Le v Minister for Home Affairs
[2019] FCCA 1609
•14 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LE v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1609 |
| Catchwords: MIGRATION – Student visa – whether Tribunal failed to give sufficient weight to certain matters – whether failure to disclose adverse information – whether denial of procedural fairness – request for impermissible merits review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(4), 359A(4)(b)(a) & (b), 359AA, 359AA(1)(a), 360, 360A and 499 |
| Cases cited: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 Muker v Minister for Immigration and Border Protection [2016] FCA 609 |
| Applicant: | DOAN NHU HA LE |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 47 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 29 April 2019 |
| Date of Last Submission: | 29 April 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 14 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Respondents: | Ms N Milutinovic for Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 47 of 2018
| DOAN NHU HA LE |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 10 January 2018. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) subclass 572 visa (‘the visa’).
The applicant appeared before me self-represented. Her application raises six grounds as follows:
“1.That the Tribunal has committed a jurisdictional error by erroneously placing too much weight on the fact that the applicant did not pursue her passion by doing a degree in Nursing and deviated from that path by choosing a different course. Respectfully, the tribunal gravely erred on this issue and completely lost sight of the fact that the applicant had successfully completed Certificate III in the Aged Care and also a Diploma of Nursing (Enrolled Nursing). Therefore it was wrong on the part of the Tribunal to conclude that the applicant did not study in the subject or course which was her first choice at the time of grant of a student visa.
2.The Tribunal committed a jurisdictional error by failing to comply with s.359AA of the Migration Act 1958 (the Act). As required by law under s.359AA(1)(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and
(b)(i)ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(ii)invite the applicant to comment on or respond to it; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the application reasonably needs additional time to comment on or respond to the information.
The Tribunal committed a jurisdictional error by not providing particulars of many of the provisions, evidence, conclusions, and facts which were taken into consideration while affirming the decision of the delegate. A review of the decision will reveal that the applicant was also denied procedural fairness as the tribunal neither invited the applicant to comment nor to respond to many of the alleged adverse information which was being used against the applicant. The examples of when the Tribunal committed these jurisdictional errors are listed below.
3.The Tribunal made a jurisdictional error under s.359AA of the Act by failing to give the applicant sufficient particulars and an opportunity to respond to the Tribunal’s conclusion that the applicant lacks the incentive to return to her home in Vietnam based on the fact that she had studied for so long in Australia. In the decision record, it was stated that
“The Tribunal is concerned the applicant has undertaken a range of relatively brief courses at the vocational sector level and when viewed on an overall basis, she has not made significant academic progress during the nine-year period she has now studied in Australia. Given the range of brief business courses the applicant has now undertaken, the Tribunal is also not convinced regarding the particular relevance of her current leadership and management course to either her past and current employment as an enrolled nurse, or her future proposed involvement in a family business.”
No details were given to the applicant as to what particulars were taken into account when forming this conclusion, nor was the applicant given the opportunity to respond to or comment on these adverse inferences which were taken into account. Simply stating that the Tribunal failed to be convinced by the applicant's claims relating to the courses which she had studied without giving the applicant an explanation as to why exactly the Tribunal Member was not persuaded or an opportunity to respond to the Member's reasons is a jurisdictional error committed by the applicant.
For the benefit of the Court, one of the main reasons why the applicant had studied and wanted to study the subjects of Business and Management was because she wanted to go back and manage the business of her mother as her mother was old and not well.
It was not made clear to the applicant why the Tribunal member was not persuaded by these very genuine and legitimate reasons and sufficient details of the particulars should have been given to the applicant as well as an adequate opportunity to respond to and comment on these particulars as required by law.
4.That the Tribunal committed a jurisdictional error by drawing a negative inference from the fact that all courses that the applicant has studied and completed since first being granted a Student visa in Australia had been at the Vocational Education and Training (VET) sector level. Unfortunately, the applicant was not given sufficient opportunity to respond to this claim and as a result, was denied procedural fairness under the law. As mentioned above, the applicant hopes to manage and run the business which was established by her mother in Vietnam and would like to equip herself with a wide range of subjects and skill sets in order for her to manage and operate a large scale business. The applicant has long held the view that having a wide range of qualifications at a slightly broader level would better suit her needs as a business owner and manager rather than progressing to the narrower focused higher educational sector as the Tribunal would have preferred to see for the purpose of determining whether the applicant is a genuine and temporary entrant to Australia. The Tribunal member has drawn a negative inference as to the genuineness of the applicant as a prospective student visa holder based on the number of qualifications held and the level of knowledge obtained and did not give the applicant sufficient opportunity to respond as to why this inference was not the case as per s.359AA of the Act.
5.That the Tribunal has committed a jurisdictional error by drawing an adverse inference that the applicant wanted to prolong her stay in Australia. Unfortunately, the Tribunal made these observations despite the fact that it was convinced that the applicant had -strong family ties in Vietnam which were one of the factors to be satisfied for the grant of Student Visa SC 572 under the Ministerial Direction No. 53. The Tribunal has categorically mentioned that
The Tribunal accepts the applicant has family ties in her home country that provide her with an incentive to return to Vietnam at some stage.
The Tribunal therefore erred and wrongly inferred that the applicant was undertaking these additional qualifications to unnecessarily prolong her time as a student in Australia and significantly overlooked the serious and genuine intention the applicant to manage a business in Vietnam. The applicant was not given a sufficient opportunity to respond to these particulars and as such was denied procedural fairness under Migration Law.
7.That the Administrative Appeals Tribunal made a jurisdictional error by finding that the applicant's evidence regarding her managing the business in Vietnam and her role in it provides an incentive to return to Vietnam despite observing the following in an unequivocal term
The Tribunal accepts the applicants' family have operated a business supplying construction material for some time and that her mother has gifted the applicant a half share of ownership of this business. The Tribunal has reviewed the documents provided by the applicant about this business and is satisfied her stake in the family business provides the applicant with some incentive to return to her home country at some time in the future.
It will be a wrong influence to draw that the applicant would forgo the half share in a successful business and would opt to stay in Australia. The Tribunal failed to notice the fact which was specifically pleaded by the applicant twice in her submissions to the Tribunal that she twice had the opportunity to lodge her permanent residency in Australia as she fulfilled all the requisite qualification and criteria but chose not to as she wanted to go back to her home country and run the business. This fact alone goes a long way to show that the applicant’s intention always was to go back to Vietnam after successfully completing her course in Leadership and Management.
During the hearing the applicant felt that she was denied procedural fairness as required by section 359AA of the Act, namely that she was not given sufficient opportunity to respond to these conclusions held by the Tribunal and was not asked sufficient questions regarding her proposed business plans and how her qualifications were to be used in order for her to run and manage her business. Rather than being ‘vague’, if given an adequate opportunity to provide a detailed response to the applicant's proposed business plans, the Tribunal would have realised the specific nature of the business and what her role will be as the owner and the manager of the business. Upon finishing the applicant's currently enrolled courses, the applicant will return home to Vietnam and will resume her own large scaled family business. The applicant, from the time she has undertaken her educational qualifications and training, has been in close contact with her mother regarding the modalities of the business and its expansion in the future by utilizing the skills which the applicant has acquired in Australia by studying different courses related to business and management. The applicant and her mother will combine their respective knowledge, experience, and skills to run their business. The applicant who will hold the relative qualifications regarding business, management, and human resources will be able to work more efficiently when she returns back to Vietnam. The Tribunal failed to give significant weight, regard or even respect to the applicant's business plans and did not give the applicant sufficient opportunity to explain her business intention as required by the Migration Act under s.359AA.”
(reproduced verbatim)
As can be seen from the above, the grounds are highly particularised and in effect became the applicant’s written submissions.
The applicant relied on her affidavit sworn on 30 January 2018 together with the materials in the Court Book[1]. The first respondent relied upon the materials in the Court Book.
[1] Court Book (‘CB’).
Background
The chronology to this matter and the detail of the findings made by the Tribunal were not the subject of dispute. For that reason I have summarised the summary contained in the first respondent’s written outline of submissions.
The applicant arrived in Australia in 2008, and at that time held a student visa granted to her based on her proposed study of courses which included a Bachelor of Nursing within the higher education sector.[2] In June 2010 she enrolled in a Certificate 3 in Aged Care Work and a Diploma of Nursing of which she completed in June 2012. She did not at any stage complete the Bachelor of Nursing degree.
[2] CB p 269 at para [8].
In May 2012, the applicant enrolled in a Diploma of Management and a Bachelor of Business (Hospitality and Tourism Management). In March 2013 she completed her Diploma of Management but did not commence her studies in the Bachelor of Business course. She changed her enrolment to a Bachelor of Accounting with a commencement date of 25 March 2013. The applicant did not complete the Bachelor of Accounting which was cancelled in May 2013 due to her non-commencement of studies.
In January 2014, the applicant enrolled in a Diploma of Children’s Services (Early Childhood Education and Care) from which she withdrew in June 2014. In July 2014, she enrolled in a Certificate IV in Business Administration, a Diploma of Business Administration, and an Advanced Diploma of Management. She completed the Certificate IV in Business Administration in August 2015 and commenced the Diploma of Business Management in October of 2015. Her enrolment in the Advanced Diploma of Management was cancelled in November of 2015 as the applicant made a decision that she wanted to study a course in the field of human resources management and leadership management. That was the area in which the applicant sought to study when she applied for the visa.
On 17 November 2017, the Tribunal wrote to the applicant inviting her to attend a hearing which was scheduled for 14 December 2017.[3] The invitation asked the applicant to provide an explanation for any gaps in her enrolment and any documentary evidence relevant to her explanation for such gaps. The invitation noted that the Tribunal would assess whether she intended to genuinely stay in Australia temporarily as required by cl.572.223(1)(a) and in addition, asked her to provide a written statement with respect to that issue with reference to Direction 53. A copy of Direction 53 was provided to the applicant with that letter.[4]
[3] CB pp 171 to 173.
[4] CB p 174.
Prior to the Tribunal hearing the Applicant provided documents which included evidence as to her current and past academic studies in Australia, a written statement, information with respect to her family’s business interests in Vietnam, and information with respect to a contract for donation of land use rights.
On 28 January 2016, the Department wrote to the applicant seeking further information as to whether or not she met the genuine temporary entrant criterion. The applicant submitted a statement and a number of supporting documents.[5]
[5] CB pp 28 to 134.
On 27 April 2016, a delegate of the Minister refused the visa application on the basis that the applicant did not satisfy cl.572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).[6]
[6] CB pp 140 to 152.
The delegate was not satisfied that the applicant met the genuine temporary entrant criterion.
On 11 May 2016, the applicant applied to the Tribunal for a review of the delegate’s decision. On 3 July 2016, the applicant provided a Form 1022 Notification of Change in Circumstances, which indicated that she had now separated from her spouse.
On 14 December 2017, the applicant attended at a scheduled Tribunal hearing by way of videoconference. She was represented by an agent on that occasion.
On 10 January 2018, the Tribunal affirmed the decision under review.
Tribunal reasons
The Tribunal set out in some detail the applicant’s lengthy history of study in Australia and the evidence that she provided.[7] One of the main concerns in the mind of the Tribunal was that the applicant’s evidence as to her intentions did not appear to reflect the course choices she had made since failing to commence her nursing degree program. It noted that the nursing degree program had been the rationale for her applying for a subclass 573 visa when she initially came to Australia.[8] Whilst the Tribunal acknowledged that there were reasons why the applicant might prefer to undertake further study in Australia, it was not satisfied that that of itself provided a satisfactory reason for not making enquiries as to whether she could have undertaken similar courses in Vietnam.[9]
[7] CB pp 269 to 272.
[8] CB p 273 at paras [26] - [27].
[9] CB p 273 at para [28].
The Tribunal accepted that the applicant had ties in Vietnam and that she had some incentive to return there. It was not convinced that the applicant’s mother’s health problems were a clear incentive to return to Vietnam in order to assume a role in the family business. The Tribunal placed weight on the fact that the applicant’s choices of study, which included childcare and tourism courses, took place at a time when the applicant claimed she had been influenced in her choices by the need to acquire skills for later use in the family business.[10] The Tribunal did not reject entirely the applicant’s claim with respect to the family business, and accepted that her interests in that business provided her with some incentive to return.[11]
[10] CB p 273 at para [29].
[11] CB p 273 at para [30].
The Tribunal took into account that the applicant had not returned to Vietnam frequently since arriving in Australia in 2008, and doubted whether that was indicative of a person who had the ties to their home country that the applicant claimed.[12] The Tribunal noted the applicant’s lengthy period of employment with the same residential aged care provider, and concluded that the continuity of that employment provided her with some incentive not to return to Vietnam.[13] It accepted that there were no military service commitments or political considerations that might amount to an incentive not to return to Vietnam.[14]
[12] CB p 274 at para [31].
[13] CB p 274 at para [32].
[14] CB p 274 at para [33].
In viewing the applicant’s lengthy history of study, the Tribunal was concerned about and gave weight to the fact that she had changed her field of studies on nine occasions since coming to Australia. It noted that the courses taken were relatively brief courses at the vocational sector level. It considered that when those courses were taken into account she had not made significant academic progress during her time in Australia. Further, the Tribunal was not convinced that her leadership and management course was relevant either to her employment as an enrolled nurse or her future proposed involvement with the family business. In addition, the Tribunal gave weight to the fact that the applicant had already completed a Diploma of Management in 2013, which was likely to have similar content to some aspects of the course that she was undertaking at the time of the hearing.[15]
[15] CB p 274 at para [34].
Taking into account all of the available evidence, the Tribunal did not accept that the applicant was undertaking her current studies for the reasons claimed, and concluded that she was using study as a pathway to maintain residence in Australia.[16] For that reason it was not satisfied that she was a genuine applicant for entry and stay as a student, and concluded rather that the student programme was being used by the applicant to maintain ongoing residence.[17] As a result, taking into account all of the applicant’s circumstances, immigration history, and evidence before it, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily, and for that reason found that she did not meet cl.572.223(1)(a). As a result, the Tribunal affirmed the decision under review.
[16] CB p 274 at para [36].
[17] CB p 275 at para [37].
Whilst it was not relevant for the purpose of these proceedings, I note that the Tribunal also affirmed the decision under review with respect to the second applicant, who was no longer in a spousal relationship with the applicant because of that fact, and the fact that it did not accept that the applicant satisfied the primary criteria. I note that the second applicant made no appearance before the Tribunal.
Legislative Framework
In order for the applicant to satisfy the criteria for the visa, it was necessary that she met the time of decision criterion in cl.572.223. Clause 572.223(1)(a) provided as follows:
“(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that 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.”
It was necessary in considering whether the applicant satisfied the above criterion for the Tribunal to have regard to Direction 53, Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications. That Direction was made pursuant to s.499 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal was required by the Direction to have regard to a series of specified factors relating to the applicant’s circumstances in their home country, their potential circumstances in Australia, and the value of the course to the applicant’s future, including:
a)The applicant’s immigration history, including previous applications for Australian visas, and previous travel to Australia or other countries; and
b)Any other relevant information provided by the applicant or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Those factors are not a definitive checklist of matters to be considered, but rather are to be used by the Tribunal as a guide when weighing up the applicant’s circumstances as a whole in order to determine whether the applicant satisfied the genuine temporary entrant criterion.
The applicant’s grounds complain of a lack of procedural fairness because of a failure of the Tribunal to comply with ss.359A and 359AA.
Section 359A provides as follows:
“359A Information and invitation given in writing by Tribunal
(1)Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
Section 359AA provides as follows:
“359AA Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
Submissions
The applicant made brief oral submissions before me. Those submissions added very little to the particularisation of the grounds identified in her application. Much of what she submitted to the Court amounted to assertions about evidence that she had previously given to the Tribunal, and complaints that either the Tribunal had not accepted her evidence or had given too much weight to certain factors.
The first respondent relied on its written outline of submissions and made brief supplementary oral submissions. The effect of those submissions was that most of the grounds were simply an attempt to request an impermissible merits review. With respect to the complaints relating to ss.359A and 359AA, the first respondent submitted that the Tribunal had not denied the applicant procedural fairness, had appropriately invited the applicant to attend at a hearing, and that the Tribunal did not rely on any adverse information of the kind referred to in s.359A. The first respondent submitted that the Tribunal was appropriately guided by Direction 53, and gave the claims of the applicant full consideration. It noted that weight is generally speaking a matter for the Tribunal, and submitted that the findings of the Tribunal were at the very least open to it. For those reasons it was submitted that the application should be dismissed in its entirety.
Consideration
Ground one
This ground amounts to a request for an impermissible merits review. In reality it complains about a finding of fact made by the Tribunal with respect to the implications of the applicant’s failure to complete a Bachelor of Nursing Degree and embarking upon a range of disparate courses. The Tribunal considered closely the applicant’s history of study and took into account the fact that she had completed a diploma course in nursing and a course in aged care. The Tribunal was entitled to consider and give weight to the fact that the applicant had not attempted to undertake the Bachelor of Nursing at the University of South Australia, because as the Tribunal noted that was said to be her rationale when applying for her initial subclass 573 visa. Further, the Tribunal was entitled to consider the entire course of the applicant’s range of studies and draw conclusions as it did about the disparate nature of those courses. The question of the weight to be given to that evidence was a matter for the Tribunal.[18] The Tribunal was not bound to accept the applicant’s claims uncritically. This is not a case where the failure to accord weight to a relevant consideration produced a result that was manifestly unreasonable.[19] The applicant has not demonstrated jurisdictional error in relation to this ground. I dismiss ground one.
Ground two
[18] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para [10].
[19] Muker v Minister for Immigration & Border Protection [2016] FCA 609.
The applicant complains that she was not invited to comment or respond in relation to information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review.[20] In that regard she submits that the Tribunal did not put her on notice of alleged adverse information which would be used against her.
[20] Section 359AA.
Whilst the applicant refers in this ground to s.359AA, her complaint must be read in light of the obligation created by s.359A and in particular, the exceptions identified in s.359A(4). For practical purposes, s.359A and s.359AA deal with the same types of information. I accept the submission of the first respondent that there was no adverse information before the Tribunal that it was required to put to her pursuant to s.359A of the Act. The Tribunal proceeded on the basis of information the applicant had provided in writing to the delegate; evidence that she gave directly to the Tribunal; and information which was contained in the delegate’s decision which had been provided to the applicant and which she provided to the Tribunal with her application for review. For that reason neither ss.359A(1) or 359AA(1)(a) did not apply by virtue of the exceptions contained in ss.359A(4)(b)(a) and 359A(4)(b) of the Act. In other words, the Tribunal relied entirely upon information provided to it by the applicant for the purpose of the review, and information that she gave to it orally during the hearing. The applicant was on notice of the issues that would be dispositive at the hearing by virtue of the decision of the delegate. The invitation to attend before the Tribunal was an opportunity to comment on and respond to the delegate’s decision.
To the extent that this ground complains about the failure of the Tribunal to advise the applicant during the course of the hearing of how it viewed her evidence, it was not required to do so. It is well established that the Tribunal need not give a running commentary on the view that it takes of the evidence or of inferences that it may ultimately draw from it.[21]
[21] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at para [18]; VAF v Minister for Immigration (2004) 206 ALR 471 at [24].
It must have been clear to the applicant from the delegate’s decision that the issue, for the purposes of the Tribunal hearing, was whether or not she met the genuine temporary entrant criterion. That matter was also made clear to her in the letter of invitation to attend at the hearing, which stated specifically; “we will assess whether you intend genuinely to stay in Australia temporarily”.[22]
[22] CB p 172.
As I have already noted, that letter provided the applicant with a copy of Direction 53 and specifically asked her to provide a written statement on the question of whether or not she was a genuine temporary entrant, by reference to the matters contained in the Direction. The Tribunal clearly fulfilled its obligations under Part 5, Division 5 of the Act and, in particular, complied with ss.360 and 360A. Further, the applicant would have been aware of the dispositive issues because of the nature of the questions the Tribunal put to her.
The Decision Record clearly states that it raised with her that the matter before it was whether she met the requirements of cl.572.223(1)(a); explained the section to her; as well as the relevance of Direction 53, and told her that it needed to be satisfied, on the evidence, that she was a genuine applicant for entry and stay as a student.[23] I am not satisfied that jurisdictional error has been demonstrated with respect to ground two. I dismiss that ground.
Ground three
[23] CB p 270 at para [11].
There is no substance to the applicant’s complaint that the Tribunal made a jurisdictional error under s.359AA in failing to give her either sufficient particulars of, or an opportunity to respond to, its conclusion that she lacked an incentive to return to her home in Vietnam, based on the fact that she had studied for so long in Australia.
I note, again, that the Tribunal was not required to give the applicant a running commentary of its thought processes or any subjective view that it took of the evidence during the course of the hearing. The view that it took of that evidence was not ‘information’ for the purpose of ss.359A or 359AA of the Act. The Tribunal raised the very question complained of with the applicant. It questioned her at some length about her claims, making clear to her that it was doing so in the context of cl.572.223(1)(a), and advised her of its concerns about the length of time she had spent in Australia and the disparate nature of the courses that she had undertaken.[24]
[24] CB p 271 at para [19].
This question was clearly put to the applicant and she was given an opportunity to respond to it. The Decision Record shows that the applicant did provide a response as follows:
“In response to these concerns, the applicant said if she wanted to settle in Australia, she could have applied for a work visa as a nurse. She said she does not want to settle in Australia. She said when she came to study a Bachelor of Nursing degree in Australia, she did not have any plans to remain here. She said she just wanted to study nursing, but then she had to change and study business courses, because this was what her family expected from her. She said she could have, again, applied for a more permanent visa after she completed the Diploma of Management in 2013, but she didn’t do so because she just wants to complete her studies and go back to Vietnam.”[25]
[25] Ibid.
The applicant has not demonstrated jurisdictional error in relation to this ground and I dismiss it.
Ground four
In some respects, this ground is a repetition of a complaint made in ground three. I do not accept the applicant’s contention that she was not given a sufficient opportunity to respond to the concerns held by the Tribunal about the fact that all of her courses had been in the vocational education and training sector. This is a complaint about the merits of the Tribunal decision and does not demonstrate jurisdictional error. I dismiss this ground.
Ground five
Once again, this ground complains about a factual finding of the Tribunal. I am satisfied that the inference drawn by the Tribunal, that the applicant’s course of studies over a period of time suggested that her desire was to prolong her stay in Australia, was open to it. That finding was not inconsistent with the finding of the Tribunal that she had family ties in Vietnam which provided her with some incentive to return there.
Further, the Tribunal was not under any misapprehension as to the requirement to consider those matters referred to in Direction 53. It referred to them in some detail in its reasons. This ground amounts to an emphatic disagreement with the conclusion reached by the Tribunal, but that does not mean that jurisdictional error is established. The observations of the court in NAHI,[26] are appropriate to this ground and, indeed, the application in general:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[27]
[26] Op cit.
[27] Ibid at para [10].
I am not satisfied that there was any error in the reasoning process undertaken by the Tribunal. It is clear that it considered all of the claims and evidence in the course of reaching its conclusions. In that sense it can be regarded as having given “proper, genuine and realistic consideration to the relevant matters” and to have engaged in an “active intellectual process”.[28]
[28] He v Minister for Immigration and Border Protection [2017] 255 FCR 41 at para [52].
I dismiss ground five.
Ground six[29]
[29] This ground is misnumbered as ground seven in the application.
Contrary to the contention of the applicant, the Tribunal did not reach a final conclusion that she would forego the interest she had in her mother’s business in favour of staying in Australia. It acknowledged that her interest in the family business provided her with some incentive to return to her home country “at some time in the future.” The Tribunal gave detailed consideration to the applicant’s evidence with respect to the family business and her stated long-term intentions. It considered the documents that she provided with respect to that business.[30] It raised this aspect of the applicant’s claims with her during the course of the hearing. There is nothing to suggest that the Tribunal misapprehended in any way the nature of the evidence that the applicant gave to it about the family business. Once again, this ground is a complaint about factual findings made by the Tribunal. It is a request for an impermissible merits review. Further, the Tribunal did not ignore the fact that the applicant had asked it to consider the fact that if she intended to permanently reside in Australia, she could have sought either a work visa or some form of permanent residence. The Tribunal specifically dealt with that claim as a distinct issue:
“The Tribunal has considered the applicant’s response to the concerns put to her that she may be using the Student visa program to maintain her residence in Australia. The Tribunal notes the applicant’s claim she could have applied for permanent visas to remain in Australia on the basis of her past completion of diploma courses in nursing and management. The Tribunal nonetheless has unresolved concerns that the applicant has undertaken a series of short, inexpensive courses and has also failed to complete other courses she had enrolled in since her arrival in Australia in 2008.”[31]
[30] CB p 273 at para [30].
[31] CB p 274 at para [35].
I am satisfied that the conclusions reached by the Tribunal about the family business and the significance of the fact that the applicant had not applied for permanent residency were open to it. Jurisdictional error has not been demonstrated in relation to this ground, and I dismiss it.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 14 June 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Natural Justice
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Appeal
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