MA v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1189
•21 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ma v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1189
File number(s): SYG 2022 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 21 October 2024 Catchwords: MIGRATION – student visa – review of a decision by the Administrative Appeals Tribunal – where the applicant was found not to be a genuine temporary entrant – application dismissed. Legislation: Migration Regulations 1994 (Cth) sch 2 cl 500.212
Migration Act 1958 (Cth) s 499
Education Services for Overseas Students Act 2000 (Cth)
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 21 October 2024 Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms M Kelly (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG2022 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MENG MA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
21 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $6,500.
3.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE MCCABE:
Mr Meng Ma, the applicant in these proceedings, has sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) which affirmed a decision of a delegate (delegate) of the Minister for Immigration and Multicultural Affairs (minister) to refuse the grant of a Student (Class TU) (Subclass 500) visa (visa). The Tribunal's decision was made on 17 July 2020.
I explained to Mr Meng Ma at the outset of the hearing that there were limits to what the Court could do in an application for judicial review. I cannot give him the visa he seeks, or say that he should get it. The role of the Court is limited to reviewing the decision of the Tribunal to determine whether it is infected by a material jurisdictional error such that the decision-making process is fatally flawed and therefore legally ineffective. If I am satisfied there is a material jurisdictional error which causes the process to miscarry, I have the power to send the matter back to the decision-maker – now known as the Administrative Review Tribunal – to remake the decision on its merits according to law.
A jurisdictional error might occur in a variety of circumstances, as the High Court explained recently in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. Examples of jurisdictional error include where the Tribunal does not comply with the requirements of the statute, or otherwise asks itself the wrong question – in other words, that it gets the law wrong. A material jurisdictional error might also occur where there is some shortcoming in the way the Tribunal went about making its decision – for example, where it takes account of irrelevant matters, or fails to consider evidence or submissions that are relevant, or where it failed to serve the rules of procedural fairness in some respect. The decision might also be unreasonable in the legal sense. The High Court in LPDT emphasised the discretion to provide relief arises where the jurisdictional error is material, but that will depend on the nature of the error and other factors.
The High Court also emphasised in LPDT that it is for the applicant in judicial review proceedings to identify the jurisdictional error. That means the reasons for decision and (depending on the error alleged) the hearing and decision-making process will be front and centre in the appeal. It follows the grounds of review and any particulars and submissions should be directed to those questions, rather than directed generally to the justice of the case or the appropriateness of the outcome. The Court hearing is not an opportunity to reconsider the merits of the underlying decision.
The background of the applicant and the lead up to the Tribunal's decision
The applicant's relevant migration history is set out in [3] of the submissions filed on behalf of the minister:
The applicant, a citizen of China, first arrived in Australia on 8 November 2010 as the holder of a Student visa to study English for Academic Purposes and a Master of Information Technology (Court Book (CB) 66). Since that time, the applicant has held three further Student visas granted on 5 September 2012, 11 December 2014 and 23 November 2016 (CB 66). On 15 March 2018, he applied for the visa to complete a Graduate Diploma of Business and Master of Professional Accounting (CB 1-58).
I adopt that summary for the purposes of this judgment since I understand there is no controversy about the facts summarised therein.
The Tribunal's hearing and decision
The applicant appeared in person at the Tribunal hearing. He was assisted by a mandarin interpreter and represented by a migration agent. The Tribunal already had access to the relevant contents of the departmental file, some of which had been provided by the applicant to the department in response to a notice of intention to cancel visa. In advance of the hearing, he also provided several documents that are reproduced in the court book at pp 107ff. These include academic records together with submissions prepared by the agent. There is a record of a complaint made to the Ombudsman and a psychologist's report dated 16 November 2019. The Tribunal also notes in its reasons for decision that the applicant provided confirmation of enrolment documents at the hearing in relation to courses he had recently commenced.
The Tribunal's decision and reasons are also reproduced in the court book. The Tribunal focused in its reasons on the correct question, namely whether the applicant for a visa of this kind was a genuine temporary entrant within the meaning of the criteria in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal correctly noted that in applying those criteria, it must have regard to the terms of Direction 69, a binding ministerial direction issued under s 499 of the Migration Act 1958 (Cth).
The Tribunal recorded and evaluated the applicant's evidence in its reasons for decision. Those reasons appear to correspond and refer to the terms of Direction 69 which were summarised at [10] of the Tribunal’s reasons. It noted the matters referred to in Direction 69 were intended as a guide, albeit a mandatory one, and were not exhaustive.
Consistent with that guide, the Tribunal referred to:
(a)the length of time the applicant has resided in Australia (at [27]);
(b)the applicant's history of studying courses here that do not appear, in the Tribunal’s view, to complement each other or improve his prospects (at [29]-[31]);
(c)the gap in the applicant's studies between June 2013 and September 2014 which it said was not adequately explained (at [32]);
(d)the psychologist's report which addressed the death of his grandmother and a relationship breakdown during or around the gap period, together with a lack of support he was said to have received from one of the education providers which resulted in a complaint to the New South Wales Ombudsman (at [33]-[34]). I note the Tribunal found the report was of limited assistance;
(e)the fact the applicant had not worked in Australia, and had enjoyed family support, which meant he had no immediate incentive to remain here (at [36]). It also referred to a comparison of his potential earnings in Australia and China which suggested there would be an economic incentive to remain here in the future (at [37]). The evidence regarding earnings in Australia was obtained from publicly available documents;
(f)the fact the applicant did not return home often over a long period, which was taken to suggest he did not want to return home (at [39]) and there was no strong incentive to return because of family ties there (at [43]) whereas he had developed ties in Australia which created an incentive to remain (at [44]);
(g)the fact the applicant had assets in China, which did provide an incentive to return there (at [40]);
(h)the value of the course to the applicant's future (at [26], [28-31]);
(i)the applicant's immigration history (at [27], [39]); and
(j)the absence of concerns about military service or civic or political unrest (at [42]).
That led to the observation in [41] that:
… based on the applicant's evidence and his circumstances in his home country including his assets and education and the support he has received from his family relative to others in his home country he is in a good position and that would not provide a significant incentive for him not to return home. The applicant is currently unmarried and has parents back home. He has not seen them in person since May 2017. He has stated in his Response that he remains in contact with them by telephone.
The Tribunal went on, at [46]-[47], to say:
46.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 ongoing residence in Australia and to remain here permanently. The applicant has been here for more than nine-and-a-half years. Such a long period of stay is not temporary and can only be regarded as permanent.
47.The Tribunal considers that the above circumstances are consistent with the applicant's motivations to remain in Australia on a permanent basis and not a temporary basis. On the basis of the above the Tribunal is not satisfied the applicant intends to genuinely stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
On the basis of those findings, the Tribunal affirmed the refusal of the application for a visa.
The application for judicial review
The applicant's grounds of review were prepared with the assistance of a solicitor, although I note the solicitor has since withdrawn from the process. The applicant appeared at the hearing today before me without representation. He did not require the assistance of an interpreter although one was on hand throughout the hearing to assist as required.
The grounds of review set out in the application can be summarised as follows:
(1)there was an insufficient assessment of the genuine temporary assessment criteria set out in cl 500.212 of the Regulations; and
(2)there was an incomplete and incorrect assessment of the criteria as explained in Direction 69.
There is some elaboration on these grounds in the signed affidavit of Mr Meng Ma affirmed on 24 August 2020. They argue the facts justify remittance on compassionate circumstances, but that is not actually a permissible ground of review because there is no allegation of jurisdictional error. As I explained before, this is not about the fairness or unfairness of the decision in some general sense. We must identify jurisdictional error.
There is also mention of a National Code which might explain the applicant's reference to compelling and compassionate circumstances in the affidavit. The National Code in question is a document which applies to education providers, not the decision-maker here. It is a legislative instrument made pursuant to the Education Services for Overseas Students Act 2000 (Cth). It is intended to provide nationally consistent standards for education providers considering, amongst other things, requests for deferment, and suspension and cancellation of enrolments. The affidavit asserts:
19.It appears that the Delegate has gone outside the realms of Direction 69 to assess GTE Criteria. The changes to the applicant's courses appear to be consistent with the National Code (annexure 7) and therefore should not be used against the applicant
Of course, it should be noted at once the decision under review in these proceedings is that of the Tribunal, not the delegate or the education provider. The National Code was not considered by the Tribunal – most obviously because it was irrelevant – but there is no evidence that it was put before the Tribunal in any event. When I asked Mr Meng Ma about the relevance of the National Code at the hearing before me, he was unable to assist me, so I will not consider it further.
The applicant's solicitor at the time also provided written submissions. These are unhelpful. They recite facts without clearly alleging any error in the Tribunal's decision. These poorly written submissions also refer to the “compelling and compassionate circumstances” and the interests of justice. Once again, these submissions appear to refer to the National Code which is irrelevant for present purposes.
Given the shortcomings in the written documents, I asked Mr Meng Ma to explain his criticisms of the Tribunal's decision in his own words. He made the general complaint that the Tribunal did not consider all the circumstances that affected his study and should have found he was a genuine student. I invited him to be more particular in his criticisms and he referred to four issues in his oral submissions:
(1)The Tribunal did not take adequate account of the impact of the death of his grandmother. I do note, however, the Tribunal referred to the applicant's grandmother's passing at [17(v)] of its reasons and again in the context of the psychologist’s report discussed at [33]-[34]. While I accept the applicant does not think the Tribunal gave those matters (and their impact on him) sufficient weight, the weight the Tribunal gives to these matters is, subject to any concern about unreasonableness, a matter for the Tribunal. The reasoning does not appear to be unreasonable. Reasonable people might disagree about what weight those matters should be accorded. I do not accept there is any substance to that criticism.
(2)The Tribunal compared his potential earning capacity in Australia and China and that it should not have done so. I note the applicant provided information about his earning capacity in China but he did not provide the Tribunal with evidence about his capacity in Australia, which is consistent with his position. The evidence which the Tribunal discussed appears to have been derived from publicly available documents that were identified in the reasons for decision. The applicant says the comparison was irrelevant, but, in fact, it was not irrelevant – because [6] of Direction 69 expressly invites a comparison of circumstances in Australia and the home country, and [12] of Direction 69 expressly invites a comparison between the remuneration the applicant could expect to receive in the home country and Australia with those newly acquired qualifications. He also says, in effect, the Tribunal was comparing apples and oranges given the difference between the occupations and the labour markets of the two countries. But there is no evident unreasonableness in making that comparison. There is no substance to the second criticism.
(3)The Tribunal should not have taken into account the circumstances surrounding the gap in his studies – and if it did, it should have dealt with those circumstances differently. The gap and the explanation for the gap was mentioned at [18] and [32] of the Tribunal’s reasons for decision. The applicant conceded before me that he was unable to properly explain what he had done during the gap, which was not the fault of the Tribunal. The gap was relevant to the Tribunal's consideration of the question before it, regardless of whether Direction 69 expressly required that matter should be taken into account, since the applicant's checkered study history was plainly relevant to the assessment of whether he was a genuine temporary entrant.
(4)The applicant disputed the Tribunal's findings about his relationship with family back home in China. But I note that was discussed and considered in the reasons at [43], which refers to [9] of Direction 69.
In all the circumstances, I am not satisfied the applicant has identified any jurisdictional error, let alone a material jurisdictional error, in the Tribunal's decision, and I am unable to discern any error from my independent review of what the Tribunal did. I accept the applicant thinks the decision is substantively unfair and inappropriate in all the circumstances. But even if I agreed with him about that – and I make no comment one way or the other – that would not be a reason for setting aside the decision.
In those circumstances, the application for judicial review must be dismissed.
I have already heard from the parties about costs. I asked them to comment about that before I adjourned. The applicant agreed he could not see any reason why costs should not be awarded in the circumstances. I agree they should follow the event in this case, since the minister was plainly required to expend costs in defending the matter. Ms Kelly, for the minister, asked for less than the scale amount: she said the minister sought a fixed cost order in the amount of $6500 which approximated the actual costs expended on the file. I agree that amount is appropriate and I will make an order for costs in that amount. I will also make an order with respect to the alteration of the name of the first respondent.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 11 November 2024
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