Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 2197

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 2197

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), sch.2, cl.500.212

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs

(2004) 221 CLR 1

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

NADH of 2001 & Ors v Minister for Immigration and Multicultural and

Indigenous Affairs (2004) 214 ALR 264

Applicant: SUNGSOO KIM

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 777 of 2019

Judgment of: Judge Emmett

Hearing date: 12 August 2019

Date of Last Submission: 12 August 2019

Delivered at: Sydney

Delivered on: 12 August 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Charlotte Saunders
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 777 of 2019

SUNGSOO KIM

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 29 March 2019, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 28 February 2019 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on  2 June 2017 refusing the applicant a Student (Class TU) visa (“Student Visa”).

2. The background of this matter and the decision of the Tribunal are accurately summarised in the submissions of the first respondent as follows:

   “Background

   2 The applicant is a male citizen of South Korea who first arrived in Australia on 1 January 2001 on an Electronic Travel Authority (Visitor) Class UD Subclass 976 visa.

   3 On 14 April 2017 the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa.

   4 On 2 June 2017 a delegate of the Minister refused to grant the applicant the visa.

   5 On 22 June 2017 the applicant applied to the AAT for review of the delegate's decision.

   6 On 8 October 2018 the AAT invited the applicant to attend a hearing.

   7 On 13 November 2018 the applicant provided the AAT with submissions, a confirmation of enrolment, certificate of attendance and confirmation of his son's enrolment in a tertiary course.

   8 On 15 November 2018 the applicant appeared before the AAT.

   9 On 28 February 2019 the AAT affirmed the delegate's decision.

   The decision of the Tribunal

   10 The AAT noted that at the time of application class TU contained two subclasses, subclass 500 (student) and subclass 590 (student guardian). The AAT noted that the applicant applied for the visa to undertake study in Australia and did not claim to meet the criteria for a subclass 590 (student guardian) visa: [2].

   11 The AAT noted that in considering whether the applicant satisfied clause 500.212(a), it had to have regard to Direction No 69: [9]. The AAT noted that the Direction indicated that the factors specified should not be used as a checklist but rather, were intended only to guide decision makers when considering the applicant's circumstances as a whole: [10].

   12 The AAT noted that information in the delegate's decision and movement records indicated that the applicant had been in Australia on various visas including tourist, bridging and temporary work visas since October 2001, had only departed for about 18 days in July 2013 and 19 days in September 2014. The AAT also noted that the applicant only applied for the student visa two days before his four year temporary work visa was due to expire. The AAT noted that at the hearing it put to the applicant, in accordance with section 359AA of the Act, that this indicated that the applicant applied for the student visa to maintain ongoing residence in Australia rather than because he was a genuine student. The AAT noted the applicant's response was that he had only one child and his only reason for extending the visas was to educate his son and no other purpose. The AAT noted that the applicant reiterated that as his son was his only child he wanted to study with his son and go back to South Korea when his son completed his degree: [14].

   13 The AAT did not consider the applicant's ties to South Korea to be strong and gave them very little weight in assessing whether he genuinely intended to stay in Australia temporarily. The AAT noted that while the applicant's mother and two siblings resided there, he testified that he had made only one stopover visit to South Korea since 2001. The AAT noted that the applicant had not indicated any other ties in South Korea: [15].

   14 The AAT considered that it was evident from the written and oral evidence that the applicant had given to the AAT that the applicant had far greater ties in Australia, most significantly his only child. The AAT also noted that the applicant had lived and worked in Australia since 2001 and that he had many friends here. The AAT considered this indicated that the applicant had a very strong desire to live and work in Australia where he had a well-established life with his son. The AAT had therefore given the applicant's significant ties and history in Australia considerable weight: [16].

   15 The AAT found that the applicant had not demonstrated the value of the English courses to his future. The AAT noted that in relation to the type of employment he would seek on completion of the course, the applicant gave no indication of his future plans and instead stated that studying English would be a prize to himself: [17].

   16 The AAT noted the fact that the applicant made no mention of any plans to study business or set up a business in his student visa application, only referred to the possibility of studying business for the first time shortly before the hearing, only claimed that he planned to study English and business for the purpose of setting up a business in South Korea for the first time at the hearing, and demonstrated that he had given virtually no thought to the nature of the business he would set up in South Korea, led the AAT to conclude that the applicant did not have a genuine intention to study English and business for the purpose of setting up a business in South Korea: [18].

   17 The AAT concluded that the applicant had applied for the student visa for the purpose of maintaining his residence in Australia. The AAT was consequently not satisfied that the applicant intended genuinely to stay in Australia temporarily. The AAT therefore found that the applicant did not meet clause 500.212(a) and the AAT was this not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by clause 500.212: [19].”

3. The applicant was unrepresented before this Court although had the assistance of a Korean interpreter.

4. The applicant confirmed that he attended a directions hearing before a Registrar of this Court on 18 April 2019. At that directions hearing, the applicant was given leave to file and serve an amended application and any further evidence in support of his application. The matter was stood over for callover on 26 August 2020 before me. Those directions also gave the first respondent leave to return the matter to the Court’s list for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on three days’ notice to the applicant after 30 June 2019, being the date by which the applicant was to file any further documents. The applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.

5. At the commencement of today’s hearing, the applicant confirmed to the Court that he had not filed any further documents, either in accordance with the directions or otherwise. 

6. On 15 July 2019, orders were made by me in Chambers directing the applicant to file and serve written submissions by 6 August 2019 and setting the matter down for a show cause hearing today at 9:30am.

7. Again, there has been no document filed by the applicant, who confirmed that to be the case.

8. I explained to the applicant that the role of this Court is very different to that of the Tribunal. I explained that the only issue before this Court was whether or not the decision of the Tribunal was made according to law.  I also explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establish such a mistake. I further explained that if the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, the fact that the applicant may disagree with them would not be sufficient to establish jurisdictional error. 

9. The applicant confirmed that he relied on the grounds of his initiating application, filed on 29 March 2019, as follows:

   “Ground 1: The decision is so unreasonable that no reasonable person in the Second Respondent's position would have made the decision:

   PARTICULARS

   1. The Second Respondent does not have evidence to support its conclusion and decision that the Applicant is not a genuine student.

   Ground 2: The decision of the Second Respondent is illogical and/or irrational:

   PARTICULARS

   1. It was illogical and/or irrational for the Second Respondent not to take into account that “the Applicant's submission regarding the Ministerial direction 69.

   Ground 3: The Second Respondent is biased. The Second Respondent is already made a decision before the hearing was held;

   PARTICULARS

   1. The Second Respondent's remark on the hearing indicates that the Second Respondent has a biased opinion causing to believe that the Second Respondent made a decision prior to the hearing.”

10. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.

11. In support of Grounds 1 and 2, the applicant said that he just wished to study. He did not understand why he had not been granted his Student Visa.

12. In support of Ground 3, the applicant said that the Tribunal was saying the same things all the time and would not listen to him. I asked the applicant what it was that the Tribunal was saying and the applicant responded that the Tribunal was asking him a lot of questions about his son.

13. Relevantly, cl.500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) is as follows:

    “The applicant is a genuine applicant for entry and stay as a student because:

    (a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i) the applicant’s circumstances; and

    (ii) the applicant’s immigration history; and

    (iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv) any other relevant matter; and

    (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii) the applicant’s stated intention to comply with any conditions to which the visa maybe subject; and

    (c) of any other relevant matter.”

14. In considering whether the applicant satisfies cl.500.212(a) of Schedule 2 of the Regulations, the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Migration Act 1958 (Cth). Direction No.69 requires the Tribunal to have regard to a number of specific factors, such as the applicant’s migration history, the applicant’s circumstances in their home country and whether the applicant is a minor.

15. A fair reading of the Tribunal’s decision record makes clear that the basis for the Tribunal’s finding that the applicant did not genuinely intend to stay in Australia temporarily was the applicant’s own evidence. In particular the Tribunal noted that the applicant repeated that he wished to remain in Australia until his son had completed his studies and would then return to South Korea.

16. Based on the evidence before it, the Tribunal found the applicant’s ties to South Korea not to be strong and gave them little weight in assessing whether he genuinely intended to stay in Australia temporarily. The Tribunal had regard to the fact that the applicant had made only one stopover visit to South Korea since 2001, although he had otherwise travelled to and from Australia over the period of his time here. 

17. The Tribunal found that the applicant had not demonstrated the value of the English courses in which he was enrolled towards his future. The Tribunal noted that the Student Visa application required the applicant to demonstrate how he met the genuine temporary entrant criterion and that the applicant had responded that he would attach a file but did not do so. 

18. The Tribunal found that the applicant gave no indication of his future plans, noting that he stated the study of English would be a prize to himself. The Tribunal did note that the applicant, in a written statement, stated that he hoped to undertake business studies and at the hearing said he had decided he needed to study English in preparation for returning to South Korea when his son completed his education in Australia. The Tribunal noted that it questioned the applicant further about his future plans and the applicant testified that he did not believe he could work in the same field in South Korea and he would have to find a better job and start a new life, so he needed to study before he left Australia.

19. The Tribunal noted the applicant said he planned to study business after completing the English course. When asked why he did not study English and business in South Korea, the Tribunal noted the applicant’s response that he liked to study and wanted to care for his son while he studied. The Tribunal asked the applicant what business he planned to establish upon his return to South Korea. The Tribunal noted that the applicant seemed surprised and hesitated before responding that he would have to think about that when he completed his business studies.  The Tribunal noted that the applicant subsequently added that he had thought about cleaning.

20. The Tribunal noted that it put to the applicant that it seemed he had not thought much about his future business plans in South Korea and noted the applicant’s response that he had not thought about it too much but could think about it more while he studied.

21. The Tribunal found the fact that the applicant made no mention of any plans to study business or set up a business in his Student Visa application and only referred to the possibility of studying business for the first time shortly before the hearing, demonstrated that he had given virtually no thought of the nature of the business he would set up in South Korea. This led the Tribunal to conclude that the applicant did not have a genuine intention to study English and business for the purpose of setting up a business in South Korea.

22. The Tribunal found that the applicant applied for the Student Visa for the purpose of maintaining his residence in Australia and, accordingly, found that he did not genuinely intend to stay in Australia temporarily. Therefore, the Tribunal found the applicant did not meet mandatory cl.500.212(a) of Schedule 2 of the Regulations and the Tribunal was not satisfied that he was a genuine applicant for entry and stay as a student as required by that clause.

23. In the circumstances, the Tribunal found the mandatory criteria for the Student Visa for which he had applied were not met and affirmed the decision under review.

24. There is nothing on the face of the Tribunal’s decision record to suggest that the questions asked by the Tribunal and its exploration of the applicant’s claims and evidence were anything other than reasonable and appropriate.

25. The Tribunal’s discussion, the concerns it expressed and the questions it appeared to ask were logically probative of the issues before the Tribunal.  The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

26. In the circumstances, the decision reached by the Tribunal was not a decision that no rational or logical decision-maker could have arrived at on the same evidence.

27. To the extent that the applicant alleges bias, the allegation is wholly unparticularised both in writing and orally. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

28. The applicant was given an opportunity to file any further evidence in support of his application, including any transcript of the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

29. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

30. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

31. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

32. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 29 March 2019, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 21 August 2019