Huang (Migration) - [2021] AATA 1628

Huang (Migration) [2021] AATA 1628 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xingjian Huang
CASE NUMBER:  1915247
DIBP REFERENCE(S):  BCC2017/3067762
MEMBER:Michael Ison
DATE:9 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to grant the applicant a Student (Temporary) (Class TU) visa and finds that the applicant meets the following criteria for a Subclass 500 (Student) visa:
· Public Interest Criterion 4003(b) of Schedule 4 to the Regulations for the purposes of cl.500.217(1) of Schedule 2 to the Regulations.

Statement made on 09 June 2021 at 1:10pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – PIC 4003(b) determination made – directly or indirectly associated with the proliferation of weapons of mass destruction – PhD research student – Mechanical and Aerospace Engineering – Tribunal’s proper conduct of a review – ‘act according to substantial justice and the merits of the case’ – source of the Tribunal’s powers – reasonable opportunity to progress request for DFAT to review its determination – PIC 4003(b) determination revoked by DFAT – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 353, 359, 363
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 500.217; Schedule 4, PIC 4003
CASES
SZMCE v MIAC (2008) 105 ALD 508
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 May 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is Mr Xingjian Huang who is a 26 year old Chinese national. The Tribunal refers to Mr Huang as the applicant in these reasons for decision.
The applicant arrived in Australia on 7 March 2015 as the holder of a Student (Subclass 573 Higher Education Sector) visa that was valid to 30 August 2017. The applicant completed a Bachelor of Engineering (Honours) while holding that visa.
The applicant applied for a second Student (Subclass 500) visa on 25 August 2018 to study a Doctor of Philosophy (PhD) at Monash University in Victoria. On 22 August 2017 the applicant was offered a Monash University Department of Mechanical and Aerospace Engineering stipend scholarship to study a PhD under Associate Professor Wenyi Yan’s research grant.
At the time of this decision the applicant holds a Bridging A (Subclass 010) visa that allows the applicant to continue studying in Australia while he seeks review of the decision to refuse to grant him a second Student visa.
The primary decision of the delegate
The applicant provided the Tribunal with a copy of the primary decision.
The delegate refused to grant the applicant a second Student visa on the basis that the applicant did not meet the primary criteria in cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate made this finding on the basis that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 1628
Decision Date: 9 June 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse Mr Xingjian Huang, a Chinese national, a Student (Temporary) (Class TU) Subclass 500 visa. Mr Huang sought to undertake a PhD in Mechanical and Aerospace Engineering at Monash University. The refusal was based on the applicant failing to satisfy Public Interest Criterion 4003(b), which requires that a person not be determined to be associated with the proliferation of weapons of mass destruction.

The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Huang met the primary criteria for the visa, specifically PIC 4003(b). The Tribunal's jurisdiction in such cases is limited to either finding a mistaken identity, or that the determination under PIC 4003(b) has been revoked. Mr Huang conceded that a determination had been made concerning him and did not claim mistaken identity. He did, however, provide evidence that he had not been consulted by the Department of Foreign Affairs and Trade (DFAT) prior to the determination being made, nor given an opportunity to respond to concerns or provide updated information.

The Tribunal considered its obligation to "act according to substantial justice and the merits of the case" under s 353(b) of the Migration Act 1958. It noted that while it could not review DFAT's determination, it was open to it to ensure that the applicant had a reasonable opportunity to progress his request for DFAT to review its determination. The Tribunal was informed that DFAT had since revoked its determination regarding Mr Huang. Consequently, the Tribunal concluded that the decision under review should be set aside and the matter remitted.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 May 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).Background The applicant is Mr Xingjian Huang who is a 26 year old Chinese national. The Tribunal refers to Mr Huang as the applicant in these reasons for decision. The applicant arrived in Australia on 7 March 2015 as the holder of a Student (Subclass 573 Higher Education Sector) visa that was valid to 30 August 2017. The applicant completed a Bachelor of Engineering (Honours) while holding that visa. The applicant applied for a second Student (Subclass 500) visa on 25 August 2018 to study a Doctor of Philosophy (PhD) at Monash University in Victoria. On 22 August 2017 the applicant was offered a Monash University Department of Mechanical and Aerospace Engineering stipend scholarship to study a PhD under Associate Professor Wenyi Yan’s research grant. At the time of this decision the applicant holds a Bridging A (Subclass 010) visa that allows the applicant to continue studying in Australia while he seeks review of the decision to refuse to grant him a second Student visa.The primary decision of the delegate The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the applicant a second Student visa on the basis that the applicant did not meet the primary criteria in cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate made this finding on the basis that the applicant did not satisfy the requirements of public interest criteria 4003(b) {PIC 4003(b)}, which provides:The applicant:(a)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests; and(b)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and(c)either:(i) is not declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; or(ii) if the applicant is declared - is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011. Regulation 1.03 defines:Foreign Minister means the Minister for Foreign Affairs.proliferation of weapons of mass destruction includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of:(a) weapons that may be capable of causing mass destruction; or(b) missiles or other devices that may be capable of delivering such weapons. The delegate found that the Foreign Minister or a person authorised by the Foreign Minister had determined the applicant to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.Tribunal hearing

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the primary criteria for the grant of a Student visa in cl.500.217(1) of the Regulations. As noted above cl.500.217(1) provides the applicant must meet the requirements of several public interest criterion, including PIC 4003(b). There are only two circumstances where, after a PIC 4003(b) determination has been made, the Tribunal can set aside a delegate’s decision made on that basis:·Firstly, if the applicant can positively establish that the determination was not made in respect of them i.e. a case of mistaken identity; or·Secondly, if the determination is rescinded or revoked and evidence of this is provided to the Tribunal. At the time of the Tribunal’s hearing in October 2020, the applicant conceded that a determination under PIC 4003(b) had been made in respect of him. The applicant did not claim that the determination made was not about him. The applicant also did not claim that the determination had been rescinded or revoked. The Tribunal does not have the jurisdiction to review or disregard a determination made under PIC 4003(b) about the applicant by DFAT. The applicant’s representative conceded during the hearing that as compliance with PIC 4003(b) is a time of decision criteria, the Tribunal could proceed to make a decision. The applicant gave evidence that he had no idea why the determination had been made and had not been consulted by DFAT or given an opportunity to respond to DFAT’s concerns or provide updated information prior to the determination being made. Associate Professor Yan gave evidence that neither she, nor anyone else associated with the research to her knowledge, had been consulted by DFAT or the Department of Home Affairs about DFAT’s concerns prior to the determination being made. Associate Professor Yan explained the focus, purpose and potential civil uses of the applicant’s research and was firmly of the view that there was no military or dual civilian and military use for the applicant’s research. The applicant’s representative submitted that in the applicant’s circumstances it would not be fair or reasonable for the Tribunal to proceed to a decision in the following terms:As the Tribunal’s discretion is relatively limited in the present scope of the review given the requirement of PIC 4003(b) to rely on the findings of the Foreign Minister, or an authorised delegate of the Foreign Minister, we rely largely on the submissions set out in the requisite correspondence and submissions to the First Assistant Secretary and ask the Tribunal to defer the making of a decision until the First Assistant Secretary provides a conclusive finding with respect to our request for the new determination.…We consider that it should be open to the Tribunal to take one or more of the 3 actions listed above, or to take any other action under its power to enable the applicant to have a fair, up-to-date and accurate finding by the First Assistant Secretary of the International Security Division. In considering s. 353(b) of the Migration Act 1958, it would be consistent with the Tribunal’s proper conduct of a review and obligation to ‘act according substantial justice and the merits of the case’ to ensure that the decision to be made will be done so taking into account the full merits of the applicant’s circumstances, including the need to ensure that the applicant’s full accurate and updated circumstances are considered by relevant assessing authorities where it may be possible to do so. Given PIC 4003(b) is a time of decision criterion, there should be no obstacle for the applicant to be given sufficient time to have his request for an updated determination be considered by the First Assistant Secretary. We submit that it should not be open to the Tribunal to proceed to a decision while refusing to consider taking some form of action to receive an updated determination by the First Assistant Secretary. The applicant has raised clear and credible reasons for why his updated circumstances should be reconsidered by the First Assistant Secretary. Even if the Tribunal considers that it is outside its power to make a decision that departs from the determination of the First Assistant Secretary, it is certainly not outside the Tribunal’s power to facilitate or to take actions of its own accord to ensure that the findings of the First Assistant Secretary are up to date, relevant, and have taken into consideration the full scope of the applicant’s circumstances.

Decision

Reasons for decision

At the time of this decision the applicant holds a Bridging A (Subclass 010) visa that allows the applicant to continue studying in Australia while he seeks review of the decision to refuse to grant him a second Student visa.The primary decision of the delegate The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the applicant a second Student visa on the basis that the applicant did not meet the primary criteria in cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate made this finding on the basis that the applicant did not satisfy the requirements of public interest criteria 4003(b) {PIC 4003(b)}, which provides:The applicant:(a)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests; and(b)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and(c)either:(i) is not declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; or(ii) if the applicant is declared - is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011. Regulation 1.03 defines:Foreign Minister means the Minister for Foreign Affairs.proliferation of weapons of mass destruction includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of:(a) weapons that may be capable of causing mass destruction; or(b) missiles or other devices that may be capable of delivering such weapons. The delegate found that the Foreign Minister or a person authorised by the Foreign Minister had determined the applicant to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.Tribunal hearing The applicant appeared before the Tribunal on 14 October 2020 to give evidence and present arguments, by telephone. The Tribunal also received oral evidence from Associate Professor Yan, who also participated in the Tribunal hearing by telephone. The applicant was represented by a lawyer, Ms Lena Hung from Lena Hung & Associates, during the review. Ms Hung participated in the Tribunal hearing by telephone. Ms Hung is referred to in these reasons as the applicant’s representative or the representative. The hearing was held during the COVID-19 pandemic when Victoria was under public health orders restricting the movement of people, known as a ‘lockdown’. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal was satisfied the applicant, the applicant’s representative, the witness and the Tribunal could satisfactorily hear and understand each other during the hearing. The Tribunal is also satisfied the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal in support of his application for review.

Ratio Decidendi

Legal Principle Established

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