Tenzin v Minister for Immigration

[2020] FCCA 1288

FEDERAL CIRCUIT COURT OF AUSTRALIA

TENZIN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1288

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – judicial review – grounds of review – no particulars – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 499

Migration Regulations 1994 (Cth), Schedule 2, Cll.500.212, 500.311.

Cases cited:

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

First Applicant: JIGME TENZIN

Second Applicant: SHERAB ZANGMO

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 903 of 2019

Judgment of: Judge Jarrett

Hearing date: 21 May 2020

Date of Last Submission: 21 May 2020

Delivered at: Brisbane

Delivered on: 22 May 2020

REPRESENTATION

The first and second applicant appeared in person

Solicitors for the first respondent: Minter Ellison

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on 21 October, 2019 be dismissed.

2. The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 903 of 2019

JIGME TENZIN

First Applicant

SHERAB ZANGMO

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application for judicial review of a decision of the second respondent, which affirmed a decision of a delegate of the first respondent not to grant the first applicant a Student (Temporary) (Class TU) (subclass 500) visa must be dismissed.  The application reveals no jurisdictional error.

2. The first applicant is a citizen of Bhutan who arrived in Australia on 20 February, 2013 on a Student (Class TU) (subclass 573) visa.  The second applicant is his partner who seeks the grant of a visa as a member of the first applicant’s family unit.  She does not advance her own separate claims to the grant of a visa.

3. On 22 May, 2018 the first applicant lodged an application for a student visa.  It is this application which has led to the proceedings in this Court.

4. On 29 June, 2018 a delegate of the first respondent refused to grant the applicant the further student visa. The delegate was not satisfied that the applicant was a genuine temporary entrant for the purposes of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). Consequently, the second applicant also failed to secure a visa.

5. On 11 July, 2018 the applicant applied to the second respondent for review of the delegate’s decision.

6. On 1 August, 2019 the second respondent wrote to the applicant pursuant to s.359 of the Migration Act 1958 (Cth) to invite the applicants to provide information to it for the purposes of the review. The correspondence drew to the applicants’ attention that the first applicant needed to satisfy the second respondent that he was enrolled in a registered course of study and was otherwise a genuine applicant for entry and stay as a student. The correspondence sought the submission of information addressing those matters.

7. The applicants completed and submitted a document entitled “Request for Student Visa Information”.  In that form, the applicants provided consent to the second respondent to decide the review without a hearing.  The applicants also submitted a number of documents along with the Request for Student Visa Information, including three overseas student confirmation-of-enrolment certificates and a written statement.

8. On 17 September, 2019 the second respondent affirmed the decision under review and provided written reasons for its decision to the applicant.  The second respondent recorded that the applicants consented to the second respondent deciding the application before it without a hearing.  In light of that consent, the second respondent had proceeded to determine the application on the evidence before it.

9. The second respondent identified that the applicant needed to satisfy the genuine temporary entry criteria in cl.500.212 of Schedule 2 to the Regulations, specifically having regard to Ministerial Direction No.69 made under s.499 of the Act. The second respondent accurately recorded that whilst it was required to have regard to the direction, the factors specified in the direction were not to be used as a checklist but rather were intended only to be a guide to decision-makers when considering the first applicant’s circumstances as a whole.

10. As the first respondent submits, the second respondent’s reasons demonstrate that it considered:

    a)the statement provided in support of the visa application dated 22 May, 2018 addressing the ‘genuine temporary entrant’ criterion;

    b)the first applicant’s more recent written statement to the second respondent dated 12 August, 2019, explaining his motives for studying in Australia; and

    c)the first applicant’s educational history and proposed study path in Australia.

11. A matter of concern to the second respondent was the first applicant’s study goals.  In respect of this matter, the second respondent said:

    22. What is not readily apparent from the applicant’s evidence, however, is what precisely his study goals are in undertaking his courses in Australia. Of particular concern to the Tribunal is the applicant’s reliance on vague and circular statements to describe his motives. In this regard he states to the effect that his proposed study pathway will allow him to ‘develop [his] skills and knowledge in leadership and management’ which will in turn allow him to work in ‘senior management roles’ ‘supervising others and providing strategic leadership’. He states that the qualifications will assist him to ‘secure’ managerial or ‘higher-level’ positions in the future. Such statements do no more than repeat the course name in the context of both the skills he hopes to acquire and the roles he hopes to obtain. To the extent that the applicant connects those statements to ‘substantive’ objects he again relies upon generalities, referring to a demand for ‘Human Services and Social worker practitioners’ in his home country. Not only does the Tribunal consider these descriptions to be vague in their expression, but it is of concern to the Tribunal that the types of roles he cites in evidence are already open to the applicant in view of his holding a Bachelor of Human Services.

    23. In his s.359(2) response the applicant states that he holds Diplomas in ‘Statistics’ (1991) and ‘Population Studies’ (1993) and that his previous work experience in Bhutan was as an ‘Assistant Statistical Officer’ (1991 – 2001) and a ‘Statistical Officer’ (2001 – 2013) for the Bhutanese Government. It appears from the applicant’s evidence that he is now focussed upon a future career in the area of ‘Human Services’ rather than in the field of his professional experience. The Tribunal is mindful, in assessing the value of a course to an applicant’s future, that it must allow for reasonable changes to career or study pathways; however it is not persuaded that the vague and circular assertions offered by the applicant are consistent with a positive study or career plan or that they represent a reliable expression of the applicant’s motives in making his application for a student visa. The Tribunal is fortified in reaching this conclusion by the applicant’s focus on obtaining employment in roles for which he is already qualified.

    24. The Tribunal is similarly concerned in respect of the applicant’s description of his future employment prospects in Bhutan. The applicant states that with his additional qualifications he is ‘confident’ in obtaining a ‘higher position’, the remuneration for which will be ‘not less than AUD$30,000 annually’. It may be inferred that the applicant refers to a ‘higher positions’ in the field of human service, however, the applicant provides no evidence to corroborate his claim and the Tribunal finds his evidence on this issue to be vague and unpersuasive.

    25. Overall, the Tribunal is not satisfied that the applicant is enrolled in a course of study that is relevant to his proposed future employment, either in Bhutan or a third country, or that it will assist him to obtain employment or improve his employment prospects there.

12. Additionally, the second respondent found that the first applicant’s close family ties in Australia constituted a strong incentive for him to remain in Australia.  In that respect the second respondent said:

    28. It appears from the evidence provided by the applicant that his wife (the second named applicant), his daughter and his two sons are resident in Australia. In his GTE Statement the applicant states expressly that his decision to not pursue studies during his time holding a Temporary Graduate visa, was the necessity of providing financial support for his family while his children concluded their tertiary studies in Australia.  The Tribunal notes the applicant’s evidence that his brother and two sisters are resident in Bhutan and his (uncorroborated) claim to owning significant immoveable assets there. The Tribunal notes also that the applicant has not visited his home country, or left Australia at all, since he arrived onshore in 2013. Overall, the Tribunal is of the view that the presence of the applicant’s immediate family onshore would present as a strong incentive for him to remain in Australia rather than return to Bhutan.

13. That, taken together with his immigration history, length of stay in Australia and what the second respondent considered to be his unpersuasive evidence concerning the value of his proposed study pathway, indicated to the second respondent that the primary objective of the first applicant was maintaining an ongoing residence in Australia.

14. The second respondent was not satisfied that the applicant intended genuinely to stay in Australia temporarily for the purpose of meeting cl.500.212 of the Regulations. Accordingly, the second respondent affirmed the decision under review on the basis that the first applicant failed to satisfy the criteria for the grant of a student visa. Consequently, the second respondent noted that the second applicant could not meet cl.500.311 of Schedule 2 of the Regulations and there was no information before the second respondent to indicate that she met the primary visa criteria.

15. In these proceedings, the applicants argue that the second respondent’s decision is affected by jurisdictional error on the following grounds (faithfully reproduced):

    1. The second respondent failed to properly apply cl.500.212 of the Migration Regulations 1994.

    2. The second respondent’s decision was unreasonable or illogical, and failed to take into meaningful considerations of the materials and evidence before it.

    3. The second respondent took into account irrelevant considerations.

    4. The second respondent failed to conduct a review, otherwise, the second respondent’s decision was and (sic) unlawful exercise of its power.

16. The applicants were given the opportunity, by the orders that were made in this application on its first court date, to amend their grounds of review.  They did not take up that opportunity.  Nor did they take up the opportunity to file any written submissions in support of the case.  I have the benefit of written submissions from the first respondent upon which I have drawn for the purposes of my reasons.

17. When the matter was heard by me, the first applicant made oral submissions in support of his case and did so on behalf of the second applicant.

18. Each ground of review fails because none are sufficiently particularised so as to give any ground of review any content.  Without particulars grounds are meaningless and incapable of disclosing jurisdictional error: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

19. The first respondent submits that the applicants’ complaints should be understood as nothing more than an expression of their discontent with the second respondent’s decision and is therefore an attempt to engage the court in impermissible merits review.  I accept that submission.

20. There is nothing in the second respondent’s reasons that suggests that it did not correctly interpret and apply cl.500.212(a) of Schedule 2 to the Regulations. The second respondent recognised that Ministerial Direction No.69 required consideration and correctly identified the way in which the matters set out in that direction were to be used by the second respondent. The approach of the second respondent was orthodox.

21. In oral submissions, the first applicant seemed to identify the second of the grounds of review as his main source of complaint.  He suggested that the second respondent did not give proper consideration to his material concerning his future plans and the reason why he was undertaking his study.  In particular he referred to his written statement that was provided to the second respondent in response to its request for further information.  But as the extracted paragraphs above demonstrate, the second respondent specifically took into account the written statement provided by the applicant in response to the second respondent’s request for information.  It also considered the original information that the first applicant had provided to the first respondent’s delegate when he made his application for the visa.  The first applicant’s real complaint is that he is disappointed about the way in which the second respondent determined those issues against him.

22. The applicant’s arguments that the second respondent took into account irrelevant considerations or did not conduct the review contemplated by the Migration Act without merit. I accept the first respondent’s argument that the second respondent gave probative reasons for affirming the decision and its reasons clearly disclose an evident and intelligible justification for its conclusion.

23. None of the grounds of review relied upon by the applicant demonstrate jurisdictional error on behalf of the second respondent.  Moreover, the second respondent’s reasons for decision, more generally, do not reveal jurisdictional error on its part. 

24. Accordingly, the application must be dismissed.  The first respondent seeks his costs of and incidental to the application fixed in the sum of $5,600.  Cost should follow the event.  No special circumstances have been demonstrated that would mean that the application of the usual rule would be inappropriate.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 May, 2020.

Associate: 

Date: 22 May, 2020