TAI v Minister for Immigration

[2019] FCCA 3321

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3321

Catchwords:
MIGRATION – Application for Student visa – failure of applicant to satisfy mandatory criterion that the applicant only have an intention to stay in Australia temporarily – application dismissed.

Legislation:

Migration Regulations 1994 (Cth.) Sch.2 cl. 500.111, 500.212

Migration Act 1958 (Cth) ss.476, 499.

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: CHUN-CHIEH TAI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 298 of 2019

Judgment of: Judge Egan

Hearing date: 14 November 2019

Date of Last Submission: 14 November 2019

Delivered at: Brisbane

Delivered on: 14 November 2019

REPRESENTATION

Counsel for the Applicant: Mr S. Jones

Solicitors for the Applicant: Stolar Law

Solicitors for the First Respondent: Ms R. Topham of Minter Ellison

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’

2. The application for review filed on 26 March 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 298 of 2019

CHUN-CHIEH TAI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a female citizen of Taiwan.  She arrived in Australia on 19 June 2014 as the holder of a UD-601 electronic travel authority.  The applicant later obtained a working holiday visa on or about 29 September 2014. 

2. On 28 September 2016 the applicant applied for a student visa. 

3. On 19 December 2016 a delegate of the Minister refused to grant the applicant a student visa on the ground that she did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the regulations). Clause 500.212 of schedule 2 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.

4. On 3 January 2017, the applicant sought review of the delegate’s decision by applying for such review before the Administrative Appeals Tribunal (the Tribunal). 

5. On 13 September 2018 the Tribunal wrote to the applicant by email inviting the applicant to attend a hearing before the Tribunal, informing the applicant that she should have regard to the reasons of the delegate in refusing her visa, as well as any changes in her circumstances for the purposes of such hearing. The applicant was notified that the Tribunal would make an assessment as to whether she was a genuine applicant for entry and stay, and that Ministerial Direction Number 69 made pursuant to s. 499 of the Migration Act 1958 (Cth) (the Act) was relevant to such assessment. A copy of that direction was attached to the email. Such email also requested that the applicant provide to the Tribunal, at least seven (7) days before the hearing date, a number of documents indicating that she was currently enrolled in a course of study as defined in clause 500.111 of Schedule 2 to the regulations (noting that such was a requirement for the grant of a student visa).

6. On 22 October 2018, the applicant’s registered Migration Agent wrote to the Tribunal attaching a submission on behalf of the applicant which asserted that the applicant satisfied the requirements of clause 500.212 of Schedule 2.

7. On 24 October 2019, the applicant appeared at a hearing before the Tribunal, at which time she gave evidence and presented arguments.  She was assisted by her representative and an interpreter in the Mandarin language at that time. 

8. On 1 March 2019, the Tribunal advised the applicant that on 28 February 2019 it had affirmed the decision of the delegate.

9. On 26 March 2019, the applicant made application for review of the decision of the Tribunal pursuant to the provisions of s. 476 of the Act. The grounds for review were as follows:

   “Grounds of Application

   1. The Administrative Appeals Tribunal fell into error at law, by mis-applying Direction Number 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Application as it applied to the Applicant, who was seeking a Student (Temporary TU), Subclass 500 (Student) Visa.

   Particulars:

   a) The Applicant is a 31 year female, whose country of origin is Taiwan;

   b) The Applicant obtained a Bachelor of Environmental Engineering and had gained practical experience in engineering before coming to Australia, as a tourist on a Working Holiday Visa;

   c) The Applicant’s Father in Taiwan operates two businesses, one involving water purification and the other a restaurant;

   d) The Applicant’s intent while remaining temporarily in Australia was to gain English proficiency, so she could return to work in her Father’s business of water purification;

   e) The Applicant’s Father, whilst she was in Australia, advised her he wanted her to be able to work in his restaurant, upon her return to Taiwan.

   f) The Applicant sought to gain Australian accreditation in cookery and hospitality;

   g) The Applicant applied for a Subclass 500 Student Visa to enable her to undertake this study of which she is currently enrolled;

   h) Under section 499(2A) of the Migration Act, 1958 (‘the Act’) the Administrative Appeals Tribunal (‘the Tribunal’) must comply with a Direction made by the Minister for Home Affairs;

   i) Under section 499(1) the Minister for Home Affairs promulgated Direction Number 69 to give direction to a body having functions or powers under the Act, such as the Tribunal;

   j) Paragraph 7, Part 2 of Direction Number 69, in respect to applicants of Subclass 500 Student Visas, required decision makers to have regard to the value of the course to the applicant’s future;

   k) The Tribunal, in considering the Applicant’s application mis-applied Direction Number 69 by not considering the value of the courses to the Applicant’s future, upon her return to Taiwan.

10. Ministerial Direction Number 69, by paragraph 1 of part 2 of such direction, provides as follows:

    “Assessing the Genuine Temporary Entrant Criterion

    The decisions makers should not use the factors specified in this direction as a checklist.  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 satisfied the genuine temporary entrant criterion.”

11. At [9] of its reasons, the Tribunal identified the matters which it had to have regard to for the purpose of determining whether or not the applicant intended genuinely to stay in Australia temporarily. 

12. At [10] of its reasons, the Tribunal noted that the direction indicated that the factors specified in Ministerial Direction Number 69 should not be used as a checklist, but rather were intended only to guide decisions makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion or not. 

13. At [11] of its reasons, the Tribunal noted that the applicant was a citizen of Taiwan who, in 2009, graduated with a Bachelor of Environmental Engineering from Kun Shan University in Taiwan.  She was recorded as having worked in that field for a three-year period prior to coming to Australia in 2014 on a tourist visa for a working holiday.  It was noted that the applicant was not married, had no children, had family in Taiwan, and that since her arrival in Australia, she has had two working holiday visas as well as two bridging visas. 

14. During her stay in Australia, she had worked on a fruit farm and in a restaurant.  In September 2016, at a time shortly prior to the expiration of her working holiday visa, the applicant applied for a student visa for the English language sector.  In July 2018, the applicant completed the second of the two English certificate courses, enrolled in a third course, but cancelled such course and enrolled in a certificate course in cookery, and a diploma course in hospitality management. 

15. It was asserted before the delegate, and before the Tribunal, that the qualifications sought by the applicant in the certificate course in cookery and the diploma course in hospitality management, would have assisted the applicant in running her parents’ restaurant business which was conducted in Taiwan. 

16. At [19] – [21] inclusive of its reasons, the Tribunal noted the contrast between the modest qualifications sought by the applicant in her proposed further course of study in Australia, and her much higher qualifications obtained in Taiwan as a qualified chemical engineer. 

17. At [22] of its reasons, the Tribunal recorded that the applicant responded by saying that the restaurant owned by her family had opened after she had come to Australia, and that it was her father’s most successful investment, citing a decline in her father’s health as a reason for her family looking to her to run that restaurant into the future.  It was recorded that the applicant had stated that she needed English and hospitality management training in order for her to do that. 

18. At [23] – [24] of its reasons, the Tribunal expressed its concern that the applicant had chosen inexpensive short term courses, well below her established academic capacity, as a means of extending her stay in Australia whilst nominally enrolled as a student. 

19. At [25] of its reasons, the Tribunal noted that the applicant had stated on several occasions that she had wanted to improve her English, even though she had ceased formally studying English.  That was a clear inconsistency. 

20. At [27] of its reasons, the Tribunal had noted that it had closely examined all of the applicant’s submissions made to it about her decision to study low-level courses in Australia.  It referred to the disparity between the academic requirements for completion of such courses as compared with the applicant’s demonstrated academic capacity as a qualified engineer in Taiwan. 

21. At [27(b)] of its reasons, the Tribunal found that the applicant’s submissions about her need to learn English in Australia were not credible because they were not supported by her PRISMS record.  It noted that the applicant had cancelled the English course of study, which would have best allowed her to learn English after the completion by her of entry-level English courses in which she had previously been enrolled.  The Tribunal was not convinced of the applicant’s claims about attaining an understanding of English whilst undertaking a cookery course, the Tribunal finding that such was consistent with the applicant wanting to remain in Australia other than on a temporary basis. 

22. At [27(c)] of its reasons, the Tribunal found that the applicant had not provided convincing reasons as to why she intended to return to Taiwan with the cooking and hospitality management qualifications which she asserted she needed, in order to run the family business.  It was noted that based on the applicant’s intended course of study, she would have been in Australia for almost seven years at the end of her studies.

23. At [28] of its reasons, the Tribunal found that it was not satisfied that the applicant intended genuinely to stay in Australia only temporarily. It found that the applicant did not therefore meet the relevant clause 500.212(a) criteria.

24. Grounds 1(a) – (i) of the grounds of review were statements of fact which were not in dispute.  The only real bases for review were as found in sub-paragraphs (j) and (k) of Ground 1 of the application for review.

25. Each of those grounds sought the reappraisal by this court of factual findings made by the Tribunal.  This court is not permitted to undertake a merits review in that regard.  The thrust of the complaints made in those two subparagraphs by the applicant is that the Tribunal failed to have due regard to the value of the cookery and hospitality management courses to her in the future, in the light of the ongoing operation of her family’s restaurant business in Taiwan.  That submission is without merit.

26. The Tribunal carefully dealt with that assertion made on behalf of the applicant and dismissed it as not being credible in the light of her conduct otherwise displayed during the course of the hearing.

27. The Tribunal carefully assessed the applicant’s relevant past history since the time she first arrived in Australia, and found her conduct contradictory in relation to her cessation of a course of study in English when she had repeatedly said that she needed English proficiency as a priority.

28. It cannot be said that the Tribunal, when analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27] where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

29. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

    “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    …

    [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

1. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

2. The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.

3. The application for review is without merit and is dismissed.

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

Associate:

Date: 21 November 2019