Lim v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1133
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lim v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1133
File number(s): MLG 2575 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 4 December 2023 Catchwords: MIGRATION – application for judicial review – Student (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision of first respondent to refuse to grant applicant visa as applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal misunderstood the case being made by the applicant – where certain grounds raised by applicant entirely unparticularised – whether Tribunal incorrectly interpreted cl 500.212 – found Tribunal had regard to all relevant considerations and prescribed matters – found no jurisdictional error on behalf of the Administrative Appeals Tribunal. Legislation: Migration Act 1958 (Cth) ss 65, 474, 476, 476(4)(a), 499.
Migration Regulations 1994 (Cth) sch 2, cl 500.212.
Ministerial Direction 69 – ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs (2002) 96 ALJR 497
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 13 September 2023 Date of hearing: 9 August 2023 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Creedon of Australian Government Solicitor ORDERS
MLG 2575 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHEN HWEE LIM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed 28 August 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 28 August 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 31 July 2018. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to not grant the applicant a Student (Class TU) (Subclass 500) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a citizen of Malaysia.
The applicant arrived in Australia on 7 July 2016 on a Visitor (Subclass 601) visa.
On 15 August 2016 the applicant applied for the Visa. The applicant submitted to the Department a ‘Purpose of Study’ statement dated 1 August 2016.
On 24 November 2016, the delegate refused to grant the Visa on the basis that the applicant did not satisfy clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of Schedule 2 of the Regulations requires the delegate to be satisfied the applicant was a genuine temporary entrant.
On 7 December 2016 the applicant applied to the Tribunal for review of the delegate’s decision and appointed a registered migration agent. In the application for review, the applicant nominated the registered migration agent’s email address <[email protected]> (representative’s email address ) for correspondence and provided the mobile number “xxxxx xxx16”.
On the same day, the Tribunal sent the applicant’s migration agent confirmation of receipt of his application. The applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 26 March 2018 the Tribunal emailed the applicant’s migration agent enclosing an invitation for the applicant to attend a hearing on 24 April 2018 at 10.30am with an information sheet attached. The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a genuine temporary entrant (GTE). The hearing invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 24 April 2018 the applicant attended the hearing before the Tribunal with the assistance of an interpreter in the Mandarin and English languages. The applicant was assisted by their registered migration agent. At the hearing, the applicant provided the following documents to the Tribunal:
·a Student Visa - GTE Questionnaire;
·evidence of the applicant’s completed Australian qualifications;
·a copy of the applicant’s passport;
·three COEs, commencing 23 April 2018, 15 October 2018 and 15 April 2019; and
·a statement from Brighton Institute of Technology dated 23 April 2018.
On 31 July 2018 the Tribunal affirmed the decision of the delegate to refuse to grant the applicant the Visa.
Tribunal’s decision
On 1 August 2018 the Tribunal sent a copy of the decision record to the representative’s email address. The Tribunal identified that the issue was whether the applicant was a genuine applicant for entry and stay as a student, as provided for in clause 500.212 of Schedule 2 of the Regulations.
At the relevant time, clause 500.212 provided as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, 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
(iv)any other relevant matter; and
(b)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)of any other relevant matter.
In considering whether the applicant satisfied clause 500.212(a), the Tribunal had regard to Ministerial Direction 69 – ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act (Direction 69). The terms of Direction 69 required the Tribunal to have regard to certain matters including the visa applicant’s circumstances in their home country and their potential circumstances in Australia, the value of the course to the visa applicant’s future, the visa applicant’s immigration history, and where a visa applicant is a minor, the intentions of the visa applicant’s guardians or parents.
In its decision, the Tribunal considered the following factors in its reasons for finding the applicant did not satisfy the genuine temporary entrant criterion:
(a)In considering the applicant’s background and immigration history, the Tribunal noted the applicant had declared he was entering Australia for only 10 days, however, within five weeks of arrival he applied for a student visa. The Tribunal also considered the applicant’s claims to own property in Malaysia, but noted he had not provided any supporting evidence of this:[17]. Further, the tribunal noted the applicant declared he had never been married, but gave oral evidence that he is divorced and has three children:[18]. The Tribunal also had regard to the applicant’s evidence that he was an employee of a company but subsequently gave evidence that he owned the company:[19]. On the evidence, the Tribunal found the applicant gave knowingly false answers to questions in his visa application and in his ‘Purpose of Study’ statement, which “seriously” and “negatively” impacted his credibility:[21].
(b)In considering the applicant’s circumstances in his home country, the Tribunal found that given the applicant had not provided evidence in support of his claimed property ownership nor disclosed that he was once married and has three children, the property and children were not incentive enough for him to cease residence in Australia and return to Malaysia on completion of his studies:[22]-[24].
(c)In considering the applicant’s potential circumstances in Australia, the Tribunal found the applicant enrolling in a package of courses within weeks of arriving on a tourist visa indicated a degree of planning and preparation that was not consistent with somebody who originally intended to come to Australia for a 10-day holiday. The Tribunal also found there to be sufficient benefits to the applicant such that he would use the student visa program to maintain ongoing residence in Australia: [25]-[27].
(d)In considering the value of the course to the applicant’s future, the Tribunal found the applicant’s business success in the automotive industry without formal qualifications indicated he had an establish career and sought to use the student visa program to maintain ongoing residence in Australia, as opposed to his proposed desire to progress academically. Further, the Tribunal found that the applicant provided only vague statements of how his proposed studies in Australia would benefit his future career options:[28]-[29].
As a consequence of the above factors, the Tribunal made an overall finding that the applicant was using the Student visa program to maintain residence in Australia and therefore was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by clause 500.212.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 28 August 2018. The applicant seeks an order directing the Tribunal to determine the applicant’s application according to law.
The Application contains the following grounds for judicial review (without amendment):
1.Ignoring material the decision-maker was required to look at that is relevant legislation contained in the Migration Act and Migration Regulations 1994 (Ground 1)
2.Immigration and AAT failed to take account of relevant considerations (Ground2)
3.Incorrectly interpreting the clause 500.212 in Schedule 2 of the Migration Regulations (Ground 3)
4.AAT and Home Affairs Department erred at law (Ground 4)
The applicant also filed an affidavit on 28 August 2018, annexing the Tribunal’s decision.
The Minister filed a Response on 15 November 2018. The Response sought orders that the application be dismissed and orders as to costs on the ground that the decision under review is not affected by jurisdictional error.
The Minister also filed written submissions on 31 July 2023.
Following the hearing, with the leave of the Court, the following documents were filed:
(a)with the consent of the parties, a transcript of the Tribunal hearing prepared by the Minister;
(b)further written submissions with respect to the transcript by the Minister on 30 August 2023.
The applicant was provided an opportunity to file and serve written submissions with respect to the transcript by 13 September 2023, but did not do so.
THE HEARING
The hearing took place on 9 August 2023.
The applicant was self-represented and assisted by a Mandarin interpreter.
At the hearing the applicant was invited to elaborate on the grounds of review contained in Application. In particular, the applicant was invited to provide particulars of the legislation or materials which the Tribunal was said to have ignored, the relevant considerations the Tribunal failed to take into account, how the Tribunal had incorrectly interpreted clause 500.212 and the error of law asserted to have made by the Tribunal.
In response to this invitation, the applicant provided the following for consideration of the Court:
(a)In relation to Ground 1, the applicant said that the Tribunal failed to consider or misunderstood certain personal information and failed to take into account the applicant’s progress in his studies;
(b)In relation to Ground 2, he said that he hoped the Tribunal did not disregard the demands and requests in his application.
The matters raised in relation to Ground 2 do not identify any error on behalf of the Tribunal.
As to the matters raised in relation to Ground 1 regarding personal information, the applicant submitted that the Tribunal found that he was married and the father of three children. As I understand this submission, the applicant submits that in so finding the Tribunal misunderstood the facts. He submitted that his evidence before the Tribunal was that at the time he entered into Australia he was single. He conceded that he had previously been married and was divorced at the time he entered into Australia. In relation to being the father of three children, the applicant submitted that his evidence to the Tribunal was that his former wife was a single parent of three children when they married. Accordingly, he submits that his evidence to the Tribunal was that the children were not his children and the Tribunal misunderstood the facts.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1- personal information
It is well established that if the Tribunal misunderstood the case being made by a visa applicant that may give rise to jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs (2002) 96 ALJR 497 at [27] (Plaintiff M1). Having correctly understood the applicant’s representations, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker: Plaintiff M1 at [24].
In relation to the submission that the Tribunal misunderstood that the applicant was no longer married and was single, for the following reasons that submission must be rejected. As must any submission that the Tribunal found that the applicant was married, either at the time of entry into Australia or at the time of the hearing before the Tribunal.
At paragraph [18] of the Tribunal’s decision the Tribunal says:
The Tribunal notes that in the Student visa application the applicant declares that he has “never married”, yet in his oral evidence he admits to having been married, now divorced, and to be the father of three children from that marriage.
Further, at paragraphs [22]-[24] of its decision the Tribunal considers the applicant’s circumstances in his home country as part of its consideration of Direction 69. At paragraph [22] the Tribunal refers to the applicant’s “ex-wife” and “his previous marriage”, at paragraph [23] the Tribunal says that the applicant “did not disclose the fact that he was once married...”
Accordingly, it is clear that the Tribunal understood that the applicant had been married but was now divorced. The Tribunal did not misunderstand the facts in this regard.
As to the applicant’s submission that the Tribunal found that his ex-wife’s children were his children, the Tribunal in its decision at paragraph [18], as set out above, said that the applicant’s oral evidence was that the applicant “admits to having been married, now divorced, and to be the father of three children from that marriage.” At paragraph [22] the Tribunal says “The applicant’s three children live in Malaysia…” and refers to the applicant’s failure to disclose “his previous marriage and the existence of his children in his visa application.” At paragraph [23] of its decision, the Tribunal said:
Given that the applicant did not disclose the fact that he was once married and is the father of three children, the Tribunal finds that his children are not incentive enough for him to consider returning to Malaysia on completion of his studies.
The transcript of the hearing discloses that the following exchange occurred between the applicant and the Tribunal member regarding the applicant’s family situation in Malaysia:
Member: Do you have children?
Applicant (English): yes
Member: How many children do you have?
Applicant (in English): Three. Three girls.
Member: How old are they?
Applicant (in English): 1 year, 2 year, 3 year
Member: So, you had three girls in the three years you were married?
Applicant (in English): Starting in the first.
Member: And where does your ex-wife and the children live?
Applicant (in English): Live?
Member: Where do they live?
Applicant (in English): JB. Johor Bahru.
Member: Do you see the girls? Do you have visiting rights? Do you see them on set days or how much time do you spend with your children?
Applicant: If I contact with her, I can see my children. But if I'm studying, too busy, then no contact and I can't see the children.
Member: So, it's quite relaxed? Your ex−wife allows you to see the children whenever you can and whenever you want to?
Applicant: Correct.
Member: And you live in JB?
Accordingly, the Tribunal’s summary of the applicant’s evidence in relation to his children is accurate and the findings made by the Tribunal at [18], [22] and [23] of its decision were open to it on that evidence.
Ground 1 - Progress of study
As to the applicant’s contention that the Tribunal failed to consider the progress of his studies, that submission must be rejected for the following reasons.
At paragraph [12] of its decision, the Tribunal sets out the applicant’s evidence of his current studies which was before the Tribunal, being:
·GTE questionnaire of 24 April 2018 completed by the applicant;
·evidence of the Applicant’s completed Australian qualifications;
·copy of Applicant’s passport (bio-data page);
·COEs as evidence of the Applicant’s current studies in:
·Certificate III in Light Vehicle Mechanical Technology (23/04/2018l – 14/10/2018);
·Certificate IV in Automotive Mechanical Diagnosis (15/10/2018 – 14/04/2019);
·Diploma of Automotive Management (15/04/2019 – 14/04/2020)
At paragraph [17] of its decision the Tribunal says that the applicant “proceeded to enrol in a course of study…” At paragraph [25] of its decision the Tribunal says that the applicant “enrolled in a package of courses”.
At paragraph [33] the Tribunal said:
Overall, given the applicant’s lack of full disclosure in his Student visa application and in his written statement to the Department, together with his study history and immigration history, his potential circumstances in Australia, and the lack of value of the courses to his future, the Tribunal finds that the applicant is using the Student visa program to circumvent permanent migration programs.
Accordingly, the Tribunal outlined the courses of study undertaken by the applicant and had regard to them in reaching its conclusion that the applicant was using the student visa program to circumvent permanent migration programs and did not intend genuinely to stay in Australia temporarily.
Grounds 2-4
Grounds 2, 3 and 4 are entirely unparticularised. Further, at the hearing the applicant was unable to identify what considerations the Tribunal failed to take into account, how the Tribunal had incorrectly interpreted clause 500.212 or how the Tribunal erred at law. This alone is a sufficient basis for theses grounds to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
Further, in so far as Grounds 2 and 4 asserts that the delegate or the Department erred, the delegate’s decision cannot be judicially reviewed by this Court as it was a “primary decision” within the meaning of s 476(4)(a) of the Act, in that it is a privative clause decision reviewable under Part 5 of the Act: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363 at [20].
The Minister submits that, in any event, the Tribunal correctly applied the law and took into account the applicant’s evidence when considering the relevant considerations in cl 500.212, and informed by Direction 69. For the reasons that follow, I accept that submission.
In its decision, the Tribunal had regard to the applicant’s:
(a)background, study and immigration history at paragraphs [17]-[21];
(b)circumstances in his home country at paragraphs [22]-[24];
(c)potential circumstances in Australia at paragraphs [25]-[27]; and
(d)the value of the course to the applicant’s future at paragraphs [28]-[30].
At paragraph [31] of the Tribunal’s decision the Tribunal found that there were no adverse reasons pertaining to certain factors indicated by Direction 69 that would prevent the applicant from “returning to India” and made no findings against the applicant based on:
(a)any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;
(b)circumstances in the home country relative to Australia or any other country; or
(c)the applicant’s circumstances in the home country relative to others in that country.
It is convenient at this point to address the Tribunal’s reference in paragraph [31] to the applicant “returning to India.” This is clearly an error. The applicant’s home country is Malaysia. At paragraph [15]-[17], [22]-[23], [27] and [29] of its decision the Tribunal correctly refers to the applicant’s Malaysian nationality. Accordingly, it is apparent from the Tribunal’s reasons, when read as a whole, that the Tribunal properly understood the applicant to be of Malaysian nationality and assessed his claims on that basis. As such, the error in paragraph 31 is not sufficiently material to the Tribunal’s reasoning such that it can be seen to be an exercise of decision-making power not in accordance with that which is required under the statute: Nathanson v Minister for Home Affairs [2022] HCA 26.
The Tribunal applied Direction 69 by considering the relevant matters as they arose on the facts of the case before it. The Tribunal is not required to consider every factor in Direction 69 as a checklist: Kaur v Minister for Home Affairs [2019] FCA 2026 at [30] and [31] (per Steward J) and Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [13]-[15] (per Middleton J).
The Tribunal did not accept on the evidence before it that the applicant was a genuine applicant for entry and stay as a student who intended genuinely to stay in Australia temporarily, having regard to the matters described in clause 500.212(a) and Direction 69. In particular, the Tribunal did not accept that the applicant satisfied the genuine temporary entrant criterion because:
(a)the lack of evidence to support the applicant’s claim to own a car and a property in Malaysia led the Tribunal to doubt whether the applicant did indeed own property in Malaysia and further as real estate may be readily sold, transferred or used to produce income in the form of rent, concluded that a holding of such property is not an effective incentive to cease residence in Australia (at paragraph [22]);
(b)the applicant did not disclose the fact of his former marriage and that he was the father of three children such that his children were not incentive enough for him to consider returning to Malaysia on completion of this studies (at paragraph [23]);
(c)the Tribunal did not accept that a person travelling as a tourist for a visit of a short duration, leaving immediate family in their home country, would make such a significant change from their initial intent of a 10 day holiday (at paragraph [26]);
(d)although the economic and social differences between Australia and Malaysia are not significantly divergent, there were sufficient benefits available to the applicant by residing in Australia for him to seek to use the student visa program to maintain ongoing residence in Australia (at paragraph [27]);
(e)the applicant had not disclosed the true nature of his established automotive career in Malaysia (including his ownership of an automotive business) and otherwise provided vague statements of how his proposed studies in Australia would benefit his future career options (at paragraphs [28]-[29]).
At paragraphs [33]-[36] of the Tribunal’s decision, the Tribunal said:
Overall, given the applicant’s lack of full disclosure in his Student visa application and in his written statement to the Department, together with his study history and immigration history, his potential circumstances in Australia, and the lack of value of the courses to his future, the Tribunal finds that the applicant is using the Student visa program to circumvent permanent migration programs.
As a consequence the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student having a genuine intention to stay in Australia temporarily.
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and consequently the applicant does not satisfy cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
As the Tribunal was not satisfied that the applicant met the criterion in sub-clause 500.212(a), the Tribunal was not required to consider whether the applicant satisfied the criteria in subclauses 500.212 (b) and 500.212 (c). Upon the Tribunal determining that the applicant did not satisfy the criteria in subclause 500.212 (a) the decision making process was complete as the applicant failed to establish an essential element of clause 500.212: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 at [35].
The Tribunal, therefore, did not overlook or fail to consider any relevant prescribed matters, nor any relevant considerations and otherwise made its decision on a correct interpretation and application of clause 500.212.
Accordingly, no jurisdictional error on behalf of the Tribunal is disclosed.
The application before this Court therefore cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
Costs are sought by the Minister. I will order that the applicant pay the first respondent’s costs fixed in the sum of $6,000.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 4 December 2023
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