LI v Minister for Immigration

[2017] FCCA 2994

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2994

Catchwords:
MIGRATION – Applicant for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Applicant: WEIQIANG LI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2241 of 2015

Judgment of: Judge Riethmuller

Hearing date: 11 October 2017

Date of Last Submission: 11 October 2017

Delivered at: Melbourne

Delivered on: 8 December 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Chaile

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2241 of 2015

WEIQIANG LI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks judicial review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), affirming a decision of a delegate to refuse the applicant a further student visa. 

2. The applicant is a citizen of China and came to Australia to complete his last two years of high school.  Thereafter he was granted a Student (Class TU) (Subclass 573) visa on 15 March 2011, which expired on 15 March 2014.  The applicant enrolled at Monash University to undertake a Bachelor of Business degree.  Unfortunately, the applicant failed a number of subjects, ultimately only passing two of the subjects for the degree, and did not undertake any course of study between June 2013 and March 2014. 

3. On 12 March 2014, some three days prior to the expiration of the visa, the applicant obtained a certificate of enrolment for a Certificate IV course in accounting at Southern Cross Education Institute, which commenced on 17 March 2014.  At the same time the applicant applied for a Student (Subclass 572) visa, which is the subject of the decision by the Tribunal. 

4. The applicant was asked to provide information concerning his progress (or lack thereof) at Monash University and to address the question of his compliance with the conditions of his previous visa.  The applicant provided a statement (at Court Book pp.32-34) explaining that he underestimated the difficulty of a university course and, having failed subjects initially, isolated himself.  The applicant said he was also distracted from studying by his parents’ marital issues and subsequent divorce, and had been affected by his grandfather’s death.  The applicant said that during the period he had been suffering from depression. 

5. The delegate refused the applicant’s application on the basis of his lack of academic progress, study history, and immigration history, and formed the view that there was a lack of value in the courses for his future, ultimately leading the delegate to the view that the applicant was not a genuine applicant for entry and stay as a student. 

6. On 4 June 2014, the applicant applied for review of the delegate’s decision by the Tribunal.  The applicant attended for a hearing, and the matter was adjourned to allow the applicant to submit a report by a psychotherapist.  Following that report the Tribunal invited the applicant to a further hearing, which was ultimately held on 26 August 2015. 

7. On 1 September 2015, the Tribunal affirmed the decision of the delegate to refuse the applicant’s visa application. In considering the matter, the Tribunal identified the relevant visa conditions, and importantly considered Direction No. 53, made under s.499 of the Migration Act 1958, which provides for relevant considerations in assessing the genuine temporary entry criteria for student visa applications. 

8. The Tribunal set out that the applicant had completed his secondary education in Australia, obtaining a score of 82.90 on his Victorian Certificate of Education, and had commenced studies at Monash University, continuing until he was excluded in April 2013. 

9. The Tribunal had regard to his personal circumstances, but noted that he had no meaningful response to the proposition that it appeared that he had no motivation to study when his visa was not close to expiration, and that he only seemed able to find the motivation when facing expiration of his visa.  The Tribunal also had regard to the fact that his career aspirations were to work in his mother’s textile export and import business.

10. Most importantly, the Tribunal concluded that if the applicant were serious about studying it would not have taken him three years (until 2014) to seek out support and assistance, noting that it was only in the last four weeks before his visa expired that he took any active steps. 

11. The Tribunal took the view that the certificate of enrolment in the Certificate IV course was simply to obtain a further visa, and that having regard to the applicant’s study history and his likely role in his mother’s company.  This study would be only of peripheral value to him. 

Grounds of Application

1. The applicant lists three substantive grounds for judicial review (grounds 2 to 4), which are particularised in some detail as follows:

   1. The decision made by the Second Respondent on 1 September 2015 reaffirming the decision of the First Respondent to refuse the grant of a student (temporary) visa to the Applicant (“Decision”) contains jurisdictional errors by reason of which it is claimed that the Decision is not a “privative clause decision” within the meaning given by s 474(2) of the Migration Act 1958.

   2. It is a jurisdictional error that the decision-maker improperly used his power in making the Decision by failing to consider facts which he must consider pursuant to clause 572.223 in Schedule 2 of the Migration Regulations 1994 and Direction No.53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications.

   Particulars

   a. The decision-maker failed to consider fully the immigration history of the Applicant as filed by the Applicant and failed to place appropriate weight on the relevant factors.

   b. The decision-maker failed to consider fully the Applicant’s circumstances, including the Applicant’s ties to his him country and the value of the court to the Applicant’s future.

   c. The decision-make failed to consider many other relevant matters, including the Applicant’s failure to adapt to the new university education system, the parents’ divorce, the death of his grandfather, and the depression brought on by having the aforementioned events happened on after another and failed to place appropriate weight on these relevant factors.

   3. It is jurisdictional error that the decision-maker was being unreasonable in making the Decision

   Particulars

   a. The decision-maker was unreasonable and turning to irrelevant issue in limited the value of a bachelor degree to only people who wish to compete to get into corporations.

   b. the decision-maker was unreasonable in placing predominance in only one possible reason for the Applicant to enrol in an educational course 3 days before the expiry of his student visa.

   4. It is a jurisdictional error that the decision-maker was apparently biased.

   Particulars

   a. The decision-maker was apparently biased and discriminatory in decision that a bachelor degree is of peripheral value to a career in textile exporting and importing.

   b. The decision-maker was apparently biased in multiple occasions where the Applicant had given responses to the decision-maker’s questions, but the decision-maker did not appear to be willing to consider the responses and change his original opinions, and referred to the Applicant’s responses as indirect or meaningless responses. A reasonable person might reasonably apprehend that the decision-maker in making this particular decision was close-minded.

2. In the applicant’s written and oral submissions further issues arose beyond the grounds, which I will deal with separately. 

Ground Two

1. The applicant’s written submissions allege at [14] that:

   At no point in the hearing or in Decision 2, does the Tribunal make mention or apply weight to the applicant’s secondary school history, which is relevant to his Immigration history.

2. This is, at best, misleading in that the Tribunal at [29] referred to the applicant’s VCE studies, and the support that he received, enabling him to successful complete the VCE studies.  At [12] the Tribunal set out that the applicant completed his secondary education in Australia in 2010 and the score that he obtained.  In [15] to [41] of the applicant’s written submissions, his advisor makes lengthy and detailed submissions challenging the merits of the Tribunal’s decision.  The submissions do not appear to address whether or not there is a ground for judicial review rather than seeking merits review. 

Particular (a)

1. I note that the Tribunal did discuss the applicant’s immigration history at considerable length, not only mentioning his previous student visa but the circumstances surrounding his visa to study at Monash University. The reasons in this regard commence at [12]. There is no substance in this particular.

Particular (b)

1. The second particular is a claim that the Tribunal failed to have regard to the applicant’s circumstances including his ties to his home country and the value of the course to the applicant’s future.  The applicant’s ties to his home country were specifically dealt with in [33] of the reasons, and the value of the course to the applicant’s future was specifically dealt with in [32] of the reasons. 

Particular (c)

1. The third particular complains that the Tribunal failed to take account of the applicant’s failure to adapt to university education, and to take account of the impact of his parents’ divorce and the death of his grandfather and his depressive state. Again, these matters are all specifically considered by the Tribunal: the impact of university is dealt with at [26]; the divorce is referred to at [26] to [29]; the death of the applicant’s grandfather is referred to in [26]; and the applicant’s depression is also referred to. The Tribunal goes on to identify comments of the applicant’s psychotherapist at [28].

2. As counsel for the Minister points out in the submissions, the applicant’s real complaint appears to be a disagreement with the fact-finding of the Tribunal rather than identifying a failure of the Tribunal to have regard to a particular piece of evidence. 

3. To the extent that the ground seeks to proceed on the basis that the decision was illogical or so unreasonable that it passed the threshold for legal unreasonableness, the case of the applicant does not appear to me to be able to be sustained.  It was clearly open to the Tribunal to conclude that a person who had passed only two subjects and taken no other steps in three years was not a genuine student, even in light of the most recent enrolment in a Certificate IV course only days before the expiration of his visa, and the other circumstances that the applicant had put forward.

Ground Three

1. This ground alleges legal unreasonableness on the basis of a claim that the Tribunal limited the value of a bachelor’s degree to people who wished to obtain work in corporations and, found that it was unreasonable to draw an inference from the timing of the applicant’s certificate of enrolment in a lower level course that is adverse to the applicant. 

2. The applicant’s written submissions refer to [32] of the Tribunal’s decision in this regard, which provides:

   35. However, the tribunal does not accept that if the applicant was serious about studying, it would take him three years to 2014 to seek out support and assistance to build his capacity to study.  The tribunal does not accept that he did not know there were counselling and other support services available at Monash.  On the evidence the applicant did nothing to see or access support during the three years of his student visa.  His therapist notes that he was referred to Agape Psychocare on 13 March 2014 (f.46), around four weeks before his visa was to expire.

3. In the written submissions in support of this ground the applicant says:

   32. At para 32, the Tribunal comments that the applicant’s case is not advanced in relation to his future career plans, because the applicant has indicated that he was to work for his mother in her import-export business.  The Tribunal dismissed the applicants needs to study a bachelor course to work in his mother’s business because in his view there is no apparent need for a University degree for that type of business.  The applicant should have been given the opportunity to advance that there are other possible career options for him if he does not work for his mother.  In addition, the degree would be useful for many other positions in China where the labour market force is very competitive and even in his mother’s business to advance her operations.

4. It appears to me that the applicant misreads the Tribunal’s reasoning, which goes no further than identifying this particular applicant’s career plans, which are to assist his mother in her family import/export business and assesses the importance of a degree against those future career plans.  The Tribunal says nothing of the general benefits of a bachelor’s degree. 

5. With respect to the inferences drawn from the applicant’s late enrolment in the business studies, only days before his visa expired, there is no question as to the factual correctness of the sequence of events.  The only issue is the inference that should be drawn from it. 

6. It was logically open to the Tribunal to draw an inference from such late enrolment in a lower level course, after many years of inaction.  To conclude that in these circumstances the enrolment was simply for the purpose of extending a student visa rather than a serious desire to pursue tertiary studies was open to the Tribunal.  In circumstances where a person had obtained a score of over 82 on a VCE, and had obtained an enrolment at a prestigious university, it appears unlikely that they would then undertake a low level course if the impediment to their study was simply mental health issues that had now been addressed. 

7. Ultimately these are matters of assessment on the facts, which is in the province of the Tribunal.  It cannot be said that the Tribunal’s conclusions in this regard were illogical or legally unreasonable.  This ground is not made out.

Ground Four

1. In support of the fourth ground, the applicant alleges that the Tribunal displayed some form of bias against the applicant.  There is nothing in the Tribunal’s reasons to indicate any form of bias against the applicant.  The transcript of the Tribunal’s hearing was not placed before the Court.  It seems that this ground is, in substance, a further complaint against the merits merely expressed with hyperbole by claiming bias. 

Other Issues Raised

1. Counsel for the Minister identifies a number of other issues that can be said to have been raised in the written submissions and squarely addresses them, explaining why each is unable to form a proper basis for judicial review, saying:

   38.1 the applicant’s claim that the Tribunal did not take into account the applicant’s secondary school history is misconceived because:

   38.1.1 that matter was expressly referred to in the Tribunal’s reasons at paragraph [12], and formed the basis of the Tribunal’s reasoning concerning the applicant’s failure to access counselling and support services at Monash University in paragraphs [26], [29] and [35]-[36] of its reasons;

   38.1.2 the applicant’s remaining complaint concerning the weight the Tribunal gave to that information must fail for the reasons set out above; and

   38.1.3 the Tribunal was not otherwise required to inquire because that duty, if it exists, arises only where a matter is “critical” [FN: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)] in the sense that there is “insufficient information or material before a decision-maker and where, in the absence of such information or material, the making of a decision might constitute jurisdictional error” [FN: Jahangir v Minister for Immigration and Border Protection (2014) 222 FCR 91 at 100 [56] (Katzmann J)] and this case is not a case of that kind;

   38.2 the applicant’s complaint concerning inappropriate weight being given to the applicant’s mental health, his inability to study and the documents he provided must fail for the reasons set out above;

   38.3 the applicant’s complaint that he has been denied natural justice because the Tribunal was required to inform him of the weight it was intended to place on his evidence must fail as that is not “information” for the purposes of ss 359A and 359AA of the Act given that it involved the expression of the Tribunal’s doubt, or the inconsistencies in, or absence of, the applicant’s evidence; [FN: SZBYR v Minister for Immigration and Citizenship (2007) 235 alr 609 at 616 [18] (Gleeson, CJ, Gummow, Callinan, Heydon and Crennan JJ). See , also Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [50]-[52] (Mortimer J, Jagot and Bromberg JJ agreeing)] and

   38.4 the applicant’s complaint that the Tribunal was irrational in forming the view that the timing of the applicant obtaining a Certificate of Enrolment did not suggest that he was motivated to study is insufficient to establish irrationality because that was an inference that was reasonably open to the Tribunal.

2. I accept Counsel’s submission in this regard.

3. At the oral hearing, the applicant (who utilised an interpreter throughout) raised issues as to the importance of the course to his future career, saying that in China a Bachelor’s degree, if not a Master’s degree, is particularly important for career prospects. The applicant raised concerns that the psychologist’s report was not adequately considered by the Tribunal.  The applicant also makes a complaint that the Tribunal failed to have regard to the pressures of his family situation and that the Tribunal appeared to assess his future prospects on the basis of him working for his mother.

4. It is apparent that the Tribunal had regard to the psychologist’s report, specifically addressing it in its reasons at [28] and [34], even referring to the psychologist by name.  That the Tribunal did not draw the same inferences from the psychologist’s report as the applicant, is not a ground for judicial review, but a part of the fact-finding process.  That is, that the Tribunal must form its own view as to the facts on the evidence before it.  It is not uncommon that the Tribunal’s views on the evidence before it will differ to those put forward by an applicant who appears before a Tribunal.

5. The importance to the applicant of the particular studies are addressed at [32] of the decision.  The applicant does not identify elsewhere any material put before the Tribunal beyond that discussed in the decision.  In some ways, the argument that diploma studies are not sufficient for a person who wants to work in China, is a further argument against the applicant’s case: He had a score sufficient to obtain admission to a university and circumstances that arguably would have allowed him to seek to overturn his exclusion from Monash University or obtain entry to another university to undertake university level studies, but he chose to enrol in a diploma course at a time close to the end of his visa period.  If a diploma course is not enough in China and the applicant had the capacity to obtain entry to university, it appears inconsistent that he would have enrolled in a diploma course. 

6. The Tribunal referred to his family circumstances in many places in the Tribunal’s decision. 

Conclusion

1. In substance, the applicant’s submissions before me went to merits review rather than judicial review. 

2. In the circumstances of this case, I find that the applicant has not established a ground for judicial review and the application should be dismissed. 

3. It was agreed that costs would follow the event, fixed in the sum of $6,000.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 8 December 2017