Uwizeye v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 640
•31 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Uwizeye v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 640
File number(s): PEG 242 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 31 March 2021 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant is a genuine temporary entrant – whether the Tribunal overlooked evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cl 500.212 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 51 Date of hearing: 29 March 2021 Place: Perth Applicant: Appeared in person Counsel for the First Respondent: Ms J Tran Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 242 of 2020 BETWEEN: CHRISTELLE UWIZEYE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 MARCH 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicant is a citizen of Rwanda. She first visited Australia on 14 June 2017 on a Visitor visa and departed on 24 June 2017 (Court Book (“CB”) 54). She was subsequently granted a Skilled Graduate visa and returned to Australia on 6 December 2017 (CB 54).
On 1 June 2019, the applicant applied for a (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 11-37). The applicant indicated that she wished to study commercial cookery.
On 16 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 42-50). The delegate was not satisfied that the applicant met cl 500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the applicant was “a genuine temporary entrant”.
On 23 July 2019, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for judicial review of the delegate’s decision (CB 51-52).
On 10 February 2020, the Tribunal invited the applicant to provide further information in relation to her enrolment status and the genuine temporary entrant criterion (CB 60-67). The applicant gave the Tribunal further information as requested (CB 96-103).
On 20 July 2020, the applicant appeared before the Tribunal (CB 104-106).
On 21 July 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 111-125).
On 11 August 2020, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. The application is filed pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 15 pages long and spans 42 paragraphs.
The Tribunal first identified the type of visa the applicant was seeking (at [1]-[2]). The Tribunal explained that the delegate had refused the visa as the applicant did not meet cl 500.212 of the Regulations (at [3]) and noted that the applicant had appeared at a hearing before the Tribunal (at [4]-[5]).
The Tribunal then listed the materials it had before it, as follows (at [6]):
•The Decision Record of the delegate;
•The response to the Request for Student Visa Information form;
•A letter of offer and acceptance (unsigned by the applicant) dated 9 September 2019 from Australian Tertiary Institute for the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management;
•A letter of confirmation of enrolment dated 12 February 2020 from Australian Tertiary Institute for the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management;
•A letter of confirmation of enrolment dated 7 July 2020 from Australian Tertiary Institute for the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management;
•A letter from the Australian Tertiary Institute dated 7 July 2020 outlining the courses in which the applicant is currently enrolled;
•A Confirmation of Enrolment for the Certificate III in Commercial Cookery, showing that that coursed commenced on 3 June 2019, and was to be completed on 25 May 2020;
•A Confirmation of Enrolment for the Certificate IV in Commercial Cookery, showing that that course commenced on 27 May 2020, and will be completed on 18 November 2020;
•A Confirmation of Enrolment for the Diploma of Hospitality Management, showing that that course will commence on 4 December 2020, and will be completed on 7 May 2021, and
•A payment receipt to the Australian Tertiary Institute for $1966.68 dated 3 July 2020 for ‘Tuition Fees- Certificate III in Commercial Cookery.’
The Tribunal identified that the issue before it was whether the applicant was a genuine applicant for entry and stay as a student (at [8]) and outlined the relevant criterion and ministerial direction, as follows:
9. Clause 500.212 requires as follows:
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.
Does the applicant intend genuinely to stay in Australia temporarily?
10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
11. The Direction indicates that the factors specified should not 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.
In relation to the applicant’s circumstances in her home country, the Tribunal noted that the applicant had obtained qualifications at a Masters level in her country (at [12]). The Tribunal accepted that the applicant’s mother and brothers remain in Rwanda and that this provided some incentive to return. However, the Tribal noted that the applicant lacked employment or other economic incentives to return to Rwanda. Accordingly, the Tribunal was not satisfied that the family ties in the circumstances were a significant incentive and that this weighed against the visa being granted (at [13]).
The Tribunal determined that the applicant was not subject to national service and there was no political or civil unrest or economic reasons that provided an incentive for the applicant to remain in Australia. This was weighed in the applicant’s favour (at [14]).
The Tribunal then detailed the applicant’s circumstances since she arrived in Australia on her skilled visa. The Tribunal noted the applicant could not find employment in communications engineering and had spent time working as a cook, cleaner and babysitter until her skilled visa expired (at [15]-[17]).
The Tribunal detailed the applicant’s evidence that when she was working as a cook, she decided she could open a restaurant in Rwanda (at [18]). The Tribunal noted that the applicant had stated that, in Rwanda, she had helped her mother cook local food for weddings and parties (at [19]).
The Tribunal noted that the applicant’s enrolment records indicated that she would finish her courses in October 2021 (at [20]-[21]). However, the applicant had provided evidence that she did not start the course until a later date than indicated on these records (at [22]).
The Tribunal then summarised the applicant’s evidence about why she chose her course and what she wished to do when she returned to Rwanda (at [23]-[25]).
The Tribunal then noted and determined as follows:
26. While that may be the case, and while the Tribunal accepts that a qualification in Australia may place, generally, applicants at a competitive advantage when they return to their home country, the applicant has not provided any information that shows that she has determined in what type of premises or exactly where in the city the restaurant will be that she opens, how it will be run, how big it will be, what financial backing she will require, or any other business or financial planning that she has performed to determine whether her plans are realistic. The applicant has not provided any details on how she says saving money for 2 years from an entry level hospitality job will enable her to achieve the financial substance to set up a business. She has not provided any information to the Tribunal that shows that she has any other access to the financial resources required to open her own restaurant, or the income she hopes to achieve. The applicant’s plans are vague and unsubstantiated, and the Tribunal is not satisfied that they are firm or realistic plans at all.
27. She has had no experience in the cooking or hospitality industry, other than her home based, sporadic supply of food with her mother in her home country and the study of hospitality is completely different to the studies she has already completed, being communications engineering and aged care. The applicant told the Tribunal that she decided to embark on a cooking career having worked at a café in Perth, however at that time she was here on a skills visa, the purpose of which is to further the skills gained, and to gain practical skills, in areas in which the person is already qualified, not to assist the visa holder to try new industries to determine whether they wish to work in them, and gain further qualification in them.
28. The applicant’s representative was invited to speak at the Tribunal hearing. She said that the applicant wants to have an international qualification, and she thought that if she gained an Australian qualification, she would be able to return home, having been skilled through work and study. Her aim is to be her own boss, and as a female, that is a valuable thing in her country. She suggested that this is a brave move when this is such a big change in direction for her. This would also mean she can start her own business, which is also brave.
29. The Tribunal accepts that young students do not always know what they really want to study when they leave school, and may have a change in direction. Changes to courses and course providers, and some failures in units, are reasonable in those circumstances. Further, it is reasonable to want to do all that is possible to ensure a person has the best prospects of gaining employment. However, the applicant has taken some time, and has qualifications in 3 separate countries, including an aged care qualification from Australia, to determine that she wishes to complete a hospitality course. The applicant, by her own evidence, and by the fact that she did not commence a hospitality course until she had completed an engineering high-level qualification, an aged care course and then worked in a café, could not be said to have always had a goal to work in hospitality or run her own business in hospitality. It would be reasonable to assume that she would have followed up on that goal much earlier in life, had she always had it.
30. The Tribunal also accepts that it is brave for any person to want to start their own business, and be their own boss, and accepts what the representative says about the importance to the applicant of the ability to do so, however, the current suite of courses being undertaken by the applicant are not only inconsistent with the subject of her existing qualifications, but they are also inconsistent with the level of her current qualifications, being a masters. Again, the Tribunal accepts that people do not always start out studying in an industry in which they will ultimately be employed, however, it is difficult to make a determination on whether the current hospitality courses the applicant is undertaking will have any value to the applicant’s future employment when the applicant has a number of different qualifications at different levels in different industries and has not found successful employment in any of them, and, given that the applicant was already in Australia on a Skills visa in order to practice her skills at engineering when she changed to aged care and then hospitality, the Tribunal cannot give any weight to the value of the courses to her future in favour of the applicant being granted her Student visa.
31. While the Tribunal accepts that it is reasonable to undertake courses in another country such as Australia, or Malaysia, to maximise the potential for employment in an applicant’s home country, the constant changes and inconsistencies between the industries and levels of courses undertaken suggests that the applicant is using the Australian immigration system to maintain ongoing residence in Australia. This factor, combined with the vague and unsubstantiated claims made as to the goals for the applicant’s future also weigh against the applicant being granted her Student visa.
The Tribunal was not satisfied that the applicant had established any personal ties to Australia through her employment that would serve as an incentive to remain (at [32]). However, the Tribunal was satisfied that the economic circumstances in Australia (compared to Rwanda) provided a strong incentive for the applicant to remain in Australia and to attempt to use the visa programme to prolong her stay here. The Tribunal reasoned that, given that the applicant did not have significant incentive to return to Rwanda because of any close personal ties or other factors, the potential economic circumstances weighed against the visa being granted (at [32]).
The Tribunal noted that there was little information that would enable it to compare the applicant’s circumstances in Australia to her circumstances in Rwanda. For example, the applicant had provided limited information on the salary or income she would expect to gain in Rwanda (having studied courses in Australia). Nor had she provided any details on the financial backing she would receive or the income she hoped to achieve from a restaurant. In light of the absence of information of this sort, the Tribunal placed no weight on the applicant’s circumstances in Rwanda compared with her circumstances in Australia (at [33]).
The Tribunal then determined as follows:
34. There is no other information before the Tribunal to suggest that the applicant has strong personal ties in Australia such that she has an incentive to remain and the Tribunal gives this a little weight in her favour. The applicant is not in a relationship here, and there is no evidence that the applicant has entered into a relationship of concern, and the Tribunal gives this limited weight in her favour.
In relation to the applicant’s visa history, the Tribunal determined that there was no evidence that the applicant had not complied with any conditions while in Malaysia (at [35]).
The Tribunal continued:
36. There are no other outstanding visa applications yet to be finally determined. There is no evidence that any of the applicant’s family have an immigration or visa history of concern. The applicant has not had a visa refused elsewhere or considered for cancelation anywhere. The Tribunal gives the applicant some weight in her favour for those factors. The applicant has not returned to her home country since she has been in Australia, having already been in Malaysia for 3 years. This is a relatively significant period to have been away from her family, and it adds weight to a finding that the applicant does not have strong or significant ties to her community or family in Rwanda such that she has a strong incentive to return, and this is to be given some weight against her being a genuine temporary entrant for study.
The Tribunal found there were no other “relevant matters” to consider (at [37]) and noted that the applicant was not a minor (at [38]).
The Tribunal concluded:
39. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
40. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [41]-[42]).
PROCEEDINGS IN THIS COURT
In her application for judicial review dated 11 August 2020, the applicant provides a single ground of review as follows:
1. The Tribunal made a jurisdictional error by failing to ‘consider the Applicant’s documentary evidence that the Applicant was currently enrolled in a course of study and was successfully progressing through this course (Certificate III in Commercial Cookery).
Particulars:
a. The Applicant provided documentary evidence that she was undertaking a Certificate III in Commercial Cookery. This was one of the courses in which she was enrolled at the time of the Tribunal’s decision;
b. The Applicant commenced the Certificate III and was in the process of completing the course. She was due to complete the Certificate III in October 2020;
c. The Tribunal failed to consider that the Applicant was in the process of completing the course for which she had applied for a Student visa;
d. The fact that the Applicant was in the process of completing her course of study, and had nearly finished the first of her 3 “packaged courses” was directly relevant to whether the Applicant was a genuine applicant for entry and stay as a student as required by cl.500.212.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the judicial review application filed 11 August 2020, a Court Book numbering 125 pages (marked as Exhibit 1), a Certificate III in Commercial Cookery dated 25 November 2020 (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 15 March 2021.
The applicant appeared before the Court without legal representation. This is most unfortunate. The issues raised in her application for judicial review raise complex matters and would have benefitted from legal analysis.
The applicant was assisted in court by a Kinyarwanda interpreter. That interpreter initially appeared via Microsoft Teams as no interpreter certified in the applicant’s language could be located in Perth. During the hearing of this matter, the Teams connection with the interpreter deteriorated. The Court adjourned and made arrangements for the interpreter to assist by telephone. The applicant agreed to this course of action and the Court is satisfied that the services provided (by Microsoft Teams and then by telephone) ensured that the applicant was able to hear, understand and participate in the hearing.
The Court confirmed with the applicant that she had a copy of the Court Book and the Minister’s written submissions with her.
Noting the comments of the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], the Court gave the applicant an opportunity to elaborate/particularise the grounds of review and outline any concerns she might have with the Tribunal’s decision.
The Court first explained to the applicant that it could only address the issue of jurisdictional error. It was noted that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa she seeks. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that “the conclusion was unlawful because, at the time of the decision, she was studying and was a genuine student”. The applicant explained that she has now completed her Certificate III. The applicant handed up a copy of a certificate that verified that she had completed the course in November 2020 (Exhibit 2). The applicant emphasised that she could not provide the completed certificate to the Tribunal because she did not complete the course until after the Tribunal’s decision. The applicant stressed that she was a genuine student as she had finished the course.
The Court will consider these submissions below within the context of the applicant’s sole ground of review.
In reply submissions, the applicant explained that “it was true when she said to the Tribunal that she wanted to open a restaurant.” Further, she wanted to “obtain skills in her studies so that she can return to Rwanda to her mother and brother”. The applicant also explained that she wanted “an extension of six months to complete her Certificate IV and to become a chef”. Once she does so, she explained, she will return to Rwanda and “show that she has been educated”.
Unfortunately, these submissions are directed to the merits of the visa application. As the Court explained to the applicant at the commencement of the hearing, the Court cannot grant the applicant the visa (or even an “extension”). The applicant’s oral submissions in this regard rise no higher than impermissible merits review and do not identify jurisdictional error.
CONSIDERATION
The sole ground of review appears to contend that the Tribunal failed to consider the fact that the applicant was completing a course. It also appears to argue that, when determining whether the applicant is a genuine temporary entrant, the Tribunal did not take into account the fact that the applicant was progressing through her course.
To the extent that the applicant is arguing that the Tribunal did not consider that she was enrolled in, and genuinely progressing through, the Certificate III course, this fails on the facts. At [21]-[22], the Tribunal expressly states that the applicant commenced her courses in October 2019 and would complete her courses in October 2021. Throughout the Tribunal’s discussion of the value of the applicant’s course, the Tribunal makes reference to the “current suite of courses being undertaken” and the “current hospitality courses the applicant is undertaking” (at [30]). Clearly, the Tribunal was alive to the fact that the applicant was engaged in and completing her studies.
If the applicant is arguing that the Tribunal should have placed more weight on the fact that she was undertaking a course of study, it is a matter for the Tribunal what weight it gives to the evidence: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464.
Here, the Tribunal was assessing whether the applicant met cl 500.212(a) of the Regulations. This provision is otherwise known as the “genuine temporary entrant” criterion. Critically, this criterion is concerned with, and only with, the intended length of the applicant’s stay in Australia: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061.
When assessing an applicant’s course of study and enrolment the Tribunal is charged with determining the value of that course. In this regard, it is noted that Direction 69 states:
Value of the course to the applicant’s future
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
Here, the Tribunal considered the value of the applicant’s course to her future in considerable detail (at [22]-[30]). Relevantly, the Tribunal did not accept that the applicant’s future plans to open a restaurant were realistic. The Tribunal determined that the applicant’s future plans were “vague and unsubstantiated”. Ultimately, the Tribunal did not accept that the applicant intended to return to Rwanda to open a restaurant. This was sufficient for the Tribunal to find that the applicant did not meet cl 500.212(a).
While the progress that an applicant is making in a course of study may be relevant to a determination of whether an applicant meets cl 500.212(a), context matters. Read as a whole, it is apparent from the Tribunal’s analysis at [22]-[30] that the Tribunal did accept that the applicant was completing her studies in a way that is expected of a “student” but found that she was doing so for the purpose of maintaining ongoing residence in Australia. When considered in light of “the lack of value to the applicant’s future”, this weighed against granting the visa.
The Tribunal did assess the applicant’s current enrolment but ultimately found that the various changes in study pathways and inconsistencies in the level of the courses that she undertook, that the current course did not add any value to the applicant’s future. There was nothing erroneous or illogical in the Tribunal’s conclusion in this regard.
The sole ground of judicial review fails to identify any jurisdictional error.
CONCLUSION
The application for judicial review dated 11 August 2020 fails to identify any jurisdictional error. The Court is otherwise satisfied that no error arises.
The application is, accordingly, dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 March 2021
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