Hu v Minister for Immigration and Border Protection
[2017] FCA 1499
•21 November 2017
FEDERAL COURT OF AUSTRALIA
Hu v Minister for Immigration and Border Protection [2017] FCA 1499
Appeal from: Hu v Minister for Immigration and Anor [2017] FCCA 1785 File number: NSD 1147 of 2017 Judge: BROMBERG J Date of judgment: 21 November 2017 Catchwords: MIGRATION – appeal from the Federal Circuit Court – whether the primary judge erred in failing to find jurisdictional error of the Tribunal – whether the Tribunal’s finding that the appellant “will” leave Australia was inconsistent with a finding that the appellant intended to stay permanently, amounting to illogicality – no inconsistency established – appeal dismissed Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) cl 573.223
Cases cited: Hu v Minister for Immigration & Anor [2017] FCCA 1785
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Date of hearing: 21 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Appellant: Mr O Jones Counsel for the First Respondent: Ms N Laing Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1147 of 2017 BETWEEN: JUN HU
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
21 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The Appellant have leave to file an amended Notice of Appeal.
2.The appeal is dismissed.
3.The Appellant pay the costs of the First Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an appeal from a judgment of the Federal Circuit Court of Australia published as Hu v Minister for Immigration & Anor [2017] FCCA 1785. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 28 January 2016. By its decision, the Tribunal affirmed a decision of a delegate of the second respondent (“Minister”) to refuse the appellant a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa under s 65 of the Migration Act 1958 (Cth). There is no dispute that the Tribunal recognised and purported to apply the correct statutory criteria.
The critical question before the Tribunal was whether the appellant intended genuinely to stay in Australia temporarily within the meaning of that phrase in cl 573.223(1)(a) of Sch 2 of the Migration Regulations 1994 (Cth). Clause 573.223 is in the following terms:
(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
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant gives the Minister evidence that the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii)educational qualifications required by the eligible education provider; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2) If subclause (1A) does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
In its reasons for decision, the Tribunal noted that the appellant had come to Australia when he was 18 years of age and that whilst in Australia he had purchased a home unit at a place identified as Rhodes. The Tribunal, at [23] of its reasons, recorded that when the Tribunal had put to the appellant that owning his own property suggested that he had a strong intention to remain in Australia, the appellant disagreed. The appellant said that after he finishes his course, he might leave his unit and that if he had a strong intention to migrate to Australia, he would have brought a house. After dealing with a number of other matters not necessary to be recorded here, the Tribunal in setting out its reasons and findings relevantly said at [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.
The Tribunal’s ultimate conclusion is set out at paragraphs [37] and [38] as follows:
[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.
[38] Accordingly, the applicant does not meet cl.573.223(1)(a).
By his Notice of Appeal to this Court, the appellant raised the same three grounds of appeal as were raised before the primary judge. The second ground of appeal challenged the factual finding made by the Tribunal that the appellant intended to remain permanently in Australia. The appellant was unrepresented before the primary judge but is now ably represented by counsel. The appellant seeks leave to file and rely upon an Amended Notice of Appeal. In essence, the appellant seeks to abandon the three grounds in the Notice of Appeal and agitate a proposed ground of appeal in the following terms:
The Tribunal made a jurisdictional error by making a material finding of fact which was legally unreasonable, namely that the Appellant's purchase of a home unit was a factor suggesting that the Appellant intended to remain permanently in Australia.
The proposed ground seeks to agitate a contention put to the primary judge that a finding of fact about the appellant’s intention to remain permanently in Australia was erroneous. Clearly, the basis for that challenge has shifted from the way in which it was dealt with in the court below. It is suggested that it has shifted from a failure to consider relevant facts to an error based on legal unreasonableness. I note that, as the Minister’s submissions contend, the primary judge’s reasons address, at least implicitly, why the Tribunal’s reasoning was not illogical or irrational. In the circumstances, there may be some basis for saying that the proposed ground is not, in substance, a ground being raised for the first time on appeal.
Whether that is so or not, in my view, if leave is required to raise the proposed ground, there is no prejudice to the Minister and the proposed ground is not without some merit. I consider it to be expedient, in the interests of justice, that the proposed ground be considered. I will grant the appellant leave to file and rely upon his Amended Notice of Appeal.
The appellant’s submission on his single ground is short and seeks to impugn the Tribunal’s reasoning in the last sentence of [34] set out above, but which for convenience is worth repeating. In that sentence, the Tribunal said this:
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.
The appellant accepted that for him to succeed, he needed to establish that the Tribunal’s decision is “one at which no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ).
The appellant contended that the Tribunal, in the last sentence at [34], accepted that when he goes home he will sell his unit. The appellant submitted that, having reached that view, it was logically impossible for the Tribunal to consider ownership of the home unit as an indicator that the appellant intended to remain in Australia permanently. The appellant submitted that the two findings cannot stand together, there being an absence of a logical connection between them. It was submitted that a person who intends to sell property when he goes home cannot be the same person whose ownership of the property suggests he intends to remain in Australia permanently.
The appellant’s submission reads the phrase “an intention to remain permanently in Australia” in the last sentence at [34] as though the Tribunal meant an intention to reside in Australia forevermore. Read in that way, there is an apparent inconsistency, possibly amounting to illogicality, with the appellant’s intent, also expressed in that sentence, to go home to reside in China. But, in my view, the appellant’s submission misconstrues the phrase “remain permanently”. The word “permanent” does not mean forevermore in a range of contexts, and particularly when used in contrast to the word “temporary”. For instance, an employee may be employed as a “temporary employee” or as a “permanent employee”. In that context, the word “permanent” is not used to suggest that the employee will, forevermore, be employed in that particular employment but is used as a synonym for “ongoing”. Thus permanent employment is another way of saying ongoing employment. So too, in the context of residency of a country or place. To say that a person is a permanent resident does not generally connote an intent to say that the person will forevermore be a resident of that place, but merely that the residence is ongoing and not temporary.
In the context of considering whether the appellant had an intent to stay temporarily, it seems to me that the Tribunal used the word “permanently” to connote an intent to maintain ongoing residence. So much is revealed in the last sentence at [37] of the Tribunal’s reasons, where the Tribunal concluded that it was not satisfied that the appellant intended to genuinely stay in Australia temporarily, but instead was satisfied that “the applicant is using the student visa program as a means of maintaining ongoing residence in Australia”
When the phrase in question is properly construed, there is no inconsistency let alone illogicality. An intent to maintain ongoing rather than temporary residence is not inconsistent with an acceptance that, at some time, the resident will move elsewhere.
Nor, do I accept the appellant’s alternative contention that the use of the word “will” in the phrase “will sell his unit” connotes an intent to say that the appellant would stay for a definite period and that such a finding would be inconsistent with a finding of an intention to maintain ongoing residence in Australia. It seems to me that, despite the competent way in which it was put, the appellant’s submission seeks to construe the last sentence of [34] of the Tribunal’s reasons with too keen an eye for error. Read in context, the last sentence of [34] does not betray inconsistency, let alone a finding that no rational or logical decision maker could arrive at.
It follows that, having failed on his single ground of appeal, the appellant’s appeal must be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 12 December 2017
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