Shin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 730

FEDERAL CIRCUIT COURT OF AUSTRALIA

Shin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 730

File number(s):

SYG 2328 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

14 April 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Student (Temporary) (Class TU) visas – whether the Tribunal took into account an irrelevant consideration and/or applied the wrong legal test – no jurisdictional error made out – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth) Sch 2, cl 500.212

Number of paragraphs:

21

Date of hearing:

14 April 2021

Place:

Sydney

Counsel for the Applicants:

Mr P Berg

Solicitor for the Applicants:

Cambridge Solicitors

Solicitor for the First Respondent:

Mr E Taylor, Mills Oakley

ORDERS

SYG 2328 of 2019

BETWEEN:

JOONGHYUN SHIN

First Applicant

HEE SUNG MOON

Second Applicant

JIWOO SHIN (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	14 APRIL 2021

THE COURT ORDERS THAT:

1.Leave is granted to the applicants to rely upon the proposed fourth ground of alleged error identified in the written submissions filed 14 February 2021 and the Court directs that an amended application incorporating that ground be filed and served on or before close of business on 16 April 2021.

2.The amended application is dismissed.

3.The first and second applicants pay the first respondent’s costs fixed in the amount of $5,400.00.

REASONS FOR JUDGMENT

JUDGE STREET:

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 Administrative Appeals Tribunal (“the Tribunal”) made on 14 August 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Student (Temporary) (Class TU) visas (“the Student visas”).

2. The first applicant is the visa applicant and the second applicant is his wife, and the third and fourth applicants are his children, in respect of whom there has been a litigation guardian order.

3. The applicants applied for the Student visas on 18 August 2017. 

4. The applicants are citizens of the Republic of South Korea. 

5. On 18 October 2017, the Delegate found the applicants failed to meet the criteria for the grant of the Student visas. The applicants applied for review on 3 November 2017.

6. On 9 May 2019, the Tribunal wrote to the applicants inviting information in relation to the requirement of being enrolled in a registered course of study and being a genuine applicant for entry and stay as a student. An extension for time to respond was requested on 21 May 2019.  On 22 May, the Tribunal wrote to the applicants indicating that the information should be provided by 20 June 2019. On 20 June 2019, documents were provided to the Tribunal in response to the request, and a further extension was requested until 4 July 2019. The diary note indicates that there was a telephone request for an extension made on 20 June 2019, but on 1 July 2019 the migration agent was requested to submit a s 359(2) form, and that the agent agreed to do so.

7. The applicants provided a response to the Tribunal which identified that they consented to the Tribunal deciding the review without a hearing, which appears at page 112 of the court book. 

8. In those circumstances, the Tribunal, in its reasons, identified the background to the review application and set out the relevant requirements in relation to cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

9. The Tribunal turned to the issue of whether the applicant intends genuinely to stay in Australia temporarily. The Tribunal noted the first applicant has not lived in his home country since 14 August 2007, which is the day that he arrived in Australia. 

10. The Tribunal identified limited relatives of the applicant in South Korea and noted that the applicant has only departed Australia for two weeks or less on three occasions since 14 August 2007. The Tribunal noted that the applicant has undertaken a succession of courses in Theology since December 2013 and is currently enrolled in a Masters of Divinity, which he commenced on 31 July 2017 and is due to complete on 30 June 2020. The Tribunal noted that the applicant stated there are many Theology courses in South Korea, and that the applicant had sought to justify his decision to undertake studies in Australia on the basis that Australia has a much more developed immigrant theology study program than South Korea because South Korea is not a multicultural country. 

11. The Tribunal noted that the applicant stated that after finishing the first year of his Master’s degree study, he will be ordained as a minister and he then intends to undertake doctoral studies in Theology; however, if his financial circumstances do not allow him to do so, the applicant has stated, "I will be working as a full time minister in Australia to spread the gospel to various immigrants". In these circumstances, the Tribunal identified that it was not satisfied that the applicant has demonstrated reasonable grounds for not undertaking his current studies in his home country. Further, the Tribunal was not satisfied that the applicant has demonstrated any intention or desire to return to his home country, and found this weighs heavily against the applicant. 

12. The Tribunal referred to the applicant's circumstances in Australia and that he has significant family in Australia, and that he previously has been employed for three years and appears to have a relatively settled life in Australia. The Tribunal again referred to the applicant's desire to work as a full-time minister in Australia, and referred to his anticipated earnings. 

13. The Tribunal referred to the applicant's family and the duration over which he and his wife had now lived in Australia. The Tribunal found the applicant has demonstrated very strong incentives to remain in Australia for as long as possible, and that this is not consistent with temporary entry as a student, and found this weighed against the applicant. 

14. The Tribunal turned to the value of the applicant's courses in his future. The Tribunal accepted that the applicant's changes in study stream have been made in good faith, and referred to the applicant's current study and his anticipation of earnings as a minister, but found that he had not provided sufficient information to the Tribunal to demonstrate that his current course of studies adds economic value to or otherwise enhances his future economic prospects.  In these circumstances, the Tribunal found that it was unable to find that the applicant's current course of study is of value to his future economic circumstances. 

15. The Tribunal referred to the applicant's immigration history and found that the applicant has demonstrated a desire to extend his stay in Australia indefinitely, and that this is not consistent with him being a genuine applicant for temporary entry. In these circumstances, the Tribunal, on the basis of its findings, was not satisfied that the applicant intends genuinely to stay in Australia temporarily, and accordingly found that the first applicant does not meet the criteria under cl 500.212(a) of Sch 2 to the Regulations, and affirmed the decision under review.

    THE GROUNDS

16. The Court notes that counsel for the applicants abandoned grounds 1 to 3 of the original application, and only ground 4 was pressed.

17. The ground in the amended application, as it appears in the applicants’ submissions in paragraph 3 thereof, is as follows:

    (4)The Tribunal considered what the applicant would if his finances could not support further, doctoral studies in Australia. That fact then went to its finding on the intention of the applicant to stay in Australia permanently. The Tribunal erred by:

    1.  Taking into account an irrelevant consideration; and

    2.   Applying the wrong legal test.

18. Mr Berg of counsel on behalf of the applicants contends that the Tribunal's reasoning in the reference to the possibility of the alternative future, if the applicant's financial position did not permit him to pursue his further studies, was an irrelevant consideration, or alternatively, an application of an erroneous test in respect of the ultimate criteria that had to be applied under cl 500.212 of Sch 2 to the Regulations. The applicant's observations as to his alternative future activities, if financial circumstances changed, was an obvious, logical, rational and relevant consideration. The scope of the provision under cl 500.212, which the Tribunal correctly identified in respect of the criteria, relevantly includes "any other relevant matter".

19. The prospects of the applicant teaching the gospel in Australia as a future intention, if unsuccessful in terms of financial position to support himself in his further studies, was an obvious relevant matter for the tribunal to take into account, consistent with the criteria under cl 500.212 of Sch 2 to the Regulations. The considerations referred to by the Tribunal in paragraph 16 and in paragraph 19 of its reasons were relevant considerations for the Tribunal to take into account. Those observations were not the ultimate application of the test required under the provision, but findings consistent with the obligations upon the Tribunal in respect of the considerations required by cl 500.212(a). The ultimate finding is that found in paragraph 29 of the Tribunal’s reasons, which reflects a correct application of the relevant test.

20. No jurisdictional error as alleged in ground 4 is made out.

21. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 April 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       21 May 2021

SCHEDULE OF PARTIES

SYG 2328 of 2019
Applicants
Fourth Applicant:	JOONWOO SHIN