Nguyen v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 760
•22 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 760
File number: MLG 3104 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 22 August 2024 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – consideration of factors in Ministerial Direction 69 – consideration of the applicant’s circumstances in Australia and his home country— where applicant alleges the Tribunal drew illogical conclusions about his familial ties and incentive to return to his home country– no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 65, 353, 357A, 359AA
Migration Regulations 1994 (Cth) Schedule 2, cll 500.2, 500.212Cases cited: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submissions: 20 August 2024 Date of hearing: 20 August 2024 Place: Melbourne The Applicant: In person Solicitor for the First Respondent: Ms Roeger of the Australian Government Solicitor ORDERS
MLG 3104 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NHAT THANH NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
22 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed on 17 October 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $6,000.
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 SYMONS:
INTRODUCTION
By an application filed on 17 October 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 20 September 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act). The Minister opposes the application. The Tribunal entered a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Vietnam. He arrived in Australia on 15 May 2014 on a then-current student (subclass 573) visa (CB 171).
On 12 March 2017, the applicant applied for the visa (CB 11-66). In his application for the visa, the applicant noted that he had completed a Bachelor of Engineering at Danang University in Vietnam from 2010 to 2014 (CB 19). At that time, the applicant was enrolled in a Certificate IV in Business at the Universal Institute of Technology in Melbourne (CB 19-20).
Pursuant to cl 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) it was a condition for the grant of the visa that the primary applicant satisfy a number of primary criteria, including what is referred to as the “genuine temporary entrant” (or GTE) criterion which is contained in cl 500.212(a) and expressed (at the relevant time) as follows:
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) any other relevant matter.
On 21 June 2017, a delegate of the Minister refused to grant the applicant the visa because they were not satisfied that the applicant genuinely intended to stay temporarily in Australia, and therefore cl 500.212 was not met by him (CB 74-77). Notably, the delegate pointed to the applicant’s failure to commence the Master of Business (Management) course which he had been enrolled in, and which his subclass 573 visa was attached to. The delegate stated (CB 76):
All student visas are subject to conditions 8516 (continue to be a person who would satisfy the primary condition for the grant of the visa) & 8202 (remain enrolled and achieve satisfactory course attendance and progress).
Records indicate that applicant’s enrolments for English and Master program was cancelled on 19/01/2015 due to “Non-commencement of studies.” Applicant then enrolled in a Bachelor of Business course on 16/03/2015, which was cancelled on 05/08/2015 due to “Cessation of Studies” and the education provider informed the department “Student failed to re-enrol for compulsory Trimester (T2, 2015)” with last day of study as 17/07/2015. Student then went on to enrol in the following courses – Certificate III in EAL, Diploma of Leadership & Management, Certificate IV in Business and Bachelor of Business. It has been noted that since the arrival in Australia on 22/04/2014, applicant has completed only Certificate III in EAL and Certificate IV in Business. It has been noted that applicant remained onshore as the holder of their initial TU573 visa but continued to study vocational sector courses. Even though applicant had been enrolled in Higher Education sector course however the applicant did not undertake any studies in higher education course and the enrolment was cancelled, with education provider commenting “Student has withdrawn the course”.
The applicant lodged this application on 12/03/2017 proposing to study package courses Certificate IV in Building and Construction (Building) and Diploma of Building and Construction (Management) to 02/06/2019. Applicant has submitted a response to the GTE requirement with their application which I have considered in its entirety.
On balance I am not satisfied applicant is a genuine temporary entrant as a full time student. Applicant’s failure to maintain enrolment in or complete their initial intended studies, combined with a significant change in applicant’s program of study are of concern.
Additionally, the delegate was not satisfied that “the proposed qualifications would be of a greater benefit to the applicant than the qualifications [that the] applicant already holds” (CB 77).
On 22 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 78-79).
On 6 August 2018, the Tribunal invited the applicant to provide additional information about his proposed course(s) of study and his entry and stay in Australia as a student by completing a Request for Student Visa Information questionnaire (CB 84-90). The Tribunal enclosed a copy of Ministerial Direction No. 69 (Direction 69) with the invitation and informed the applicant of its obligation to have regard to Direction 69 in considering whether he satisfied the GTE criterion.
On 20 and 21 August 2018, the applicant sent the Tribunal a completed questionnaire and the following documents (CB 91-133):
·a letter of offer from the Oceania Polytechnic Institute of Education dated 16 August 2018;
·a completed (but not signed or dated) Acceptance of Offer form;
·a typed letter from the applicant in support of his review application;
·a letter from Victoria University dated 9 October 2014 withdrawing their offer of enrolment in a Master of Business (Management);
·an International Student Agreement from Victoria University dated 8 October 2014; and
·a screenshot of text messages sent sometime in 2017.
On 24 August 2018, the Tribunal invited the applicant to attend a hearing on 17 September 2018 (CB 135-138).
On 10 September 2018, the applicant sent the Tribunal his Response to hearing invitation and a bundle of supporting documents that included (CB 139-153):
·screenshots of text messages sent in 2017;
·a letter of student progress from Kent Institute Australia dated 23 February 2017 concerning the applicant’s enrolment from 16 March 2015 to 21 June 2015;
·an Overseas Student Confirmation of Enrolment (COE) for a Certificate IV in Building and Construction to commence on 15 September 2018;
·a statement of genuine temporary entrant;
·an email from “student services” sent in 2015 about a cancelled COE for Bachelor of Business.
On 17 September 2018, the applicant attended a hearing before the Tribunal. He participated in the hearing with the assistance of an interpreter in the Vietnamese language. The applicant gave the Tribunal three untranslated documents and a translated letter from Giao Thong Hospital regarding his father (CB 162-166).
DECISION OF THE TRIBUNAL
On 20 September 2018, the Tribunal made a decision to affirm the decision of the delegate not to grant the applicant the visa and produced a statement of decision and reasons (Reasons) (CB 168-175).
After first identifying, in a general sense, the criteria for the grant of the visa, the Tribunal identified the issue in the present case as being whether the applicant was able to satisfy the GTE criterion (Reasons, [6]). The Tribunal reproduced cl 500.212 and set out the factors that it was required to have regard to under Direction 69 (Reasons, [7]-[9]). The Tribunal noted that it had discussed with the applicant at hearing the issues for consideration outlined in Direction 69 (Reasons, [10]).
By reference to the delegate’s decision, the Tribunal set out what it understood to be the applicant’s immigration and study history (Reasons, [11]-[14]).
The Tribunal noted that according to the applicant’s Provider Registration and International Student Management System (PRISMS) record (which it had reviewed with the applicant at hearing), the applicant had been enrolled in the following courses since his arrival in 2014 (Reasons, [15]):
·an English language program cancelled in 2014;
·a Bachelor of Business cancelled in 2015;
·a Master of Business cancelled in 2015;
·a Certificate III in EAL finished in 2015;
·a Diploma of Leadership and Management cancelled in 2016;
·a Certificate IV in Business cancelled in 2016 and then finished in 2017;
·a Certificate IV in Building and Construction (Building) cancelled in 2017; and
·a Diploma of Building and Construction (Management) cancelled in 2018.
The Tribunal noted that according to the applicant he was currently studying a Certificate IV in Building and Construction (Building) which began on 15 September 2018 with a completion date of 14 September 2019 and that he was then enrolled to study an Advanced Diploma of Building Design (Architectural) due to begin on 15 October 2019 with a completion date of 11 October 2022 (Reasons, [16]).
Under the heading “Circumstances in home country” the Tribunal recorded the applicant’s evidence and questionnaire responses that he had completed high school and finished university with a Bachelor of Construction Economics and Project Management. The Tribunal acknowledged the applicant’s family in his home country and the applicant’s evidence that he was able to maintain those relationships without difficulty from Australia. The Tribunal gave no weight to this as an incentive to return home (Reasons, [17]-[18]).
The Tribunal recorded that in the absence of relevant evidence, it had made no findings against the extant factors in Direction 69, being potential military service in the home country, political circumstances in the home country, civil unrest in the home country, and the applicant’s circumstances in the home country relative to others in that country (Reasons, [19]).
Under the heading “Circumstances and study in Australia and the value of the proposed course to the applicant’s future” the Tribunal referred to the applicant’s evidence about his accommodation arrangements, his cousin who is a permanent resident of Australia and his work as a kitchen hand from which he earns approximately $400 per week (Reasons, [20]-[21]).
The Tribunal noted with concern the applicant’s evidence that his parents were providing him financial assistance with his studies and found that the economic circumstances of the applicant would present as a significant incentive for him not to return to his home country (Reasons, [21]). The Tribunal noted that the applicant had returned to his home country on three occasions since his arrival in Australia in 2014, for short periods of time on each occasion (Reasons, [22]).
The Tribunal noted that it had adopted the procedure of 359AA of the Act and put information to the applicant in the form of the PRISMS record. The Tribunal identified the relevance of this information to the review as being that it may lead the Tribunal to form the view that it documented a history of unrelated courses, many course that weren’t started, or courses that were started and cancelled shortly after. The information might in turn lead the Tribunal to form the view that the applicant did not meet the GTE criterion (Reasons, [23]-[27]).
The Tribunal noted that it had given the applicant an opportunity to review the PRISMS record prior to giving a response (Reasons, [29]).
The Tribunal questioned the applicant on topics that included:
(a)The applicant’s cancelled enrolments, changes of course and career trajectory. The Tribunal was concerned with the applicant’s evidence that, on the advice of his agent, he was not going to study his Diploma of Building and Construction but instead return home after he finished a Certificate IV in Building and Construction. This indicated that the applicant was unsure himself what his current and future study plans were in Australia (Reasons, [30]).
(b)The contention that the applicant was in breach of his initial visa by dropping out of his Masters course and pursuing only low level education. The applicant acknowledged this was the case and the Tribunal found the applicant was in breach of a visa condition that attached to his 573-subclass visa (Reasons, [31]).
(c)The applicant’s study intentions in Australia. The Tribunal was concerned by the applicant’s evidence that “building and construction was not on my mind at that time” when questioned as to why he had studied various disparate courses instead of this discipline (Reason, [32]). The Tribunal was also concerned that the applicant’s evidence at hearing that he now wanted to return home because his father had had a stroke was inconsistent with the applicant’s evidence that he had two enrolments that would take him until the end of 2022 to complete (Reasons, [33]).
(d)The value of the applicant’s current enrolments to his future career. The Tribunal gave no weight to the applicant’s evidence that he had more involvement here in “real project work” given his inability to explain in any detail what he was learning in his current enrolments that he had not already achieved in his bachelor level qualification gained back in his home country (Reasons, [34]).
The Tribunal referred to information contained in the applicant’s statement to the Tribunal that his grandmother had passed away in May 2016 and that he did not want to come back to Australia. The Tribunal was concerned by this evidence as despite his stated intention, the applicant did come back to Australia and then initiate low-level enrolments which did not lead to any academic outcomes (Reasons, [35]).
The Tribunal found that the applicant was seeking to undertake a certificate level course that was below the level of his current educational qualifications and that this enrolment, and his future enrolment in a diploma, would not assist him to obtain employment or improve employment prospects in his home country or a third country (Reasons, [38]).
The Tribunal also found that the applicant did not have reasonable reasons for not undertaking his current areas of study in his own country or region as similar courses would be available there. The Tribunal was concerned that the applicant could not identify what specific elements of his current enrolment would assist him in pursuing his career trajectory in his father’s business back home. The Tribunal found that the applicant’s current enrolment was not relevant to his past or proposed future employment either in his own country or a third country (Reasons, [39]).
Based on the evidence before it, the Tribunal found that the applicant was using the student visa program to circumvent the migration program and was not a genuine applicant for entry and study in Australia. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and found that he did not meet cl 500.212(a) and did not meet the criteria for the grant of the visa (Reasons, [41]-[42]).
JUDICIAL REVIEW
Procedural background
On 18 June 2020, a Registrar made procedural orders including that the applicant file and serve at least 28 days before the final hearing any amended application with proper particulars of the grounds of application and written submissions.
Consistent with the procedural orders, the Minister, on 6 August 2024, filed written submissions. The applicant did not produce any material responsive to these orders.
The final hearing of the application for judicial review was listed before me on 20 August 2024. On that day the applicant appeared in person and was assisted by an interpreter in the Vietnamese and English languages. The Minister was represented by solicitor advocate, Ms Roeger.
Grounds of review
The application filed 17 October 2018 identifies the following grounds of review:
1.The Tribunal failed to act according to substantial justice and merits of the case, in breach of s353(b) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of that Act.
2.The Tribunal Member drew illogical considerations for example, my ability to maintain close personal relationships with family members while in Australia shows no incentive to return to my home country.
3.The Tribunal Member apportioned weight to the facts disproportionately. For example, the fact that I am employed and supported by my family – by which the Tribunal Member concluded presents as a significant incentive for me to remain in Australia. This is despite the fact that I only earn $400.00 per week.
4.The Tribunal Member failed to give appropriate weight to highly relevant facts such as my trips back home, my close ties and the fact that once qualified I have to run the family business.
5.The Tribunal Member incorrectly held that as I have completed a bachelor within the building and construction industry and as such any VET study in Australia would not be relevant to my past or proposed future employment. I believe that this finding is incorrect the Tribunal Member should have asked what the value of the course is to my future career prospects, that is – managing the family business.
GROUND ONE
The applicant did not meaningfully address ground one when invited to do so at hearing. However, when invited to tell the Court, in general terms, what the Tribunal did wrong in dealing with his case, it was clear that the applicant’s principal grievance was that the Tribunal did not give him an opportunity and that it treated the situation concerning the applicant’s grandmother, and the impact on his study, unfairly.
This same concern is also reflected in paragraphs 10 and 11 of the affidavit filed by the applicant in support of his application for judicial review on 17 October 2018 (applicant’s affidavit) and which I have treated as being more in the nature of a submission. In these paragraphs the applicant said:
I felt that parts of the Tribunal’s decision were offensive. For example, the Tribunal Member stated that because I previously said that I do not wish to come back to Australia (after my grandmother’s funeral), when I did in fact come back undermines my credibility. I came back to Australia, to complete my studies so that I can do my family proud and return with significant skills to effectively manage the family business.
I feel that the law and guidelines have been selectively applied and the principles of procedural justice have been undermined with the Tribunal Member drawing unreasonable and illogical inferences.
Ms Roeger, in oral submissions, took the Court to those passages of the Tribunal decision where the applicant’s evidence about his grandmother had been acknowledged. At Reasons [35] the Tribunal recorded the applicant’s evidence that his grandmother had passed away in May 2016 and that he (the applicant) did not want to come back to Australia. The Tribunal acknowledged the applicant’s evidence that his family had advised him he should return to Australia (Reasons, [37]) but remained concerned that the applicant had returned to Australia and initiated low-level enrolments.
The Minister submitted that these references indicated that the Tribunal took account of the applicant’s evidence and explanations but reasoned logically that the applicant’s preparedness to return to Australia impacted on his credit.
The Minister submitted that ground one was otherwise misconceived because s 353(b) of the Act – in reviewing a Part 5-reviewable decision, the Tribunal “shall act according to substantial justice and the merits of the case” – did not import substantive common law requirements of procedural fairness and did not give rise to a ground of review (referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [15]-[16]).
As far as the applicant also sought to invoke s 357A(3) of the Act – the Tribunal must act in a way that is fair and just – the Minister noted that the Tribunal’s procedural obligations were exhaustively set out in Part 5 Division 5 of the Act (refer s 357A(1)) and the applicant had failed to identify any error that resulted in the Tribunal breaching any of these obligations. The ground could not succeed on that basis.
I am not persuaded that the Tribunal erred in the manner identified by the applicant. The Tribunal was entitled to draw the conclusion that it did from the applicant’s evidence concerning the death of his grandmother and how this impacted on his intentions to return to study in Australia. I can understand how the applicant might apprehend that the Tribunal took a harsh view of his explanations for returning to study, but I do not consider that the reasoning adopted by the Tribunal approached the level of being “plainly unjust, arbitrary, capricious or lacking in common sense” (Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [11]). The Tribunal’s finding recorded at [35] was informed not just by the fact that the applicant had returned to Australia (contrary to his stated intentions) but also that when he did so, he made study choices that did not result in academic outcomes for him. These choices were in turn part of a broader pattern of study that the Tribunal ultimately found was inconsistent with the applicant’s career trajectory in his father’s business.
Ground one is dismissed.
GROUND TWO
At paragraphs 12 and 13 of the applicant’s affidavit, the applicant said that the Tribunal’s finding at Reasons [18] was illogical because the fact that he had returned and maintained close relationships with his family members did in fact show a strong incentive to return to his home country.
The Minister submitted that while the applicant might strongly disagree with the Tribunal’s finding at [18] it was not one that no rational or logical decision maker could have arrived at on the same evidence so as to possess the character required to establish jurisdictional error (referring to Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130]).
I accept the submission of the Minister. At hearing, it became clear through the applicant’s responses to the Court that the applicant was disappointed by the Tribunal decision and considered that the Tribunal should have taken a different view of the evidence that he presented. The applicant repeated the narrative advanced before the Tribunal that he relied upon the advice of an agent and that this had explained some of the poor study choices that he made while in Australia.
However, none of these grievances establish jurisdictional error. It is clear from the decision of the Tribunal that it took account of the material provided by the applicant and that it went through a careful process of exploring with him during the hearing, his answers to various topics that engaged with the considerations identified in Direction 69. Furthermore, I consider that the finding recorded at Reasons [18] was open to the Tribunal to make.
GROUNDS THREE AND FOUR
At paragraphs [8] and [9] of the applicant’s affidavit the applicant said:
The Tribunal Member’s illogical inferences against my strong family connection is further evidenced by the fact that my parents were supporting my studies. The decision purports that it is a significant incentive for me to stay in Australia because my parents are supporting my studies. Most parents assist their children with their studies, it should not be held against me that my parents are supportive and assist me financially as well as emotionally.
The Tribunal Member has also placed significant weight on my job as a kitchen hand and my earnings of $400AUD per week. The Tribunal concluded that this is a significant incentive to not return to my home country. This reasoning is unreasonable and is illogical, as Australia is an expensive country to live in and that is incentive enough for me to wish to return to my home country once I have finished my studies.
The Minister submitted that complaints about the weight given to facts could not establish jurisdictional error where the Tribunal, as part of its fact-finding function, was entitled to accept or reject or give such weight to the evidence before it as it thought appropriate in all the circumstances (referring to Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
The arguments deployed under grounds three and four fail for the same reasons expressed in relation to ground two. The findings recorded by the Tribunal concerning the applicant’s incentive to stay in Australia were open to the Tribunal based on the applicant’s evidence of his financial and living conditions.
GROUND FIVE
In the applicant’s affidavit at [15] the applicant stated:
The Tribunal Member incorrectly concluded that because I had a bachelor in building and construction undertaking a VET level certificate in Australia was not needed and in fact the Member concluded that my enrolment was not relevant to my past or proposed future employment. I believe that such a finding is inappropriate. Individuals travel to expand their knowledge and skill set across different areas. The benefit of studying in Australia was a point to distinguish myself from other candidates and businesses in my home country. This would mean that upon my return I would have a new lens on how to effectively and efficiently run my families building and construction business.
The Minister submitted that ground five involved an invitation to undertake impermissible merits review because it involved the assertion that findings contained in Reasons [39] were “incorrect”.
The Minister noted that at Reasons [32]-[34] the Tribunal had recorded how it had asked the applicant how his current enrolments would assist him in his future career, given he had already successfully completed a Bachelor of Construction Economics and Project Management. The Minister submitted that the Tribunal’s finding that the applicant’s response lacked detail such that it chose to give it no weight, was one open to the Tribunal to make on the evidence before it.
I accept the Minister’s submission and characterisation of this ground. Furthermore, the Tribunal did not (as the applicant suggests) find that the applicant’s proposed certificate course would be irrelevant to the applicant’s proposed future employment but rather that it would not assist him, beyond the high-level qualification he had already attained, in pursuing his career objectives. This is an important distinction as it aligns more closely with the factors the Tribunal was required to have regard to under paragraph 12(a) of Direction 69.
Ground five is dismissed.
ORDERS
For the reasons set out above I have not been persuaded that the decision of the Tribunal dated 20 September 2018 is affected by jurisdictional error.
Accordingly, I will order that the application filed 17 October 2018 be dismissed and the applicant pay the Minister’s costs fixed in the amount of $6,000, which amount I note is below the amount currently prescribed for a matter determined at final hearing under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 22 August 2024
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