Lee v Minister for Immigration

[2020] FCCA 1049

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEE & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1049

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student Temporary (Class TU) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to apply s 361 of the Migration Act 1958 (Cth) – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.361, 476

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

First Applicant: SEUNGYONG LEE

Second Applicant: HYUN JIN HONG

Third Applicant: JUNSEO LEE

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2798 of 2019

Judgment of: Judge Street

Hearing date: 4 May 2020

Date of Last Submission: 4 May 2020

Delivered at: Sydney

Delivered on: 4 May 2020

REPRESENTATION

Counsel for the Applicant: Mr A Duc via Microsoft Teams

Solicitors for the Applicant: Alford Lee & Associates

Solicitors for the Respondents: Mr A Downie via Microsoft Teams
MinterEllison

ORDERS

1. The application in a case filed on 17 April 2020 is dismissed.

2. Leave is granted to the applicants to rely upon the amended ground identified in the applicants’ submissions dated 4 May 2020 and the Court directs that an amended application in that form be filed and served on or before 8 May 2020.

3. The amended application is dismissed.

4. The first applicant and the second applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 4 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2798 of 2019

SEUNGYONG LEE

First Applicant

HYUN JIN HONG

Second Applicant

JUNSEO LEE

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 October 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Student Temporary (Class TU) visas (“Student visas”).

2. The first applicant is the husband of the second applicant and father of the third applicant, who is still under age. On 20 November 2019, this Court made orders appointing the first applicant the litigation guardian for the third applicant. The first applicant was identified as being a national of Korea in his fifties.

3. On 17 July 2017, the applicants applied for a Student visa.

4. On 12 September 2017, the Delegate refused the application for the Student visas. The Delegate was not satisfied that the first applicant is a genuine applicant for entry and stay as a student.

5. On 19 September 2017, the applicants filed with the Tribunal an application for review.

6. On 23 September 2017, in response to that application for review, the applicants were sent an acknowledgement of the application for review and provided with information in relation to the review application. That document included a reference in relation to the review process varying according to the circumstances of each case and that the Tribunal may invite the applicants to nominate other people who could give or provide evidence and invite the applicants to suggest other evidential materials that might be obtained. The document also made reference to the opportunity to provide other information and evidence and, in particular, reference to any other material which the applicants believed supported their application, including a statement explaining why the applicants disagreed with the Delegate’s decision. The means of lodging documents was also identified.

7. There are communications between the Tribunal and the applicants in relation to access to written material in 2018.

8. On 2 April 2019, the Tribunal invited the applicants to provide further information. That invitation expressly referred to whether the first applicant is a genuine applicant for entry and stay as a student.

9. Further information was provided to the Tribunal, including a document entitled “Business Proposal” with a translation date stamp 14 April 2019, which referred to a director, Yeo Il Yoon, and referred to the details of the proposal as follows:

   We would like to establish a partnership with the first applicant, for him to develop and lead our overseas marketing plans as follows:

   –    Leading our overseas marketing duties

   –    Planning future marketing plans in Australia during his study in the country

   –    Large-scale marketing promotions will kick-start once the first applicant finishes his studies in early 2021.

   We wish the first applicant to join us to help expand our business.

10. A contact number, an alternative contact number, and a certificate of business registration dated 13 August 2018 were also provided in relation to the business registration number identified in the business proposal.

11. Following the provision of this information, on 15 May 2019, the Tribunal wrote to the applicants by email, which, under the statutory provisions, the applicants are taken to have received on the day on which it was transmitted to the applicants’ migration agent being 15 May 2019, inviting the applicants to attend a hearing on 6 June 2019.

12. The invitation email made express reference to providing all documents that the applicants intend to rely on to establish that the applicants meet the criteria for the Student visa and included a reference to a written statement addressing the issue of whether the first applicant is a genuine applicant for entry and stay as a student, drawing attention to Direction No.69.

13. An explanation document was attached, which included the reference that, within seven days after being notified of the hearing, the applicants may give written notice if the applicants want there to be taken oral or written evidence from a person or persons named in the notice.

14. The invitation email also included a document titled “Response to hearing invitation – MR Division”.

15. On 23 May 2019, a completed response to the hearing invitation was provided by the applicants to the Tribunal. The completed response was provided to the Tribunal more than seven days after the applicants were notified under s 361 of the Act of the hearing.

16. The response included a reference to a witness by the name of Mr Yoon, who was described as a “business partner”, provided a telephone number, being the alternative telephone number identified in the business proposal, and relevantly said as follows:

    His evidence will supports that the applicant has a genuine need to return to Korea after study.

17. The hearing record has been tendered into evidence and identifies the applicants’ representative as being present at the hearing. No transcript of the hearing has been tendered.

18. The applicants also provided to the Tribunal a further document on 3 June 2019 in relation to a genuine intention to study prior to the hearing. Part of that document addresses the value of the first applicant’s course to his future career and refers to the first applicant’s future business plan in Korea, which is to establish an online retail wholesale furniture shop selling the Korean-made furniture products to international buyers outside Korea. The statement also refers to the first applicant having a business partner who will provide the actual products to sell (being furniture) and the first applicant’s role as being to develop an online platform to sell the products to international customers and to implement and maintain online marketing to promote the sales.

19. The Tribunal identified in its reasons the background to the applicants’ Student visa application. The Tribunal referred to the Delegate who was not satisfied that the first applicant was a genuine applicant for entry and stay as a student. The Tribunal identified the first applicant appearing before the Tribunal to give evidence and present arguments and, also, the applicants being represented by the migration agent.

20. The Tribunal recorded that it expressly asked the first applicant whether there was any other relevant information or matters which the Tribunal should have regard to in making its decision. No transcript has been tendered. Given the representation by the first applicant at the hearing, the Court finds that there is no proper basis to find that the Tribunal did not have regard to the response that was sent, albeit outside the seven days.  The Court also finds that the invitation sent by the Tribunal as to other relevant information or matters was clearly an opportunity for the applicants, if the applicants wished to do so, to press for evidence to be taken from Mr Yoon.

21. The Court finds that there was no further pressing by the applicants of the Tribunal to take evidence from Mr Yoon in circumstances where the applicants were represented. There is no proper basis for the Court to find that the Tribunal failed to have regard to the applicants’ response to hearing invitation. The response is not one in respect of which it met the criteria under s 361(2) of the Act because it was not a response within seven days. In any event, the Court finds that, on the material before the Court, the proper inference to be drawn is that the Tribunal did have regard to the response to hearing invitation. In the circumstances of the present case and the material before the Court, the applicants did not press for evidence to be taken from Mr Yoon, as referred to in the response to the hearing.

22. There is an evident and intelligible justification for the Tribunal not further referring or providing reasons in that regard. The Tribunal’s consideration given to the hearing response is expressly referred to in the Tribunal’s reasons. An evident and intelligible justification is the Tribunal’s express reference to the first applicant being asked whether there was other relevant information or matters to which the Tribunal should have regard in making its decision and the response of the first applicant that did not identify any request for evidence to be taken from Mr Yoon. In circumstances where the applicants were represented, it cannot be said that the Tribunal was acting legally unreasonably in providing no further express consideration in respect of the notice which was not a notice that complied with the requirements of s 361 of the Act given that it was outside the seven days period referred to in s 361(2) of the Act.

23. The evident justification is further supported when regard is had to the nature of the information referred to in respect of Mr Yoon in the applicants’ response to hearing the bare assertion that is advanced is that his evidence will support the first applicant having a genuine need to return to Korea after study.  The issue of whether the first applicant is a genuine student was an issue for the Tribunal. It is apparent from the Tribunal’s reasons that the Tribunal took into account the business proposal in relation to this agreement, had an active intellectual engagement with the first applicant’s evidence in relation to his business proposal.  There are detailed references to Mr Yoon and the proposal in paragraphs 19, 22, 25 to 29 and 41 and 42 of the Tribunal’s reasons.

24. It is apparent in relation to Mr Yoon that the Tribunal understood the nature of the business in respect of which the first applicant wished to be a proposed partner, being importing of furniture handmade in Korea with a particular name, and the first applicant’s role would be in relation to online sales and global marketing.

25. The Tribunal referred to the first applicant’s evidence in concerning his proposal in relation to his business products to sell furniture to international customers and also set out the substance of the business proposal. The Tribunal explored with the first applicant the reasons for the business proposal and the relevance of the study to that proposal and that if he fails to complete his current course it will affect the applicants and his business.

26. The Tribunal explored with the first applicant why he would be the subject of a proposed partnership and the first applicant explained the past association with Mr Yoon. The Tribunal referred to the first applicant’s assertion that these proposals were made every time he visited Korea and that, on his most recent trip in 2018, he met with Mr Yoon and discussed specific business arrangements. The Tribunal identified exploring with the first applicant the reasons for the business proposal and the reference to the business doing online sales only and that Mr Yoon wanted to expand his business globally, so they need someone with specialist knowledge.

27. There was a reference given to the applicants’ submissions in which it was suggested the first applicant would invest money in the company and become a part-owner of the company.

28. The Tribunal identified concerns in relation to the business proposal and the first applicant asserting that he would sign it on completion of his studies in March 2021. The Tribunal questioned the first applicant as to whether there were any documents that indicate that he has agreed to the proposal and that it did not appear to have been accepted and that the first applicant stated that he agreed to the proposal, which is why he has given it to the Tribunal. The Tribunal identified concerns in relation to the details of the proposal that the partnership would be established in early 2021 and explored why it would be close to two years in order to take advantage of the business opportunity to expand online sales globally.

29. The first applicant made reference to when his studies were to be completed, where he would keep in touch with Mr Yoon by telephone over the next two years. The Tribunal further explored with the first applicant his studies being undertaken in Australia.

30. The Tribunal referred to the first applicant having significant ties in Australia, reducing his incentive to return to his home country. The Tribunal took into account that the first applicant had returned every year to Korea since he arrived in 2012, apart from one year.

31. The Tribunal also raised with the applicants its concerns in relation to the self-employment by the first applicant at a café. The Tribunal referred to the applicants’ written submissions and expressly identified having regard to the information provided by the applicants in response to the s 359 of the Act request and the reference to the first applicant’s business plans in Korea.

32. The Tribunal identified the first applicant having resided in Australia now for over seven years. The Tribunal identified the first applicant’s café business being of some concern in relation to the first applicant remaining in Australia after the conclusion of his studies. The Tribunal found that the cafe continues to provide a source of income that the Tribunal found relevant to the assessment of the first applicant’s circumstances in Australia.

33. The Tribunal did accept that the first applicant has some incentive to return to his home country and took those circumstances into account.

34. The Tribunal gave little weight to the documents in relation to the business proposal with Mr Yoon, given that the first applicant has not signed the proposal and there is no evidence of any binding agreement between Mr Yoon and the first applicant and found that the agreement, if there is one, remains at the proposal stage. The Tribunal also took into account as relevant this proposal being advanced after the Delegate’s decision on 12 September 2017.

35. The Tribunal was prepared to accept that the first applicant and Mr Yoon may have had conversations about partnering in a business venture and may explore such partnership in the future. The Tribunal was not satisfied that the first applicant’s current studies in marketing and communication are essential to such a business venture. The Tribunal did not find it convincing that a business owner would wait for over 18 months for a proposed business partner to obtain a qualification before agreeing to a partnership proposal. The Tribunal took into account that the first applicant and Mr Yoon had previously been colleagues and operated businesses of their own and that the proposal required an equity investment and it was likely these factors would play a stronger role in deciding whether to enter into any business partnership.

36. The Tribunal referred to the first applicant studying and obtaining a Diploma of Business and Diploma of Information Technology Systems and Administration since arriving in Australia in 2012. The Tribunal found that the first applicant’s current course of studying would offer only incremental advantage to the first applicant’s employment and business opportunities on top of his existing qualifications and experience.

37. It was in these circumstances that the Tribunal considered that it is more likely the first applicant is enrolled in his current course to extend residence in Australia rather than because of a genuine intention to remain in Australia temporarily for the purpose of study.

38. The Tribunal found that, while the first applicant has strong evidence of ties to Korea as well as continuing family ties here, his immigration history and the value of his course to him were such that the Tribunal was unable to find that, on balance, he satisfies the genuine temporary entry criteria.

39. The Tribunal was not satisfied that the first applicant intends genuinely to stay in Australia temporarily and found that the first applicant did not meet the criteria in cl 500.212(a) of sch 2 of the Migration Regulations 1994 (Cth).

40. Accordingly, the Tribunal affirmed the decision under review.

Grounds in the Amended Application

1. The grounds in the amended application are as follows:

   1. The Tribunal’s decision has jurisdictional error which caused it to ignore relevant material, instead relied upon irrelevant material to reach a mistaken conclusion.

   Particulars

   i. The Applicant has provided a range of evidence to prove his intention and need to return to Korea at the end of his proposed study in Australia. The information submitted to the Tribunal demonstrated his financial and business commitments in Korea and his future plans there.

   ii. The Applicant gave further evidence at the hearing in response to all the concerns raised by the Tribunal.

   iii. The Tribunal accepted the submitted material as genuine and consistent with his oral evidence that he gave at the hearing.

   iv. The Tribunal, however, appears to have formed a biased view on the Applicant’s circumstances by reaching to a decision based on consideration of irrelevant materials.

   2. The Tribunal erred in failing to contact a witness, Mr Yeo Il Yoon, and in doing so did not apply section 361 of the Migration Act, such failure being a jurisdictional error.

2. Mr Duc of counsel on behalf of the applicants accepted that, on the evidence before the Court, the contention of non-compliance with s 361 of the Act faces a difficulty in relation to the seven day requirement. For the reasons that the Court has already found, there was no notification of any requirement of s 361(2) of the Act and, accordingly, in those circumstances, there could be no jurisdictional error of the kind alleged in the application.

3. Further, the Court is not persuaded that the Tribunal did not have regard to the notice in circumstances where the Tribunal made express inquiry of the applicants, who were represented, whether there was further material the applicants wished to rely upon. That was clearly an opportunity for the applicants, if desirous of doing so, of pressing for evidence to be taken from Mr Yoon. It is apparent from the Tribunal’s reasons that the response was not to that effect by the applicants, who were represented.  

1. In these circumstances there is no proper basis for finding that the Tribunal did not have regard to the response. Further, for the reasons already given, the absence of an express reference to consideration in respect to the notice and the request for the witness to attend cannot be said to lack an evident and intelligible justification. That evident and intelligible justification is, first, the inquiry made of the applicants at the end of the hearing, who were represented, and the limited response by the applicants as identified by the Tribunal and, secondly, the limited nature of the information that was identified to be available from Mr Yoon in the notice and the absence of any other statement by Mr Yoon identifying some particular matter of a particular kind said to support what was identified in the notice.

2. In circumstances where the response to hearing is one which has a bare allegation of evidence supporting the first applicant being genuine in the need to return to Korea after study, the lack of content in such proposition of itself provides a further evident and intelligible justification for the absence of any express consideration of calling the witness.

3. Further, in circumstances where the Tribunal engaged with the evidence in respect of the business proposal and identified the proposal as one that had not yet been accepted and was intended to come operate in two years’ time or come into existence after the Delegate’s decision and where the Tribunal deliberated upon the benefit of the first applicant’s study in relation to such a proposal and the credibility of a business partner wanting to await that completion of study by the first applicant and the need for further steps in respect of equity, there is no proper basis to infer that consideration was not given to the response to hearing.

4. Mr Duc has submitted that the evidence of the witness may have been material and adduced evidence that was admitted subject to relevance concerning what might have been led from the relevant witness. That evidence in not admissible in relation to whether there was any jurisdictional error and would be admissible only in relation to the issue of materiality, a position that Mr Duc took no issue with. The Court does not accept, in the circumstances of the present case, that there was any legally unreasonable failure to contact Mr Yoon. The Court does not accept that there was any breach of s 361 of the Act by the Tribunal.

5. No jurisdictional error as alleged in the amended application is made out. Accordingly, the amended application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 28 May 2020