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 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.
At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
Pre-hearing submissions
The Tribunal received extensive pre-hearing submissions and documents from the applicant. These included information about the applicant’s PhD research, the research team he is a part of at Monash University, the funding of that research, statements of support from senior Monash academics including Associate Professor Yan, a published paper authored by the applicant, the applicant’s academic record in Australia and his curriculum vitae and the progress of an application for documents under the Freedom of Information Act 1982 (Cth).
The pre-hearing submissions included a copy of a determination made under PIC 4003(b) by the First Assistant Secretary, International Security Division of the Department of Foreign Affairs and Trade (DFAT) on 7 February 2019. That determination determined that the applicant is a person who presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.
The pre-hearing submissions also included a detailed written application, with supporting documents, made to the First Assistant Secretary, International Security Division of DFAT requesting that the determination made on 7 February 2019 be reviewed based on the applicant having redefined the scope of his PhD research, amongst other matters.
Post-hearing submissions
After the Tribunal hearing the Tribunal received several detailed submissions from the applicant, which are referred to in the Tribunal’s reasons below.
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.
These submissions are rejected.
Section 353(b) of the Act provides that the Tribunal must act according to substantial justice and the merits of the case. This is not a source of power. In matters reviewable by the Tribunal under Part 5 of the Act, such as this case, the source of the Tribunal’s powers are, relevantly for the purposes of the submission of the applicant’s representative, set out in ss. 359 and 363 of the Act.
The Tribunal is under no general duty to obtain information under s.359 of the Act or to exercise its powers under s.363 of the Act.[1] It is well established that these powers are discretionary or permissive. Generally speaking, there is no obligation on the part of the Tribunal to use those powers.[2] Nor are those powers the source of any obligation on the Tribunal to go further and seek more information that might enhance, detract from or otherwise be relevant to information which it has already received.[3]
[1] MIAC v SZIAI (2009) 111 ALD 15 at [25]; MIMIA v SGLB (2004) 207 ALR 12 at [43], [124]; MIEA v Singh (1997) 74 FCR 553 at 561; SBBA v MIMIA [2003] FCAFC 90 at [8]; MIMIA v VSAF of 2003 [2005] FCAFC 73 at [20]; and SZJCL v MIAC [2007] FMCA 839 at [53].
[2] See MIAC v SZIAI (2009) 111 ALD 15 at [25]; MIMIA v SGLB (2004) 207 ALR 12 at [43], [124]; MIEA v Singh (1997) 74 FCR 553 at 561 and SBBA v MIMIA [2003] FCAFC 90 at [8]; SJSB v MIMIA [2004] FCAFC 225 at [16]; MIAC v SZGUR (2001) 241 CLR 594 at [20].
[3] MIAC v SZGUR (2001) 241 CLR 594 at [86].
The Tribunal is not required to make out an applicant’s case, this is for the applicant.[4] It is for the applicant to make his or her own case.[5] In SZMCE v MIAC [6] the Court observed in this regard that the Tribunal is not an adversarial cross-examiner but an inquisitor obliged to be fair and that in an application for a review, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out.
[4] SZNWA v MIAC [2010] FCA 470 at [41]; SZLJK v MIAC [2008] FMCA 694 at [26].
[5] Prasad v MIEA (1985) 6 FCR 155 at [169]–[170]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
[6] SZMCE v MIAC (2008) 105 ALD 508 at [22].
Generally speaking, the Tribunal is not obliged to investigate claims by making inquiries outside the material presented to it by the applicant.[7] While the Tribunal may be obliged to make an obvious inquiry about a critical fact, the existence of which is readily ascertainable in certain circumstances, this is not such a case.[8]
[7] SZGRK v MIAC [2010] FCA 153 at [18].
[8] MIAC v SZIAI (2009) 111 ALD 15 at [25]; Prasad v MIEA (1985) 6 FCR 155.
The facts are well established in the applicant’s case and all relevant evidence was before the Tribunal. There is no dispute that the relevant determination was made by DFAT nor was there any dispute that at the time of the Tribunal hearing the determination had not been rescinded or revoked.
What was not known at the time of the Tribunal’s hearing was whether DFAT could or would review the determination made under PIC 4003(b) about the applicant and, as such, whether the review should be delayed pending an outcome to the applicant’s request to DFAT to review the determination made about him. Relevantly, the applicant’s representative was unable to provide to the Tribunal any legislative or policy basis for the review by DFAT of a PIC 4003(b) determination.
The Tribunal was cognizant of two important factors in this review:
·The applicant’s visa, a Student visa, is a temporary visa only; and
·The applicant being the subject of a determination under PIC 4003(b) could have broader implications for his migration and career opportunities in the future.
The applicant told the Tribunal that while he continued to progress well with his PhD research, he was concerned about the impact the determination would have on his future. The applicant told the Tribunal he would feel compelled to disclose the determination to prospective employers and when applying for a visa to travel overseas from China, and he was not sure how he could explain the determination to anyone. The applicant expressed his great concern that the determination may restrict his ability to travel overseas, which would impact his ability to collaborate with other academics in his research field and that his future employment opportunities may also be adversely affected. The Tribunal accepts that the applicant genuinely held these concerns.
The Tribunal decided to delay the applicant’s review to give the applicant a reasonable opportunity to progress his request to DFAT for DFAT to review its determination made about him.
On 12 January 2021 the Tribunal wrote to the applicant seeking updated information about his application to DFAT to have the determination under PIC 4003(b) made about him, reviewed. This letter was sent in accordance with the procedure in s.359(2) of the Act.
On 26 January 2021 the applicant responded to the Tribunal’s request for information. The applicant provided documents in relation to his ongoing request for documents from DFAT under the Freedom of Information Act 1982 (Cth), a written follow-up request to DFAT to review the determination and an advanced draft of the applicant’s PhD thesis but confirmed he had not received from DFAT an acknowledgement of, or response to, his request to DFAT to review the determination made about him.
The applicant’s representative subsequently kept the Tribunal informed about the progress and eventual outcome of the applicant’s Freedom of Information request to DFAT, the progress of the applicant’s PhD and the communications to DFAT in relation to the applicant’s request for a review of the determination made about him by DFAT.
On 7 June 2021 the Tribunal received a submission from the applicant’s representative informing the Tribunal that DFAT had revoked the determination made about the applicant in 2019 and had made a new determination. The Tribunal was provided with a copy of the following documents:
·A letter dated 4 June 2021 from the Acting Assistant Secretary, Arms Control and Counter-Proliferation Branch, International Security Division at DFAT;
·A new determination made by the First Assistant Secretary, International Security Division of DFAT about the applicant that the applicant “… is not a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.” (emphasis in original);
·A copy of the initial determination dated 19 February 2019 with a line through it and “revoked 25/5/21” written on it.
The letter from DFAT to the applicant’s representative dated 4 June 2021 stated in part:
On 7 February 2019, it was determined that Mr Xingjian HUANG did not meet this PIC. This determination was based on information provided in their visa application to undertake postgraduate research (visa subclass 500) at Monash University, lodged with the Department of Home Affairs.
I confirm that the determination in respect of MR HUANG has been reviewed and the determination of 7 February 2019 has been revoked (attached). I have made a new determination that MR HUANG is not a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction (attached). (sic) (emphasis in original)

On 8 June 2021 the Tribunal received a letter from DFAT which stated in part:
I am aware of Mr Huang’s request for a review of the declaration (sic). I confirm that the determination in respect of Mr Huang has been reviewed, and based on this review, I have revoked the original determination and issued a new determination that Mr Huang is not a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction. This has been conveyed to the Department of Home Affairs and to Mr Huang’s legal representative.
The Tribunal accepts this evidence. At the time of this decision the evidence before the Tribunal is that the applicant has not been determined under PIC 4003(b) of Schedule 4 to the Regulations to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.
Conclusion
For these reasons, the Tribunal is satisfied that the applicant meets Public Interest Criterion 4003(b) for the purposes of cl.500.217(1) of Schedule 2 to the Regulations.
Accordingly, the decision under review must be set aside.
Other matters
The applicant’s representative submitted in her written submission dated 7 June 2021:
The applicant has advised that at this date, his PhD course is presently still under the marking process. We would request ideally that the Tribunal will be able to remit the matter with a substitution that the visa is granted. However, if that is not possible, we will accept that the Tribunal would remit with the direction that PIC 4003(b) is met and revert the matter back to the Department for further assessment.
Complying with PIC 4003(b) is one of numerous primary criteria for the grant of a Student visa. The other primary criteria that the applicant must satisfy have not been the subject of this review by the Tribunal. The Tribunal has information before it which indicates the applicant meets some of those primary criteria, such as being enrolled in a registered course of study. However, the Tribunal does not have information before it, and it was not within the scope of this review for the Tribunal to inquire, whether the applicant meets all of the primary criteria he must meet to be granted a Student visa.
Therefore, the appropriate course of action for the Tribunal in the applicant’s circumstances is to set aside the decision of the delegate and remit the applicant’s application back to the Department for reconsideration with the direction that the applicant meets PIC 4003(b) for the purpose of cl.500.217(1) of Schedule 2 to the Regulations at the time of this decision.
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.
Michael Ison
Senior Member