Nguyen v Minister for Immigration

[2016] FCCA 2807

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2807

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of a temporary student visa – applicant found not to be a genuine student – whether the Tribunal misconstrued the Migration Regulations considered – no jurisdictional error.

Legislation:

Education Services for Overseas Students Act2000 (Cth), s.19

Migration Act 1958 (Cth), ss.360, 499

Migration Regulations 1994 (Cth)

Cases cited:

Gupta v Minister for Immigration & Anor [2016] FCCA 871

Saini v Minister for Immigration & Anor [2015] FCCA 2379

Saini v Minister for Immigration [2016] FCA 858

Applicant: TRUNG HOA NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2561 of 2014

Judgment of: Judge Driver

Hearing date: 1 November 2016

Delivered at: Sydney

Delivered on: 21 November 2016

REPRESENTATION

Counsel for the Applicant: Mr L Karp with Ms E Windsor

Solicitors for the Applicant: Vinh Duong & Associates

Solicitors for the Respondents: Mr D McLaren of Minter Ellison

ORDERS

1. The name of the second respondent is amended to “Administrative Appeals Tribunal”.

2. The application as amended on 12 February 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2561 of 2014

TRUNG HOA NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant (Mr Nguyen) seeks judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 4 September 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Nguyen a temporary student visa. 

2. The following statement of background facts is derived from Mr Nguyen’s outline of written submissions filed on 20 October 2016. 

3. Mr Nguyen applied for a student visa on 31 July 2013[1], seeking to meet the criteria for sub class 572[2].

   [1] Court Book (CB) 1-7

   [2] CB 8

4. On 2 October 2013 a delegate of the Minister’s Department (delegate) emailed Mr Nguyen, inviting a response to information before the Minister’s Department to the effect that Charles Sturt University had reported him under s.19 of the Education Services for Overseas Students Act 2000 (Cth) as not having achieved satisfactory course progress[3]. He responded on 14 October 2013, essentially by saying that he had suffered from chronic nose bleeds which prevented him from attending classes, and that he was unable to contact his education provider because of “password issues”[4]. This failed to impress the delegate who issued a decision, on 22 October 2013, refusing his student visa for failure to satisfy the requirements of clause 572.235 which required compliance with the conditions attached to his last substantive visa.  Those included condition 8202[5].

   [3] CB 35-37

   [4] CB 38

   [5] CB 48-50

5. The application for review to the Tribunal was filed on 7 November 2013[6]. Mr Nguyen was invited to a s.360 hearing on 3 September 2014[7]. The invitation stated that the question of whether he was a genuine student was at issue in the proceedings[8]. Attached to the invitation was a copy of Direction No. 53, made under s.499 of the Migration Act 1958 (Cth) (Migration Act)[9]. That Direction dealt, among other things, with criteria to be considered in assessing whether a person was a genuine applicant for a student visa.

   [6] CB 59ff

   [7] CB 86

   [8] CB 87

   [9] CB 93-97

6. Also before the Tribunal were PRISMS records and a Confirmation of Enrolment for a Diploma of Hospitality course running from 3 February 2014 to 30 June 2015[10].  That was the course in which Mr Nguyen was enrolled at the time of the Tribunal decision.

   [10] CB 98-101

7. Prior to the hearing, on 25 August 2014, Mr Nguyen’s solicitors faxed his detailed statutory declaration to the Tribunal[11]. That statutory declaration canvassed:

   a)the fact that by the time of his statutory declaration, clause 572.235 had been repealed[12];

   b)whether he was a genuine student in Australia[13];

   c)his studies in Australia, including his failure to commence a Bachelor of Information Technology course[14];

   d)his reasons for not undertaking studies in Vietnam[15];

   e)his other circumstances in Vietnam;

   f)whether he intended to use his student visa to maintain ongoing residence[16];

   g)his immigration history[17].

   [11] CB 112-121

   [12] CB 112-3 [8]-[10]

   [13] CB 113-4 [13]-[20]

   [14] CB 115-6 [29]-[38]

   [15] CB 116-7 [40]-[41]

   [16] CB 118-9 [52]-[58]

   [17] CB 119-120

8. Educational results and copies of academic transcripts were also submitted[18].

   [18] CB 126-133

The Tribunal decision

1. The Tribunal identified the issue in the case as being whether Mr Nguyen met clause 572.223(1)(a)[19]. That is a “time of decision” criterion which stated:

   [19] CB 152 [6]

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that 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 ...

2. The Tribunal then referred to Direction No. 53[20], and correctly made the point that the considerations articulated therein are a guide rather than a checklist[21].

   [20] CB 153 [7]-[8]

   [21] see Direction No. 53 Part 2 at CB 95

3. The Tribunal was concerned because of Mr Nguyen’s unusual employment and fragmented study history. He had resigned from a responsible position in Vietnam with good career prospects having failed to complete a four year course in English which would have enhanced his employment, to study in Australia where he had taken a number of unrelated courses, most of which he did not complete.  The Tribunal observed that he had moved from course to course in basically a random manner. The career paths stemming from those courses were not clear.

4. The Tribunal’s conclusion was expressed thus, at [23][22]:

   The Tribunal has considered the totality of the evidence ... . Based on the applicant’s circumstances overall, including his immigration and study history, his circumstances in Vietnam and other matters the Tribunal considers relevant, including in respect of Direction 53,..., the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends genuinely to stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above. Accordingly, the Tribunal finds that the applicant does not meet cl. 573.223(1)(a).

   [22] CB 157

The present proceedings

1. These proceedings began with a show cause application filed on 16 September 2014.  The matter was docketed to the docket of former Judge Lloyd-Jones, but, shortly prior to his retirement, the matter was transferred to my docket.  An amended application was filed on 12 February 2015.  There is one ground in that application:

   1. The second respondent (the Tribunal) failed to consider and address an issue that was required, by cl. 572.223(1) of the Migration Regulations to be addressed.

   Particulars

   (a) Failure to consider and address the question of whether, at the time of the Tribunal decision, the applicant intended to stay in Australia temporarily to study and complete the course of study in which he was then enrolled.

2. I have before me as evidence the court book filed on 17 October 2014.  Both Mr Nguyen and the Minister provided pre-hearing submissions and made oral submissions at the trial on 1 November 2016. 

Consideration

1. Mr Nguyen’s argument is a narrowly focused one, which does not appear to have received judicial consideration previously.  Mr Nguyen contends that the Tribunal fell into error by failing to construe and apply the Migration Regulations 1994 (Cth) (Regulations).  I was taken in argument to Part 2 of Schedule 1 to the Regulations and, in particular, those regulations dealing with temporary student visas.  The Regulations impose criteria for the grant of a visa that include that the applicant is enrolled in a registered full time course of study.  Clause 572.211 provides in part that an applicant must give to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which a previous visa held was granted (in the case of subsequent student visa applications) and clause 572.221 relevantly provides that an applicant must satisfy the criterion that the applicant remains a genuine student and has provided a certificate of enrolment relating to the applicant undertaking a course of study.  Clause 572.223 provides:

   (1)  The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)  the Minister is satisfied that 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 meets the requirements of subclause (1A) or (2).

   (1A)  If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

   (a)  the applicant gives the Minister evidence that the applicant has:

   (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii)     educational qualifications required by the eligible education provider; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)     any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii)     the costs and expenses required to support each member (if any) of the applicant’s family unit.

   (2)  If subclause (1A) does not apply:

   (a)  the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)     any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

2. Mr Nguyen submits that in analysing the validity of the Tribunal’s decision it is necessary to examine the governing legislation. The first question arising is what is a “genuine applicant for entry and stay as a student”, which is after all the subject matter of clause 572.223(1)?  He submits that that is a question of intention – the intention being to study to the completion of the intending student’s particular course.  He submits that that assessment has to be carried out as at the time of the Tribunal decision, clause 572.223 being a “time of decision” requirement, and must refer to the course being studied at the time of the decision.

3. That construction is said to be supported by the legislative context.  In particular, clauses 572.211(4)(c) and 572.211(6)(c) require that the visa applicant give to the Minister evidence of commencement of a particular course of study, and that clause 572.221(2) requires that the applicant continues to meet clause 572.211(4).  If, on the other hand the applicant does not meet clause 572.211(4) he or she had to give the Minister evidence of enrolment in an “acceptable course” (clause 572.222). The focus therefore is on a particular course of study.  There is said to be no point to granting a student visa to a person unless he or she intends to complete the course.

4. Mr Nguyen submits that the matters listed in clause 572.223(1)(a) and the considerations which go to those matters in Direction No. 53 operate in aid of a determination of whether a person is a “genuine applicant for entry and stay as a student” as construed above. 

5. Mr Nguyen submits that, in the paragraphs leading up to and including [23] of its decision, the Tribunal has addressed matters relevant to whether he is a genuine student by reference to the considerations set out in clause 572.223(1) and Direction No. 53, but has not addressed the main question posed by the statutory criterion – that is whether Mr Nguyen intended to stay here temporarily to study and complete his particular course.  That is the error of which he complains.

6. The Minister contends that the Tribunal’s reasons do not disclose any jurisdictional error. 

7. As the Minister understands it, the gravamen of Mr Nguyen’s ground of review is that, in considering whether a person satisfies subclause 572.223(1) of Schedule 2 to the Regulations, the Tribunal was required to assess whether Mr Nguyen intended to study to the completion of his particular course.

8. The Minister submits that this argument is not supported by the terms of clause 572.223(1)(a) of Schedule 2 to the Regulations. It is apparent from the terms of clause 572.223(1)(a), as extracted above, that there is no requirement that a decision-maker consider and make a finding as to whether the applicant intends to complete the course of study in relation to which the application is made.  Rather, the focus of clause 572.223(1)(a) is on the question of whether the person intends genuinely to stay in Australia temporarily, having regard to the matters stated at (i)–(iv).

9. In the context of considering the matters it was required to consider in clause 572.223(1)(a) of Schedule 2 to the Regulations, the Tribunal expressly took into account that Mr Nguyen had a Confirmation of Enrolment in relation to a Diploma in Hospitality, which commenced on 3 February 2014 and was due to end on 30 June 2015[23].  Further, the Tribunal factored Mr Nguyen’s enrolment in the Diploma in Hospitality into its assessment of his circumstances and education history[24].  The Tribunal also had regard to Mr Nguyen’s enrolment in the Diploma in Hospitality, and factored this into its finding that he had demonstrated a lack of focus in his studies[25].  The Tribunal noted Mr Nguyen’s claim (raised for the first time at the Tribunal hearing) that he had switched to hospitality because his family wanted to open up a business in that industry, but was not convinced of the truth of this assertion. 

   [23] Court Book (CB) 152 at [5]

   [24] see particularly CB 154–156 at [15] and [17], read together with CB 157 at [23]

   [25] CB 156 at [18]

10. Hence, in the Minister’s submission, it is apparent that the Tribunal was aware of and had regard to Mr Nguyen’s enrolment in the Diploma in Hospitality in undertaking the assessment of the whether Mr Nguyen satisfied clause 572.223(1)(a) of Schedule 2 to the Regulations.  It did not need to go further to make any finding that Mr Nguyen did intend to study that course to completion. The Minister therefore submits that the ground of review raised in the amended application is not made out.

11. Mr Nguyen’s case is certainly arguable but, on balance, I prefer the Minister’s submissions.  Those submissions are supported, somewhat obliquely, in Saini & Anor v Minister for Immigration & Anor[26] where Judge Cameron said:

    The first aspect of the allegation that the Tribunal misapplied cl.572.223(1)(a) was the assertion that the expression “to stay ... temporarily” is to be construed as referring to the fulfilment of the specific but passing purpose for which the stay in Australia permitted by the visa was intended, namely study, and to an applicant’s capacity to undertake the study proposed and his or her application of the time allowed by the visa to the undertaking of that study.

    There is no textual basis for that construction. The words “intends genuinely to stay in Australia temporarily” are concerned with how long the visa applicant intends to stay in Australia and nothing else. The words are unconcerned with the motivation for the intention, only its genuineness. There is no reason to read into those words anything concerned with the purpose of the visa sought.

    There is also no contextual basis for the contention. The subclause requires that the Minister be “satisfied that the applicant is a genuine applicant for entry and stay as a student” by reference to various criteria. The first of those criteria is that the applicant “intends genuinely to stay in Australia temporarily” but the Minister must also be satisfied that the applicant is a genuine applicant for entry and stay as a student because he or she meets the criteria in sub-clause (2). That sub-clause is concerned with English language skills, the applicant’s stated intention to comply with visa conditions and his or her access to funds adequate for the stay. As the matters which the applicants submitted informed the expression “to stay ... temporarily” are dealt with in sub-clause (2), there is no contextual reason to construe sub-clause (1) as dealing with them too. I find that it does not.

    [26] [2015] FCCA 2379 at [17]-[19]

12. That decision was upheld on appeal in the Federal Court[27]. 

    [27] see Saini v Minister for Immigration [2016] FCA 858 in particular at [20]-[29]

13. In my opinion, there is nothing in the terms of clause 572.223(1) of Schedule 2 to the Regulations or in the context of the Regulations more generally which requires a decision maker to consider an applicant’s intention to complete the course for which he or she may be enrolled as a factor in determining whether the applicant is a genuine applicant for entry and stay as a student.  In a particular case, an applicant may put that forward as supporting a conclusion that he or she is a genuine applicant and that claim may require consideration.  It is not, however, a necessary consideration in every case.  Indeed, an intention to complete a current course of study may not be persuasive at all in a case where a student has held multiple student visas and it is plain from the applicant’s visa history and the courses undertaken that he is using the student visa to prolong his stay in Australia[28].  A subjective intention to complete a course of study is not of itself supportive of a conclusion that the person holding that intention is a genuine applicant for entry and stay as a student temporarily. 

    [28] see, for example Gupta v Minister for Immigration & Anor [2016] FCCA 871

Conclusion

1. The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 21 November 2016