribunal are set out in [32] to [37] of its statement of reasons. 

   32.    The applicant is a single man, from China, who has been in Australia since November 2007. In relation to the applicant's circumstances in his home country, the Tribunal places weight on the applicant's parents and brother residing in China. He has no family ties in Australia. The applicant has travelled to China to visit his family and he has returned to Australia.

   33.    The Tribunal accepts that the applicant has struggled with some of his studies since arrival in Australia, due to a lack of maths knowledge and at times a fear of study. He works part-time and also receives financial support from his family in China to assist him to repay a mortgage. The applicant has been supported in Australia by his family in China and his own employment in Australia. He has studied a number of courses since arrival in Australia in 2007 and he has completed a Certificate IV in Business and a Diploma of Management in 2015.

   34.The Tribunal places weight on the applicant's purchase of a home unit in Sydney in 2014. When put to the applicant that purchasing a property in Australia indicated that he had a strong intention to remain in Australia permanently, he responded that it is cheaper to purchase a unit than to rent and he would have purchased a house in Sydney rather than a unit if it was his intention to remain in Australia. Whilst the Tribunal accepts that purchasing a unit may be cheaper than paying rent in Australia and when the applicant goes home he will sell his unit, nevertheless purchasing a home unit is factor suggesting that the applicant has an intention to remain permanently in Australia.

   35.The Tribunal places weight on the applicant being unable to describe the subjects he is studying at the moment in his current course of study or to even provide any meaningful information about assignments recently completed. He could only respond that the subject was about financials, he does not know the name, he focused on assignments but could not recall any details.

   36.    The applicant claims that his family have a business in China and when he returns to China he might help his mother or run his own business, he is not sure of the type of business. Further he states that the management diploma he is currently studying will be helpful to manage the people and staff in his mother's company. As the applicant was unable to describe the subjects he is studying the Tribunal is unable to be satisfied that his current course of study has any value to his future career prospects. The Tribunal places weight on the applicant's lack of information about his current course when assessing the value of his course to his future, including remuneration and career prospects.

   37.On the basis of the above, and having considered the relevant Direction No: 53 factors, the applicant's circumstances, immigration history, and in particular his inability to name the subjects he was studying or to describe recent assignments completed in his course, on balance, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal is satisfied the applicant is using the student visa program as a means of maintaining ongoing residence in Australia.

   (Error in original)

6. The applicant now seeks judicial review of the Tribunal’s decision.  In order to succeed, the applicant must establish that the Tribunal fell into jurisdictional error.  In other words, briefly stated, that the Tribunal failed properly to fulfil its task of reviewing the delegate’s decision.  The Tribunal might do so by misunderstanding or misapplying the law, by not applying itself to the claims, or not taking into account relevant circumstances.

7. It might also do so by not affording procedural fairness, or by giving a reasonable apprehension of bias.  The grounds in the application are (without alteration):

   1)The statement of the decision and reasons is not carefully considered it has not taken all the relevant facts into making the decision

   2)The tribunal member stated that “when putting to him that his own property suggested that he has a strong intention to remain in Australia”, however, the FIRB has approved to purchase a property as a primary residential place while I am in Australia, it does not indicate the strong intention to remain in Australia at all.

   3)The first Respondent and Second respondent did not check the fact that I am studying in school all the time, the decisions they made are not well thought.

8. The applicant did not file written submissions in support of these grounds.  However, he appeared in person today and made oral submissions.  He repeated grounds 2 and 3 of his application, and in addition said that the decision of the Tribunal was unfair.  He explained that that was for two reasons.  Firstly, that the Tribunal was against him personally because the decision was unfavourable to him, and secondly, that he had classmates in similar situations who had their visa applications approved.

9. The second and third grounds of the application appear to be particulars of the first ground: namely, a failure to consider relevant facts.  The portion of the Tribunal’s reasons quoted in ground 2 is found at [23] which I set below:

   23.When put to him that owning his own property suggested that he has a strong intention to remain in Australia, he disagreed. He said that after he finishes his course he might leave his unit. If he has a strong intention to migrate to Australia he would have bought a house. He bought the unit last year in 2014.

10. The Tribunal considered the question of the applicant’s purchase of a property in Australia at [34] of its reasons, which is set out above ([5]). 

11. The Tribunal recognised the force of the applicant’s submission that purchasing a unit in Sydney might be cheaper than paying rent, and that when he goes home he will sell his unit.  Nevertheless, it was of the view that the purchase of the home unit was a “factor” suggesting that the applicant has an “intention to remain permanently in Australia”.  It is true that the Tribunal does not mention the FIRB in its statement of reasons.  However, there is nothing in the material before me to suggest that it was ever mentioned before the Tribunal by the applicant.  It certainly played no part in the written submissions to the Tribunal, or the submissions to the Department.

12. In my view, the Tribunal’s reasons show that the Tribunal did take into account the applicant’s arguments concerning his purchase of the home unit.  However, what appears to have driven the Tribunal’s reasoning was that the purchase of a unit has a greater air of permanence and stability, than does the renting of a home while studying.  The Tribunal did not take it any higher than that.  It did not suggest that that fact alone suggested that the applicant did not intend temporarily to stay in Australia, but only stated that it was one factor that suggested it.

13. While other decision-makers might have drawn a different inference, it was open to the Tribunal to draw that inference and I cannot see any error in the way it did so.  For that reason, I would reject ground 2. 

14. In respect of ground 3, the applicant said that he had completed a number of courses since he had arrived in Australia, and pointed out that since 2007 he had, in addition to a number of tertiary courses, completed three years of secondary study.  However, the Tribunal’s reasons show that the Tribunal was not only aware of, but took into account, the entirety of the applicant’s study history.

15. The Tribunal set out at [4] of its reasons, the courses in which the applicant had previously enrolled in.  At [16] and [17], it referred expressly to the applicant’s submissions to it in connection with his study history and his certificates of enrolment.  Paragraphs 19 and 20 have referred not only to the high school courses relied upon by the applicant in his oral submissions, but also the Diploma of Accounting and Diploma of Management.  Paragraph 33 refers to the applicant’s claims that he had struggled with some of his studies.  Paragraph 35 refers to the more recent history in completing assignments, and at [36], continues to deal with the course of the applicant’s studies and his evidence about those studies.

16. These passages show that the Tribunal was well aware of, and took into account, all of the applicant’s circumstances insofar as they related to his study in Australia.  The third ground is rejected. 

17. As I have mentioned, the applicant also raised two separate and related grounds at the hearing today.  The first is that the Tribunal was against him personally.  This appears to be an allegation of an apprehension of bias.  However, as it is based solely upon the ground that the Tribunal came to an unfavourable conclusion, it cannot be sustained.

18. The allegation of a reasonable apprehension of bias cannot be made out simply on the basis of the findings.  Not only does such an approach risk confusion with an allegation of actual bias, but it also ignores the fact that the Tribunal’s reasons are necessarily made at the conclusion of a process of review. Such a process includes the consideration of the papers before the Tribunal, then an oral hearing and then consideration of all of the evidence together.  For those reasons, I cannot see any support for the allegation of an apprehension of bias.

19. Finally, the applicant says that he has classmates in a similar situation, whose applications have been approved.  It might seem unfair to an applicant that other people have had visas granted where he sees that his own circumstances are identical.  However, it is not this Court’s role to act upon administrative unfairness.  Rather, it is only to determine whether or not the Tribunal in this case has acted within the bounds of legality.  That is, it has properly performed its task.  If in doing so the Tribunal has arrived at an unfair outcome, then the Court has no jurisdiction simply on that basis to interfere.  See Attorney-General of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21. I cannot see any jurisdictional error in the Tribunal’s decision. For that reason, the application must be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     3 August 2017