Nguyen v Minister for Immigration

[2015] FCCA 2133

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2133

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Student (Temporary) (Class TU) visa – whether the Tribunal relied upon irrelevant material – whether the findings of the Tribunal were unreasonable or irrational – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.572.223, 573.235

Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971

Applicant: THI HONG UYEN NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1195 of 2015

Judgment of: Judge Street

Hearing date: 7 August 2015

Date of Last Submission: 7 August 2015

Delivered at: Sydney

Delivered on: 7 August 2015

REPRESENTATION

Solicitors for the Applicant:

Mr Nguyen

Nguyen & Co Solicitors

Solicitors for the First Respondent:

Ms N Senanayake

DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1195 of 2015

THI HONG UYEN NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 1 April 2015, affirming the decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The application identifies the following grounds:

   1. Ignoring relevant material: The Delegate tailed to consider the school records submitted to it showing the student did attend the Diploma of Accounting course. The Member ignored this document in his review or did not consider it relevant in assessing the genuine temporary entrant requirement.

   2. Relying on irrelevant material: The Member relied on the fact that the student did not study after her application for extension of visa was refused to decide whether the student satisfied the genuine temporary entrant requirement. It is submitted that the period after the refusal of the visa should be irrelevant material in the review.

   3. Failure to conduct review: The Member failed to review the delegate's decision, in particular he failed to consider the documents submitted with regard to the course in hospitality (commercial cookery) the student was counselled to undertake by the school.

   4 Failure to investigate or inquire: The Delegate failed to investigate or inquire about the courses the student undertook in deciding to refuse the student's application.

   5. Unreasonable and irrational: The decision by the Member was unreasonable and irrational in holding that the student should have studied because there were no restrictions in the bridging visa to study. The student's application was for the extension of the student visa while doing a course and the Delegate refused it. To demand the student to study despite the formal and express refusal by the Delegate is unreasonable and irrational.

2. The applicant was granted a subclass 573 visa on 9 February 2009, which expired on 19 March 2013.  The evidence discloses between 26 April 2010 and 4 October 2012 the applicant completed a 50 week Diploma of Accounting course in respect of which the diploma was issued on 25 October 2012.  On 16 March 2015, the applicant lodged a student class TU visa application, and on 22 May 2013, it was refused by the delegate.  The delegate’s reasoning did not accurately identify the period during which the applicant had been undertaking the accounting course.

3. The delegate caused an email to be sent on 23 April 2013 seeking an explanation for the failure to maintain enrolment in the principal course for the duration of 25 months. The written response on 17 May 2013 indicated that the applicant had fallen pregnant and returned to Vietnam to give birth to her child on 11 September 2009, returning on 18 March 2010. It is in those circumstances that the delegate found that there had been no substantial compliance with condition 8516, and, therefore, the requirements of cl.573.235 were not met, and the visa was refused.

4. The applicant lodged an application for review on 7 June 2013, but it was not until the time of attending the hearing before the Tribunal on 16 February 2015 that the applicant apparently enrolled in some further academic course. The Tribunal identified the issue before the Tribunal as to whether the applicant met the genuine temporary entrant criterion under cl.572.223(1)(a). The Tribunal wrote to the applicant on 12 January 2015 identifying a proposed hearing date and asking for material, relevantly, as follows:

   1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

   3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

   4. An explanation of any gaps in you enrolment/s and any documentary evidence relevant to your explanation.

5. Following which, the letter said:

   The Tribunal will assess whether you intend genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) of the Migration Regulations.

6. It appears that the hearing date was changed to the month of March 2015, and it is apparent that on 2 March 2015, submissions were provided by the solicitor on behalf of the applicant to the Tribunal.  The Tribunal made adverse credit findings, relevantly:

   25. The Tribunal is not satisfied that the applicant provided a truthful account of her circumstances. It finds that the applicant has exaggerated her interest and involvement in study and it is not satisfied that she has been in Australia primarily for the purpose of studying. The Tribunal finds that despite the applicant having done some study in Australia, she has been here pursuing other interests. It finds that for the purposes of the ‘genuine temporary entrant’ criterion the applicant is not a genuine applicant for entry and stay as a student and it is not satisfied that the applicant intends to remain in Australia temporarily.

7. The Tribunal identified the factors that had led to those findings, including that the applicant appears to have spent considerable time in Australia holding a student visa and not studying, and the Tribunal relevantly found:

   27. Nevertheless, even with what is known, the applicant still appears to have spent considerable time in Australia holding a student visa and not studying. The applicant was granted the student visa on 9 February 2009 and that visa ceased on 19 March 2013. During that period she did a 25 week English language course; she took approximately six months off from study in 2009/10 to have her child; she did a diploma course which ran from April 2010 until April 2011; and she did approximately one year of an eighteen month hospitality course from February 2012 until March 2013. Therefore, the most favourable account which can be reached from the information provided, is that in a period of almost four years when the applicant held the student visa, she was a full-time student for approximately two and half years.

8. The applicant proffered an explanation for her ceasing her study on 19 March 2013.  Relevantly, the Tribunal found:

   29. The Tribunal finds that the applicant’s academic record does not support her claim that all she wanted to do in Australia was to study. The applicant’s agent has argued that the applicant’s pregnancy, leaving the child in Vietnam, and the marriage breakdown, led to depression which affected her ability to study. However, the Tribunal is not satisfied that the applicant’s family difficulties adequately account for the substantial period of time when the applicant held a student visa but was not engaged in full-time study. The Tribunal has formed the view that the applicant was pursuing other interests in Australia and she was using the student visa system to main residence while pursuing those interests. The Tribunal is not satisfied that studying was the applicant’s main reason for being in Australia. It finds that the applicant’s interest in study has been greatly exaggerated to support the application. The Tribunal has formed the view that the applicant’s academic record indicates that study has not been the applicant’s main priority for being in Australia.

   30. The Tribunal has considered the applicant’s family circumstances. She has a child and other family in Vietnam and her marriage to her husband in Australia is now over. The Tribunal accepts that these circumstances would provide an incentive for her to return to Vietnam. However, the Tribunal has also noted that the applicant has remained in Australia for over five years despite her family circumstances. She claims that she has been here to pursue her interest in study but, for reasons already stated, the Tribunal is not satisfied that this claim is credible. It finds that the applicant has other, undisclosed, reasons for being in Australia and those reasons have kept her here rather than in Vietnam. It has formed the view that the applicant’s bid to extend her stay in Australia relates to those other interests rather than a genuine desire to do more study; and it is not satisfied that the applicant’s family circumstances provide a strong incentive for the applicant to return to Vietnam.

   31. The Tribunal has no information regarding other factors which will motivate the applicant to return to Vietnam. The applicant’s agent has argued that the applicant should be given an opportunity to obtain a qualification to justify the time she has wasted in Australia. However, it is not apparent from the evidence provided why the applicant did not continue to study while her visa issues were being considered or what she would do with the qualifications if she had them. The Tribunal has noted the applicant’s claim that without a student visa she did not think she could study. However, if she had a genuine interest in finishing her hospitality course, she could have made inquiries and found that she had no study restrictions on her bridging visa. The Tribunal finds that the applicant stopped studying because she did not wish to study and it is not apparent from the applicant’s evidence how she would use those qualifications in Vietnam if she had them. From the information provided to the Tribunal is not satisfied that there are employment and career opportunities for the applicant in Vietnam which would provide a strong incentive for her to return there if she had the qualifications she is seeking.

9. It is clear that the Tribunal took into account the applicant’s migration history and her reasons advanced in relation to her limited academic success.  They have relevantly found:

   32. The Tribunal has considered the applicant’s immigration history and the length of time she has spent in Australia. The applicant claims that for various reasons, including her unexpected pregnancy, the breakup of her marriage, depression, and her visa being refused in 2013, contributed to her limited academic success. However, the Tribunal has formed the view that the applicant has only had modest academic success in Australia because she has not been fully committed to studying. At the hearing the applicant stated that she was relying on her agents to guide her. However, the Tribunal finds that if indeed the applicant was committed to studying she would have been studying. The applicant claims that she was not required to study when she held a subclass 485, but the evidence before the Tribunal is that she has never held such a visa. The Tribunal finds that the applicant’s limited involvement in study, in over five years of being in Australia, is indicative of her limited interest in study.

   33. The Tribunal is not satisfied by the information it has that there are strong incentives for the applicant to return to Vietnam and it finds that there are undisclosed incentives for her to remain in Australia. On that basis, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal finds that the applicant is not a genuine applicant for entry and stay as a student because she intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet the requirements of cl.573.223(1)(a).

   34. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

   35. The second named applicant applied on the basis that he was member of the first named applicant’s family unit. The evidence provided indicates that this is no longer the case. Accordingly, the second named applicant cannot be granted the visa.

10. There is no substance in relation to ground 1.  It is clear that the Tribunal referred to the accounting course.  Relevantly, in para.10:

    10. The applicant stated that she completed a Diploma of Accounting on 15 April 2011. The Tribunal commented that in her submissions she stated that she did not complete the course until 4 October 2012. The applicant stated that the course ended on 15 April 2011, but she failed one subject, which she then did between 15 April 2011 and 4 October 2012. She stated that she was not permitted to study after her visa was refused. She was asked if she had a study restriction on her bridging visa. She did not know. The Tribunal commented that from the information it had there appeared to be no study restrictions placed on her visas. The applicant stated that all she wanted to do was study.

11. In these circumstances, it cannot be contended that the Tribunal ignored relevant material, and there is no substance in relation to ground 1.

12. In relation to ground 3, the assertion advanced that it was irrelevant to take into account the absence of study after the application for extension of her visa was refused is without substance.  This was an area where the solicitor for the applicant put that a reasonable student might form the view that it was not necessary or appropriate to continue further study.  It was clearly a matter for the Tribunal to determine whether, in this case, the applicant’s conduct after the refusal of the extension of her visa was relevant.  It is probative of whether she was a genuine temporary entrant.

13. In that regard, her failure to pursue some further course in the period from 19 March 2013 until February 2015 was clearly a matter that was open for the Tribunal to take into account, and there is no jurisdictional error disclosed by ground 2.  In relation to ground 3, it is clear that the Tribunal took into account the explanations advanced by the applicant, and there is no substance in the assertion the Tribunal failed to conduct a review as required by the statute.  Ground 3 is without substance.

14. In relation to ground 4, it is clear that the Tribunal conducted the review according to law, and there is no jurisdictional error by reason of any alleged failure on the part of the Tribunal. 

15. In relation to ground 5, it is alleged that the decision was irrational in relation to the reasoning as to the significance of the absence of study after 19 March 2013.  This is an impermissible challenge to the findings of fact, and it cannot be said that the reasoning of the Tribunal in relation to its adverse findings in respect of the applicant lacks an evident and intelligible justification.  It was clearly open to the Tribunal on the material before it and in light of its concern as to the credibility of the applicant to come to the adverse findings that were made.  There is no substance in relation to ground 5. 

16. The solicitor for the applicant also sought to suggest that the finding in the last sentence of para.27 was irrational and unreasonable.  In that regard, the solicitor accepted that it was accurate to say that there was only a two and a half year period during which the applicant engaged in full time study as a full time student.  In these circumstances, it cannot be said that there is anything irrational or unreasonable in relation to the last sentence of para.27.

17. The solicitor for the applicant also sought to develop an argument that the Tribunal had no rational basis for the finding at paragraph 30:

    It finds that the applicant has other, undisclosed, reasons for being in Australia and those reasons have kept her here rather than in Vietnam.

18. In my opinion, this was a finding that was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

19. The solicitor for the applicant then sought to argue that the undisclosed reasons were ones in respect of which the applicant might have both an intention to stay permanently if permitted and also an intention to stay temporarily of the kind identified in Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971. The reasoning of the Tribunal in relation to the undisclosed reasons of the applicant related in this case to whether the applicant was a genuine temporary entrant and whether the applicant had a genuine desire to study.

20. There was no error in the reasoning of the Tribunal in this case of the kind identified in in Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 at [32]-[34]. The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 August 2015