Narciso v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 790
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Narciso v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 790
File number(s): SYG 3307 of 2018 Judgment of: JUDGE CAMERON Date of judgment: 30 August 2023 Catchwords: MIGRATION – Student (Temporary) (Class TU) Student (Subclass 500) visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it made incorrect factual findings.
Legislation: Migration Act 1958 (Cth) s 474
Migration Regulations 1994 (Cth) sch 2 cls 500.212, 500.214, 500.311
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Division: General Number of paragraphs: 15 Date of hearing: 24 August 2023 Place: Sydney For the Applicants: The Applicants appeared in person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
SYG 3307 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARMIN NARCISO
First Applicant
RODALIZ NARCISO
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
30 August 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 CAMERON
INTRODUCTION
The first applicant is a citizen of the Philippines who arrived in Australia on 11 July 2008. On 15 March 2017 he applied to what is now the Department of Home Affairs (“Department”) for a Student (Temporary) (class TU) Student (subclass 500) visa (“Student Visa”) and the second applicant, the first applicant’s wife, was included in that application as a dependant. On 8 June 2017 the applicants’ application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LEGISLATION
Clause 500 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the criteria for the grant of sub-class 500 student visas. The Regulations relevantly provide:
500.212
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.
…
500.214
(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2)While the applicant holds the visa, sufficient funds will be available to meet:
(a)the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b)the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.
(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
…
…
500.311
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(i)the primary person’s application under subregulation 2.07AF(3); or
…
…
BACKGROUND FACTS
The first applicant made the current Student Visa application on the basis of continuing his studies to complete his Bachelor of Business Information Systems course in Australia. The facts alleged in support of the application were set out in the Tribunal decision as follows:
(a)the applicants first arrived in Australia in 2008 after the first applicant had been granted a subclass 572 student visa on the basis of his enrolment in a Diploma of Information Systems course, which he completed in 2009. The first applicant was then granted four subsequent student visas on the basis that he was completing a Bachelor of Business Information Systems course which he had commenced in July 2009;
(b)the first applicant struggled to complete his degree course due to stress and depression caused by family issues including the second applicant’s distress at being without their children, as well as struggling to make friends with fellow students;
(c)the first applicant had a tendency to forget things and blacked out at times due to his age (39 years) which required him to take a vitamin supplement although he did not seek formal medical advice or a deferment of his studies;
(d)due to the first applicant’s struggles with studying and the second applicant’s decision to seek a further degree to complement her computer engineering degree, they made a further student visa application with the second applicant as the primary applicant. The first applicant was then granted a visa from 2013 to 2016 as the dependent spouse on the second applicant’s student visa;
(e)the first applicant had been employed since April 2017 in the information technology department of an identified company earning roughly $600-$700 per week and the second applicant had been employed in butcher shops since 2008, earning about $450 per week;
(f)at the time of the Tribunal’s decision the applicants lived with relatives of the second applicant who had lent them money prior to her student visa application to demonstrate to the Department that they had sufficient funds to meet their education and living expenses;
(g)the first applicant’s mother owns property in the Philippines. However she had resided in Malaysia with the first applicant’s father since 2006 or 2007 and they cared for the applicants’ two children (aged 11 and 15 years old at the time of the Tribunal hearing) there;
(h)the applicants maintained contact with their children through annual one-month visits in addition to social media and other electronic media;
(i)the first applicant had no military service commitments in the Philippines; and
(j)the first applicant acknowledged that he did not want to return to the Philippines even after having completing his studies, that he had never worked in the Philippines using his qualifications and had said that to be near his family he would live in Malaysia instead of the Philippines and seek work in Singapore.
On 29 August 2018 the Tribunal invited the applicants to attend a hearing to give evidence and present arguments. Both applicants attended and gave evidence at a hearing on 26 September 2018. At the hearing the Tribunal asked the applicants to provide to it, within the following fortnight, 6 months of bank statements and financial records but they produced nothing.
THE TRIBUNAL’S DECISION AND REASONS
The Tribunal’s findings were summarised by the Minister in his written submissions in the following terms which I adopt:
13. After considering the matters specified in Direction No. 69, the Tribunal was not satisfied that the first applicant was a genuine temporary entrant: [23]-[26], [34]-[35]. In particular, the Tribunal found that:
13.1. the first applicant did not provide any sound reasons for not undertaking the Bachelor degree in the Philippines, nor was there any evidence to suggest that a similar course is not available in the Philippines: [27]
13.2. although the first applicant has significant familial connections in the Philippines, his evidence suggested that such connections would not provide the applicants with a strong incentive to return to that country: [28]
13.3. there was a strong economic incentive for the applicants to remain in Australia: [29]
13.3.1. The applicants have maintained stable employment in Australia over a significant period of years.
13.3.2. The first applicant’s evidence that he wished to live in Malaysia and work in Singapore for familial and economic incentives reinforced the Tribunal’s view that the first applicant had economic motivations about his decision to reside in countries other than his home country.
13.4. the first applicant did not adequately explain the 9-year delay in completing his Bachelor degree: [30]. The Tribunal noted the first applicant’s purported medical condition, but questioned the plausibility of this explanation in light of his evidence that he had not been prescribed medication for the condition, and had been able to work in an unimpeded manner. The Tribunal found it to be a more credible explanation, that the first applicant and his wife swapped roles as either primary or dependent applicants for student visas, in order to maintain their residency in Australia.
13.5. the applicants’ failure to provide further financial records undermined their claim that they did not have an economic incentive to remain in Australia: [31]. The Tribunal found that there was a lack of evidence to support the claim that the second applicant did not develop significant financial savings as a result of the applicants’ combined employment earnings over the period they were in Australia.
13.6. the first applicant had no military service commitments or any security concerns for returning to the Philippines, and in light of his evidence that he did not intend to return to the Philippines, the Tribunal considered this factor should be given minimal weight: [32].
The Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily as a student and therefore found that he did not meet the requirements in cl.500.212(a) of the Regulations. Consequently the second applicant also did not meet the visa criteria relevant to her.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicants alleged:
1. AAT made an error by not considering the fact that as a couple both of us deserve to study in different time frame by supporting each other and swapping student visa does not necessarily means we do not meet the student visa requirements.
2. Jurisdictional error was made by AAT as it assumed that the savings we presented all came from work and that means we are concentrating more on work than studies. In fact these savings came from our sponsors who are assisting us with our studies in Australia but the member did not accept it without justifying.
CONSIDERATION
The applicants did not file written submissions and made only a brief address to the Court in which the first applicant submitted that the Tribunal had not accepted his claims to have suffered from anxiety but also stated that he had decided not to provide a medical certificate to the Tribunal as he had not thought one would be useful.
Both grounds of the applicants’ application, the first concerning the significance of their visa history and the second concerning the source of their financial reserves, contend that the Tribunal made erroneous findings of fact. However, the Court cannot substitute its view of the facts for the Tribunal’s because its role is not to rehear the visa application but, rather, to determine whether the Tribunal’s decision is affected by jurisdictional error. A finding of fact will only support a finding of jurisdictional error if it is affected by legal error, such as illogicality or unreasonableness affecting the decision-making process of the sort described by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 649–650 [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
It was reasonably open to the Tribunal on the evidence to conclude that the applicants’ immigration history suggested that they had used the student visa program to maintain residency in Australia and that this was relevant to its consideration of cl.500.212(a) of the Regulations. The Tribunal was not required to accept the applicants’ claims uncritically or to accept all or any of them. It was also reasonably open on the evidence, coupled with the adverse inference drawn from the applicants’ failure to produce financial records, for the Tribunal to conclude that the applicants had accrued “significant financial savings” as a result of their combined employment earnings and these savings, and their stable employment that had made those savings possible, meant that they had an economic incentive to maintain residency in Australia.
Both grounds of the application are without substance.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been identified.
Consequently, the application will be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 30 August 2023
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