Tran v Minister for Immigration and Citizenship
[2025] FedCFamC2G 894
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tran v Minister for Immigration and Citizenship [2025] FedCFamC2G 894
File number(s): SYG 330 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 11 June 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – adequacy of interpretation – no jurisdictional error established– application dismissed Legislation: Migration Act 1958 (Cth) ss 360; 366C; 476
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 2 June 2025 Date of hearing: 2 June 2025 Applicants: The applicant appeared self-represented Solicitor for the First Respondent: Ms Warren - Sparke Helmore Lawyers Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
SYG 330 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TRUNG HIEU TRAN
First Applicant
THI MINH THAO LAM
Second Applicant
JAYDEN TRAN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The first applicant and second applicant are to pay the first respondent’s costs, fixed in the amount of $6,500.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicants a Student (Temporary) (Class TU) (subclass 500) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of Vietnam. The first applicant (“the applicant”) arrived in Australia on 20 April 2009 on a Higher Education Student (TU-573) visa. The applicant was subsequently granted two additional student visas and a Temporary Work visa. On 8 November 2019, the applicant made an application for a Student (Temporary) (Class TU) (subclass 500) visa (“the visa”) to undertake a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management with a course start date of 18 January 2025 and a completion date of 26 November 2025 (Court Book (“CB”) 1-115). The applicant’s wife and two children were included in the application as members of the applicant’s family unit (CB 4-10). The applicant’s wife and one of his children are the second and third applicant in these proceedings.
On 12 February 2020, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met the genuine temporary entrant requirement criterion in cl 500.212 of Schedule 2 of the Migration Regulation 1994 (Cth) (“the Regulations”) (CB 123-130). The delegate refused to grant the applicant’s wife and two children the visa on the basis that they were not members of the family unit of a person who held a student visa (“the delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 19 February 2020, the applicants applied to the Tribunal for a review of the delegate’s decision. The applicants appointed a registered migration agent to act as their representative (CB 131-133). On 15 September 2021, the applicants appointed a solicitor to act as their representative (CB 161-164).
On 3 September 2021, the Tribunal wrote to the applicants advising them that they would need to provide sufficient information to satisfy the Tribunal that the applicant met the requirements for the visa, that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The Tribunal invited the applicants to provide, in writing, all relevant information about the course(s) of study the applicant was undertaking and his entry and stay as a student. The Tribunal said that specific details about the information requested are set out in the Request for Student Visa Information form (“RSVI form”) and provided a link to that form (CB 146-147). The Tribunal also told the applicants that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (“Direction No. 69”). A copy of Direction No. 69 was attached.
On 8 September 2021, the applicants provided a copy of the applicant’s new passport; a copy of the Australian citizenship certificate and a copy of the passport of the applicant’s son Leon Tran. The applicant requested that Leon Tran be removed from the application as a secondary applicant as he was now an Australian citizen (CB 148-153). He was removed from the application for review.
On 15 September 2021, the applicants submitted the completed RSVI form (CB 167-179). Attached to the RSVI form was a Certificate of Enrolment (“COE”) for a Bachelor of Business (Leadership and Management) at the Academies Australasia Polytechnic Pty Limited with a course start date of 15 November 2021 and a completion date of 23 June 2023 (CB 184).
On 4 October 2021, the Tribunal invited the applicants to attend a hearing on 20 October 2021 to give evidence and present arguments relating to the issues arising in their case, stating that it was unable to make a favourable decision based on the information before it alone (CB 186-190).
On 19 October 2021, the Tribunal emailed the applicants’ migration agent noting that the applicant’s visa history was incomplete in the RSVI form and asked that details be provided of any Australian visas the applicant holds or has held by reference to visa type, application date, date visa granted, and date visa ceased. Details of the applicant’s community ties (if any) in his home country were also requested (CB 191). The Tribunal requested that the information be provided prior to the hearing.
On 25 October 2021, the Tribunal invited the applicants to attend a rescheduled hearing on 10 November 2021 (CB 343-346). The hearing was later rescheduled to 15 December 2021 (CB 353-356).
On 8 December 2021, the applicants’ representative emailed the Tribunal with details of all the visas held by the applicant and attached a number of documents including the completed RSVI form, the applicant’s COE, an academic transcript and a statement of purpose (CB 192 -337).
On 15 December 2021, the Tribunal requested the applicants’ representative provide prior to the hearing details of all Australian visas the applicant holds or has held previously (CB 385).
On 15 December 2021, the applicants’ representative provided a document titled “Visa Record” which listed the applicant’s visa history (CB 386-388).
On 15 December 2021, the applicant and second applicant attended the hearing. They were assisted by their representative and an interpreter in the Vietnamese and English languages. The applicants were requested to provide further information in writing by 16 December 2021 (CB 389-391).
On 16 December 2021, the applicants’ representative provided to the Tribunal a copy of the applicant’s course record; a copy of the applicant’s Certificate IV in Real Estate Practice from Unique Training Providers; a copy of the applicant’s transcript from Unique Training Providers; and an email from Unique Training Providers regarding the applicant’s completion of a Certificate IV in Real Estate Practice (CB 392-400).
On 1 February 2022, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 404-420).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant is a genuine temporary entrant and referred to the requirement in cl 500.212 of the Regulations ([7]-[8]). The Tribunal stated that in considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No. 69, which requires the Tribunal to have regard to a number of specified factors in relation to ([9]). The Tribunal stated that those factors are not to be used as a checklist but rather, 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 ([10]).
The Tribunal accepted that the applicant had produced a confirmation of enrolment for a Bachelor of Business, Leadership and Management with a course start date of 15 November 2021 and end date of 23 June 2023 ([13]).
The Tribunal then summarised the information the applicant had provided to the Tribunal in response to the s 359(2) request with respect to the applicant’s education history prior to arriving in Australia; return to Vietnam since arriving in Australia; visa history; study history in Australia; employment history in Australia; property ownership in Vietnam; future employment plans; and expected future remuneration ([15]-[24]).
The Tribunal then summarised the applicant’s answers to the questions put to him by the Tribunal during the hearing regarding his education qualifications obtained prior to arriving in Australia; his study history in Australia including what courses he had completed and what courses he had enrolled in but not completed; periods during which he was not enrolled in a course of study whilst holding a student visa; that his wife and two sons who were born in Australia are currently residing in Australia; his visa history; that he held a work visa between 2015 and 2019 and did not study during that period; that this visa application was lodged three days prior to the expiry of the work visa; his reasons for re-engaging in study despite not studying for four years; his current employment; that he has no assets in Vietnam; his employment intentions on his return to Vietnam to open a real estate business and why his existing skills and experience are insufficient for him to open that business; why he was studying a course in leadership and management; and that his ten year old son is an Australian citizen ([26]- [32]; [34]-[44]).
The Tribunal then referred to the documents the applicant had provided to the Tribunal prior to the hearing. The Tribunal noted the applicant did not refer to any of these documents during the course of giving evidence at the hearing but stated that they had been taken into account to the extent relevant and given appropriate weight ([46]). The Tribunal also referred to the applicant’s statement of purpose which the applicant had provided prior to the hearing. The Tribunal said that the statement was not referred to by the applicant during the course of giving evidence at the hearing but said that it had been taken into account to the extent relevant and given appropriate weight ([47]).
The Tribunal then referred to and set out the information the applicant’s representative had provided subsequent to the hearing in relation to the courses studied by the applicant ([48]).
The Tribunal noted that the applicant's representative was invited to make submissions to the Tribunal but had declined to do so ([50]).
The Tribunal then summarised the applicant’s evidence which the Tribunal described as often unresponsive to the question, vague, imprecise or discursive or containing elements of all those issues ([51]-[52]). The summary traversed the applicant’s education and work history in Vietnam; his visa history; his study history in Australia and that he had not studied during the time he held a 457 visa; that he has no assets in Vietnam; that he not provided details of his career path; that he had not provided any information regarding his family residing in Vietnam; and his intention to continue studying a masters degree in business administration ([53]-[57]).
The Tribunal stated that that the applicant had not explained to its satisfaction why he had not completed any higher education courses in Australia and why he changed the direction of his study whilst in Australia on several occasions; why he had abandoned various courses; why he did not return to Vietnam when he completed his studies in 2015; why he did not return to Vietnam at the end of the 457 visa; why he applied for another student visa three days prior to the expiry of the 457 visa; why he did not study during the period of the 457 visa; why he chose to reengage with study at the expiry of the 457 visa; why he did not return to Vietnam when the student visa application was refused in 2019; and why his son applied for Australian citizenship but others in his family do not intend to do so ([58]). The Tribunal also stated that the applicant had not provided a clear and cogent career path; explained why his existing qualifications and experience were insufficient for him to embark on his career path; explained the necessity to study the current course especially having regard to his existing qualifications and experience; and why he intends to study further courses in business management once he has completed his current course ([58]).
The Tribunal then turned to consider whether the applicant met the genuine temporary entry criterion and had regard to the following factors in Ministerial Direction No. 69:
(a)As to the applicant's circumstances in his home country, the Tribunal noted that the applicant has provided no evidence of social, direct family and financial ties to his home country or other economic incentives to return and said that it was not satisfied that there is a significant incentive for the applicant to return to Vietnam ([60]);
(b)As to the applicant's potential circumstances in Australia, the Tribunal noted that the applicant first arrived in Australia on 1 April 2009 as a holder of a Subclass 573 visa and held three such visas between April 2009 and March 2017 and that the proposed study would extend the applicant's stay until at least June 2023. The Tribunal noted that the applicant had also expressed intention to study thereafter but has no enrolment. The Tribunal considered that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia and that whilst plans can change, this was not the conduct of a genuine temporary student. On balance, the Tribunal said that the conduct was consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme ([61]);
(c)The Tribunal said that it did not place weight on the value of the course to the applicant's future, including remuneration and career prospects in his home country. The Tribunal said that there were several reasons for this: first, the very vague evidence about an intention to establish a real estate business in Vietnam; he had provided no details; and had not explained to the Tribunal's satisfaction why his existing skills and experience obtained in Australia would be insufficient to embark on this vague career path ([62]);
(d)The Tribunal considered the applicant's study history since arrival and noted that he commenced study in 2009, had not completed any higher education course in Australia, did not study during the period of the 457 visa, had changed direction of study on numerous occasions; had completed six vocational courses; and had abandoned five courses of study including a Bachelor of Business and a Bachelor of Accounting ([63]);
(e)On balance, the Tribunal said it was not satisfied that the applicant had established that study would provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that he already has qualifications and experience in the real estate industry in Australia. Accordingly, the Tribunal was not satisfied that the proposed additional study had a reasonable prospect of providing significant value to his career beyond the existing qualifications ([65]);
(f)As to the applicant's economic circumstances in his home country relative to his potential circumstances in Australia, the Tribunal said that having regard to the disparity in economic circumstances between Vietnam and Australia, it was not satisfied that the applicant had significant incentive to return to Vietnam and that he has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Vietnam ([67]);
(g)The Tribunal said that it was concerned that the applicant's intention to live in Australia may be motivated by factors other than study and that applicant had not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course would require. Accordingly, the Tribunal said it was not satisfied that the applicant had demonstrated the value of his proposed course to his future ([68]);
(h)The Tribunal said that it gave weight to the evidence that since the applicant's arrival in Australia on 1 April 2009 the applicant had spent more than 12 and a half years in Australia and had only returned to Vietnam on four occasions, had provided no information regarding his immediate family in Vietnam, has no assets in Vietnam, had not worked in Vietnam since 2009, appears to have stable employment in Australia, his wife and two sons reside in Australia, he intends to reside in Australia and study at least until June 2023 and perhaps beyond and, that his eldest son has recently become an Australian citizen. The Tribunal said that all of this indicated that the applicant did not appear to have strong personal ties to Vietnam. On balance, the Tribunal assessed the applicant's incentive to return to Vietnam to be minimal ([69]).
The Tribunal concluded that it was not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. The Tribunal said that whilst the applicant clearly wishes to stay and continue to study in Australia, it noted that the applicant was previously granted three student visas specifically to enable him to achieve that goal, was then granted a work visa for four years during which time he did not study and that the applicant lodged this application three days prior to expiry of the working visa. The Tribunal said that it therefore appeared that the applicant had commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in the area of study ([70]).
The Tribunal said that having considered all information provided by the applicant in support of his application, on balance, it was not satisfied that the information the applicant had provided regarding his circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters were sufficient to demonstrate that the applicant is a genuine temporary entrant ([71]). The Tribunal said that, on the contrary, the evidence suggests that the applicant had enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and that that the applicant was using the student visa programme as a means of maintaining ongoing residence in Australia, and did not have a genuine intention to stay in Australia temporarily ([72]).
The Tribunal concluded that the applicant did not meet cl 500.212(a) ([74]) and was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 ([75]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by an application filed on 4 March 2022. The applicants also filed an affidavit affirmed by the applicant on 4 March 2022 annexing a copy of the Tribunal’s reasons for Decision.
Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they seek to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book. The first respondent filed an affidavit affirmed by Carly Maree Warren on 30 May 2025, deposing to the fact that certain documents located in the Court Book were out of order and identifying the correct order of those documents.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the affidavit of Carly Maree Warren, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents with him. The Court Book was made an exhibit in the proceedings.
The applicant appeared by video. The applicant was unrepresented. The applicant had the assistance of an interpreter in the Vietnamese and English languages.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting them to do so, the applicants did not file an amended application. The ground of review set out in the application is (without alteration):
The member for the Administrative Appeal Tribunal (AAT) failed to conduct a fair hearing under section 360 of the Migration Act as there were confusing interpretation of my answers from Vietnamese to English and that the member prohinited me to provide the answers in English.
Ground one: procedural fairness - adequacy of interpretation
Section 360 of the Act provided that if the Tribunal cannot make a decision favourable to the applicant on the material before it, then it must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 366C of the Act provided:
(1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.
(2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.
(3)If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).
It is not in contention that the applicant requested an interpreter in the Vietnamese and English languages (CB 131) and that he was assisted at the hearing by an interpreter in the Vietnamese and English languages (CB 389; [4] of the Decision). Accordingly, the complaint is not that the Tribunal did not provide the applicant with an interpreter in accordance with his request. Rather, in ground one, the applicant contends that the interpreter gave “confusing interpretation of [his] answers”, and that the Tribunal prohibited him from providing answers in English. The applicant’s contention is that he was thereby denied procedural fairness.
As the first respondent correctly submitted, to be denied a fair hearing because of issues arising from the interpretation of the applicant’s evidence or arguments, it is necessary to show that (a) the standard of the interpretation at the hearing was so inadequate that the applicant was prevented from giving evidence; or (b) that the errors made in the interpretation were material to a conclusion of the Tribunal and adverse to the applicant (first respondent’s submissions (“FRS”) [26] referring to SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 (“SZRMQ”) at [64]-[69]).
Orders were made by this Court on 2 May 2025 requiring the applicants to file written submissions and any amended application or additional evidence by 23 May 2025. The applicants did not file an amended application, written submissions or any additional evidence. The applicants have not provided any particulars of the answers in respect of which it is said confusing interpretation was provided nor explained how being prohibited from answering in English meant that that applicants were denied a fair hearing such that they were not given a meaningful opportunity to give evidence or present arguments. The Tribunal gave the applicants’ representative the opportunity to make submissions, but the representative declined that opportunity. Accordingly, despite being given that opportunity no complaint was made at or after the hearing about the inadequacy of the interpretation provided.
Significantly, the applicants did not put into evidence the transcript of the hearing before the Tribunal. Accordingly, the only evidence the Court has before it is the Tribunal’s reasons for Decision.
Despite the procedural order requiring them to do so, the applicants did not file any written submissions. The applicant was given the opportunity, with the assistance of the interpreter, to make oral submissions in support of the application for judicial review and in reply to the first respondent’s submissions.
In oral submissions, the applicant was unable to provide any particulars or examples of how the interpreter gave “confusing interpretation of [his] answers” at the Tribunal hearing.
As to the contention that the Tribunal prevented the applicant from answering questions in English, the applicant did not give any examples of questions that he wanted to answer in English but was prevented from doing so or explain how that denied him a meaningful opportunity to give his evidence.
In the absence of the transcript, the evidence before the Court is the Tribunal’s reasons for Decision. Those reasons demonstrate that the applicant was asked and answered questions relevant to the factors in Ministerial Direction No. 69 and that the Tribunal took the applicant’s answers into consideration in assessing and weighing those factors. There is nothing in the Tribunal’s reasons for Decision which indicate that there was any inadequacy in the interpretation of the applicant’s answers.
Accordingly, the Court agrees with the first respondent’s submission (FRS [28] referring to SZRMQ [64]-[69]) that in the absence of particulars or evidence, the Court cannot be satisfied that there were deficiencies in interpretation let alone deficiencies to the extent that the applicant was prevented from giving evidence or, errors that led to material unfairness such that the applicant was denied a real and meaningful opportunity to be heard.
Accordingly, the Court cannot be satisfied that there were any deficiencies in the interpretation at the hearing.
No jurisdictional error is established on ground one.
Further matters
At the hearing before this Court, the applicant said that the Tribunal member asked him questions about why he was on a student visa and then had a work visa to which he said that he explained to the Tribunal that he had to cancel the student visa and go to work and that he then reapplied for a student visa. It was not clear how the applicant contended that these questions about the applicant’s visa history and employment history constituted jurisdictional error on the part of the Tribunal. As can be seen from the Tribunal’s reasons for Decision, the Tribunal traversed the applicant’s visa history, employment history in Australia and study history in Australia. The Tribunal noted that that the applicant had not studied during the period in which he held a 457 visa ([35]) and was asked why he had re-engaged with study after not studying for four years ([37]). The Tribunal concluded that the applicant’s existing skills and experience in real estate were such that it was not satisfied that the proposed additional study had a reasonable prospect of giving significant value to the applicant’s career ([65]). This reasoning does not disclose any jurisdictional error on the part of the Tribunal.
The applicant also submitted that the Tribunal member told him that his visa had been refused because he went to “a cheap education institution”. The applicant said that from this remark it seemed to him that the Tribunal member “looked down on” and “discriminated” against the education institution he had chosen. There was no evidence that the Tribunal made such a comment. There is nothing in the reasons for the Decision that suggest that the Tribunal raised with the applicant the quality of his chosen education provider.
If this was intended as a complaint that the Tribunal was biased, it is a contention that is simply not made out. It is well established that a complaint of bias must be distinctly made and proven. A fair reading of the Tribunal’s reasons for Decision do not support any finding of bias rather demonstrate a thorough analysis of the relevant facts by reference to the factors in Direction No. 69 by a mind open to persuasion.
The Court has otherwise carefully considered the Tribunal’s reasons for decision and cannot discern any jurisdictional error by the Tribunal.
CONCLUSION
For the reasons given above, no jurisdictional error is established. Accordingly, the application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 11 June 2025
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