LU v Minister for Immigration

[2016] FCCA 2043

FEDERAL CIRCUIT COURT OF AUSTRALIA

LU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2043

Catchwords:
MIGRATION – Application for a Student (Temporary) (Class TU) visa – review of decision of Migration Review Tribunal – whether the Tribunal fell into jurisdictional error for not giving the applicant additional time to submit documentary evidence – whether a claim of incorrect translation services provided to the applicant at the Tribunal hearing affected the Tribunal’s decision – whether the Tribunal considered all of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.360
Migration Regulations 1994 (Cth), cl.572.227 of sch.2

Cases cited:
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35

Applicant: YANG LU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 982 of 2015

Judgment of: Judge Smith

Hearing date: 23 May 2016

Date of Last Submission: 23 May 2016

Delivered at: Sydney

Delivered on: 26 August 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms P Blackadder, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 982 of 2015

YANG LU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of the People’s Republic of China who arrived in Australia in August 2014.

2. He applied for a Student (Temporary)(Class TU) visa on 19 August 2014 to undertake study in Australia. The applicant sought to study courses in General English and in an IELTS[1] preparation course followed by an Advanced Diploma of Management.

   [1] International English Language Testing System.

3. A delegate of the Minister made a decision not to grant the applicant a student visa on 29 August 2014 and the applicant applied to the Migration Review Tribunal[2] for review of that decision. The Tribunal made its decision on 16 March 2015 affirming the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.

   [2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Tribunal’s decision

1. Prior to coming to Australia, the applicant was self-employed in Shanghai undertaking car and air-conditioning maintenance and repairs. He was earning 100,000RMB per year. The applicant claims that he came to Australia to study and to strengthen his managerial skills.

2. The applicant sent the Tribunal a declaration dated 18 August 2014 in support of his visa application. In that declaration, the applicant claims that his business was suffering in Shanghai as there was a language barrier between him and his customers as he did not speak Mandarin. The applicant claimed that as a result, he lost market share to his competitors. The applicant claimed that in addition to studying a course in English in Australia, he wanted to undertake a course in management to improve his business in the future.

3. The applicant was invited to attend a hearing before the Tribunal on 27 February 2015 to give evidence and present arguments, which he did. The applicant told the Tribunal that initially he and his family came to Australia to travel for 2 to 4 weeks. The Tribunal questioned the applicant as to why he and his family came to Australia. The applicant claimed that the decision to stay and study in Australia was a spontaneous decision and that his wife was able to continue to work as an educational consultant in China by telephone from Australia.

4. The Tribunal made its decision on 16 March 2015. The issue for the Tribunal was whether the applicant had established that there were “exceptional reasons for the grant” of the subclass 572 visa: cl.572.227 of sch.2 to the Migration Regulations1994 (Cth).

5. The Tribunal explained this issue at [27]:

   …

   ‘Exceptional reasons’ are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an applicant who is not subject to the restriction in the criterion, nor by deciding whether he or she departs from the ‘normal’ characteristics of the group who is subject to the restriction. When determining whether ‘exceptional reasons’ have been established, the decision-maker must assume that the visa applicant ‘should not be granted the visa unless some reasons can be positively identified which justify, in the mind of the decision-maker, the grant of the visa’. Beyond such reasons being capable of being described as ‘exceptional’ in ‘ordinary parlance’, there is no prescriptive definition of the term. The decision-maker has ‘a nearly unconfined discretion to address the particular circumstances of the case and to consider whether the applicant should be made an exception to a ban on the grant of the visa in Australia’.

   …

   (Citations omitted)

6. The Tribunal had regard to the departmental guidelines in PAM 3 relevant to the issue and noted that those guidelines were not binding on it. With those matters in mind, it considered the reasons put forward by the applicant as to why he satisfied the criterion and found that the applicant had not established ‘exceptional reasons’ for the grant of the student visa under cl.572.227 of the Regulations.

7. The Tribunal did not believe the genuineness of the applicant’s claims. In particular, it did not believe that he only intended to come to Australia for a holiday and made the decision to study at the last minute, that the applicant needed to be proficient in English in order to obtain a competitive advantage, or that he possessed a special knowledge or technique working with carbon fibre in the automotive industry. The Tribunal did accept that the applicant was studying but found that he came to Australia on an FA-600 visa with the intention to remain in Australia. It also found that the applicant could study English courses in China and that his business administrative course was not dissimilar to the degree he had completed in China.

8. The Tribunal found that the applicant did not meet the criterion in cl.572.227 of the Regulations and so affirmed the decision of the delegate not to grant the applicant a student visa.

Consideration

1. There are 5 grounds in the application for review. The applicant’s written submissions also contain a number of complaints about the Tribunal; however, those additional complaints are all to the effect that what the applicant told the Tribunal was correct. As such, they do not raise any arguable jurisdictional error and need not be considered in any further detail.

Ground one

1. The first ground is that the Tribunal “made a number of mistakes and mistranslations in their review of the decision made by the Department of Immigration and Border Protection”. As ground 2 raises issues of translation, I will leave that issue to one side. The “mistakes” said to have been made were not clearly and separately identified by the applicant. In light of that, I set out below the matters raised in the applicant’s written submissions that best relate to ground 1 (with references in square brackets to the paragraphs in the applicant’s submissions which consisted of 23 numbered paragraphs followed by further paragraphs marked alphabetically from A to O):

   a)[1]: “I must make reasonable explanations and state the facts of the matter. I am innocent on all these issues, and the judgment of the Member is wrong”. This is an attack on the merits of the decision and does not raise any relevant error.

   b)[2]: The Tribunal did not consider the statement given by the applicant at the hearing. The statement in question appears at pages 95 to 96 of the Court Book. The Tribunal expressly referred to it at [11] of its reasons and there is no reason to conclude, in light of that, that it did not consider its contents.

   c)[7], [8]: “It is a mistake that Member took ‘they are the usual type of reason a person would have in wanting to study in Australia’ as the basis for the determination of whether there were ‘exceptional reasons’ or not.” The word “exceptional” is a simple non-technical word.  It means “unusual” or “out of the ordinary” and is used in that sense in the criterion here. For that reason, there was nothing wrong with the Tribunal’s approach of identifying that the reasons given by the applicant for the grant of the visa as the “usual type of reasons” and then concluding that they were not “exceptional”.

   d)[11] The Tribunal found (at [31]) that there were other unstated motivations for the applicant coming to Australia – the most important factor was that the applicant was in fact studying. What the Tribunal meant in the last line of [31] was that the applicant only came to Australia in order to remain here and that studying was not his purpose at all. The applicant’s point may be valid, but it only goes to support another conclusion rather than revealing a jurisdictional error. That is, it is another attack on the merits of the decision.

   e)[16]: “The Member did not taking my uninformed condition into consideration that I applied for a visa unknowingly.” I take this to be a reference to the claim that the applicant applied for a visa on the spur of the moment. The Tribunal considered and rejected that claim: [31].

   f)[18], [J], [K] and [L]: The Tribunal showed some unclear reasoning about the applicant’s understanding of carbon fibre technology.

   i)[J], [K]: The Tribunal misunderstood the meaning of the samples of carbon fibre provided. In his post-hearing submissions to the Tribunal, the applicant claimed that he had invented a new technology for the production of carbon fibre and attached “a sample of CF manufactured in [his] workshop contained in Exhibition A”. At [18] of its reasons, the Tribunal refers to the carbon fibre samples shown in the submissions and says that the applicant claims it is an example “of the new technology he invented.” That is not an entirely accurate summary of what the applicant claimed. However, in my view, that does not matter. What mattered for the Tribunal was that the production of carbon fibre was widespread and undertaken by numerous companies in Australia and overseas: [31]. The Tribunal understood that the applicant’s claim was that he had invented a new process, but it did not believe him.

   ii)[L]: “There is no doubt that my plans might bring Australia great economic benefits and be beneficial to Australia.” This assertion is another attack on the merits of the decision.

   g)[19], [I], [N]: “The Member lacked some common-sense understanding and judgments for some issues, especially in relation to China.”

   i)[I]: The statement by the Tribunal that it was not reasonable to believe that the applicant needed English to be competitive in China lacked common sense because there are more than 200,000 foreigners in Shanghai and most of them from English speaking countries. This submission only goes to the merits of the decision.

   ii)[N]: It is better to study English in an English-speaking environment. The applicant may well be correct. However, it is addressed at [32] of the Tribunal’s reasons which simply notes that the applicant could, if he wished, study English in China. Understood in that context, the submission is only an attack on the merits.

   h)[20], [O], [P]: The Tribunal made some simple mistakes.

   i)[O]: the Tribunal had 3 similar hearings on the same day (including the applicant’s) and had overlooked an issue in the applicant’s hearing, namely that the applicant could be granted a visa if he established that there were “exceptional reasons”. The transcript of the hearing reveals that the Tribunal was initially mistaken and only realised later that the visa could be granted if there were exceptional reasons: see T.5.9[3]. However, the mistake was inconsequential: the applicant clearly had the opportunity to give evidence and make submissions about that issue.

   ii)[P]: The Tribunal was late for the hearing and typed “Zhongnan University” but wrote “Xhongnan” in its decision: see [14] of the Tribunal’s reasons. It is not clear to me that this was an error of any type. Transcription of a foreign language not written in the Roman alphabet can often be one of impression and approximation and can result in different spellings of the same word. A common example is Mohammed (which is also written as Mohamed, Muhammed and Muhamed). The two words “Zhongnan” and “Xhongnan” are, in my view, homophonous.

   i)[21], [G], [H]: All of these mistakes show “subjective prejudices, unfair treatments, and, even discriminatory views” and that the process was unfair. None of the errors referred to by the applicant (together or separately) support any conclusion of actual or reasonably apprehended bias.

   i)[G]: this paragraph deals with the refusal by the Tribunal to allow further time for the applicant to produce evidence of his new technology and the “intentional concealment” of his former agent. As such, they touch on issues arising under different grounds and are dealt with later.

   ii)[H]: the Tribunal “spent no efforts on the consideration of exceptional reasons and saved a great deal of time as long as he firmly believed my motivation to study in Australia is impure.” To the extent that the applicant contends that the Tribunal was actually biased because it found that he had “impure” motives for coming to Australia, the submission is rejected. It was open to the Tribunal to reach that conclusion. The fact that it did reveals no more than the outcome of its deliberations and says nothing of the starting point of those deliberations.

   [3] Reference to the transcript attached to the affidavit of Alanna Lucchese affirmed 2 July 2015.

2. The first ground is rejected.

Ground two

1. The second ground is  that the “translator did not translate effectively, leading to a number of issues in the decision”. The applicant did not address this ground at all in his written submissions. However, in his affidavit of 7 April 2015 he stated:

   [16]During the hearing, the member inquired me whether I planned to study in Australia with a 600 visa at the very beginning. I answered him then that I once had the idea of studying abroad. I answered this question honestly then and said yes. I believed that all Chinese students have had the idea of studying abroad. However, their ideas may not come true due to various restrictions.

   [17]I asked the translator about this and explained that I only had ideas and not plans. However, the member or the translator misunderstood and they believed that I had plans of studying in Australia from the beginning.

2. No objection was taken to those paragraphs; however, I do not accept either that they reflect with any precision what occurred at the hearing or, even if they did, that they establish any inaccuracies in the interpretation provided during the Tribunal hearing.

3. The transcript of the hearing was in evidence, at least to the extent of what was said in English. The closest that the transcript came to what the applicant alleges happened is in the following passage:

   Tribunal:Was your purpose for leaving China to remain in Australia and to study?

   Interpreter:       [Translating]

   Applicant:[Speaking]

   Interpreter:     Before that I might have this kind of idea but after I arrived here I quite [WP: unclear] this idea

   Tribunal:I missed a word there. I quite [something] this idea ... "

   Interpreter:       [WP: unclear]

   Tribunal:     Oh (WP: unclear]

   As I said, it just seems to me a strange thing to do that two people in their early 30s go to a country on a holiday with their young child and then decide to stay and study. Your wife's got a career back in China, you've got a business back in China.

   Interpreter:       [Translating]

   Applicant:[Speaking]

   Interpreter:       What's your question?

   Tribunal:     Well my question is that it seems to me that your purpose for coming to Australia is actually to remain here to study, it wasn't to come here as a tourist at all.

   Interpreter:       [Translating]

   Applicant:[Speaking]

   Interpreter:       Can you repeat the question?

   Tribunal:Yeah. It seems to me your purpose of coming to Australia wasn't as a tourist and to do any tour. It was quite intentionally to come here on a tourist visa and remain in Australia to study.

   Interpreter:       [Translating]

   Applicant:[Speaking]

   Interpreter:       If you have examined the explanations at the back ...

   Tribunal:Well I think I have. I think - people who plan to ...

   Interpreter        Sorry, he said [WP: unclear]

   Tribunal:Oh, [WP: unclear]. Ok well of course you can. I think you need to because at the moment I'm thinking that you were just using the FA600 visa to get into Australia and I really think that seeing that your wife's an education consultant and you're obviously quite well educated, you would have known quite well that that's not the proper way to actually apply to study in Australia if you wanted to do it.

   Interpreter:       [Translating]

   Applicant:[Speaking]

   Interpreter:       At that time on the application form for subclause 600, one question asked me whether I have intention to study for a short period of time in Australia. At that time, I was not very sure about that but after I came to Australia, I come up with this idea. At the time of the application, I was aware that I would have the opportunity to study in Australia but I had no idea what Australia is like but after I came to Australia what I saw made me decide to study in Australia.

4. The highlighted portion of this passage reveals that the interpreter translated the applicant’s evidence to the effect that he had had an idea about studying and that the Tribunal member understood that much. In light of that, I am not satisfied that there was any mistranslation.

5. The second ground must be rejected.

Ground three

1. Ground three is that the Tribunal did not believe the applicant’s reasons for coming to Australia.

2. The applicant argues that the Tribunal’s reference in relation to his motivation to stay in Australia is “distinct logical error”. This ground goes no higher than an attack on the merits of the Tribunal’s decision. It is evident from the Tribunal’s reasons that it considered all of the applicant’s claims regarding why he came to Australia. The Tribunal did not believe the applicant’s claims that he needs to study English in Australia in order to gain a competitive advantage in China in the automotive industry and set out its consideration of those claims in [31] of its reasons.

3. The Tribunal did not believe the applicant’s reasons for coming to Australia. Even though the applicant may not agree with this finding, it is not enough to establish jurisdictional error in the Tribunal’s reasons and for that reason the third ground is rejected.

Ground four

1. The fourth ground is that the applicant’s migration agent did not provide the applicant with adequate assistance and prejudiced his ability to seek review.

2. This ground raises no more than a complaint about the services of the applicant’s migration agent. However, even if the applicant did establish that there was some negligence or some other mishap on the part of an agent that would be insufficient to disclose jurisdictional error in the Tribunal’s decision: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [53].

Ground five

1. The fifth ground is that the Tribunal erred by failing to grant the applicant time to provide evidence of exceptional circumstances despite him not knowing this until the date of the hearing.

2. I do not accept that the applicant was unaware that he had to establish that there were exceptional reasons for the grant of the visa. One of the reasons for which the delegate decided not to grant the applicant a visa was that he had not established such reasons. The applicant was represented by a migration agent for the purposes of seeking review of that decision. The agent attended the hearing conducted by the Tribunal and corrected the Tribunal when it stated its opinion that the only possible outcome was to affirm the delegate’s decision, although his submission was in terms of the existence of a discretion: T.5.4.

1. In any event, in accordance with its obligations under s.360 of the Migration Act 1958 (Cth), the Tribunal made clear at the hearing that the critical issue was whether there were exceptional reasons for the grant of the visa: T.5.9 – 6.2. The applicant then had the opportunity at the hearing to give evidence about and make submissions on that issue. Finally, when the applicant asked for further time to make submissions on that issue after the hearing, the Tribunal said that it would allow a further 7 days for submissions: T.6.9. No complaint was made about the amount of time allowed and the time was confirmed at the end of the hearing: T.16.2.

2. The applicant’s agent submitted additional material to the Tribunal in the time allowed by the Tribunal. One of the documents submitted was a statement by the applicant “elaborating he has established exceptional reasons(s) to study in Australia.” In that statement, as already mentioned, the applicant wrote that he had invented a new technology in relation to carbon fibre production. He did not give any details about that technology and explained:

   …

   In term of such Know-How of manufacturing CF[4], I only cannot reveal too much in details as I am thinking of claiming patent right in Australia; but a sample of CF manufactured in my workshop contained in Exhibition A is presented to the Tribunal for assessment.

   [4] Carbon Fibre.

   …

3. Just before the conclusion of the statement, the applicant wrote:

   Should the Tribunal believe it is necessary for me to produce additional evidence to attest I would collect sufficient funds to set up a mechanic workshop and apply for patent right, I would request the Tribunal to grant me 10 working day extension.

   …

4. The Tribunal considered the applicant’s request for further time to provide evidence, and declined to allow further time because it considered that it was not a reasonable in the circumstances: [19] - [20] of it reasons for decision.

5. The Tribunal has the power to adjourn its review and the failure by it to exercise that power can infect its ultimate decision with jurisdictional error: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. Essentially, the question is whether there was a transparent and intelligible justification within the decision-making process. That is a stringent test and is not answered by considering whether the Court would, in the circumstances, have exercised the power differently.

6. Here, the ground misstates the request that was actually made of the Tribunal. As the above extract from the applicant’s statement reveals, the request made focussed on the applicant’s financial ability to set up a workshop. There was no request for time to provide evidence about the process claimed to have been invented by the applicant or any patent application: the applicant explicitly said he did not want to provide any details of the process and said that he was only thinking about applying for a patent. In that context, the Tribunal’s view that the request for further time was unreasonable was readily understandable, particularly, as the Tribunal noted, the applicant had not even mentioned any of this prior to the hearing. For those reasons, there was an evident and intelligible basis for the decision not to further adjourn the review and it was not a decision that was so unreasonable that no decision maker could have made it.

7. The Tribunal did not fall into jurisdictional error when refusing the applicant’s request for additional time to submit further documentary evidence. The fifth ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     26 August 2016