Silvia v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1114
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Silvia v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1114
File number(s): SYG 3292 of 2018 Judgment of: JUDGE LAING Date of judgment: 1 December 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicants Student (Temporary) (Class TU) visas – whether the Tribunal failed to comply with the requirements of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider any matters or evidence that it was required to consider – allegation of bias – application dismissed Legislation: Migration Act 1958 (Cth) ss 357A, 359A, 360, 499
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
VFAB of 2002 v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 6 October 2023 Date of hearing: 11 September 2023 Place: Sydney Applicants: Appearing in person Solicitor for the First Respondent: Ms C Warren, Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3292 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SILVIA SILVIA
First Applicant
HARTONO HARTONO
Second Applicant
STACEY FLORENCIA YIP (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING:
INTRODUCTION
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) visas (student visas).
BACKGROUND
The first applicant (Applicant) is a citizen of the Republic of Indonesia (Indonesia), who arrived in Australia on 13 July 2007 as the holder of a Student (Subclass 572) visa. Between the years of 2007 and 2016, the Applicant held a number of student visas as a primary applicant or a dependent of the second applicant in these proceedings.
On 18 October 2016, the Applicant applied for the student visa that is the subject of these proceedings. The other applicants in these proceedings were included as dependents in the application.
On 14 February 2017, a Delegate refused to grant the visas to the Applicant and her family. The Delegate found that the Applicant did not meet the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 3 March 2017, the applicants applied to the Tribunal for review of the Delegate’s decision. The Applicant appeared before the Tribunal on 10 April 2018.
On 6 November 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
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.
In considering whether the Applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the evidence before it, the criterion in issue and the effect of Direction No. 69 at [1]-[21] of its decision. The Tribunal then reasoned as follows at [22]-[27]:
22.The applicant provided evidence about the circumstances in her home country. The applicant has family ties to Indonesia as her parents, brother and extended family continue to reside there. Since arriving in Australia in 2007, the primary and secondary applicants have returned to their home country a number of times, the last time being in 2015 as of the date of the Tribunal hearing. The applicant also provided evidence of property ownership in Indonesia. The Tribunal places some weight on the applicant’s ongoing ties to her home country.
23. The applicant claimed she has plans to open a travel and tourism business after she completes a Bachelor of Tourism and Hospitality Management. A COE was submitted for the degree which is scheduled to commence on 25 March 2019 and end on 10 July 2020. By that time, the applicant will have been in Australia for nearly 13 years.
24. In Australia the applicant has a brother, her husband and her two children who were born here in 2011 and 2015. According to the applicant’s resume she has been employed in part-time positions for some periods of time. The applicant’s husband has also been employed in Australia. The Tribunal considers the presence of the primary applicant’s immediate family in Australia, employment and the length of time the parties have spent here are strong incentives for them to use the Student Visa program to maintain residency.
25. The applicant explained her circumstances in Australia including her decision to postpone her studies after her marriage and become a dependent on her husband’s visa. She also stopped studying for two years after her first child was born and her husband held a Subclass 485 visa. Even given these events, the applicant has spent many years studying and completing a range of courses that will be of benefit to her in future.
26. The applicant did not provide a satisfactory explanation for why she needs to complete a Bachelor degree in order to execute her plans of setting up a travel and tourism agency. The applicant has claimed she intends to enter into a joint venture with a friend who is already operating his own business in the industry. According to the Business Plan submitted in evidence, her business partner has “extensive experience operating a Travel and Tourism Agency”. The applicant herself has qualifications in Business, Marketing and Accounting and is about to complete an Advanced Diploma in Travel and Tourism Management. She also has a Bachelor of IT from Indonesia and work experience in administration, retail and hospitality. The Tribunal is not satisfied the cost and time involved in completing a Bachelor degree in Travel and Tourism will be of significant benefit to the applicant. On her own evidence, she already has a plan for a business as well as an experienced business partner. She and her husband also have work experience in Australia and their home country.
27. The Tribunal is not satisfied the applicant is seeking a further student visa for genuine purposes. The applicant has had ample opportunity to undertake a tertiary degree but instead she chose to study the fields of Accounting and Business up to Advanced Diploma level before changing to Tourism and Hospitality Management. The Tribunal considers the applicant has a broad range of skills and qualifications that will be of benefit to her in pursuing her business goals in Indonesia.
Having regard to the above, the Tribunal was not satisfied that the Applicant genuinely intended to stay in Australia temporarily. The Tribunal therefore found that the Applicant was unable to meet cl 500.212(a) of Schedule 2 to the Regulations. As the Applicant was unable to meet the primary criteria for the visa, the other applicants were unable to meet the secondary criteria. The Tribunal accordingly affirmed the Delegate’s decision (at [28]-[33]).
PROCEEDINGS BEFORE THIS COURT
On 27 November 2018, the applicants applied for judicial review of the Tribunal’s decision. The following grounds were identified in the application to this Court:
1.The Administrative Appeals Tribunal failed to comply with Section 357A of the Migration Act.
2.There was a breach of procedural fairness because the Administrative Tribunal failed to consider relevant factors or materials when reviewing the decision.
3.The Administrative Appeals Tribunal failed to consider the applicant’s current circumstances in making its decision.
Ground 1 – did the Tribunal fail to comply with the requirements of the Act?
Ground 1 relied upon s 357A of the Act, which was as follows:
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Whilst (3) requires the Tribunal to “act in a way that is fair and just”, this is not an independent source of rights for an applicant, but conditions the exercise of the Tribunal’s powers under Division 5 of Part 5 of the Act: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 at [54]-[58] per Hayne J, Kiefel J (as her Honour was) and Bell J.
I accept the Minister’s submission that the Tribunal complied with its natural justice obligations as governed by Part 5, Division 5 of the Act. The applicants were invited to a hearing in accordance with s 360 of the Act, which was attended by the Applicant and her representative. There is nothing on the face of the materials indicating that the applicants were denied a meaningful opportunity to present their case. The applicants appear to have been on notice from the Delegate’s decision record, correspondence from the Tribunal (enclosing Direction No. 69) and questioning at the hearing before the Tribunal of the determinative issues on the review.
There does not appear to have been any “information” before the Tribunal capable of enlivening s 359A of the Act. As was submitted by the Minister, the Tribunal’s decision appears to have been based upon the applicants’ written evidence to the Department, oral and written evidence to the Tribunal and the Tribunal’s subjective appraisals. The first two categories fell within the exceptions in s 359A(4)(ba) or (b) of the Act and the third was not “information” for the purposes of s 359A.
At the hearing before the Court, the Applicant submitted in relation to this ground that she considered that the Tribunal’s reasoning at [23] and [26]-[27] was unfair and was not reasonably open to the Tribunal.
In relation to [23], the Applicant submitted at hearing that the Tribunal had misunderstood her evidence and found that she had been in Australia on student visas for 13 years in order to maintain residency. This, the Applicant submitted, was incorrect. The Applicant observed that she had not been the primary applicant for the whole 13 years and that there were times when she had been dependent upon her husband’s visa.
I do not accept that this evidence was misunderstood by the Tribunal. The times the Applicant had not been on a student visa as a primary applicant, but had been a dependent upon her husband’s visas, were acknowledged at [4] and [10]-[11] of the Tribunal’s decision. The Tribunal did not find at [23] that the Applicant had continuously been on student visas, in respect of which she had been the primary applicant, for the duration of her time in Australia. Instead, the Tribunal expressed concerns that the Applicant would have been in Australia for nearly 13 years by the scheduled completion date of her proposed course. This informed the Tribunal’s concern at [24] that the length of time that the Applicant had spent in Australia, together with her employment and the presence of her immediate family, presented strong incentives for using the student visa program to maintain residency.
In relation to [26]-[27], the Applicant suggested that the Tribunal unreasonably and unfairly refused to accept that her studies, including her proposed studies and her previous studies in accounting and business, were important to her career plans.
At [26]-[27], the Tribunal found that the Applicant had not provided a satisfactory explanation for why she needed to complete the proposed Bachelor degree in order to execute her stated plans of setting up a travel and tourism agency. The Tribunal summarised the evidence that the Applicant had given regarding her plans in this regard, as well as the qualifications that she already possessed. The Tribunal expressed that it was not satisfied the cost and time involved in completing a Bachelor degree in Travel and Tourism would be of significant benefit to the Applicant. This was in circumstances where, on her own evidence, she already had a plan for a business, some work experience, an experienced business partner, and appeared to already possess a broad range of skills and qualifications.
I accept the Minister’s submission that the Tribunal’s reasoning in this regard was intelligible and relevantly open to the Tribunal. The Tribunal was not obliged to accept the Applicant’s evidence regarding the value of her proposed study. It was open to the Tribunal not to have been satisfied from that evidence that the course was important to her proposed career plans, as claimed, in the circumstances that the Tribunal identified. Whilst another Tribunal may well have reasoned differently, it has not been demonstrated that the above reasoning was relevantly closed to the Tribunal.
For these reasons, ground 1 is unable to succeed.
Grounds 2 and 3 – did the Tribunal fail to consider the claims or materials before it?
Ground 2 contended that there was a breach of procedural fairness because the Tribunal “failed to consider relevant factors or materials when reviewing the decision”. Relatedly, ground 3 contended that the Tribunal failed to consider the Applicant’s current circumstances in making its decision.
For the reasons given under ground 1, I do not accept that the Tribunal breached its procedural fairness obligations under the Act.
It has been held that the Tribunal is only required to engage with the factors under Direction No. 69 that are the subject of clearly articulated claims or that clearly arise on the material: Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [15] per Middleton J.
The Applicant submitted that the following matters had not been considered by the Tribunal:
(a)the relevance of her studies to her proposed career plans;
(b)that the Applicant was a dependent upon her husband’s visas at times in Australia, whilst juggling family responsibilities; and
(c)that the Applicant had required more time to complete her studies due to her need to study English.
The Tribunal considered the relevance of the Applicant’s studies at [23]-[27] of its decision. As summarised above, the Tribunal did not accept that the Applicant had sufficiently demonstrated the necessity or value of the proposed course to her stated career plans. I have found above that this reasoning was relevantly open to the Tribunal.
The Tribunal considered the Applicant’s family circumstances and her evidence that she had been a dependent upon her husband’s visa at times, and had juggled family responsibilities, at [10]-[12] of its decision. The Tribunal did not doubt that the Applicant had been a dependent upon her husband’s visa at times, and had undertaken family responsibilities such as the care of children. However, the Tribunal considered that the Applicant’s ties to Australia, including the length of time that she had spent there, tended against her ability to meet the genuine temporary entrant criterion. This was in a context where the Tribunal had not found the Applicant’s evidence regarding the value of the proposed course to be entirely satisfactory. It has not been demonstrated that this reasoning was closed to the Tribunal, nor that the Tribunal failed to consider the claims and evidence before it in coming to this conclusion.
The Tribunal considered that the Applicant had completed a course in English at [5] of its decision. The Tribunal was accordingly aware that that her need to complete that course and improve her abilities in English had occupied some of her time in studying in Australia. However, this did not mean that the Tribunal was obliged to reason that the length of time that the Applicant was in Australia was explicable by reference to her limited abilities in English or her need to complete that course.
The Tribunal’s reasoning, though concise, appears to have been fairly comprehensive and to have been responsive to the applicants’ evidence and claims. The Tribunal summarised in some detail the evidence before it at [4]-[17] of its decision. This informed the Tribunal’s assessment of the evidence at [22]-[28].
I accept that the Tribunal did not refer to every part of the material before it. However, whilst a failure to have regard to centrally relevant evidence may reveal jurisdictional error, the Tribunal was not required to refer to every aspect of the evidence that was before it in its decision. I have not seen from my review of the materials any aspect of the evidence that was not referred to in the Tribunal’s decision that was so central or significant that an inference ought to be drawn that it was overlooked, or that this resulted in jurisdictional error.
Accordingly, grounds 2 and 3 are unable to succeed.
Allegations of bias
The applicants further submitted that the Tribunal’s decision was affected by bias. It was said that this was because the Tribunal concluded, without proper justification, that the Applicant’s previous qualifications, experience and business partner would be sufficient to allow her to run her proposed business. The applicants contended that the Tribunal had a preconceived view that the Applicant’s previous studies and the fact that she had a business partner were enough for her to conduct her proposed travel agency business. The applicants contended that this disabled the Tribunal from adequately exploring the possibility that her chosen course would add value to her skill set in running the proposed business, noting that the Bachelor degree differed from her other courses.
It is well established that bias is a serious allegation which must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow JJ. In order to demonstrate actual or apprehended bias, the applicants would need to show that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter, or that that that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to resolution of the review: Jia Legeng at [35] and [72]; Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] (per Gleeson CJ and McHugh, Gummow and Hayne JJ).
I accept the Minister’s submission that it has not been demonstrated that the Tribunal’s decision was affected by bias in the present case. As I have found above, it was open to the Tribunal to have not been satisfied that the Applicant met the genuine temporary entrant criterion by reference to its findings regarding her ties to Australia, and lack of satisfaction regarding the value of the proposed course. The Tribunal considered and summarised the Applicant’s evidence in this regard at [26]-[27] of its decision. The Tribunal considered that the Applicant had not sufficiently demonstrated why the proposed course would be of significant benefit so as to justify its pursuit, over and above the qualifications and advantages the Applicant otherwise possessed. The mere fact that the Tribunal made findings that were adverse to the applicants is insufficient to establish bias: VFAB of 2002 v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102 at [21] per Kenny J.
The Tribunal’s decision record indicates that the Tribunal asked the Applicant questions about her plans following her proposed studies (at [12]), the changes between primary and secondary applicant (at [13]) and the other courses she had studied, as well as her lack of work experience that appeared relevant to her proposed plans (at [14]). This is indicative of a mind that was open to persuasion.
There is nothing that has been raised by the applicants, or that is apparent from my own review of the materials, that is capable of meeting the high thresholds associated with grounds of bias.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 1 December 2023
SCHEDULE OF PARTIES
SYG 3292 of 2018 Applicants
Fourth Applicant:
HAYDEN THEODORE YIP
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