Keong v Minister for Immigration

[2018] FCCA 476

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEONG v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 476

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application for a Student visa which meant satisfaction of cl.572.223 “genuine temporary entry criterion” – Delegate and Tribunal not satisfied  that Applicant satisfied this requirement because of the history of his studies since his arrival in Australia in 2008 – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 499

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Brar (2012) 201 FCR 240
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109

Applicant: KON JIN KEONG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2122 of 2017

Judgment of: Judge Dowdy

Hearing date: 28 February 2018

Delivered at: Sydney

Delivered on: 28 February 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms K. Crawford

Solicitors for the First Respondent: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 5 July 2017 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2122 of 2017

KON JIN KEONG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a citizen of Malaysia aged 35 years, having been born on 13 January 1983. 

2. On 3 March 2016 he applied for a Student (Temporary) (Class TU) visa (Student visa), which meant that he had to satisfy cl.572.223 in Sch.2 to the Migration Regulations 1994 (Cth), which required that at the time of decision the Applicant was a genuine Applicant for entry and stay as a student because the Minister was satisfied that the Applicant intended genuinely to stay in Australia temporarily. This is known generally as the “genuine temporary entry criterion”. 

3. By Application filed in this Court on 5 July 2017, the Applicant seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 13 June 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 26 May 2016, refusing to grant him a Student visa on the ground that the Delegate was not satisfied that he was a genuine applicant for entry and stay as a student. 

Background

1. The Applicant was granted his initial Student visa offshore on 3 November 2008, which was valid until 20 January 2011.  He arrived in Australia on 12 November 2008.  Since his initial arrival onshore he has held either a Student visa or associated bridging visa. 

Decision of the Delegate

1. The Delegate in her Decision Record noted that the Applicant, since arrival in Australia, had only completed vocational level courses.  The purpose of his present Student visa application was recorded as being to study a Certificate IV in Accounting, a Diploma of Accounting and an Advanced Diploma of Business.

2. The primary object of a Student visa in Australia must be for the visa holder to study a registered course and progress academically.  The Delegate took the view that the Applicant had not progressed academically because he had not progressed beyond vocational educational sector courses since arriving in Australia in 2008. 

3. The Delegate was also of the view that the Applicant had enrolled in a diverse range of unrelated courses since arriving in Australia in November 2008, and that there seemed to be a lacking of a clear career direction and a lacking of detailed information about the relevance of the courses the Applicant had studied to his future employment, which indicated to the Delegate that the Applicant was using the Student visa program to maintain ongoing residency in Australia. 

4. Movement records of the Applicant indicated that in the past eight years since arriving in Australia he had spent 2464 days in Australia, and 204 days away from Australia, and based on this evidence the Delegate assessed that the Applicant’s incentive to return to Malaysia was minimal. 

5. Overall, the Delegate was of the view that the Applicant was using the Student visa program to circumvent permanent migration programs and was not satisfied that he was a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily.  In these circumstances, the Delegate refused to grant a Student visa to the Applicant. 

Decision of Tribunal

1. Then on 10 June 2016 the Applicant applied to the Tribunal for review and attached a copy of the Delegate’s Decision Record at the same time. On 5 May 2017, the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the English and Chinese languages. 

2. At [5] of the Decision Record of the Tribunal it recorded that the Applicant had come to Australia in 2008 with the intention of studying to be a pilot and that he presently declared an intention to return to Malaysia and work in his father’s petroleum business. 

3. At [6] of its Decision Record the Tribunal recited a number of courses in which the Applicant had been enrolled and noted that he declared a present intention to undertake a Bachelor’s degree in Business, which he claimed could be completed by 2019. 

4. At [8] the Tribunal recorded that the Applicant had said that he intended to work in his father’s petroleum business back in Malaysia, but that in Australia he was currently employed as a barista and had worked for about five years in that role in Australia.  He denied to the Tribunal that he was using the Student visa program to maintain residency in Australia and the Applicant claimed that he was a genuine student. 

5. At [11] of its Decision Record, the Tribunal referred relevantly to cl.572.223. At [12] it referred to Direction No. 53, entitled “Assessing the genuine temporary entrant criterion for Student visa applications”, which Direction had been made under s.499 of the Migration Act 1958 (Cth) (the Act). 

6. At [15] of its Decision Record the Tribunal noted that the Applicant had already been in Australia for eight years and had not made any academic progress beyond certificate and diploma level.  It also noted in that paragraph that in regard to the Applicant’s stated intention to undertake a Bachelor’s degree to be completed by 2019, this would mean that the Applicant had been in Australia for 11 years, with only two of those years being spent undertaking a tertiary level course of study. 

7. At [17] the Tribunal referred to sighting pay slips submitted by the Applicant as demonstrating that he has a regular income in Australia in the occupation of a barista, but the Tribunal found that this was an incentive for the Applicant to remain in Australia, and it also noted that the Applicant had spent only 204 days away from Australia in eight years. 

8. At [18] of its Decision Record the Tribunal stated that, having considered the Applicant’s circumstances, immigration history and other relevant matters, it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily, and therefore the Applicant did not meet cl.572.223(1)(a).

9. Accordingly, the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Student visa. 

Ground of Attack on Tribunal Decision in this Court

1. The only Ground in the Application filed in this Court was:

   Please consider affidavit attached to the application form.

2. The affidavit referred to is that affirmed by the Applicant on 5 July 2017, which contained the following:

   On June 13th, 2017 Administrative Appeals Tribunal (AAT) has made a decision of my application for review (See attached Annexure A). On April 5th 2017, I appeared in tribunal and explained the circumstances related to my case. But the tribunal officer has not given due consideration to my circumstances. I feel the tribunal officer has not given me a fair chance to review my application, so I believe AAT made an unfair decision on my application for review.

Consideration

1. The Ground stated in that affidavit first seems to assert that the Tribunal did not give due consideration to the Applicant’s case.  In my view, there is no evidence justifying that conclusion at all.  In [5], [6] – [8] and [15] – [17] of its Decision Record the Tribunal fairly sets out the Applicant’s claims and his case as made to it, including those made in his undated written statement in English appearing at page 121 of the Court Book, and so this aspect of the Applicant’s attack on the Tribunal decision fails. 

2. Further, there seems to be an assertion that the Tribunal member did not extend to the Applicant a fair chance to review the Delegate’s decision and, therefore, that the Tribunal’s decision was unfair.  In my view, that attack on the Tribunal decision also fails.  The Applicant was invited to and attended a hearing on 5 May 2017.  In the Response to Hearing Invitation the Applicant, in fact, indicated that he did not need the assistance of an interpreter, but, nonetheless, it is clear from the hearing record of the Tribunal and [4] of its Decision Record that the Applicant had the assistance of an interpreter in the Mandarin and English languages made available to him at the hearing. 

3. In my view, there is no evidence at all that would support a finding in this Court that the Tribunal did not give the Applicant a fair chance to put his case and argue his application for review.  The Applicant did not tender a transcript of the hearing before the Tribunal to establish any relevant unfairness, and in this regard see [26] below.

4. I further note that the Minister as a model litigant raised, only to disavow, the applicability in the Applicant’s favour of s.359A of the Act in that the Tribunal had before it the Applicant’s PRISMS records which, in fact, were not referred to in its Decision Record and his movement records in and out of Australia, which movements were referred to in the Decision Record of the Tribunal.

5. However, as pointed out by the Minister, these were matters that were referred to, recorded and dealt with in the Decision Record of the Delegate, which, as I have stated earlier, was given to the Tribunal by the Applicant and the operation of s.359A(1)(a) of the Act was therefore excluded by force of s.359A(4)(b): see Minister for Immigration v Brar (2012) 201 FCR 240 at 259 [74] per North, Greenwood and Besanko JJ.

6. A final matter is this.  In his oral statement at the hearing in this Court the Applicant appeared to assert for the first time that there had been some communication problem at the Tribunal hearing and some form of breakdown, miscommunication or inability to understand.  I note that at the first directions hearing in this Court on 4 August 2017 consent orders were made and order 3 required and put the onus upon the Applicant to obtain a transcript of the hearing in the Tribunal if he considered it necessary for his case in this Court.  The Applicant has not presented or tendered a transcript to this Court and so there is no relevant evidence before the Court as to what happened and transpired at the Tribunal hearing. 

7. It is clear that the Applicant informed the Tribunal that he did not need an interpreter in any language, but it is also clearly the case that notwithstanding his advice to that effect, the Tribunal did have an interpreter at the hearing who was available to assist the Applicant if he needed assistance.  That was agreed with by the Applicant in Court before me.  He also agreed that he then had the assistance of a Mandarin interpreter if he needed one. He also agreed that he was given the option at the Tribunal hearing of either addressing the Tribunal member in the English language or the Chinese language, and that in fact he always answered the Tribunal Member’s questions in the English language and not in the Chinese language.

8. Other than his bare assertion made for the first time from the Bar table, there is no evidence that there was any interpretation problem or any problem of communication or understanding at the Tribunal hearing.  The Applicant has not proffered any affidavit evidence asserting any interpretation or communication problem at the Tribunal hearing, or a transcript of the Tribunal hearing or any expert evidence substantiating any such problem. Accordingly, there is no factual basis to make any such finding and the Applicant has failed to discharge the onus of establishing an inadequate standard of interpretation at the Tribunal hearing that interfered with his right to present a case to the Tribunal to such a degree that jurisdictional error occurred: see SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 at 124 [72] per Spender, Buchanan and Perram JJ.

Conclusion

1. Accordingly, the Applicant has failed to establish any form of jurisdictional error affecting the decision of the Tribunal and it follows that the Application made to this Court must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  28 February 2018