Liang v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1272

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Liang v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1272

File number(s):

BRG 19 of 2022

Judgment of:

JUDGE EGAN

Date of judgment:

27 November 2024

Catchwords:

MIGRATION LAW – Whether the Tribunal conducted a proper hearing – whether the Tribunal erred in its findings – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss. 476(2)(a) and 476(4) Migration Regulations (1994) (Cth) cl. 500.212 and cl. 500.212(a)

Ministerial Direction No. 69

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210

Division:

Division 2 General Federal Law

Number of paragraphs:

26

Date of last submission/s:

15 November 2024

Place:

Brisbane

The First Applicant:

Xin Liang, appearing on her own behalf

Solicitor for the First Respondent:

Minter Ellison

The Second Respondent:

Giving a submitting appearance, save as to costs

ORDERS

BRG 19 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

XIN LIANG

First Applicant

XINRAN JIN

Second Applicant

ZHONGCHAO JIN

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	27 NOVEMBER 2024

IT IS ORDERED THAT:

1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The name of the second respondent be changed to “Administrative Review Tribunal”.  

3.The Originating Application for Review filed on 14 January 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

INTRODUCTION

1. The first applicant is a citizen of the People’s Republic of China aged about 43 years. She applied for a Student (Temporary) (Class TU) (Sub-Class 500) Visa on or about 19 August 2019. The success of the Visa applications concurrently made on behalf of the members of the first applicant’s family unit was dependent upon the success of the first applicant’s visa application.

2. The first applicant first arrived in Australia on or about 28 February 2013 on a Student (Temporary) (Class TU) (Sub-Class 573) Visa. The first applicant was granted a further Sub-Class 573 visa on 11 September 2014 and 17 March 2015.

3. On 21 August 2015, the first applicant was granted a Temporary Work (Skilled) (Class UC) (Sub-Class 457) Visa which was valid until 21 August 2019.

4. On 19 August 2019, the first applicant applied for a Student Visa. The first applicant’s stated intention was to obtain the visa so as to study for a Master of Business Administration (MBA) at Kaplan Business School.

5. On 8 November 2019, a delegate of the Minister refused the visa application. The delegated found that the applicant had not satisfied the relevant criteria in cl. 500.212(a) of Schedule 2 to the Migration Regulations (1994) (Cth) (“the Regulations”).

6. Upon review, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the decision of the delegate, also finding that it was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl. 500.212 of Schedule 2 to the Regulations. Clause 500.212 relevantly provided as follows:

   500.212  

   The applicant is a genuine applicant for entry and stay as a student:

   (a)  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

   (b)  because the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)  the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)  the applicant's stated intention to comply with any conditions to which the visa may be subject; and

   (c)  because of any other relevant matter.

7. On 14 January 2022, the applicants filed an Originating Application for Review of the decision of the Tribunal.

   GROUNDS OF REVIEW

8. The grounds of review relied upon by the first applicant at the time of the hearing before the Court were as follows:

   Grounds of application (see Instructions for completion)

   1.The AAT member Ignored my statement about my advantages of employment in China and my disadvantages of employment in Australia, the member unilaterally draws a conclusion that, personally, the employment income in Australia is higher than that in China. I explained to the member the differences of the working opportunities for me between AU and China. But he just ignored the fact.

   2.The AAT member state: "The purpose of a student visa is to come to this country to undertake study which is to be completed in a timely fashion and return home. The applicant by making this visa application has not sought to do that. In fact she did not undertake any studies from the time of applying for the visa in August 2019 through to getting enrolled in September 2021. Her actions indicate there is a large gap in studies which is inconsistent with the policy of granting a student visa." The member did not consider the influence of the change of external environment on me. I explained at the hearing including the uncertain environmental factors. Back to the time when I was refused to be granted the student visa, I didn't know how long I have to wait to get the results. It could be just 3 to 4 months. If I started my study at that time, I was afraid I might have to drop out hallway through my studies. This period also involves changes in the overall external environment including the COVID19 pandemic. The impact of these external circumstances is immediate and obvious. Before the pandemic, I tried to apply for the MBA in JCU to continue my study, but I was refused by JCU. However. when I tried to apply again in Sep 2021, I was successfully admitted and awarded a scholarship by JCU. After that, I started my studies immediately.  The AAT member ignored these facts which led to the irrational decision.

   3. In the refusal notification, the AAT said: "In the circumstances the Tribunal accepts that if the applicant completes the Master of Business Administration it will improve her employment prospects and level of remuneration back in China." This is one of the main reasons why I try to complete my MBA study before I back to China. The Tribunal accepted this important fact then draw a totally opposing decision which was illogical.

   4. In the refusal notification, the AAT said: "The applicant in the Response set out the reasons for undertaking the MBA here in Australia rather than back home in China for the following reasons; a. that Australia is the most advanced country with world class education, excellent living quality and friendly people and a great climate; and b. she has studied several MBA courses at James Cook University and she did not want to give up half way and she desires to continue her course in Australia." The AAT member ignored the fact that I am continuing my MBA studies at JCU. He just focused on the past not on the current. This is one-sided and not objective.

   5. During the hearing of AAT, the member asked wrong questions. after I explained why I didn't start my MBA study immediately after I finished my work, the member asked me:· Do you think I will believe you?" I believe this shouldn't be a question at a hearing. It showed the member's actual bias on me. I just stated the facts of what had happed in my life, the member asked this question in an unacceptable way which made me so nervous. I even wondered If I had misheard. then I double checked with the interpreter and confirmed this shocking question was indeed raised by the member. This question hit me hard which let me feel no matter what I say, he will not believe me, and I was not treated fairly.

   6. In the IMMI refusal notification letter, the Department officer said:" I find the proposed course will not assist the applicant in improving employment prospects as a hotel manager in their home country." This was wrong. My career plans go beyond hotel management. I explained in my statement as the following: "I reluctant to abandon my career in engineering, however, considering leaving that field a few years, I am worried about my knowledge cannot keep up to date on the latest development in that field. 111back to China, what I will seek for my future career will be mainly focused on management, not only engineering management but also business administration. Considering China is a country that attaches great importance to education, lacking support from my education background of business administration, will be an obvious disadvantage in my future career:

   7. In the IMMI refusal notification letter, the Department officer said:" The applicant herself said in her statement "I am quite familiar with Australian culture and I also found that the culture attracted me a lot·. The family appear to have become accustom to the Australian lifestyle, and I find that their circumstances in Australia outweigh any incentive for them to depart. This is a one-sided interception of my statement, which just quote a remark out of the context and leave out the main points. In my statement, I did say "I am quite familiar with Australian culture and I also found that the culture attracted me a lot." However, this is a comparison between Australia and other destination countries such as Canada and USA, not with my home country. In the context of the preceding paragraph, I made it clear why I chose Australia as my study destination. This is only an option for study purposes, not for permanent residence. I believe that the decision-maker ignored relevant material relied on irrelevant material.

9. The grounds of review replicated paragraphs [1] – [7] inclusive of the first applicant’s affidavit filed on 14 January 2022.

10. The first applicant did not file any written submissions. She made oral submissions at the time of the hearing. Those submissions constituted complaints about the conduct of the hearing before the Tribunal member. It was also asserted that the Tribunal member was biased. There was no evidence before the Court that either such submission was of merit. Such allegations have not been made out.

11. At [10] of its reasons, the Tribunal recorded that when considering whether an applicant had satisfied cl. 500.212(a) of Schedule 2 to the Regulations, the Tribunal was required to have regard to Ministerial Direction No. 69 which provided that a decision maker should have regard to:

    (a)The applicant’s circumstances in their home country;

    (b)The applicant’s potential circumstances in Australia;

    (c)The value of the course to the applicant’s future;

    (d)The applicant’s immigration history;

    (e)Any other relevant matter.

12. In its reasons, the Tribunal dealt with each of the above criteria.

    The applicant’s circumstances in her home country.

13. At [17] of its reasons, the Tribunal recorded that prior to coming to Australia, the first applicant had completed a Bachelor of Coal and Chemical Engineering from the Anshan University of Science and Technology in China. That course was completed between September 1998 and July 2002. It also recorded that between August 2002 – February 2013, the applicant had worked at Acre Coking and Refractory Engineering Plant in Engineering Design earning the equivalent of AUD $45,000.00 per annum. At [34], the Tribunal recorded that the first applicant had given evidence that wage levels in Australia were higher than those in China. It also recorded that the applicant had given evidence that economic conditions in China were more favourable than those in Australia and that that constituted a significant incentive for her to return to China. At [35] of its reasons, the Tribunal noted that the applicant had returned to China on five (5) occasions for a total sum of 122 days over a period of 8 years and 10 months since she had first come to Australia. At [36] of its reasons, the Tribunal recorded that the applicant had indicated to the Tribunal that she and her husband owned two apartments in China which had a value of $600,000 as compared to a house owned by the first applicant and her husband in Brisbane which was valued at $750,000. The first applicant in oral submissions indicated that the Brisbane property was mortgaged, but there was no evidence before the Court as to the extent of any indebtedness of the first applicant and her husband in respect of any such claimed mortgage. At [37] of its reasons, the Tribunal recorded that she had no concerns about returning to China. She did not face military service commitments, and she claimed that there was no political or civil unrest in China. At [39] of its reasons, the Tribunal noted that the applicant and her husband were married in 2003. At [40] of its reasons, it was recorded that the first applicant had a mother and father in China who she had not seen since January 2020. The applicant claimed to have been in daily contact with her parents via telephone calls and social media.

    The applicants’ potential circumstances in Australia.

14. As earlier indicated, the first applicant and her husband owned a property in Brisbane. The first applicant’s husband and daughter lived with her, the husband being employed in the construction industry, and the daughter attending secondary school in Brisbane. Though the first applicant was able to obtain enrolment in August 2019 at the Kaplan Business School shortly before applying for a visa, she did not commence study in that course. At [22] of its reasons, the Tribunal recorded that the applicant next enrolled for study in a Master of Business Administration (MBA) course on 10 September 2021, that being ten (10) days before the hearing before the Tribunal. It was noted that if the MBA course was completed by the first applicant by the end date of that course on 5 January 2023, the first applicant would have been in Australia on temporary visas over a 10 year period, something which was inconsistent with her stay being only temporary. The first applicant’s husband was earning in the vicinity of $700 per week.

    Value of the course to the applicants’ future.

15. At [18], the Tribunal noted that the first applicant had completed a Master of Engineering Management at Queensland University of Technology in December 2014. At [19] of its reasons, the Tribunal recorded that the applicant had worked as an assistant at Angus Gao from May 2013 – July 2014, and as an assistant at the MH Hotel from July 2014 – February 2015. Her position changed to a hotel management role for MH Hotel, and her salary increased to $60,000 per annum. At [26] of its reasons, the Tribunal noted that before enrolling in the Master of Business Administration (MBA) course in September 2021, the first applicant had already obtained a Master of Engineering Management in December 2014. Such constituted a change over time in the first applicant’s career pathway.

16. At [27] of its reasons, the Tribunal noted that the first applicant recorded that Australia was the most advanced country with world class education, excellent living quality, friendly people and a great climate. At [28] – [31] of its reasons, the Tribunal found as follows:

    28.The difficulty with such explanation is that the applicant ceased her studies back in 2015 in the Master of Business Administration course at James Cook University and she has had more than ample opportunity to complete those studies at least from 2018 to 2021. The applicant claimed that she did not know she could undertake those studies during that time and claims that her visa status was uncertain whilst there was a visa refusal. The applicant did not lead any evidence of any applications she had made and the Tribunal notes that the applicant was able to obtain enrolment 10 days before the hearing in this matter. In those circumstances it does not accept the applicant’s explanation for not being enrolled.

    29.The purpose of a student visa is to come to this country to undertake study which is to be completed in a timely fashion and return home. The applicant by making this visa application has not sought to do that. In fact she did not undertake any studies from the time of applying for the visa in August 2019 through to getting enrolled in September 2021. Her actions indicate there is a large gap in studies which is inconsistent with the policy of granting a student visa.

    30.Further the Tribunal does not accept her explanation for not undertaking studies back at home. Whilst the education in Australia might be at a high level it cannot be said she was halfway through her course at James Cook University and there is no reason why she cannot undertake those studies back in China. Whilst she may not obtain the same financial incentive that she would receive if she completed those studies here in Australia that does not provide reasonable motivation for undertaking those studies here in Australia.

    31.The applicant has lived in Australia for the last 8 years and 10 months and she has a substantial degree of knowledge about living in Australia. When questioned about the course, the applicant claims that she has previously been enrolled in a Master of Business Administration and studied the course at James Cook University back in 2015. The Tribunal accepts by reason of her experience with the course and the provider that she has a

    
    

    substantial degree of knowledge about them.

    The applicants’ immigration history.

17. At [40] of its reasons, the Tribunal noted that though the applicant had lived in Australia over a period of 8 years and 10 months, the first applicant was intending to remain in Australia for a further 13 months to complete a course of study in circumstances where her family unit had developed stable ties in Australia. The Tribunal found that the ties to China did not present a significant incentive for the family to return home there. The first applicant had previously applied for a Permanent 186 Visa on 6 November 2017. At [42] – [45] of its reasons, the Tribunal found as follows:

    42.The applicant in the Response identified that she has previously been refused a visa for the purposes of obtaining a permanent 186 visa which was refused on 6 November 2017. The applicant gave evidence that the visa was refused because the nomination of her sponsor was refused by the Department and as a consequence she claims that she withdrew the application. The applicant claims that otherwise she has not had any other visa refusals or cancellations other than this one before the Tribunal. Having considered her circumstances here in Australia and that she was on a 457 visa for a period of approximately 4 years the Tribunal does not make any adverse findings against the applicant by reason of the refusal of the 186 visa and considers that there is nothing else before the Tribunal from the Decision Record to indicate that she had any other immigration issues either in or outside of Australia that would result in an adverse finding being made against the applicant.

    43.In light of the applicant’s application for a permanent visa and having regard to the fact that the applicant could have undertaken studies from when she ceased employment at MH Hotel in September 2018 but has not commenced any studies until September 2021 the Tribunal considers that notwithstanding the applicant is undertaking a high level and expensive course, being a Master of Business Administration, that she is doing so for the purposes of maintaining her residency here rather than for the purposes of genuinely studying here in Australia. If the applicant had genuinely wanted to study the Master of Business Administration she could have commenced it sometime earlier and completed it before the hearing in this Tribunal.

    44. Based on the above matters the Tribunal is not satisfied the applicant has made this application to gain a student visa to study temporarily and it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain here permanently.

    45. The Tribunal considers the above circumstances are consistent with a motivation to remain here on a permanent basis and not a temporary basis.

    FINDINGS

1. The complaints of the first applicant amount to an invitation to the Court to undertake an impermissible merits review.

2. Grounds 1, 2 and 4 were not clearly articulated grounds of review. [1] The Tribunal did consider all of the issues raised in each of the above grounds. It undertook a reasoned and considered examination of all of the evidence before it, and thereafter made a decision contrary to the submissions of the first applicant. The first applicant did not demonstrate that the Tribunal had erred in any respect. Those grounds are without merit.

   Ground 3 in effect asserts illogicality or irrationality on the part of the Tribunal. The Court finds that the Tribunal appropriately addressed the issues raised in Ministerial Direction No. 69 relative to the first applicant’s visa application. It did so in a considered and reasonable way. There was no basis for any submission or claim that in arriving at its decision, the Tribunal engaged in extreme illogicality or irrationality. [2]

   [1]           HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13] per Spender,

   [2]           SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [52] – [56] and [61].

3. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:

   “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

   [61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”.

4. There was no merit to this ground of review.

5. The bias claim as set out in ground 5 lacks any evidentiary basis. The Court accepts the submission made on behalf of the first respondent that it is only in a rare and exceptional case that bias can be demonstrated from the published reasons for decision. [3] An examination of the reasons for judgment does not disclose any basis for such a finding. There was no merit to such claim.

   [3]           SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per

6. By grounds 6 and 7, the first applicant takes issue with the decision of the delegate of the Minister. This Court, as was correctly submitted on behalf of the first respondent, has no jurisdiction to review a delegate’s decision, as it is a primary decision by reason of the provisions of ss. 476(2)(a) and 476(4) of the Migration Act 1958 (Cth) (“the Act”). There is no merit to such grounds.

7. The applicants have failed to establish jurisdictional error on the part of the Tribunal.

8. The grounds of review are dismissed in respect of each of the applicants.

9. The Court will hear the parties as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       27 November 2024

            Merkel and Allsop JJ.

            von Doussa J.