Velayo v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 705
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Velayo v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 705
File number(s): SYG 281 of 2019 Judgment of: JUDGE VASTA Date of judgment: 3 July 2023 Catchwords: MIGRATION – Review of Administrative Appeals Decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 3 July 2023 Date of hearing: 3 July 2023 Place: Brisbane Counsel for the Applicants: The First Applicant appearing on behalf of the Applicants Solicitor for the First Respondent: HWL Ebsworth Lawyers ORDERS
SYG 281 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RONALYN AGUIRRE VELAYO
First Applicant
RICHARD RAMIREZ VELAYO
Second Applicant
CHARLES ALLEN AGUIRRE VELAYO
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
3 JULY 2023
THE COURT ORDERS THAT:
1.The application filed on 13 February 2019 be dismissed.
2.The Applicants to pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,600.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex Tempore)JUDGE VASTA
On 15 January 2019 the Administrative Appeals Tribunal (“AAT”) affirmed the decision not to grant the applicants student visas. On 13 February 2019, the applicant asked this Court to review that decision.
The background to the matter is that the applicant, or primary applicant, is a woman who is a citizen of the Philippines. She has a husband, who is some eight years older than she, and a son, who is some 25 years younger than she. The husband is the second applicant. The son is the third applicant. Each of them do not have an application in their own right, but have applied as a dependent upon the primary applicant’s application. This means that the application of the husband, and of the son, rise and fall on the application of the applicant, who is the mother and wife of those two persons respectively.
The applicant came to Australia on 2 December 2009. She completed courses in English, accounting, business, marketing and communications. At the time of the AAT hearing, she was enrolled and was studying a Bachelor of Business, specialising in accounting.
She told the AAT that she had come to Australia in 2009 because she was older than the age limit for study in the Philippines. She said that she wanted to study English and obtain a degree in business in Australia. She said that, prior to coming to Australia, she had studied the liberal arts and she told the AAT that she had worked at a call centre.
According to what she said to the AAT, after studying a few courses she decided that accounting was the study that she really wanted to do. She said she hoped to obtain a decent job upon her return to the Philippines. She said that she had part-time employment in Australia as an accounts clerk. She said that she had initially enrolled in a hospitality course but decided to change to business.
She said that she had completed her studies in business and accounting to date and was doing the bachelors course at the time of the hearing. She said that she was not planning any further study after completing her course.
At that time, the applicant had separated from her husband and her son was 13 years of age. She said that she and the husband were co-parenting the child and she still wanted her son to be able to see his father. She said that there were no other family members in Australia and that her mother and four siblings lived in the Philippines.
She said that her incentive to return to the Philippines, with the opportunities available there, was the prospect of being able to apply the fact that she had qualifications from Australia, as well as her knowledge of English, to gain employment in the Philippines.
The AAT was concerned with the fact that the applicant had been in Australia for quite so long. The applicant said that she had initially planned to open a business in the Philippines with her husband, but now that they are separated she will have to look for some other job in her home country.
She told the AAT that everything she had learnt would be useful to her in the future. The migration representative said to the AAT that the applicant only had a few months left to finishing her course and, in his submission, she had made progress in her studies. In effect, the argument was that the applicant would be leaving Australia as soon as she had finished those studies.
The AAT had to decide whether they were satisfied that the applicant met the criteria of clause 500.212 of the Migration Regulations 1994 (Cth) which is also known as the “genuine temporary entrant criteria”. That is, was the AAT satisfied that the applicant intended genuinely to stay in Australia temporarily?
The AAT had to have regard to the applicant’s circumstances, her immigration history and any other relevant matter. The AAT understood that it had to look at those factors and that those factors were not to be used as a checklist but, rather, as a guide for decision makers when considering the circumstances of the applicant as a whole.
The AAT considered her circumstances, noting that she has family members in the Philippines but her husband and her son are in Australia with her. Prior to coming to Australia, the applicant had studied liberal arts and she was employed in a call centre. In Australia, she has studied a wide range of courses at the certificate and diploma level and was currently studying a Bachelor of Business degree. The applicant said that she will complete her degree and return to her home country.
The applicant provided evidence of property ownership in the Philippines which she had intended to use for business purposes. She said that she planned to find employment after leaving Australia and she was currently employed for 20 hours a week as an accounts clerk.
The AAT accepted that the applicant did have ongoing ties to the Philippines, but noted that her immediate family were in Australia. The applicant at that time had lived away from the Philippines for more than eight years.
The AAT considered that the applicant’s extended family, property ownership and enhanced qualifications were a strong incentive for her to depart Australia and return to the Philippines, but the AAT also looked at the applicant’s immigration history, noting that she had first come to Australia on 2 December 2009 and, as at the date of the hearing, had only returned to the Philippines twice since then. She had held three student visas and/or bridging visas whilst in Australia. She had declared an intention to depart and return to her home country after completing her degree, but there was no evidence submitted to indicate whether she had, in fact, completed her degree.
Nevertheless, the AAT was of the view that she had had ample opportunity since 2009 to complete all of her educational goals. The AAT took into account the value of the course that the applicant was studying and said that there was no doubt that the applicant had obtained some useful qualifications during her time in Australia that would be of benefit to her.
However, the AAT concluded that when they looked at the circumstances, individually and cumulatively, and even though there were some aspects in the applicant’s case that weighed in her favour, on balance, the AAT was satisfied that the majority of considerations weighed heavily against the applicant.
The AAT considered that the length of time that the applicant has spent in Australia as a student to be significant. The AAT was not satisfied that she was continuing to study for genuine purposes. On the basis of the above, the AAT said that they were not satisfied that the applicant met the genuine temporary entrant criteria and, therefore, she did not meet the criteria for a student visa.
As the other two applicants, the husband and the son, had their applications resting on the success or otherwise of the applicant’s visa, the AAT affirmed the decision not to grant a visa to any of the applicants.
The applicant had two grounds of application. The first was that:
The Tribunal erred in law by not providing adequate opportunity to the applicant to produce additional documents in support of her claim. This lack of procedural fairness resulted in miscarriage of justice.
The second ground was that:
The Tribunal erred in law by failing to consider all the evidence produced and made available by the review applicant before the Tribunal.
The applicant, who appeared before me today unrepresented, said that she did not wish to add anything more to what was in the application, for reasons which I will get to in a moment.
Ground 1 was a ground that had no true merit. The applicant’s claim that the applicant did not have adequate opportunity to produce additional documents in support of her claim is one that does not seem to be borne out by the evidence. In her particulars, the applicant said:
The applicant requested time to furnish proof to indicate that she is about to complete her Degree shortly in early 2019 and this was ignored by the Tribunal. The non provision of reasonable opportunity to the applicant vitiated procedural fairness and resulted in miscarriage of justice.
When one looks at the Court Book there was nothing in any of the material that the applicant submitted to the AAT, nor in the AAT’s reasons, that illustrated that she sought any opportunity to produce additional documents in support of her claim.
The Court Book shows that it was 8 March 2017 that the applicant applied to the AAT for review of the decision, but it was 21 March 2018, so over a year later, that the AAT invited the applicant to attend a hearing. The letter, which invited her, also requested a copy of her confirmation of enrolment and documents relating to her past studies, and also asked her to provide a statement.
The applicant provided a confirmation of enrolment for the Bachelor of Business and a letter containing submissions addressing the genuine temporary entrant criteria. That letter indicated that she was scheduled to finish her course in December 2018. On 23 April 2018, the applicant attended a hearing and she was accompanied by her migration agent. She provided further documents relating to her past studies and an apprehended domestic violence order against the second applicant which was there to explain her personal circumstances in that she and the second applicant were separated.
It was 15 January 2019, over eight months later, that the AAT affirmed the decision. There is nothing that indicated that the applicant wished to put any more material before the AAT and the AAT had given more than adequate time for that to occur.
Strangely enough, if one looks at the Court Book, one notices that the applicant contacted the AAT after the AAT had sent her a copy of the AAT’s reasons and the usual letter. On 29 January 2019, the applicant sent an email to the AAT and, in that letter, said:
I recently received an update regarding the decision of my appeal to the Tribunal, however, whilst this was in process, my neglection of updating my recent address, study status and change in a relationship was an honest misunderstanding that I thought I had to wait for the decision to be released, also considering that I am devoted to finishing my degree, which did not happen on the date I have expected.
This would seem to show that it was not the AAT’s doing at all that this material was not before the AAT. The particular that suggested that the applicant requested time to furnish proof does not seem to be accurate. There could not be proven any lack of procedural fairness by the AAT. For that reason ground 1 fails.
Ground 2 has as its particulars:
The Tribunal failed to consider all the evidence adduced by the review applicant and which was on the record of the Tribunal. The Tribunal without going into the details of the evidence and individually apprising them, has just mentioned that on a summary the balance of evidence weighs against her. This amounts to bias in favour of the Respondents and also tantamount to misapplication of facts.
One need only look at the Court Book to see all of the material that was before the AAT. Then if one reads the AAT’s reasons, the conclusion that the AAT did not fail to consider any of the evidence that was provided by the applicant is one that is very clear.
The AAT noted what the oral evidence at the hearing was. The AAT referred to the applicant’s representative’s submissions. The AAT went through the written statement in support of the application showing the evidence of the property ownership and all of the other matters that were regarding ties to the Philippines. It seems to me that the true purpose of ground 2 is to engage in impermissible merits review. Ground 2 does not illustrate any jurisdictional error and so it fails.
The applicant appeared before me, as I have said, unrepresented. She explained to me that she launched these proceedings because she wanted to have more time to complete her degree.
Having launched these proceedings she was given a bridging visa. The bridging visa allowed her to complete her degree. She did complete her degree and it would seem completed it some time ago.
I asked her what she was still doing in Australia and she said that her circumstances have changed and that her son is 18 years of age and, in effect, has spent the last 14 years of his life in Australia and she does not believe that he would be able to adjust back to life in the Philippines and so she is still here.
She does not require a student visa any more. I asked her why she did not discontinue this matter and she simply said that she did not know that she could. She apologised to the Court for having, in effect, not done what she ought to have done.
This is a matter really for others to look at. All I can do is judge as to whether or not the decision of the AAT was one that was tainted by jurisdictional error. The only change to that is that, even if there were jurisdictional error, there would be futility in sending the matter back because the applicant no longer needs a student visa because she has now completed her studies and is not studying any more.
Having found that there is no jurisdictional error in any event, I dismiss the application.
The Minister has asked for their costs. They are entitled to their costs. They are entitled to their costs on the scale amount which is an amount of over $8700. However, the Minister, in a somewhat generous act, has asked this Court to fix the sum of the costs in the amount of $5600; a sum that is significantly lower than the scale amount. I will accede to the Minister's submission in that respect.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 3 July 2023
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