Ji Hyang Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1084
•19 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ji Hyang Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1084
File number(s): SYG 317 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 19 May 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decisions – refusal of a student visa – applicant found not to be a genuine entrant for entry – whether a factual error made by the Tribunal was material considered – observations on the Tribunal’s use of the United Nations Human Development Index – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 359, 476
Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Attorney General (NSW) v Quin (1990) 93 ALR 1
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Tshering v Minister for Home Affairs [2019] FCCA 2667
Waterford v Commonwealth (1987) 71 ALR 673
Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 139 FCR 344
Number of paragraphs: 40 Date of hearing: 19 May 2021 Place: Sydney The Applicant appeared in person Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 317 of 2020 BETWEEN: JI HYANG LEE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
19 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicant, Ms Lee, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 16 January 2020. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Lee a temporary student visa. Relevant background facts are conveniently set out in initial written submissions filed on behalf of the Minister on 1 September 2020, which I adopt.
BACKGROUND
Ms Lee, a citizen of the Republic of Korea, first arrived in Australia on 26 October 2005 on a working holiday visa[1]. She has since been granted four temporary student visas[2]. Ms Lee’s most recent visa, being a temporary graduate (Subclass 485) visa, was granted on 5 May 2016 and was valid until 5 November 2017[3].
[1] Court Book (CB) 64
[2] CB 45; 66
[3] CB 45; 66
On 3 November 2017, Ms Lee applied for the visa in issue on the basis of her enrolment in a Master of Business Administration (MBA) course from 15 January 2018 to 13 December 2019[4]. On 3 January 2018, the delegate refused to grant the visa on the basis that Ms Lee did not satisfy clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations)[5].
[4] CB 1-20; 33
[5] CB 43-46
On 18 January 2018, Ms Lee applied to the Tribunal for review of the delegate’s decision[6]. By letter dated 1 October 2019, the Tribunal sent a s 359(2) letter to Ms Lee inviting her to provide information. The Tribunal identified that sufficient information needed to be provided as to whether Ms Lee was enrolled in a registered course of study and whether she was a genuine applicant for entry and stay as a student[7]. Ms Lee provided a response to that invitation which included that she did not complete the initial MBA course but had enrolled in an MBA course at the Wentworth Institute commencing on 18 November 2019 with a completion date of 25 June 2021[8]. On 16 December 2019, Ms Lee attended a hearing before the Tribunal[9]. On 16 January 2020, the Tribunal affirmed the delegate’s decision not to grant the visa[10].
[6] CB 47-48
[7] CB 55-61
[8] CB 62-73
[9] CB 84-86
[10] CB 90-96
Tribunal's decision
The Tribunal set out the background of the matter[11], the relevant criteria in clause 500.212 of Schedule 2 of the Regulations and guidelines in Ministerial Direction 69 (Direction 69)[12]. The Tribunal identified that it was required to consider Direction 69 but only to the extent that it was relevant to the applicant’s case with reference to Tshering v Minister for Home Affairs[13].
[11] CB 91, [1]-[9]
[12] CB 92, [11]-[13]
[13] [2019] FCCA 2667 at [44]-[47]; CB 92, [14]-[15]
The Tribunal was concerned that Ms Lee was not a genuine temporary entrant because in her visa application she provided a confirmation of enrolment for a MBA that was due to be completed on 13 December 2019, which meant she would have already completed the course. However, Ms Lee did not complete the MBA and instead enrolled in a new MBA course in October 2019, at the same time she responded to the s 359 letter, that was due to be completed in June 2021[14]. Noting the timing of her application and re-enrolment in a new MBA, the Tribunal considered Ms Lee was using the student visa programme to circumvent the intentions of the migration programme[15].
[14] CB 93, [18]
[15] CB 94, [19]
The Tribunal allowed for reasonable changes in career, accepted an MBA was likely to assist and improve a future career in management consulting, and that there were advantages to completing the degree in Australia rather than her home country. However, the Tribunal was perplexed that Ms Lee wanted to undertake an MBA when she had completed previous studies in the arts and social work along with considerable work experience as a student counsellor. The Tribunal was especially concerned about this in circumstances where Ms Lee had resided in Australia for 14 years and had failed to complete the MBA she was originally enrolled in[16].
[16] CB 94-95, [20]-[23]
The Tribunal considered that Ms Lee had strong ties to the Australian community, the economic situation in Australia relative to Korea was likely to present a significant incentive to remain in Australia and that her family in Korea did not appear to be a significant incentive to return to Korea given she had not returned to her home country for the last 10 years and the length of time she had remained in Australia[17]. The Tribunal identified that Ms Lee had no travel, visa or immigration issues in the past and that she did not face any potential military service or unrest on return to Korea[18].
[17] CB 95, [24]-[26]
[18] CB 95, [27]-[28]
The Tribunal was not satisfied that Ms Lee genuinely intended to stay in Australia temporarily, placing weight on the length of time she had been in Australia, that she ceased studying her original MBA and the economic incentives for her to remain in Australia[19]. Accordingly, the Tribunal found she did not meet clause 500.212 of Schedule 2 of the Regulations and affirmed the decision under review[20].
[19] CB 95-96, [29]
[20] CB 96, [30]-[33]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 13 February 2020. There are four grounds in it:
1.The respondents breached Section 357A (3) of the Migration Act 1958 (“the Act) of natural justice hearing rule in connection with making of the decision which requires the Tribunal mist act in a way that is fair and just.
2.The Tribunal did not comply with its obligations under Section 353 (b) of the Migration Act 1958 (‘the Act’) in connection with making of the decision which requires the Tribunal shall act according to substantial justice and the merits of the case.
3.The Second respondent fell into jurisdictional error by stating that “according to the United Nations’ Human Development Index ranks Korea of 22nd in the world as compared to Australia’s ranking of 3rd in the world” to make that Australian economic circumstance is a significant incentive for the applicant not to return to her home country. The Second respondent didn’t act in a way that is fair and just and discriminates and disadvantages any people comes from the country ranks below Australia. (see paragraph 25 of the decision record)
4.The respondents denied the applicant’s immediate family who are spouse and two children love in their home country as the significant incentive for the applicant to return to her home country which is unfair and unreasonable. (see paragraph 26 of the decision record)
The application was supported by a short affidavit filed with it which I received when the matter came before me for a show cause hearing on 15 September 2020. Ms Lee had filed a second affidavit on 23 April 2020, which I received as a submission.
At the show cause hearing it became apparent that there were relevant issues other than those raised in the show cause application. I ordered, under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), that the Minister show cause why relief should not be granted in relation to two issues. The first is an admitted factual error at [26] of the Tribunal’s reasons. The second is the Tribunal’s use of the United Nations Human Development Index (the Index) at [25] of its reasons.
I provided the parties with the opportunity to file further material and listed the matter for a final hearing. There was a further adjournment, subsequently, until today. For the purposes of today’s final hearing I received the court book filed on 27 March 2020 and the affidavit of Danielle Annalise Hope Stone made on 23 December 2020. Annexed to Ms Stone’s affidavit is a document headed “Human development composite indices”. This was the Index referred to by the Tribunal at [25] of its reasons.
CONSIDERATION
Only the Minister prepared further written submissions in relation to the show cause issues. I invited oral submissions from Ms Lee this afternoon. Ms Lee initially referred to the Tribunal’s reasoning concerning her length of stay in Australia and her somewhat convoluted study history. Ms Lee reiterated that the Tribunal was mistaken in relation to her statements about return travel to Korea. Ms Lee also submits that the Tribunal was wrong to make use of the Index.
As to the first issue, it concerns [26] of the Tribunal’s reasons (footnotes omitted):
The applicant gave evidence at hearing that she has two children aged 9 and 10 years as well as her spouse in Korea. Her children are cared for by her parents in law and their father because she cannot look after them while she is in Australia. She also has he own parents in Korea in different location. She speaks to her family every day via message, chat, voice and video call. The applicant’s response to the s359(2) letter stated that she has not returned to her home country in the last ten years, however, her application to the Department states that she visited her home country on multiple travels from July 2012 to December 2016. Particularly given the length of time the applicant has been onshore for, the Tribunal considers that the applicant’s family members are not serving as a significant incentive for the applicant to return to their home country.
The Minister concedes that the Tribunal was wrong to state in that paragraph that in her response to a letter sent to her under s 359 of the Migration Act 1958 (Cth) (Migration Act) Ms Lee stated that she had not returned to her home country in the last 10 years.
In fact, it is plain from Ms Lee’s response, as reproduced at CB 65, that she provided accurate details of return visits to Korea in that 10-year period. It is hard to understand how the Tribunal made the error it did. If this were the only reference to the response to the request for information it would be fairly arguable that the Tribunal had breached its duty to consider the response to the s 359 invitation.
However, the Tribunal referred to the response at [23] and [24] of its decision, apparently, correctly. The Tribunal also referred to the correct information concerning Ms Lee’s return visits to Korea. The Tribunal did not draw an adverse credibility conclusion from the asserted inconsistency between the response to the invitation and the earlier visa application.
While the Tribunal’s mistake is troubling, on balance I accept the Minister’s submissions about it. The Minister submits, and I accept, that the Tribunal’s misapprehension of what Ms Lee had said in her s 359(1) response was a mere factual error not going to jurisdiction. That is because, ultimately, the Tribunal acknowledged that Ms Lee had travelled back to Korea on multiple travels as she had asserted in her student visa application[21]. That is, despite the Tribunal having, it would appear, misread Ms Lee’s response[22], the Tribunal did not find, as a fact, that Ms Lee had not travelled back home. This is consistent with the delegate’s findings on the issue (which were before the Tribunal) that Ms Lee had, since arriving in Australia on 25 October 2005, “resided in Australia for 4133 days and has departed Australia for a cumulative period of 259 days”[23]. Further, as noted above, the Tribunal did not draw any adverse credit findings against Ms Lee as a consequence of any perceived inconsistencies in her claims of having returned to her home country.
[21] see CB 14 under heading “Country visited”
[22] at CB 65
[23] CB 45
In short, any error by the Tribunal at [26] was strictly limited to interpreting Ms Lee’s response at CB 65. That error was inconsequential in the present case. The concern for the Tribunal was that Ms Lee had spent a significant number of years in Australia since she first arrived in 2015, and that the length of time she had spent in Australia was a factor that led the Tribunal to find that Ms Lee’s family members were not serving as a significant incentive for the applicant to return to her home country.
I accept that the Tribunal’s factual error does not go to jurisdiction.
The second issue concerns [25] of the Tribunal’s reasons (footnotes omitted):
The applicant has been working onshore as set out above, now earning $60,000AUD per annum. Her expenses onshore are $46,200AUD per annum. She holds $40,000AUD equivalent in savings and personal belongings in Korea and $18,000AUD assets (savings, car and personal belongings) in Australia. The Tribunal notes that the United Nations Human Development Index ranks Korea as 22nd in the world as compared to Australia’s ranking of 3rd in the world. The Tribunal considers that, on balance, the applicants’ economic circumstances in Australia relative to Korea are likely to present as a significant incentive for them not to return, particularly given the significant amount the applicant has been earning in Australian dollars in excess of her expenses.
It is noteworthy that the Tribunal referred to Korea’s ranking as 22nd in the Index as compared to Australia’s ranking of 3rd. In my view, the Tribunal’s reference to the Index is unhelpful and apt to distract from the obligation of the Tribunal to deal with Ministerial Direction 69 concerning the economic circumstances of Ms Lee, not her country.
My concern is amplified by reference to the Index, which is annexed to Ms Stone’s affidavit. The Index is divided into categories. The first category are countries with very high human development. As well as financial measures, there is also a measure of life expectancy and education. The only countries ranked above Australia are Norway and Switzerland. Korea is ranked at 22, above most of Europe and many of the second-world countries of the Middle East and South America.
When one examines the figures relating to Australia and Korea, there does not appear to me to be very much to choose between them. In my view, the Index is singularly unhelpful when comparing countries with very high human development. Below these countries are countries ranked with high, medium and low human development.
China is ranked at 86 as a high human-development country. India is ranked at 130 as a medium human-development country. Australia’s near neighbours, the Solomon Islands and Papua New Guinea, are ranked at 152 and 153 respectively as low human-development countries. If the Index was meant to carry some particular weight in the Tribunal’s deliberations it would seem that putative students from China, India, the Solomon Islands, and Papua New Guinea and elsewhere would face real difficulties.
While I consider the Tribunal’s use of the Index should be discouraged, it is not open to me to conclude that it was an irrelevant consideration, in the sense of something that the Tribunal was prohibited from considering. The Tribunal’s reasoning in relation to Ms Lee’s financial circumstances generally, at [25], is unconvincing. I am unable to conclude, however, that the Tribunal’s reasoning was not open to it on the material before it.
Further, the Tribunal’s primary focus of attention was on the length of time Ms Lee had been in Australia, her study history and her work history. The Tribunal’s reasoning in relation to those matters provided an adequate basis for its ultimate conclusion. I conclude that the Tribunal did not fall into any error going to its jurisdiction.
To the extent that the grounds of review advanced in the applicant’s show cause application have any continuing relevance, I agree with the Minister’s submissions concerning those grounds.
Paragraphs 1 to 5 of Ms Lee’s affidavit merely recite the procedural background to the matter and do not assert any arguable case of error on the part of the Tribunal.
Paragraph 6 of Ms Lee’s affidavit alleges Ms Lee satisfied clause 500.212 of the Regulations and the criterion set out in Direction 69. Insofar as these dot points provided in [6] express disagreement with the Tribunal’s findings, they rise no higher than to invite the Court to engage in impermissible merits review[24]. It was for Ms Lee to provide sufficient evidence for the Tribunal to be satisfied that she was a genuine temporary entrant for stay in Australia.[25]
[24] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
[25] Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]–[16]
Paragraph 7 of Ms Lee’s affidavit alleges it was unreasonable and unfair for the Tribunal to find Ms Lee’s spouse and children were not a significant incentive for her to return to Korea[26]. The Tribunal provided a logical basis for its finding based on probative evidence as it referred to Ms Lee’s evidence about her family in Korea but found given the length of time she has been onshore, that her family members were not a significant incentive for her to return to Korea[27]. There is nothing “unfair” or “unreasonable” about the Tribunal’s finding.
[26] CB 95, [26]
[27] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]
Paragraph 8 of Ms Lee’s affidavit takes issue with the delegate’s findings on page 3 of its decision record[28]. The Court has no jurisdiction to review this decision as it is a primary decision. Even if there was an error in the delegate’s decision, it is well established that if the Tribunal’s decision is not flawed, it cures any defect and irregularities in the delegate’s decision[29].
[28] CB 45
[29] Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 139 FCR 344; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314
Paragraph 9 of Ms Lee’s affidavit alleges the Tribunal made an incorrect finding as it recorded that Ms Lee stated she had not returned to her home country in ten years in response to the s 359(2) letter[30]. I have dealt with that issue above in relation to my show cause orders. To reiterate, this was a factual error, as Ms Lee had responded that she returned home for periods of 3-6 weeks in 2013, 2014, 2015 and 2016[31]. There is no error of law in simply making a wrong finding of fact[32]. This was only one factor in the Tribunal’s weighing process in considering whether Ms Lee was a genuine temporary entrant. In light of the other findings made by the Tribunal, being that she had not demonstrated any significant incentive to return home due to the length of time she had been onshore; her failure to complete the MBA she was originally enrolled in which was due to be completed on 13 December 2019[33]; the length of time she has been onshore, being an excess of fourteen years[34]; and to a lesser extent her economic circumstances in Australia[35], the error was not material. The error did not deprive Ms Lee of the possibility of a successful outcome[36] and could not have “realistically resulted in a different decision” [37].
[30] CB 95, [26]
[31] CB 65
[32] Waterford v Commonwealth (1987) 71 ALR 673, 689; Attorney General (NSW) v Quin (1990) 93 ALR 1, 25-26 per Brennan J; Abebe at [137]
[33] [18]-[19] of the Tribunal’s reasons
[34] [21] of the Tribunal’s reasons
[35] [25] of the Tribunal’s reasons
[36] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30], [72]
[37] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2]-[3], [45], [48]-[49]
Paragraph 10 of Ms Lee’s affidavit alleges the Tribunal discriminated against and disadvantaged people who came from a country that ranked below Australia in the Index as it referred to Korea as being ranked below Australia to reach its conclusion that there were substantial economic incentives for Ms Lee to remain in Australia. I have dealt with that issue in relation to my show cause order and I do not need to repeat those reasons. The allegation that the Tribunal was not “fair and just” appears to be no more than an attempt to cavil with the merits of the Tribunal’s decision, which the Court has no jurisdiction to do[38].
[38] Wu Shan Liang at [272]
Paragraph 11 of Ms Lee’s affidavit takes issue with the concerns raised by the Tribunal in respect of Ms Lee’s enrolment in the MBA course. The Tribunal expressed concern in circumstances where the initial enrolment in the MBA course commenced in January 2018 and had a completion date of 13 December 2019, being prior to the date the matter was determined by the Tribunal. Ms Lee’s contention that if her review was unsuccessful before the completion of the initial MBA course, her study would be interrupted, and the associated costs would be wasted merely asserts that the Tribunal should have come to a different conclusion on the basis of the material before it. Such a complaint invites impermissible merits review of the Tribunal’s decision[39].
[39] Abebe at 53-54; Wu Shan Liang at [272]; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20]
Paragraph 12 of Ms Lee’s affidavit alleges the Minister and the Tribunal were not “fair and just” and breached the Migration Act and seeks the Court’s review of both decisions. These are bare assertions that without further particulars are meaningless and, as stated above, the Court has no jurisdiction to review the delegate’s decision as it is primary decision pursuant to s 476(2) and s 476(4) of the Migration Act.
CONCLUSION
I conclude that Ms Lee has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. It follows that the decision was a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. I will so order. Ms Lee did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 3 June 2021
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