SENG v Minister for Immigration

[2020] FCCA 1705

FEDERAL CIRCUIT COURT OF AUSTRALIA

SENG v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1705

Catchwords:

MIGRATION – Visa – student visa – application for review of decision by Administrative Appeals Tribunal – no reviewable error – questions asked by the Tribunal were consistent with requirements and guidelines – applicant’s migration history is directly relevant to Tribunal’s consideration of student visa.

Legislation:

Migration Act 1958 (Cth), s.368

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: KHAI SYUEN SENG

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2677 of 2018

Judgment of: Judge McNab

Hearing date: 18 June 2020

Date of Last Submission: 18 June 2020

Delivered at: Melbourne

Delivered on: 26 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application filed on 6 September 2018 and amended on 21 May 2020 be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,400.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2677 of 2018

KHAI SYUEN SENG

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 6 September 2018 and amended on 21 May 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 2 August 2018. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant a Student (Temporary) (Class TU) visa (‘the student visa’).

2. The matter was heard on 18 June 2020.

3. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The applicant is a Malaysian citizen who first arrived in Australia on 10 October 2016 as the holder of a tourist visa.

2. On 3 December 2016, the applicant applied for the student visa to undertake courses in English and Commercial Cookery.

3. On 16 January 2017, the delegate refused to grant the student visa.

4. On 20 January 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

5. On 12 April 2018, the Tribunal invited the applicant to provide additional information.

6. On 26 April 2018, the applicant’s representatives provided further documents to the Tribunal.

7. On 15 June 2018, the Tribunal invited the applicant to a hearing before it. The applicant attended that hearing on 11 July 2018.

8. On 2 August 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant the student visa.

Grounds of review

1. By her amended application the applicant seeks review on the following grounds:

   1. In relying on a failure to provide “details” in circumstances where there was no reason to think that the applicant could reasonably have been expected to know that she needed to provide more details than she had provided, the decision of the Tribunal was affected by legal unreasonableness in failing to appreciate that the limits of its questioning at hearing did not leave open the conclusion at Reasons [23], or the Tribunal failed to notify the applicant of an “issue” in the review.

   2. The decision of the Tribunal is affected by illogicality, irrationality, or legal unreasonableness because the Tribunal erroneously reasoned that apparent false statements in another visa application were probative of an intention to stay beyond the conclusion of the student visa.

   3. The Tribunal failed to identify what were the “intentions of the migration program” and did not refer to any evidence about such intentions, justifying an inference that the Tribunal misconceived that notion and failed to act on a correct understanding of the law.

Applicant’s submissions

1. The applicant’s amended application is supported by an affidavit of her solicitor and migration agent, Ms Tegan Weir, filed 21 May 2020. Ms Weir’s affidavit includes a copy of the transcript of proceedings of the Tribunal hearing held on 11 July 2018.

2. By her submissions filed 21 May 2020, the applicant:

   a)by ground 1, submits that:

   i)the Tribunal placed material adverse weight upon her insufficient detail regarding her future plans following the completion of her study, leading to an unreasonable decision;

   ii)the Tribunal never asked her to provide more details and she had no way of knowing that the Tribunal might need more information on the topic; and

   iii)alternatively, pursuant to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’) at [29], the Tribunal failed to notify the applicant of an “issue” in the review, being the need for her to provide more details,

   b)by ground 2, says that the Tribunal’s decision was affected by illogicality, irrationality or legal unreasonableness because it considered the applicant’s conduct regarding her tourist visa application when determining the applicant’s intentions, and likelihood, to stay in Australia beyond a “temporary” period;

   c)by ground 3, contends that the Tribunal failed to act on a correct understanding of the law because there was no evidence before the Tribunal about the “intentions of the migration program”, and that the intentions mentioned by the Tribunal ‘were some idiosyncratic view, amounting to action on humour and whim, not according to law and reason.’

First respondent’s submissions

1. With respect to ground one, the Minister cites Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002,[1] and says that the Tribunal was not required to press the applicant for details she chose not to give about opening a dessert restaurant. Reference was made to CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, and the Minister submits that there was no ‘extreme’ illogicality in the Tribunal’s reasoning at [23] so as to establish legal unreasonableness.

   [1] (2003) 201 ALR 437

2. The Minister responds to the applicant’s claims about s 368 of the Migration Act 1958 (Cth), saying that the lack of detail given by the applicant was not an ‘issue’ in the review, and cites Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 to support the proposition that the Tribunal is not required to expose its thought processes or provisional views for comment. The Minister contends that it was:

   […] simply one of many aspects of her evidence which led the Tribunal to be unconvinced that the applicant intended to stay in Australia temporarily and was a genuine applicant for entry and stay as a student.

3. Regarding the applicant’s second ground, at [19] of his submissions the Minister says that there was no extreme illogicality established and that it was open for the Tribunal to have regard to the applicant’s immigration history, as required by Direction No 69, and as it did at [24] of its decision because:

   […] it appears that the applicant was not a genuine tourist and this may lead the Tribunal to infer that she is also not a genuine applicant for entry and stay as a student, because she does not intend to stay in Australia temporarily.

4. In response to the applicant’s third ground, the Minister disputes that the Tribunal misunderstood the law, and submits that, on a fair reading, the Tribunal is ‘plainly referring to the intention indicated in cl 500.212’.

Consideration

1. The applicant refers to the transcript of the proceeding before the Tribunal which is attached to the affidavit in support filed by Tegan Jane Weir. Line 40 on page 14 of the transcript provides as follows:

   MR EDGOOSE: […] What are your future plans back in Malaysia regarding employment?

   INTERPRETER: I want to open my own dessert shop but now I want focus on study.

   MR EDGOOSE: Do you know how much you could possibly get paid with your dessert shop?

   INTEPRETER: I'm not really, no, clear about that.

   MR EDGOOSE: Do you have a partner?

   INTERPRETER: My older sister she said she would sponsor me.

   MR EDGOOSE: Sorry, as in personally, do you have a partner?

   MS SENG: No.

   MR EDGOOSE: Your sister will help you with starting the dessert shop financially?

   MS SENG: My sister and my dad.

   MR EDGOOSE: And your dad?

   MS SENG: Mm.

   MR EDGOOSE: So what is the value of your current course and your batch of courses to your future plans?

   INTERPRETER: Learn more cooking still. I have my own dream.

   MR EDGOOSE: What is your own dream because we all have dreams.

   INTERPRETER: Open a dessert shop (indistinct) to myself.

2. It was submitted by the applicant that she was responsive to the questions raised by the Tribunal and if those answers were insufficient the Tribunal was duty bound to press the applicant for greater detail. It was put in oral submissions that the Tribunal was under a duty to put the applicant on notice that the Tribunal considered that the responses were inadequate citing SZBEL at [29].

3. It was further submitted by the Applicant that the Tribunal relied on a failure to provide details in circumstances where there was no reason to think that the applicant reasonably had been expected to know that she needed to provide more details than she had provided. At [4] of her submissions, the applicant says that:

   […] the decision of the Tribunal was affected by legal unreasonableness in failing to appreciate that the limits of its questioning at hearing did not leave open the conclusion at Reasons [23].

4. In my view, there is no jurisdictional error apparent in the manner in which the Tribunal dealt with the evidence given to it as recorded at [23] of its reasons. The Tribunal was not required to press the applicant for details. Further, the applicant was on notice of the relevance of the course to the applicant's future plans by reason of being provided with a copy of Direction No 69: see Court Book 47-55. That direction makes explicit the relevance of the course to the student's past or proposed future employment either in their own home country or a third country, and the remuneration the applicant could expect to receive in the home country or a third country compared with Australia using the qualifications to be gained from the proposed course of study.

5. The questions that were asked by the Tribunal were consistent with its requirement to assess the application in accordance with the guidelines. In respect of a requirement that the Tribunal was obliged to advise the applicant at the time that it considered her responses to be unsatisfactory, no such requirement arises: see SZBEL at [48].

6. In respect of ground 2, the applicant submits that the Tribunal was misconceived or labouring under a misconception when it recorded at [23] to [24] that it thought that the applicant's falsehoods in her tourist visa application (where she failed to declare an intention to study in Australia) amounted to her misusing the migration program in respect of the student visa.

7. It was submitted that the applicant's conduct regarding the tourist visa was not on any view probative of the question of whether the applicant intended to stay beyond a temporary period, or whether she subverted "the intentions of the migration program" in relation to the student visa.

8. In my view, this ground also fails on the basis that the applicant's migration history is directly relevant to the considerations that the Tribunal was required to have in relation to the applicant; see [13] and [14] of Direction No 69 at Court Book 52-53.

9. The question of whether the applicant was not a genuine tourist when she applied for a tourist visa was relevant to the question of whether she is a genuine applicant for a student visa. So much is apparent from Direction No 69.

10. As to ground 3, the applicant submits that the Tribunal engaged in unlawful conduct in failing to identify what the intentions of the migration program were when it made reference to that matter in its reasons at [23] – [24].

11. At [23], the Tribunal stated:

    […] The Tribunal considers that the applicant is not a genuine temporary entrant and the Tribunal finds that the applicant is using the student visa to maintain ongoing residence in Australia.

    And at [24]:

    […] The Tribunal does not accept that the applicant is a genuine temporary entrant and that the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

12. The applicant submits, quoting directly from submissions:

    12. There was not a skerrick of evidence before the Tribunal about what were "the intentions of the migration program" (which the applicant supposed to have subverted) (sic). It seems that the "intentions" of the migration program mentioned by the Tribunal were some idiosyncratic view, amount to an action on humour and whim, not according to law and reason. It appears to be an attempt to deny a benefit to the applicant because she was thought to have concealed something that the Department would have liked to know in relation to a different visa. That is not lawful.

13. A plain reading of the Tribunal's reasons as a whole indicates that the Tribunal was making reference to clause 500.212 from Schedule 2 to the Migration Regulations 1994 (Cth) which is set out in [9] of the decision. A reference to the intentions of the migration program is whether the applicant intends to genuinely stay in Australia temporarily in accordance with that program which was a matter directly addressed by the Tribunal.

14. There is nothing idiosyncratic about the views expressed by the Tribunal, nor is there any jurisdictional error apparent from the reasons of the Tribunal. For these reasons the application will be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 26 June 2020