Raeiss v Minister for Home Affairs
[2019] FCCA 2616
•6 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAEISS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2616 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Home Affairs not to grant a Student (Temporary) (Class TU) (Subclass 500) visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student but rather used the Student visa program as a means of maintaining residence in Australia – applicant claims the Administrative Appeals Tribunal failed to take into consideration claims made by her – no such failure to consider by the Administrative Appeals Tribunal – no jurisdictional error identified by the applicant – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 |
| Applicant: | RODICA AL RAEISS |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3560 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms C. Juarez |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 20 December 2018 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceedings in the sum of $5,600.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 14 October 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3560 of 2018
| RODICA AL RAEISS |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a female citizen of Romania aged 62 years, having been born on 24 September 1956.
By Application filed in this Court on 20 December 2018 she seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 19 November 2018 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 13 February 2017 refusing to grant to her a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa).
The Applicant was granted her third Visitor (Class FA) (Subclass 600) visa (Visitor visa) on 15 August 2016 which was valid until 28 October 2016. She had spent a total of 813 days onshore from her initial arrival in Australia on 16 December 2013 until making her application for the Student visa on 28 October 2016, at which time she was enrolled in a General English course.
On 23 January 2017, in response to a letter from the Department of the Minister dated 8 December 2015 entitled “Request for more information for a Student (Temporary) (class TU) Student (subclass 500) visa” and addressing what is known as the “genuine temporary entrant requirement” comprised in cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), the Applicant forwarded to the Department a statement which, in substance, stated as follows:
…
I, Rodica Al Raeiss am making this statement in support of my application for a Student visa and to assure the Department that I genuinely intend to remain in Australia for the sole purpose of study on a temporary basis only and will return to my country once my studies have finished.
I am a citizen of Romania. My late husband was from Syria and I have two sons who are currently residing in Australia. I applied for a Student visa because I wish to undertake studies in Australia and establish my own business back home.
Reasons for choosing to undertake the course(s) of study specified in my application
Currently I have enrolled in a General English course at the Queen Anne English College Bankstown NSW. My ultimate goal is to set up my own beauty salon (hairdressing, manicure/pedicure, hair removal etc.) back home in Romania. For this reason I wish to undertake a business management course once I have completed my English studies. However, in order to be successful in the business course I needed to bring my English language skills on par with the requirements of the latter course. This is why I have chosen to improve my English first before I take on a business course.
My planned living arrangements in Australia
My two adult sons, Abdul Rahim and Majed, reside here in Sydney. Abdul Rahim is a permanent resident and married. Majed is on a Graduate Stream visa undertaking skilled employment and completed his bachelor degree in Australia as well. I currently live with Majed at the Warwick Farm address provided. My children have taken responsibility for my accommodation on each of my visits to Australia and if I am granted a Student visa I will continue to live with my son Majed free of charge for the duration of my stay.
The relevance of the course(s) of study to my academic and/or employment background
I have chosen a General English course at this stage with an intention to enrol in a Cert III Business Administration course later on. I used to run a beauty centre in Syria from 2000 until 2010. Now I plan to open the same kind of business in Romania and generate some income from it. The English course will help improve my language skills and prepare me academically for the business course ahead…
…
Provide evidence of your economic circumstances in your home country. This may include evidence of employment or business undertakings for at least the 24 months immediately before the lodgement of your visa application, evidence of an offer of employment on your return home, income tax return reports or bank statements for the previous 24 months.
As mentioned, I have been unemployed since 2010 and supported by my sons financially. I have spent the most part of the past 24 months in Australia as a visitor. Thus I do not have evidence of any employment or business undertakings for this period.
…
I want to remain in Australia now only for the purpose of study and will return home upon completion to start my own business in Romania. I will do nothing to jeopardise my record because I have my sons in Australia whom I would like to continue to visit from time to time on a temporary basis. I would appreciate it if the Department takes the above information into consideration when making a decision in my current application.
Relevant Statutory Requirements for the Grant of a Student Visa
Relevantly to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.500.212 of the Regulations which required, inter alia, that she be what is known as a “genuine applicant for entry and stay as a student”. Clause 500.212 at the time of decision provided 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) of any other relevant matter.
Decision of Delegate
In her Decision Record the Delegate set out cl.500.212 of the Regulations and referred to Ministerial Direction No. 69 and the factors to be taken into account in assessing the genuine temporary entrant criterion. The Delegate proceeded to note the Applicant’s immigration history and that at the time of application for the Student visa her ELICOS English course was to be followed by a Certificate IV in Marketing.
In the result the Delegate refused to grant to the Applicant the Student visa because she was not satisfied that the Applicant was a genuine applicant for entry and stay as a student. In particular, the Delegate in her Decision Record took into account the following factors:
a)since the Applicant’s first arrival in Australia on 16 December 2013 up until the Delegate’s decision she had been resident in Australia for two years and eight months and offshore for seven months, which was difficult to reconcile with her claim to be “a genuine temporary resident”;
b)the Applicant had not provided justification for pursuing her proposed courses in Australia which were claimed to be undertaken with a view to opening her own beauty salon in Romania;
c)the Applicant had not provided any evidence of her employment or financial ties to Romania which would outweigh her incentive to remain in Australia, where she lives with her adult sons and their families and on whom she financially relies; and
d)the fact that the Applicant applied for the Student visa on the day her third Visitor visa expired indicated that she was using the Student visa program as a means of maintaining residency in Australia.
Accordingly, the Delegate refused to grant the Student visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal for merits review of the decision of the Delegate on 6 March 2017 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time. She appeared at a Tribunal hearing on 16 April 2018 to give evidence and present arguments together with her registered migration agent and her two sons, who also gave oral evidence to the Tribunal. Prior to the hearing she had given a further statement to the Tribunal in support of her claims.
At [4] of its Decision Record the Tribunal recorded that the Applicant had now completed a General English course and was enrolled in a Certificate IV in Human Resources course. At [8] – [11] the Tribunal set out cl.500.212 of the Regulations and the factors set out in Ministerial Direction No. 69 in connection with the genuine temporary entrant criterion.
The core reasoning and findings of the Tribunal were then set out at [12] – [14] of its Decision Record, as follows:
[12] The applicant submitted evidence regarding the circumstances in her home country and in Australia. The applicant has some family members in Romania including her mother and brother but stated she does not have property or assets there. The applicant's evidence was that she lived in Syria for 26 years which is where her late husband was from and had only returned to Romania in 2011. She had worked as a hairdresser and gave evidence that she planned to open a business in her home country on her return. These claims were supported by the applicant's sons who appeared at the Tribunal hearing. The applicant's two adult sons and a grandchild live in Australia which is the reason for her initial visits. Based on the evidence submitted, the Tribunal accepts the applicant has some ongoing ties to Romania but is not satisfied this is a strong incentive for her to return. Although the applicant said her mother is elderly and her brother has a back complaint, she has nonetheless spent a large amount of time away from her home country since 2013. In addition, the applicant had lived in another country for 26 years as well as spending time on and off in Australia for the last 5 years. Her husband has passed away and her immediate family, her two sons, live in Australia one of them permanently. The Tribunal considers the applicant has ties to Australia which are a strong incentive for her to seek to remain.
[13] The Tribunal has considered the value of the course being studied to the applicant's future. In evidence to the Tribunal the applicant and her witnesses stated she wanted to study Business because of plans for a business in Romania. However, the applicant was enrolled in a Marketing course and then in Human Resources. The applicant has not indicated an intention to seek employment in the field of Human Resources even though the course she has enrolled in is described as being specifically for that purpose. The Course Information for International Students in relation to a Certificate IV in Human Resources at Queen Anne College where the applicant is enrolled states:
This qualification is suitable for individuals working in a range of human resources management positions. Job roles could include human resources assistants, human resources coordinators, human resources administrators and payroll officers.
[14] The field of Human Resources is not related to the applicant's past employment or to her stated plans of returning to work in the hairdressing/beauty industry. For these reasons, the Tribunal is not satisfied the applicant has enrolled to study for genuine proposes and the Tribunal places weight on the applicant's circumstances that indicate the Student Visa is intended primarily for maintaining residence in Australia.
At [15] the Tribunal recorded that it considered that the Applicant had applied for the Student visa “in order to extend her stay in Australia rather than for reasons of genuine interest or value to her future” and it affirmed the Delegate’s decision not to grant to the Applicant the Student visa.
Grounds of Attack on Tribunal Decision in this Court
The three Grounds relied upon by the Applicant are as follows:
1. The member did not understand why I was studying Certificate IV in Human Resources. The member stated it’s irrelevant when in fact HR is crucial when managing people and opening a business which I intend to do.
2. The member made assumptions that I was studying HR to go into a position of HR manager. Not taking my statement into account.
3. The member disregarded my statement about my family. [The] member stated my brother’s injury is not enough incentive as I have been in Australia for a while and would have returned earlier, but my brother’s condition only developed recently.
Consideration
Grounds 1 and 2
In my view these Grounds seek impermissible merits review of the decision of the Tribunal. The Tribunal understood, appreciated and gave meaningful consideration to the Applicant’s claims. It understood and considered that the Applicant was enrolled in a marketing course and then in a human resources course and it came to a view that the field of human resources was not related to the Applicant’s past employment or to her future plans to work in the hairdressing / beauty industry.
It is well-established that the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [13] where Flick J said:
[13] The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.
Ground 2 further misstates the position of the Tribunal. The Tribunal understood quite well that the Applicant was intending to work in the hairdressing / beauty industry as she had in the past, and the Tribunal made no assumption that she was intending to go into a human resources position or to become a human resources manager. Rather, the Tribunal was of the view that to study in a human resources course had no meaningful relationship with working in the hairdressing / beauty industry in the future and the Tribunal’s view in that regard was not, in my view, legally unreasonable or lacking in an intelligible justification.
Ground 3
Until the Tribunal hearing no claim had been made at all by the Applicant in relation to her mother being elderly or her brother having a back complaint. The Applicant has not tendered a transcript of the Tribunal hearing although, by consent order 3 made on 8 March 2019, she accepted the responsibility of doing so if she wished to rely on a transcript. The only evidence and reference to her elderly mother and to her brother having a bad back is that made by the Tribunal at [12] of its Decision Record where it records that the Applicant had said at the Tribunal hearing that “her mother is elderly and her brother has a back complaint”.
Accordingly, the Tribunal was fully aware that the Applicant claimed that her mother’s age and her brother’s back complaint provided an incentive for her to return to Romania but in the result the Tribunal gave greater weight to the Applicant’s ties to Australia, which the Tribunal held constituted “a strong incentive for her to seek to remain” in Australia. Ground 3 appears to imply that the Tribunal regarded with disfavour the reference to her brother’s back condition because it had not been made by her earlier, but on the face of the Decision Record that is not the case.
Rather, the Tribunal appears to have accepted that the Applicant’s mother was elderly and her brother had a back complaint but found that in the circumstances her incentive to remain in Australia was stronger because of the fact that her two sons live here in Australia, with one of them living here permanently.
In my view, none of the Grounds relied upon by the Applicant are made out and they fail to establish that the decision of the Tribunal is affected by jurisdictional error.
Further, Ms Juarez, who appears for the Minister as a model litigant, informs me that she is unable to discern any other form of jurisdictional error affecting the Tribunal’s decision, and nor can I.
Conclusion
Accordingly, in my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 16 September 2019
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