Luo (Migration)

[2024] AATA 285

Luo (Migration) [2024] AATA 285 (16 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Huijia Luo

REPRESENTATIVE:  Mr Dennis Shen, Lena Hung & Associates

CASE NUMBER:  2214486

HOME AFFAIRS REFERENCE(S):          BCC2021/311753

MEMBER:Michael Ison

DATE:16 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·Public interest criterion 4003(b) of Schedule 4 to the Regulations for the purpose of cl 500.217(1) of Schedule 2 to the Regulations.

Statement made on 16 January 2024 at 4:55pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Doctor of Philosophy (PhD) (Engineering) – determination by a delegate of the Minister for Foreign Affairs – proliferation of weapons of mass destruction – revocation of the determination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 500.217; Schedule 4, PIC 4003

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

1. The applicant is Ms Huijia Luo who is a 26-year-old Chinese national. Ms Luo is referred to as the applicant in these reasons for decision.

2. The applicant first arrived in Australia on 14 August 2017 as the holder of a Tourist (Class FA) (Subclass 600) visa. The applicant stayed in Australia for 11 days, departing Australia on 25 August 2017. 

3. On 8 November 2018 the applicant applied for an offshore Student (Class TU) (Subclass 500) visa. This visa was granted on 22 November 2018 and was valid to 15 March 2021.

4. On 20 February 2019 the applicant entered in Australia as the holder of that Student visa.

5. While holding the Student visa the applicant departed and returned to Australia three times.

6. The applicant applied for her second Student visa on 4 March 2021 for the purpose of undertaking postgraduate research as part of a Doctor of Philosophy (PhD) (Engineering) at the University of Western Australia (UWA).

7. During the study of her PhD, the applicant has been granted a scholarship for International Research and a University Postgraduate Award.

8. The applicant’s application for a second Student visa was refused on 14 September 2022. It is the refusal to grant the applicant’s second Student visa that is the subject of this review.

9. The applicant was granted a Bridging A (Subclass 010) visa when she applied for the second Student visa on 4 March 2021. The applicant continues to hold that Bridging A visa at the time of this decision. The applicant’s Bridging A visa has condition 8105 (Work Limitation) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.

10. On 24 May 2023 the applicant applied for a Skilled – Nominated (Class SN) (Subclass 190) visa. However, at the time of this decision the applicant’s application for the Subclass 190 visa has not been determined by the Department.

The primary decision of the delegate of a Minister

1. The applicant provided the Tribunal with a copy of the primary decision.

2. At the time the applicant applied for her second Student visa Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate refused to grant the applicant a Student visa on the basis that the applicant did not meet the primary criteria in cl 500.217(1) of Schedule 2 to the Regulations.

4. Clause 500.217(1) of Schedule 2 to the Regulations provides:

   The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

5. The delegate made this finding on the basis that the applicant did not satisfy the requirements of public interest criteria 4003(b) {PIC 4003(b)}. Public interest criteria 4003 provides:

   The applicant:

   (a)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests; and

   (b)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and

   (c)either:

   (i) is not declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; or

   (ii) if the applicant is declared - is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011.

6. Regulation 1.03 defines:

   Foreign Minister means the Minister for Foreign Affairs.

   proliferation of weapons of mass destruction includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of:

   (a)  weapons that may be capable of causing mass destruction; or

   (b)  missiles or other devices that may be capable of delivering such weapons.

7. The delegate found that the Foreign Minister or a person authorised by the Foreign Minister had determined the applicant to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

Tribunal Directions hearing

1. The applicant appeared before the Tribunal on 28 November 2022 for a Directions hearing, by video.

2. The applicant was represented by a migration lawyer, Mr Dennis Shen of Lena Hung & Associates. Mr Shen participated in the Tribunal Directions hearing by video. Mr Shen is referred to in these reasons as the applicant’s representative or the representative.

3. The Tribunal has decided that it is not necessary to invite the applicant to a substantive hearing because the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it in accordance with s 360(2)(a) of the Act.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

2. The issue in the present case is whether the applicant meets the requirement of PIC4003(b) of Schedule 4 to the Regulations for the purposes of cl 500.217(1) of Schedule 2 to the Regulations of not being determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

3. The evidence before the Tribunal, which it accepts, may be summarised as:

• On 16 June 2022 a delegate of the Minister for Foreign Affairs, who is an officer of the Department of Foreign Affairs and Trade (DFAT), determined in writing that the applicant is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction (the Determination);

• The Determination was made without the knowledge of the applicant and without the delegate who made the Determination seeking the applicant’s views or response about the then proposed determination prior to making the Determination;

• The applicant was not provided with a copy of the Determination at the time it was made;

• The first the applicant became aware that the Determination had been made was when the Department of Home Affairs, not DFAT who made the Determination, sent the applicant a letter under s 57 of the Act dated 11 July 2022 that informed the applicant the Determination had been made. The letter did not provide a copy of the Determination to the applicant;

• When the Department provided a copy of its file to the Tribunal, the Department’s file did not include a copy of the Determination;

• On 31 October 2022 the applicant sought a copy of the Determination and documents related to the making of the Determination from DFAT under the Freedom of Information Act 1982 (Cth);

• On 18 January 2023 DFAT released the documents sought by the applicant in part, with some documents redacted in full and others in part. A copy of the Determination, with redactions, was released to the applicant at that time;

• On 7 February 2023 the applicant’s representative provided a copy of the Determination to the Tribunal. The Determination states (emphasis in the original):

  DETERMINATION UNDER THE MIGRATION REGULATIONS 1994

  Public Interest Criterion 4003(b)

  Huijia LOU

  I, [name and details delete by the Tribunal], in the Department of Foreign Affairs and Trade, as a person authorised by the Foreign Minister, determine, in accordance with Public Interest Criterion 4003(b) in Schedule 4 to the Migration Regulations 1994 (Cth), Huijia Lou (DOB: [deleted by the Tribunal]) to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

  [Officer’s details deleted by the Tribunal]

  Department of Foreign Affairs and Trade
  Date: [handwritten] 16 June 2022

• On 10 February 2023 the Tribunal received a five-page written statement from the representative and a copy of the applicant’s request, made through the representative, for the relevant delegate at DFAT to review the Determination made about the applicant. The representative provided a nine-page submission and a large number of documents to DFAT in support of this request;

• The representative subsequently provided the Tribunal with a copy of an acknowledgement by DFAT of having received the applicant’s request for a review of the Determination, with the acknowledgement being dated 13 February 2023;

• On 29 June 2023 the Tribunal invited submissions from the applicant in relation to whether the Tribunal could decide the review in the applicant’s favour on the basis the Determination was not made in accordance with the procedural fairness requirements of the Act and therefore was not a valid determination;

• On 30 June 2023 the Tribunal received a six-page written submission from the representative responding to the Tribunal’s invitation. The submission attached a copy of the Department’s s 57 letter dated 11 July 2022 and an extract of the Tribunal’s decision in Yu (Migration) [2022] AATA 2730; and

• On 12 January 2024 the applicant’s representative provided the Tribunal with a copy of a revocation of a determination instrument made under the Regulations by a delegate of the Minister for Foreign Affairs in relation to the applicant. The instrument of revocation states (emphasis in the original):

  REVOCATION OF DETERMINATION UNDER THE MIGRATION REGUATIONS 1994

  Public Interest Criterion 4003(b)

  Huijia LUO

  I, [details deleted by the Tribunal], in the Department of Foreign Affairs and Trade, in the Department of Foreign Affairs and Trade, in the Department of Foreign Affairs and Trade, as a person authorised by the Foreign Minister, determine, in accordance with Public Interest Criterion 4003(b) in Schedule 4 to the Migration Regulations 1994 (Cth), Huijia LUO (DOB [deleted by the Tribunal]) is not a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

  [Officer’s details deleted by the Tribunal]

  Department of Foreign Affairs and Trade

  Date: [handwritten] 12 January 2024

1. The Tribunal finds that on 16 June 2022 the applicant was determined by a delegate of the Foreign Minister to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

2. The Tribunal further finds that the Determination made about the applicant on 16 June 2022 was revoked by an instrument in writing on 12 January 2024. The Tribunal accepts that the revocation dated 12 January 2024 is effective. There is no information before the Tribunal to indicate that a fresh or new determination has been made about the applicant under PIC4003(b) at the time of this decision.

Conclusion

1. The Tribunal finds that at the date of this decision the applicant has not been determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

2. Accordingly, the Tribunal is satisfied that the applicant meets PIC4003(b) for the purposes of cl 500.217(1) of Schedule 2 to the Regulations at the time of this decision.

3. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

• Public interest criterion 4003(b) of Schedule 4 to the Regulations for the purpose of cl 500.217(1) of Schedule 2 to the Regulations.

Michael Ison
Senior Member