Jung v Minister for Immigration - [2015] FCCA 1096

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUNG v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1096

Catchwords:
MIGRATION – Decision of the Migration Review Tribunal – application for judicial review – alleged decision of Tribunal vitiated by jurisdictional error as a consequence of irrationality illogicality and unreasonableness – error established – decision quashed.

Legislation:

Migration Regulations 1994, sch.2

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280
Minister for Immigration & Multicultural Affairs & Indigenous Affairs v Yusuf (2001) 206 CLR 86

Applicant:

SUNHO JUNG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 247 of 2014

Judgment of:

Judge Brown

Hearing date:

26 February 2015

Date of Last Submission:

26 February 2015

Delivered at:

Adelaide

Delivered on:

4 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr S Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr K Tredrea

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue removing the record of the Tribunal decision made on 3 June 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to re-determine the review application before it according to law.
The first respondent pay the applicant’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 247 of 2014

SUNHO JUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Sunho Jung, seeks the issue of constitutional writs to quash a decision of the Migration Review Tribunal “the MRT” made on 3 June 2014, not to grant him a medical treatment (visitor) (class UB) visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
Mr Jung is a citizen of the Republic of Korea. He was initially granted a student visa, in May of 2007, which authorised his stay in Australia, whilst he undertook a PhD in Theology at Flinders University.
On 27 February 2009, the applicant was severely injured in a motor vehicle accident in suburban Adelaide. He continues to receive treatment in respect of the sequellae of his injuries and is pursuing a claim for damages as a consequence of the accident.
Mr Jung applied for the visa on 9 March 2012. The visa has two subclasses – a short stay visa (subclass 675) and a long stay visa (subclass 685). Due to the gravity of his injuries, there is no suggestion Mr Jung is seeking a short stay visa.
The relevant visa is subject to the satisfaction of a number of conditions, at the relevant time, these conditions were set out in clause 685 of Schedule 2 of the Migration Regulations 1994. The intent of the visa is that it allows a person to come to Australia for the purpose of seeking medical treatment.
They include proof of financial independence[1] and relevantly, in the current case, satisfaction that the applicant in question intends only to visit Australia and not remain permanently in this country.
[1] See subclause 685.212 (6) or (7)
The criterion which is central to the present matter was contained in clause 685.221(2)(c) of Schedule 2 of the Regulations. It reads as follows:
“The applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine;”
The subclass was repealed, with effect from 23 March 2013, but only in relation to applications for visas made after that date. Accordingly, given the date of application for the visa relevant in these proceedings, satisfaction of the criterion is a mandatory condition of the grant of the visa.
On 30 March 2012, a delegate of the Minister was not satisfied that Mr Jung had adequate funds for his personal support. Accordingly, the application for the visa, by Mr Jung, was refused, on that ground.
Mr Jung appealed this decision to the MRT, which remitted the matter for reconsideration on 24 June 2013, after finding that the applicant did have sufficient funds for his personal support.[2]
[2] See case book at 51 - 58
A delegate of the Minister again refused the visa, on 22 August 2013, on the basis that Mr Jung had not provided evidence that he was obtaining medical treatment in Australia and arrangements had been concluded to carry out that treatment.[3] As a consequence of this decision, on 30 August 2013, Mr Jung again applied to the MRT for a review of this decision.
[3] Ibid at pages 87 - 90
At hearing, the MRT was satisfied that Mr Jung was engaged in a process of obtaining medical treatment, in Australia, for his injuries and satisfactory arrangements had been concluded with the medical providers concerned to carry out such treatment.
The Tribunal expressed some frustration that it had taken a considerable amount of time for Mr Jung to provide appropriate medical reports, from the various medical practitioners whom he was consulting, regarding the injuries stemming from his motor vehicle accident.[4]
[4] Ibid at page 259 [23] – [24]
Thereafter, the Tribunal turned to consider whether Mr Jung had established a genuine intention to only visit Australia, as required by clause 685.221(c).

The hearing and reasons of the MRT

The MRT hearing took place on 26 March 2014. Mr Jung attended the hearing with his advisor and was assisted by a Korean interpreter. I have been provided with a transcript of Mr Jung’s evidence before the Tribunal.[5] He was asked questions about his longer term plans and what he intended to do over the next few years. [6]
[5] See affidavit of Jane McGrath filed 3 November 2014
[6] See transcript at page 8 lines 20 -22
In response to these questions, Mr Jung replied as follows:
“I have a plan to resume my thesis at Flinders University from next year. Before the accident I studied at Flinders University for my thesis … um now I can do nothing due to the accident, such as my (indecipherable) teaching in Korea, so I intend to resume my thesis at Flinders University from next year.”[7]
[7] Ibid at page 8 lines 24 - 30
The Tribunal asked Mr Jung whether he intended to return to Korea, to which he replied as follows:
“Not sure now. After my thesis I’m going to do another course, which is (indecipherable). After that I will decide – go back to Korea or to (indecipherable) here Korea congregation, but now I am not sure…”[8]
[8] Ibid at page 9 line 5 - 8
Thereafter, the Tribunal made reference to the possibility of the applicant having difficulty returning to Korea because of his injuries. To which Mr Jung replied as follows:
“Yes. In Korea environment for disabled persons is very poor, so if it is available I would like to stay here. Furthermore, I realise this environment for my study is much better here than in Korea. So if I can get opportunity or – I would like to stay here for my study.”[9]
[9] Ibid at page 9 line 12 - 16
The Tribunal also asked Mr Jung about the extent of his family ties in both Australia and Korea. He indicated he had three children, one of whom was employed in South Australia; the other two being in Korea. Mr Jung said he hoped his other children would come over here to study more, but he was not sure if they would.[10]
[10] Ibid at page 9 line 17 - 30
A short time later, Mr Jung was asked about his financial ties with Korea. He indicated that he did not own any property in Korea. Mr Jung also said that once he obtained compensation, presumably as a consequence of his motor vehicle accident, he would re-enrol at Flinders in his studies.[11]
[11] Ibid at page 10 line 5 - 12
It is clear from the transcript, I think, that the Tribunal member reached a preliminary view that these various answers, in respect of Mr Jung’s family ties in Australia; his lack of property in Korea; the difficulties he anticipated experiencing in Korea as a disabled person; and his apparent intention to resume his thesis at Flinders University; were not consistent with an intention, on his part, only to visit Australia. As a consequence, Mr Jung was asked to comment about his intentions vis-à-vis visiting Australia or otherwise.
In this context, Mr Jung asked: may you explain the (indecipherable) information about me please. To which the Tribunal responded as follows:
“Um only if it’s relevant to whether arrangements for treatment have concluded or whether you genuinely intend to visit Australia. They’re the two things I’m looking at.” [12]
[12] Ibid at page 14 lines 13 - 16
This was a reference, by the Tribunal to the explicit provisions of the applicable condition. To which Mr Jung replied as follows:
“Yes. About my own premises in Korea. In Korea I was lecturer and pastor. So a couple of years ago when I visited Korea, another pastors who were my students in Korea encouraged me to come over to Korea to work together. In Korea I had established (indecipherable) Society, so they still want to work together. But I think I need to write my thesis. At the time I answered them ‘not sure. After thesis I will be back. Even if I don’t have my premise in Korea, I don’t worry about going back to Korea. I can teach. I can keep teaching there and I doing my Ministry there. Now I am volunteer to some small Korean Congregation here. The Congregation is from St Andrew’s Presbyterian Church. Australian pastorhood is (indecipherable). So when I said to him I help with you and he answered me ‘it is available – I would like to work together’. So here and Korea, I don’t worry about living here and Korea – anywhere. And my student is in. Anyway I don’t worry about living anywhere – Australia and Korea.”[13]
[13] Ibid at page 14 lines 18 - 33
Mr Ower, counsel for Mr Jung characterises this later statement as being ambivalent, on his client’s part, in respect of his intentions as to whether he would remain in Australia or return to Korea. Mr Ower further asserts that, in initially asking Mr Jung about his longer term plans, the Tribunal has got off on the wrong foot with Mr Jung, who has only expressed a desire to resume his studies at Flinders University rather than expressed any concluded intention to remain in Australia and not to return to Korea.
In its reasons, the MRT summarised the evidence provided to it by Mr Jung, included the contradictory nature of his evidence regarding the possibility of him being a pastor and teacher in either Australia or Korea. In a subsequent written submission provided to the Tribunal, on 23 May 2014, Mr Jung’s advisor indicated her client did not have either a clear plan to study or otherwise remain in Australia.[14]
[14] See casebook at page 252
On the basis of the evidence available to it the Tribunal concluded as follows:
“As a result of Mr Jung’s evidence about his intentions to remain in Australia to study, the limited ties he has with Korea and his stated inability to continue this ministry or teaching in Korea, the Tribunal is not satisfied that he genuinely intends to only visit Australia. As a result he does not meet cl.685.221(2)(c) and the decision under review is affirmed.”[15]
[15] Ibid at page 261 [36]

The grounds of review

The application for review was filed on 4 July 2014 and lists two grounds as follows:
1. The decision of the Second Respondent is affected by jurisdictional error in that it found that the applicant did not satisfy the criteria set out at Migration Regulation Schedule 2 clause 685.221(2)(c).
1.1 In assessing the Applicant’s genuine intention only to visit Australia, the Second Respondent was obliged to make a finding as to whether there was any realistic plan to remain in Australia including the applicant’s mental and physical ability to undertake studies in Australia, and whether there was any visa for which the applicant was/would be eligible.
1.2 The applicant’s evidence regarding his future intentions was equivocal. It was not open for the Second Respondent to make a finding that the Applicant did not intend to genuinely only visit Australia on the basis of the evidence before it.
2. The decision of the Second Respondent is affected by jurisdictional error in that is has relied upon evidence supposedly given by the Applicant at the hearing to determine that the Applicant did not satisfy the criteria for the visa set out in Migration Regulation Schedule 2 clause 685.221(2)(c), when in fact that evidence was not given, or was qualified.

Contentions

Mr Ower contends that grounds 1.2 and 2 allege that the Tribunal’s findings, concerning the applicant’s intentions, were not based on the evidence before it and therefore cannot be regarded as being based on logic or rationality.
This submission is based on the following passage from Minister for Immigration & Citizenship v SZMDS: [16]
“A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”
[16] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan & Bell JJ
The basis of the submission is the contradictory and ambivalent evidence said to have been given by Mr Jung about his intentions in Australia, which have been clouded by misunderstandings arising between him and the Tribunal regarding his plans for his PhD studies, in Australia, which explained his presence in Australia in the first place.
It is contended, by Mr Ower, that the Tribunal has misconstrued Mr Jung’s evidence and reached a conclusion which was not logically or rationally open to it and has thus fallen into jurisdictional error.
Mr Ower contends that Mr Jung was simply stating nothing more than an intention to resume his studies, which had been interrupted by his accident, when he initially said I can do nothing due to the accident …so intend to resume my thesis. In this context, Mr Ower contends that thereafter Mr Jung and the Tribunal got off on the wrong foot with one another.
It is submitted that the statement above is consistent with what Mr Jung said when indicated in response to the direct question do you intend to go back to Korea when he said not sure…after thesis, I’m going to do another course … after that…I will decide [to] go back to Korea.
Essentially, Mr Ower submits that a proper analysis of the transcript reveals a crucial misunderstanding between Mr Jung and the Tribunal, which is readily understandable, when consideration is given to the fact that Mr Jung was already legitimately in Australia, undergoing a course of study, when he befell the misfortune of having an accident, which required extensive medical treatment.
In this context, there is liable to be an implicit level of misunderstanding arising between applicant and decision maker, when Mr Jung is asked about his plans. Is he being asked about the possible resumption of his studies or what will occur after the conclusion of his medical treatment.
Mr Ower submits that his analysis of the transcripts reveals that Mr Jung and the Tribunal are at cross purposes in this regard. Therefore it was illogical for the Tribunal to conclude, from the material before it, that Mr Jung has not evinced a genuine intention only to visit Australia in the context of his medical treatment.
Mr Ower contends that, in the longer passage of Mr Jung’s evidence quoted above, his client is clearly stating that pending the outcome of his treatment, as he is not able to pursue his ministry or teaching in Korea, he may as well do his thesis in Australia but after thesis I will be back. This is said to be consistent with his earlier statement that:
“I can do nothing due to the accident, such as my teaching in Korea…so intend to resume my thesis at Flinders University from next year…”
Essentially, Mr Ower submits that the Tribunal has erroneously reached the conclusion that the applicant is of the view that he cannot pursue his ministry or teaching in Korea, due to his injuries, when the reality reveals that he is equivocal about the issue. In essence, Mr Jung does not know or certainly did not express a view about the issue. Therefore there was insufficient evidence for the Tribunal to conclude that his intention in respect of remaining in Australia was not genuine.
Mr Tredrea, counsel for the Minister, contends that the jurisdiction conferred on the MRT in this case required it to consider only what was the applicant’s intention in respect of his visiting Australia. This was a factual task. It is his contention that the Tribunal acquitted this task reasonably and logically as it was open to it to conclude, on the basis of the evidence led from Mr Jung, that his professed intention only to visit Australia was not genuine.
In exercising its jurisdiction, arising under the subclause in question, the MRT was required to consider whether Mr Jung’s expressed intention only to visit Australia was genuine. In my view, a difficulty arose with this task, given the circumstances in which Mr Jung originally came to Australia and then wished to remain in this country, whilst he was seeking medical attention.
Ordinarily the question would be asked by the relevant decision maker in the context of the applicant concerned being outside of Australia and the reason given for seeking entry was a need for medical treatment or the person’s arrival in this country was proximate to or explicable by such a personal need to seek medical treatment in this country.
This was not the case with Mr Jung. He arrived in Australia legitimately to pursue a course of study. His need to seek long term medical treatment arose only because of the unforeseen circumstances of his serious accident.
He was not motivated to come to Australia either by illness or accident; he was already in Australia when illness and accident literally struck him. This situation is likely to lead to a blurring of the issue of whether his intention only to visit this country is genuine, given that he came to Australia for a reason not related to medical treatment.
His initial reason for visiting Australia was obviously genuine – he came to attain a PhD in theology. He still has not obtained his degree, due in large part to his injuries. Thus, at the relevant time of the review decision, Mr Jung is likely to have two reasons for wishing to remain in Australia – to finish his studies and to complete his medical treatment.
In these circumstances, it is likely to be the case, whilst his studies remain incomplete, that there is uncertainty in his mind about what his plans are and thus there will be a level of difficulty for him to express them and so for his interlocutor to discern what his motivation is, particularly in the context of the relevant criterion arising from the subclause.
It seems to me that there is substance to Mr Ower’s contention that the MRT and Mr Jung were at cross purposes. The MRT first asked Mr Jung what were his longer term plans. Mr Jung answered – he planned to resume his studies, at Flinders University, because his injuries, at that time, precluded him from pursuing his previous activities in Korea.
The MRT did not, at this initial stage, ask him specifically what his intentions were when his treatment was concluded – the criteria relating to the visa. This was asked at a later stage and elicited the answer, after thesis I will be back.
This blurring of reasons relating to Mr Jung’s studies and his medical situation is apparent from the summary his evidence, provided by the MRT in its reasons thus:
“Mr Jung said at hearing that he was not sure if he wants to return to Korea or remain in Australia, and later said as Australia has a better environment for his study he would prefer to stay here. He later said he has no difficulty working either in Australia or in Korea. This was not consistent with his earlier response that cannot do his ministry or teaching in Korea due to his injuries, and the Tribunal does not accept his later evidence that he believes he would be able to continue his teaching and ministry in Korea.”[17]
[17] See casebook at page 283 – 284 at [35]

This analysis led the Tribunal to conclude that Mr Jung was not genuine in expressing that he only intended to visit Australia. I am not persuaded that this is a logical or rational conclusion. I do not comprehend, from the reasons provided, how the MRT concluded that Mr Jung was not genuine when he said he only intended to visit Australia.
Mr Jung indicated to the Tribunal that he wanted to study in Australia, which was his reason for coming to this country initially. He also indicated an ability to work in both countries, which was currently impaired by his physical difficulties arising from his accident. Mr Jung acknowledged that he had familial ties in both countries and Australia was likely to treat a person with disabilities better than Korea.
I do not understand why the two latter considerations logically led to the conclusion that Mr Jung was not genuine in expressing an intention that he would return to Korea, after he has completed his thesis, which he did indicate when expressly asked what his proposed arrangements would be, when his treatment had been concluded. I am concerned that excessive weight may have been given to these considerations.
I am aware that this is not a merits review and that the characterisation of some other person’s reasons as illogical or unreasonable is liable to be no more than an emphatic way of disagreeing with those reasons.[18] I am not entitled to substitute my own findings for those of the Tribunal, if the conclusion reached by it were rationally open to it.
[18] See Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J
I am also well aware that I am not entitled to review the reasons of the Tribunal in an over-zealous fashion searching for error.[19] In addition, the test of whether an administrative decision maker’s determination is unreasonable is to be applied with stringency and any conclusion that a decision is unreasonable is accordingly likely to be rare.[20]
[19] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
[20] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at 258 at [113] per Gaegler J
However, in this case, I cannot, with respect, discern how the MRT reached the conclusion, which it did, given the different answers provided by Mr Jung to two different questions, posited on two different bases, namely what were his long term plans vis-à-vis his studies and what did he intend to do on the conclusion of his medical treatment.
It does not seem, to me, to be reasonable that the Tribunal concluded he was not genuine in respect of his answer that he would return to Korea when his thesis was completed, particularly given the overall circumstances of this case, which arose after Mr Jung had entered Australia to pursue his studies and then been severely injured.
It cannot be said to be unexpected that Mr Jung would indicate that he wanted to complete his thesis, given his overall situation at the time, particularly the level of his injuries. It seems to me to unreasonable to extrapolate from this situation that Mr Jung was insincere in his view that he would return to Korea when his treatment was concluded.
In these circumstances, can it be said that the Tribunal gave excessive weight – more than was reasonably necessary – to the fact that Mr Jung had motivation available to him to justify a desire to want to stay in Australia because of his studies and other factors, in the short to medium term. He expressed only a hope that his other children would come to this country to study more.
In my view, what was said by the plurality of the High Court (Hayne, Kiefel & Bell JJ) in Minister for Immigration & Citizenship v Li[21] is apposite to the present matter:
“In Peko-Wallsend Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” Citations removed
[21] Minister for Immigration & Citizenship v Li (supra) at [75] – [76]
In my view, for the Tribunal to conclude that Mr Jung was not genuine in his intention only to visit Australia was an unreasonable finding, given the questions asked of him and the circumstances in which they were asked.
Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[22]
[22] Li (supra) at 256
In this case, the applicant was questioned generally about his longer term plans. His answer was that he intended to resume his thesis, given his view that the consequences of his accident precluded him from teaching in Korea.
Mr Jung also acknowledged that he was potentially considering another course of study in Australia, after his PhD was completed, at which stage he expected his decision, about what he would do would have coalesced. These are matters appear to me to be germane to his study plans, not specifically issues to do with his medical treatment.
Given the mingling of questions relating to his long term plans with questions relating to Mr Jung’s intentions, when his medical treatment was completed and the answers given by him in respect of the completion of his thesis and possibly other post-doctoral studies and his view that he would be equally able to live in either Australia or Korea, it does not seem to me that the salient decision made by the MRT was an intelligible one.
It seems to me to be inherently unreasonable for the MRT to have concluded that Mr Jung was not genuine in the expression of his intent to return to Korea because, at the same time, he expressed a desire to remain in Australia to complete his studies here, which was the reason he had legitimately come to Australia in the first place. As such, to my mind, the decision does not appear to fall within a defensible range of possible outcomes.
In Minister for Immigration & Border Protection v Singh[23] the Full Court of the Federal Court (Allsop CJ, Robertson & Mortimer JJ) discussed how the standard of legal unreasonableness was to be ascertained and in so doing identified two different contexts in which the concept was to be engaged, particularly given the supervisory powers the court has over administrative decision making.
[23] Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280 at [44]
Firstly, the court has authority when a jurisdictional error is identified in the decision making process. Secondly, legal unreasonableness can be outcome focussed, without necessarily being associated with a specific jurisdictional error, in circumstances where a supervisory court cannot identify how a particular decision was arrived at. In this case, I believe that the decision in question lacks an evident and intelligible justification.
In all these circumstances, I consider that grounds 1.2 and 2 of the application for review are made out. The issue in ground 1.1 is closely related. The applicant asserts that the MRT asked the wrong question or failed to take into account relevant material when it concluded that Mr Jung was not genuine in expressing an intention only to visit Australia.[24]
[24] See Minister for Immigration & Multicultural Affairs & Indigenous Affairs v Yusuf (2001) 206 CLR 86 at [82]
Mr Ower contends that the question regarding the genuineness of a person’s intention to only visit Australia, for medical purposes only, arises under the applicable subclause if the visa applicant concerned is outside Australia and seeking to enter this country in the context of obtaining medical treatment. The intent of the criterion being for the relevant decision maker to have to determine whether the reason why the person concerned wishes to visit Australia is genuine rather than a sham.
That was not the case with Mr Jung, who was already in Australia on a student visa, when his accident occurred. His subclass 574 visa expired on 15 March 2012 a few days prior to him applying for the visa relevant to this matter. Thus it is submitted that the intent of the applicable question did not pertain to Mr Jung, who was legitimately in Australia, when he applied for the visa.
Mr Ower further submits that an applicant in Mr Jung’s position may have dual intentions – including the possibility of applying for another student visa, when his medical treatment has concluded. Holding such an intention does not necessarily impact upon the genuineness of the application for a long term medical visa.
In my view, there is some merit to this argument. However, given my finding in respect of the other grounds, it is not necessary for me to consider this matter definitively.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 5 May 2015