Lim v Minister for Immigration

[2020] FCCA 1987

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1987

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of student visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.359

Migration Regulations 1994 (Cth)

First Applicant: LENNY LIM

Second Applicant GUNARDI TRAVOLTA

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3131 of 2019

Judgment of: Judge Driver

Hearing date: 21 July 2020

Delivered at: Sydney

Delivered on: 21 July 2020

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms M. Kelly of Sparke Helmore

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

2. The applicants are to pay the first respondents costs and disbursements of and incidental to the application, in the sum of $3,737 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.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3131 of 2019

LENNY LIM

First Applicant

GUNARDI TRAVOLTA

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicants, Ms Lim and her husband Mr Travolta, seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 20 November 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants’ temporary student visas.  Background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions.

Background

1. Ms Lim, a citizen of Indonesia, arrived in Australia on 24 September 2008 as the holder of a student (Class TU) (Subclass 572) visa. Since her arrival, Ms Lim has been granted a further three student visas and associated bridging visas. Mr Travolta is Ms Lim’s husband, and was included in the visa application on the basis of being a member of Ms Lim’s family unit.

2. The applicants applied for the visa on 19 September 2017.[1] On 9 January 2018, the delegate refused the application.[2] The delegate refused to grant the visa as they were not satisfied Ms Lim met the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In respect of Mr Travolta, the delegate refused to grant the visa as he did not satisfy clause 500.311 of the Regulations, that is, he was not the member of a family unit of a holder of a student visa.

   [1] Court Book (CB) 1-18

   [2] CB 30-36

3. On 9 January 2018, the applicants applied for review of the delegate’s decision.[3] On 1 October 2019, the Tribunal invited the applicants to provide, via a “Request for Student Visa Information” form, information about the course(s) of study undertaken by Ms Lim and Ms Lim’s entry and stay in Australia as a student.[4] In response, Ms Lim completed and submitted the “Request for Student Visa Information” form and also provided supporting photographs and various academic documents.[5]

   [3] CB 37-38

   [4] CB 42-44

   [5] CB 50-64

4. On 31 October 2019, the Tribunal invited the applicants to attend a hearing before it via telephone, scheduled for 15 November 2019.[6] Ms Lim provided a response to the hearing invitation, dated 4 November 2019.[7] On 15 November 2019, both applicants appeared before the Tribunal by telephone.[8]

   [6] CB 66-68

   [7] CB 71-73

   [8] CB 74-76

5. On 15 November 2019, after the conclusion of the hearing, Ms Lim provided the Tribunal with further written evidence.[9] On 20 November 2019, the Tribunal affirmed the delegate’s decision.[10]

   [9] CB 77-78

   [10] CB 81-86

Tribunal decision

1. The Tribunal identified that the issue on review was whether Ms Lim was a genuine temporary entrant and met clause 500.212 of the Regulations.[11] In considering this issue, it was to have regard to the factors set out in Ministerial Direction No. 69.[12]

   [11] CB 82 [6]-[7]

   [12] CB 83 [8]

2. The Tribunal summarised the evidence given by the applicants at the hearing.[13] Ms Lim confirmed that she understood the issue for determination was whether she was a genuine temporary entrant. She gave evidence regarding: the courses she had completed; that she wished to open a tourism business; her work in Australia; her family in Indonesia, and her assets.[14] Ms Lim declined the opportunity to provide any further evidence.[15] The Tribunal recorded that Mr Travolta declined the opportunity to provide any evidence.[16]

   [13] CB 83-84 [10]-[16]

   [14] CB 83-84 [10]-[15]

   [15] CB 84 [15]

   [16] CB 84 [16]

3. The Tribunal had regard to the relevant factors of Ministerial Direction No. 69,[17] and found as follows:

   a)Ms Lim was able to demonstrate ties to Indonesia which would act as an incentive to return there. However, the Tribunal was not satisfied, given the time she had already spent in Australia (of over 11 years) and the intended stay period, that there was a significant incentive for her to return to Indonesia;[18]

   b)the length of time and proposed additional stay created serious concern that Ms Lim was studying for the purposes of extending her stay in Australia, which the Tribunal did not consider to be the conduct of a genuine student;[19]

   c)the Tribunal did not place weight on the value of the course to Ms Lim’s future, as she provided “extremely vague” evidence as to remuneration and career prospects of the course in her home country;[20]

   d)having considered Ms Lim’s study history since her arrival, the Tribunal indicated that Ms Lim’s course plan was inconsistent with her plans when she initially arrived in Australia. The Tribunal noted Ms Lim’s wish to pursue an advanced diploma in accounting and that this course was asserted by Ms Lim to have relevance to very vague future plans;[21]

   e)the Tribunal was not satisfied that Ms Lim had established that the proposed course of study would provide her with significant benefits to her proposed career plan or have a realistic prospect of providing significant value to her future beyond the qualifications she already holds;[22] and

   f)the Tribunal found that there were no other relevant matters to consider that may be beneficial or adverse to Ms Lim.[23]

   [17] CB 84 [17]

   [18] CB 84 [18]

   [19] CB 84 [19]

   [20] CB 85 [20]

   [21] CB 25 [21]

   [22] CB 85 [22]

   [23] CB 85 [23]

4. After weighing up these factors, the Tribunal found that Ms Lim had not been able to satisfy it that she genuinely intended to stay temporarily in Australia as a student.[24] The Tribunal could not be satisfied, given the disparity in the economic circumstances between Australia and Indonesia, that Ms Lim had a significant incentive to return to Indonesia. The Tribunal also found that Ms Lim was unable to demonstrate substantial ties or personal assets in her home country, which diminished her incentive to return.[25]

   [24] CB 85 [24]

   [25] CB 85 [25]

5. The Tribunal expressed concern that Ms Lim’s intention to live in Australia was motivated by factors other than study. The Tribunal was not satisfied that Ms Lim had demonstrated any clear and substantial improvements from her study and therefore had failed to demonstrate the value of the proposed course on her future.[26]

   [26] CB 85 [26]

6. Having regard to all the information provided by Ms Lim, the Tribunal found there was no other relevant matter to the assessment of Ms Lim’s intention. On balance, the Tribunal was not satisfied that Ms Lim had demonstrated she was a genuine temporary entrant.[27]

   [27] CB 85-86 [27]

7. The Tribunal concluded that Ms Lim was using the student visa program as a means of maintaining ongoing residence in Australia, and that she did not have a genuine intention to stay temporarily.[28]

   [28] CB 86 [28], [30]

8. Accordingly, the Tribunal found that Ms Lim did not meet cl 500.212(a) of the Regulations.[29] In those circumstances, the Tribunal found that Mr Travolta did not satisfy the requirements of clause 500.311 of the Regulations.[30]

   [29] CB 86 [32]

   [30] CB 86 [33]

9. These proceedings began with a show cause application filed on 29 November 2019.  The applicants continue to rely upon that application.  There are two grounds in it: 

   1. The Second Respondents decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations

   Particulars

   a. The applicant applied for a review of his decision. As there was no consistency in processing time of the review applications, there was no way that the applicant knew of likely time frame to have a hearing allocated by the Second Respondent.

   b. The Tribunal failed to provide procedural fairness to the applicant in circumstances where it failed to take into account that the Tribunal failed to take into account the circumstances that led to his emotional state after the refusal of his visa. In the circumstances where the Tribunal failed to have proper regard to his emotional state it acted unreasonably.

   2. The second respondent made jurisdictional error in that it denied the applicant procedural fairness and did not consider the applicants emotional ability and did not give the applicant the opportunity to provide evidence of his sufficient evidence of English language profiency for the claims that the new course of study had more relevance to his career path.

(errors in original)

1. The applicants also rely upon an affidavit by Ms Lim filed with the application.  Annexed to that affidavit is a copy of the Tribunal decision.  I received the affidavit into evidence.

2. In accordance with procedural orders made by a Registrar, the Minister filed a court book on 14 February 2020.  Ms Lim denied receipt of the court book, although it was apparently sent to her by express post.  It transpired that the address for service shown in the show cause application was incomplete.  The address for service gave a street number but not an apartment number.  It is plausible, therefore, that the court book was not received.

3. I requested the Minister’s solicitor to email a copy of the court book to the applicants.  That was done and they received it.  I received the court book into evidence subject to relevance.  As matters transpired, the only relevant document is the Tribunal decision.  The Minister’s outline of submissions had been emailed to the applicants earlier this month.  They acknowledged receipt and that they had read the submissions.

4. I invited oral submissions from the applicants.  Ms Lim addressed her migration and study history.  Her recitation is consistent with the Tribunal’s findings.  Essentially, Ms Lim is concerned that the Tribunal did not grant her a visa to enable her to complete her studies in Australia.  Ms Lim confirmed that she is still undertaking the course for which she held a certificate of enrolment at the time of the Tribunal decision.  She is currently studying online.  Her express intention is to return to Indonesia after the conclusion of that course.  Ms Lim was not, however, able to expand upon the assertion of legal error by the Tribunal.  Mr Travolta declined the opportunity to make any oral submissions.

5. The Minister’s submissions deal adequately with the grounds of review advanced.  I agree with those submissions. 

6. Ground 1 asserts a denial of procedural fairness by the Tribunal that is said to arise under s.359 of the Migration Act and a failure to take into account relevant considerations. This ground is misguided and without merit. The Tribunal wrote to Ms Lim on 1 October 2019 and provided her the opportunity to complete a “Request for Student Visa Information” form pursuant to s.359 of the Migration Act.[31] Ms Lim returned the completed form to the Tribunal with attachments for consideration.[32]  In accordance with its statutory obligations, the Tribunal had regard to all of the information provided by the applicants in making its decision on review.[33] The applicants have not identified any relevant considerations or information which the Tribunal has failed to take into account in its reasons, or any breach of its statutory procedural fairness obligations.

   [31] CB 42-44

   [32] CB 50-64

   [33] CB 85 [24]

7. The first particular to Ground 1 contends that the applicants could not have known of the “likely” timeframe to have a hearing allocated, as there was no consistency in the processing time of review applications. There is no statutory timeframe within which the Tribunal was required to complete its review. Even if there was an inconsistency or unreasonable delay in the Tribunal’s conduct of the review (which is unproven) the applicants have not identified how this manifests as jurisdictional error. Ms Lim was ostensibly continuing to study her chosen course during the review period,[34] and neither applicant suffered any unfairness as a result.

   [34] CB 78, 83 [13]

8. The second particular of Ground 1 asserts that the Tribunal acted “unreasonably” in failing to have regard to the applicants’ emotional states after being refused a visa. Ms Lim never made a claim to the Tribunal regarding her mental state. There is otherwise no evidence that the applicants were unable to meaningfully participate in the Tribunal hearing due to their “emotional states”. The applicants’ contention that the Tribunal’s decision was unreasonable rises no higher than an expression of disagreement with that decision, and therefore fails to raise an arguable case for the relief claimed.

9. Ground 2 makes two contentions; (i) that the Tribunal made a jurisdictional error in failing to consider Ms Lim’s “emotional ability” and (ii) that the Tribunal failed to give Ms Lim an opportunity to provide evidence of her English language proficiency and the relevance of her new course of study to her career path. These contentions fail at a factual level.

10. First, Ms Lim never made a claim about her emotional ability.

11. Secondly, contrary to Ms Lims’ claim, the Tribunal gave Ms Lim the opportunity to put on further evidence. However, Ms Lim declined the opportunity.[35] Further, Mr Travolta also declined the Tribunal’s invitation to provide any evidence at the hearing.[36]  In any event, Ms Lim did give the Tribunal evidence regarding her study history, the course she proposed to study and the proposed business she intended to open upon completion of that course.[37] In those circumstances, this ground does not raise an arguable case for relief.

    [35] CB 84 [15]

    [36] CB 84 [16]

    [37] CB 83-84 [11]-[15]

12. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicants did not wish to be heard on costs.

14. I will order that the applicants are to pay the first respondents costs and disbursements of and incidental to the application, in the sum of $3,737 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.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 24 July 2020