Lauw v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1146
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lauw v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1146
File number(s): SYG 2958 of 2018 Judgment of: JUDGE LAING Date of judgment: 6 December 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Student (Temporary) (Class TU) visa – whether the Tribunal failed to consider relevant evidence or considerations – whether the Tribunal’s reasoning was open to it on the material before it – application dismissed Legislation: Migration Act 1958 (Cth) ss 476, 499
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 16 October 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms M Harradine of Mills Oakley Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2958 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUTRISNO LAUW
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant is a citizen of Indonesia who arrived in Australia on 2 May 2012. He applied for the student visa that was the subject of the decision under review on 7 November 2016.
The Delegate refused the application on 9 February 2017. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion) could not be met.
The applicant applied for review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 19 March 2018.
On 3 October 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
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 may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
At [1]-[14] of its decision, the Tribunal summarised the background to the matter as well as the material that was before it. This included evidence that the applicant had given at the hearing before the Tribunal.
The Tribunal set out the relevant criterion in issue and the effect of Direction No. 69 at [15]-[18]. At [23], the Tribunal concluded that the applicant did not genuinely intend to stay in Australia temporarily. This was for the following reasons:
19.The applicant gave evidence about his circumstances in his home country. He had studied up to high school level in Indonesia and came to Australia to study Business. The applicant said his original motivation to study was because his brother wanted him to help expand a business in the field of construction materials. On the evidence given at the hearing, the applicant was not employed with his brother, he was just assisting him. The applicant explained he decided to study commercial cookery after business because he was working as a chef in Australia and considered opening a restaurant on his return to his home country. The applicant claims he has a job offer as an HR Manager with a tourism company in Indonesia and a letter was submitted as evidence. The letter from ‘Mulia Tour & Travel’ is dated 26 October 2016 and states:
I am pleased to offer you employment in the position of Human Resources Manager with us at Malia Tour on the condition of your completion of Advanced Diploma of Management at the Walles Institute, Sydney Campus.
Your position is Human Resources Manager, start will be 2nd January 2020, your employment will be full time…
20.The Tribunal is not satisfied an employer, even a friend of the potential employee, would genuinely offer a management position to a person who has not yet commenced studying in the relevant field, to start on a date more than three years in the future. Although the applicant has some immediate family remaining in Indonesia, the Tribunal is not satisfied the applicant has demonstrated a strong incentive to return after his studies.
21.In Australia the applicant stated he has one brother. He shares accommodation with friends in Sydney and has worked as a chef. The Tribunal accepts the applicant may have chosen not to study at a higher level such as tertiary and may have changed his plans from his original reasons for undertaking study in Australia. However, the applicant has changed his study direction and aims for the future several times and does not appear to have any consistent or realistic career goals. In addition, the applicant appears to have some incentive to seek to remain in Australia. He is single and has been employed in the hospitality industry. He has been able to undertake a range of relatively short, low cost courses of study from Certificate III to Diploma level without a clear intention to utilise all of the skills obtained.
22.While the Tribunal takes into account the fact the applicant has successfully completed courses he has enrolled in and is studying at the time of the hearing, the Tribunal is not satisfied he is continuing to study for genuine purposes.
Based upon the above, the Tribunal was not satisfied that the applicant met cl 500.212(a) of Schedule 2 to the Regulations. Accordingly, the Tribunal found that the applicant was unable to meet cl 500.212 and affirmed the Delegate’s decision (at [23]-[26]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court through an application filed on 22 October 2018. The applicant relied upon the following grounds:
1.Under Section 424 of the Migration Act 1958 (Cth), the Minister has the obligation to consider all the relevant circumstances. However, I believe that the Minister failed to consider my circumstances carefully, because I am a genuine student.
2.Throughout the Tribunal process that occurs for approximately a year, I continued being a full-time student, this is evidence that I am a genuine student.
3.There was also a number of other factors that the Minister failed to consider during the hearing.
Grounds 1 and 3 – failure to consider
Ground 1 contended that the Minister failed to consider the applicant’s circumstances “carefully”, because the applicant was a “genuine student”. Ground 3 relatedly contended that there were a number of factors that the Tribunal failed to consider during the hearing.
To the extent that the grounds sought review of the Delegate’s decision, this Court has no jurisdiction to undertake such a review: s 476(2) of the Act.
The Tribunal’s decision exhibits at least some level of consideration of the factors identified in cl 500.212(a). The Tribunal’s decision in this matter was, however, very brief. This may give rise to a concern that matters identified under Direction No. 69, or evidence that the applicant provided, were not considered by the Tribunal.
The Tribunal did not expressly refer to or grapple with all of the matters identified under Direction No. 69 in its decision. However, a difficulty for the Tribunal in the present case appears to have been that limited submissions and evidence were made available to it. For example, the applicant does not appear to have provided detailed evidence regarding matters such as:
(a)the availability of similar courses in his home country;
(b)the applicant’s economic circumstances in Indonesia relative to Australia;
(c)military service commitments and/or political unrest in Indonesia;
(d)the applicant’s circumstances in Indonesia relative to others there; or
(e)remuneration the applicant could receive after completion of the course in Indonesia relative to Australia.
The absence of evidence before the Tribunal in this regard would have made it difficult for the Tribunal to have assessed these matters.
The Tribunal also appears to have possessed limited evidence regarding the applicant’s knowledge of living in Australia as well as his intended course of study and provider. The applicant did provide some limited, general evidence regarding browsing the internet for information about the course and his desire to study in Australia, particularly by reference to the studies being conducted in English. I am not convinced that this evidence was so cogent, central or substantial that an inference should be drawn that the Tribunal failed to consider it, as opposed to considered that it was not material to its decision.
The Tribunal had limited evidence before it regarding the applicant’s travel outside Australia. The applicant’s visa application referred to one holiday to the applicant’s home country in 2016. The Delegate’s decision referred to the applicant having departed Australia for 57 days since his arrival. The Tribunal did not refer to this evidence in precise terms, however it did refer to the applicant’s evidence that he had “last returned for a visit in 2017” (at [12]). I am therefore not satisfied that the applicant’s evidence regarding his visits home was overlooked.
The Tribunal also had limited evidence regarding the applicant’s compliance with previous visa conditions. The visa application responded in the negative to questions asking if the applicant ever had a visa refused or cancelled, or had not complied with the conditions of his visas. This was not referred to in the Tribunal’s decision, although the Tribunal does not appear to have doubted that the applicant had complied with the conditions of his previous visas and made no adverse findings in this regard. The Tribunal appears to have considered, and accepted, that the applicant had sustained enrolment and completed courses. This evidence was considered by the Tribunal (at [21]-[22]).
The Tribunal does not appear to have referred to land registration certificates that had been provided by the applicant relating to some land apparently held by his mother. However, the certificates were not in the applicant’s name and do not appear to have been accompanied by any claim or evidence as to how they informed the applicant’s position, and in particular his economic position in Indonesia. I am therefore not persuaded that they were not considered by the Tribunal, simply because they were not referenced in the Tribunal’s decision.
At the hearing before the Court, the applicant submitted that the Tribunal had “ignored” his arguments regarding the job offer that he had received from his friend. However, the Tribunal considered the applicant’s evidence in this regard at [11], [13] and [19]-[20] of its decision. Similarly to the Delegate, the Tribunal was not satisfied that an employer (even if a friend) would genuinely offer a management position to someone who had not yet commenced studying in the relevant field, to start on a date more than 3 years in the future. I am unable to find that this reasoning was logically closed to the Tribunal. Whilst the offer from the applicant’s friend may well have been genuine, it was open to the Tribunal to have at least doubted the sincerity of the offer on the basis that it identified. To the extent that the applicant suggested at the hearing before the Court that the Tribunal failed to raise the issue with him, I am unable to accept this in circumstances where (a) the Delegate had reasoned in a similar manner; and (b) the Tribunal’s reasons at [13] indicate that the Tribunal invited the applicant to comment upon the Delegate’s concerns in this regard.
Having regard to the above, I am unable to find that the Tribunal failed to consider any evidence, claim, or mandatory consideration in a manner capable of demonstrating jurisdictional error.
Grounds 1 and 2 – genuine student
As noted above, ground 1 contended that the applicant was a genuine student. Ground 2 contended that there was evidence of this, because the applicant was a full-time student during the Tribunal process that occurred for approximately a year.
The Tribunal accepted that the applicant had successfully completed courses in which he had enrolled and that he was studying, including at the time of the Tribunal hearing (at [22]). However, the Tribunal was not satisfied that the applicant was studying for “genuine purposes” (at [22]). The Tribunal considered that the applicant was enrolling in a range of short, low-cost courses without a clear intention to use the skills obtained. This, together with what the Tribunal found were the applicant’s ties to Australia and limited incentive to return to his home country, resulted in the Tribunal not being satisfied that the applicant met the genuine temporary entrant criterion (at [19]-[23]).
As the Tribunal was not satisfied that the applicant met the genuine temporary entrant criterion, he was unable to meet cl 500.212 of Schedule 2 to the Regulations. This was so even if the applicant were enrolled as a full-time student, studying and otherwise complying with any visa requirements.
I understand that the applicant may be disappointed by the Tribunal’s decision, and may disagree with it in circumstances where he was studying and completing his courses. However, as I explained at the hearing, this Court’s powers on judicial review are limited. This Court has no power to set aside the Tribunal’s decision based upon disagreement, in circumstances where that decision was reasonably and lawfully open to the Tribunal. The matters relied upon by the Tribunal were logically capable of informing its decision that it was not satisfied that the applicant intended to stay in Australia temporarily. As such, the applicant’s disagreement with the Tribunal’s decision does not provide a basis for this Court to set the decision aside.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 6 December 2023
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