Tee v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 616
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tee v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 616
File number(s): SYG 924 of 2020 Judgment of: JUDGE CLEARY Date of judgment: 2 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal failed to comply with the requirements of s 359AA and s 359A of the Migration Act 1958 (Cth) - whether Applicant satisfied genuine temporary entrant criteria – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 65, 476
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
and Ors (1996) 185 CLR 259
I
SZBYR v Minister for Immigration & Citizenship (2007) 146 CLR 297
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 8 April 2025 Place: Parramatta Applicants: In person Solicitor for the Respondents: Ms Q. Ren of HWL Ebsworth ORDERS
SYG 924 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SOO KIAW TEE
First Applicant
CHENG HENG YAP
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first and second applicants pay the first respondent's costs fixed in the amount of $5,600.
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 CLEARY
INTRODUCTION
This is an application for judicial review, made under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) (now known as the Administrative Review Tribunal) dated 17 March 2020. The Tribunal reaffirmed the decision of a delegate of the First Respondent refusing to grant the Applicants a Student (Temporary) (Class TU) (Subclass 500) (temporary student visa) visa under s 65 of the Act.
BACKGROUND
On 18 March 2011, the applicants, citizens of Malaysia, arrived in Australia as holders of tourist visas. The first Applicant (Applicant) was granted a temporary student visa in July 2011 and again in 2016.
On 20 February 2018, the Applicant applied for a further temporary student visa. The second Applicant to these proceedings was included in the Applicant’s visa application as a member of the family unit.
On 21 March 2018, a delegate of the first respondent refused to grant a temporary student visa on the basis that the Applicant did not satisfy the genuine temporary entrant criteria contained in cl 500.212 of Scheule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 9 April 2018, the applicants lodged an application to the Tribunal for review of the delegate’s decision.
On 19 February 2020, the Tribunal invited the applicants to attend a hearing on 6 March 2020.
On 6 March 2020, the Applicant appeared before the Tribunal with the assistance of an interpreter in the Mandarin language.
On 17 March 2020, the Tribunal affirmed the delegate’s decision not to grant the Applicant a student visa.
TRIBUNAL DECISION
In its decision, after setting out the background, the Tribunal set out the relevant criteria for the grant of the visa contained at cl 500.212 of Schedule 2 to the Regulations. It identified the issue for determination being whether the Applicant was a genuine temporary entrant according to the criteria in cl 500.212(a). The Tribunal set out that in order to find that the Applicant satisfied the criteria for cl 500.212(a), the Tribunal was required to have regard to the matters set out in Ministerial Direction No 69.
The Applicant told the Tribunal she was currently enrolled in a diploma of human resource management, which she started on 30 November 2019 and expected to complete on 27 September 2020, and in an advanced diploma of human resource management, which was to commence on 28 September 2020 and was due to be completed on 26 September 2021.
The Tribunal set the courses which the Applicant had completed as follows:
(a)July 2011- September 2011: general English course;
(b)October 2011 – April 2012: certificate III in business;
(c)April 2012 – January 2013: certificate IV in business;
(d)January 2013 – October 2013: diploma of management;
(e)April 2014 – April 2016: several English language courses;
(f)September 2016 – November 2017: certificate IV in travel and tourism;
(g)September 2017 – March 2018: advanced diploma of travel and tourism management;
(h)March 2018 – April 2018: barista course;
(i)May 2018 – July 2019: certificate IV in commercial cookery; and
(j)June 2019: cake decorating course.
The Tribunal enquired with the Applicant whether there were any other courses which she had been enrolled in but not completed, to which the Applicant said “no”. The Applicant was then directed to page 3 of the delegate’s decision where the delegate had set out a lengthy list of courses which the Applicant had been enrolled in, only some of which had been completed. The Applicant, who had a copy of the delegate’s decision in her possession, said she did not enrol in that many courses. She told the Tribunal “when I delay or cancel there were consequences in future study, however at the end I still finished language course and am able to continue with tourism course”.
The Applicant told the Tribunal when she returns to Malaysia it was her intention to open a restaurant which would be jointly run with her family. In answer to questions from the Tribunal she estimated that the restaurant would potentially earn a profit which was the equivalent of about AU$10,000 each month, half of which she said would be shared with her husband, the second Applicant.
In responding to questions from the Tribunal, the Applicant said her husband arrived in Australia with her. She said he held a tourist visa, and he had not studied since he arrived in Australia. She also said her husband had been employed as a part-time mechanic earning approximately AU$20,000 annually. In a response to questions from the Tribunal, the Applicant said neither she nor her husband had applied for permanent residency in Australia and did not intend to do so.
The Tribunal considered at length whether the Applicant met the genuine temporary entry criterion by having regard to the factors consistent with cl 500.212 and with Direction No. 69.
As to the Applicant’s circumstances in Malaysia, the Tribunal accepted the Applicants may have family ties in Malaysia. However, given the time the Applicant had already spent in Australia and her intended period of future stay, the Tribunal found it was not satisfied there was a significant incentive for the Applicants to return to Malaysia.
As to the Applicant’s potential circumstances in Australia, the Tribunal noted that the Applicant first entered Australia in 2011 on a tourist visa. It also observed her proposed study at the time of the decision would extend her stay until 2021. Although the Tribunal accepted plans could change, it found her conduct was not the conduct of a genuine temporary student, but rather it suggested the Applicant had decided to extend her stay in Australia by utilising the student visa programme.
The Tribunal considered the Applicant’s study history since arrival, noting she intended to study an advanced diploma of management course after she finished her current study of a diploma of human resource management. The Tribunal found other than extremely broad and vague evidence, the Applicant did not explain the relevance of this study history to her intention of opening a restaurant and this is not the conduct of a genuine temporary entrant.
The Tribunal noted the Applicant’s course plan was inconsistent with the Applicant’s plans when she initially enrolled and the courses she wishes to pursue or asserted to have little relevance to her very vague future plans. The Tribunal found it was not satisfied that the Applicant had demonstrated the proposed additional study had a realistic prospect of providing significant value to her future beyond the qualifications she already held. The Tribunal found, after considering all the information provided with the visa application and weighing up the factors as a whole, the Applicant had not been able to satisfy the Tribunal that she genuinely intended a temporary stay in Australia as a student.
Additionally, given the disparity in economic circumstances between Malaysia and Australia the Tribunal found the Applicant did not have a significant incentive to return to Malaysia. It found she was unable to demonstrate substantial ties or personal assets to her home country, which diminished any incentive to return to Malaysia.
The Tribunal was not satisfied the Applicant had demonstrated the value of her proposed course to her future and there were no “clear and substantial” improvements arising from her proposed study which outweigh the significant time and monetary commitment the course would require.
The Tribunal gave weight to the evidence that the Applicant had spent nine years in Australia and agreed with the delegate’s findings that she had spent a total of 214 days in Malaysia. The Tribunal, after considering she had travelled to a variety of other countries whilst residing in Australia, found that this evidence indicated the Applicant did not have strong personal ties to Malaysia.
The Tribunal found that due to the Applicant’s grant of a student visa in 2011, and subsequent student visa granted in June 2016, the Applicant commenced studying for the purposes of the visa application in order to secure further stay in Australia, rather than due to a genuine interest in study. The Tribunal had regard to whether there was any other relevant matter and found there to be no other relevant matter to the assessment of the Applicant's intentions to stay in Australia temporarily.
The Tribunal found the Applicant appeared to be using the student visa programme as a means of maintaining ongoing residency in Australia and not having a genuine intention to stay in Australia temporarily.
The Tribunal found there was no evidence before it regarding the factors indicated by Direction No. 69. The Tribunal’s findings at paragraph [41] of its decision were as follows:
There is no evidence before the Tribunal regarding the following factors indicated by Direction No. 69: economic circumstances of the Applicant; any potential military service in Malaysia; political or civil unrest circumstances in Malaysia; remuneration the Applicant could expect to receive in Malaysia or a third country compared with Australia; circumstances in Malaysia relative to Australia or any other country; and the Applicant’s circumstances in Malaysia relative to others in that country.
The Tribunal found, given the amount of time the Applicant had now spent in Australia, it was concerned the Applicant was using the student visa primarily for maintaining ongoing residence. The Tribunal found it was not satisfied the Applicant intended to genuinely stay in Australia temporarily, and accordingly, the Applicant did not meet cl 500.212(a).
The Tribunal affirmed the delegate’s decision not to grant the Applicants temporary student visas.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 17 April 2020, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision dated 17 March 2020. The grounds of review contained in the application are written as follows:
The Tribunal failed to invite the Applicants to comment on adverse information that is relevant to the review application.
The Tribunal found, at paragraph 41 of the Decision Record, that There is no evidence before the Tribunal regarding the following factors indicated by Direction No. 69: economic circumstances of the Applicant; any potential military service in Malysia; political or civil unrest circumstances in Malaysia; remuneration he Applicant could expect to receive in Malaysia or a third country compared with Australia; circumstances in Malaysia relative to Australia or any other country; and the Applicant’s circumstances in Malaysia relative to others in that country.
The Tribunal failed to invite the Applicants to comment on the above information or failed to invite the Applicant to provide relevant information.
The Court has treated what the applicants set out as the grounds of review (recited above) as a single ground of review.
On 11 February 2025, a Registrar of this Court made an Order for the filing any affidavit evidence and written submissions by the applicants, and for the filing of any affidavit evidence and submissions by the first respondent.
The applicants did not file any documents in accordance with the Order. The first respondent filed written submissions as required by the Order.
Hearing in this Court on 8 April 2025
At the hearing on 8 April 2025 before this Court the Applicant was self-represented. She was assisted by an interpreter of the Mandarin language. Prior to the hearing commencing, the Court ensured that the Applicant was in possession of a copy of the Court Book, and that the first respondent’s written submissions had been translated to her.
At the commencement of the hearing, I explained to the Applicant that the Court’s role in deciding the case was limited to considering whether or not the Tribunal had committed jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed an affidavit by the applicant and a Court Book which contained the Tribunal’s decision and documents before the Tribunal to be admitted as evidence.
I then invited the parties to make final oral submissions. The Applicant made some brief submissions about some factual findings in the Tribunal decision. The Applicant stated, amongst other things, the Tribunal in its decision made it look like she had enrolled in 37 courses, when she said she had not done.
Ms Qi Qi Ren from HWL Ebsworth, who appeared for the first respondent at the hearing, made brief oral submissions in reply addressing both the first respondent’s written submission and the matters raised by the Applicant.
CONSIDERATION
The Court can only grant relief if it is established that the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32]. It is not the role of the Court to review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.
The Court agrees with the first respondent’s written submission that the Applicant’s ground of review, firstly, fails at a factual level. Contrary to the assertion in the ground of review, the Applicant would have been aware, since the delegate’s decision dated 21 March 2018, that the issue for determination was whether the Applicant satisfied the genuine temporary entrant criteria and that Direction No. 69, and the factors indicated in that Direction, were relevant to that assessment, and invited to provide information in relation to it on two occasions.
Both the s 359 invitation and the hearing invitation sent by the Tribunal made it clear that Direction No. 69, and the factors indicated in that Direction, were relevant to addressing whether the Applicant was a genuine temporary entrant.
In the s 359 invitation to the Applicant, the Tribunal stated:
In considering whether an Applicant is a genuine Applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’. A copy of this is attached for your reference.
The hearing invitation also attached a copy of Direction No. 69 and invited the Applicant to provide any information on which the Applicant intended to rely to establish that she met the criteria for the visa. The hearing invitation stated:
We may assess whether you are a genuine Applicant for entry and stay as a student (which was the reason for the delegate's decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
The Applicant did not address or provide information about the factors which were referred to in [41] of the Tribunal’s decision (being factors listed in Direction No. 69). Thus, it was open to the Tribunal on the material and evidence before it to make the finding that it made in [41] of its decision.
The Court also agrees with the first respondent’s submission that the findings made by the Tribunal at [41] did not contain “information” of the kind which was required to be given to the Applicants by the Tribunal under either s 359A (or s 359AA) of the Act. That is because the findings at paragraph [41] concern findings by the Tribunal about the absence of evidence regarding the factors in Direction No. 69. In SZBYR v Minister for Immigration and Citizenship (2007) 146 CLR 297 the High Court held at [18] in relation to s424A(1)(a) (an analogous provision to s359AA and s359A) that, “[h]owever broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”. In those circumstances neither of the Tribunal’s disclosure obligations under s 359A or s 359AA of the Act were enlivened. Therefore, the Tribunal was not under any obligation to invite the Applicant to comment on the matters referred to in [41] of the decision.
Finally, nothing said by the Applicant in oral submissions to the Court identified any jurisdictional error on the part of the Tribunal. These complaints, which took issue with some of the factual findings of the Tribunal, invite merits review which this Court cannot undertake in applications made under s 476 of the Act: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Wu Shan Liang
and Ors at p272 per Brennan CJ, Toohey, McHugh and Gummow JJ, Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ.I
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by a jurisdictional error, and no other jurisdictional error is apparent on the face of the decision record.
The application is dismissed.
COSTS
The first respondent sought an order that the applicant pay the first respondent’s costs in the amount of $5,600.I am also satisfied that the amount sought is fair and reasonable having regard to the nature of the matter. I will make an order in this amount.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 2 May 2025
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