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

[2021] FCCA 280

FEDERAL CIRCUIT COURT OF AUSTRALIA

Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 280  

File number(s):

SYG 178 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

17 February 2021

Catchwords:

MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a temporary student visa – applicant found not to be a genuine temporary entrant for study – whether the applicant was afforded procedural fairness considered – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Number of paragraphs:

30

Date of hearing:

17 February 2021

Place:

Sydney

The Applicant appeared in person

Solicitor for the Respondents:

Ms S Given of HWL Ebsworth

ORDERS

SYG 178 of 2020

BETWEEN:

I LEE

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	17 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. The applicant, Ms Lee, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 6 January 2020.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Lee a temporary student visa.

2. Background facts relating to this matter are set out in the Minister’s initial outline of submissions filed on 20 August 2020, which I adopt.

   Relevant factual background

3. On 9 January 2018, Ms Lee applied for a student (subclass 500) visa[1].

   [1] Court Book CB 1

4. On 1 March 2018, the delegate refused to grant Ms Lee the visa. This decision was made on the basis that she did not satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[2].

   [2] CB 34

5. On 13 March 2018, Ms Lee applied to the Tribunal for review of the delegate's decision[3].

   [3] CB 42

6. By letter dated 31 October 2019, the Tribunal invited Ms Lee to complete the online Request for Student Visa Information form[4].  Ms Lee subsequently provided a completed Request for Student Visa Information form[5].

   [4] CB 57

   [5] CB 64

7. On 20 December 2019, Ms Lee appeared before the Tribunal[6].

   [6] CB 89

8. On 6 January 2020, the Tribunal affirmed the delegate's decision not to grant Ms Lee a subclass 500 visa[7].

   [7] CB 98

   Tribunal decision

9. Having considered Ms Lee's circumstances in her home country, the Tribunal was not satisfied there was a significant incentive for Ms Lee to return to Taiwan[8].

   [8] CB 101 at [21]

10. The Tribunal considered Ms Lee's potential circumstances in Australia[9], the value of the course to her future and her study history since arrival[10]. The Tribunal was not satisfied the proposed study had a realistic prospect of providing significant value to Ms Lee's future beyond the qualifications she already held[11].

    [9] CB 101 at [22]

    [10] CB 102 at [23]-[24]

    [11] CB 102 at [25]

11. Given the disparity in economic circumstances between Taiwan and Australia, the Tribunal was not satisfied Ms Lee had a significant incentive to return to Taiwan[12]. Having considered the significant time and monetary commitment the course would require, the Tribunal was not satisfied as to the value of the course to Ms Lee's future[13].

    [12] CB 102 at [28]

    [13] CB 102 at [29]

12. Based on the evidence Ms Lee had spent approximately seven weeks outside of Australia since her arrival on 2 April 2016, the Tribunal assessed Ms Lee's incentive to return to Taiwan to be minimal[14].

    [14] CB 102 at [30]

13. Having considered Ms Lee's immigration history, the Tribunal observed that she appeared to be using the student visa program as a means of maintaining ongoing residence in Australia[15].

    [15] CB 102 at [31]-[32]

14. Ultimately, the Tribunal was not satisfied Ms Lee intended genuinely to stay in Australia temporarily and found she did not meet cl 500.212(a)[16].

    [16] CB 102 at [35]

    THE CURRENT PROCEEDINGS

15. These proceedings began with a show cause application filed on 24 January 2020.  The grounds in that application are:

    1. Tribunal was not fair to handle my case. Many factors given in "Decision Record" are unreasonable and subjective thoughts from the Member. My comments are attached with AFFIDAVIT.

    2. I am genuine student. I finished TWO certificates, one is 20-week English study, the other is "Diploma of Business Administration". I am studying "Advance Diploma of Business Administration". All relevant documents including financial capacity to studying were shown to the Member. The Member ignored all the documents provided and my comments.

    (errors in original)

16. The application was supported by an affidavit.

17. The matter came before me for a show cause hearing on 27 August 2020.  At that time, I had before me, in addition to Ms Lee’s affidavit, the court book filed on 24 April 2020.

18. At the show cause hearing, Ms Lee drew to my attention that the Tribunal appeared to have made a factual mistake.  The Tribunal’s decision, at [21], records that she is unmarried.  Ms Lee, by reference to material in the court book, stated that this was wrong, and she was married.  In the circumstances, I ordered the Minister to show cause why relief should not be granted in relation to the question of whether the Tribunal made a material factual error concerning Ms Lee’s marital status at [21] of its reasons.

19. For the purposes of today’s final hearing, the Minister read an affidavit by Sarah Svehla, made on 15 October 2020.  Annexed to that affidavit is a transcript of the Tribunal hearing.  The Minister also filed supplementary submissions to deal with the show cause issue.

20. Ms Lee emailed to my chambers, on 28 September 2020, additional documents from Austrasia College dated 15 September 2020.  As she told me today, those documents are intended to support the proposition that she is continuing successfully with her studies.  I see no reason to doubt that, but the information was not available to the Tribunal, as it post dates the Tribunal decision.

21. I marked the documents for identification[17].  The Minister objected to the receipt of the documents, as evidence.  I agree, and I did not receive the documents. 

    [17] MFI “A1”

22. It is now tolerably clear, in my view, that the Tribunal has made a factual error.

23. As the Minister concedes, Ms Lee stated three times that she was married.  First, she declared her marriage in her student visa application[18].  Secondly, she noted it in her Form 1022 Notification of Changes in Circumstances[19].  Thirdly, she noted her marriage in a personal statement[20].

    [18] CB 7

    [19] CB 20

    [20] CB 23

24. It is surprising that the Tribunal apparently failed to note those statements.  On the other hand, the Tribunal sent Ms Lee a request for student visa information form[21].  Ms Lee responded to that request, listing her father and mother[22].

    [21] reproduced at CB 64-74

    [22] CB 71

25. The Minister also draws attention to the transcript of the Tribunal hearing[23].  The Tribunal member is recorded asking whether Ms Lee’s immediate family in Taiwan consists of her father and mother.  Ms Lee responded, through the interpreter at the hearing, that she also had an older brother who was married and had a family of his own.  Ms Lee did not mention a husband.  The Minister’s submissions suggest that, in regard to all of the information available, it was open to the Tribunal to conclude that Ms Lee was unmarried.

    [23] pages 6 and 7 of the Svehla affidavit

26. The suggestion here is that while Ms Lee might have been married at the time she applied for the visa, she ceased to be married.  Having regard to Ms Lee’s oral submissions today, I do not accept that contention.  Ms Lee confirmed, orally, that she remains married.

27. When I asked why she did not mention her husband at the Tribunal hearing, she responded along the lines that the Tribunal should have asked more specific questions.  The question asked by the Tribunal related to Ms Lee’s family in Taiwan.  I queried with Ms Lee whether her husband was in Taiwan.  She responded in the negative.  It follows that Ms Lee’s answer is explicable on the basis that she was answering the question correctly in relation to her family in Taiwan.

28. Ms Lee told me that her husband is in Australia on a temporary visa.  Viewed in this light, it is more likely than not that the Tribunal was mistaken as to Ms Lee’s marital status.  However, in my view, if the Tribunal had been aware that Ms Lee has a husband in Australia, that fact would not have made any difference to the outcome.  That is because the existence of a partner in Australia would have been regarded by the Tribunal as a factor establishing a tie to Australia, rather than to Taiwan.  In other words, rather than potentially changing the outcome, the knowledge of Ms Lee’s husband in Australia would have reinforced it.

29. I conclude that the error made by the Tribunal is not material.  It follows that Ms Lee has failed to establish that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

30. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Ms Lee stated that she considers the outcome of the case unfair, but she did not wish to make any submissions on costs.  I will order that Ms Lee pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       17 February 2021