Vismann v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 292
•19 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Vismann v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 292
File number(s): CAG 26 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 19 February 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass TU-500 Student visa – whether the Tribunal denied procedural fairness – whether the Tribunal made irrelevant considerations – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth), ss. 359, 360, 499,
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 SZGUR (2011) 273 ALR 223
Vidiyala v Minister for Home Affairs [2018] FCA 1973
Number of paragraphs: 43 Date of last submission/s: 15 February 2021 Date of hearing: 15 February 2021 Place: Parramatta Solicitor for the Applicant: The applicant appeared in person. Solicitor for the Respondent: Ms Strugnell appeared on behalf of the First Respondent ORDERS
CAG 26 of 2020 BETWEEN: AARE VISMANN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
19 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs, fixed in the amount of $3737.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Estonia. The applicant first arrived in Australia on 16 July 2009 on a subclass TZ-417 Working Holiday visa valid till 12 July 2010. Since then the applicant has held a variety of visas, including a Student visa, and a Subclass 485 Graduate Work visa, valid until 27 November 2017. On 27 November 2017, the applicant applied for a Subclass TU-500 Student visa to undertake a Diploma of Leadership and Management which would have further extended his stay in Australia until 15 March 2019.
On 9 February 2018, a delegate of the Minister for Home Affairs (“the delegate”) refused to grant the applicant his visa. The delegate determined that the applicant was using the Student visa scheme to maintain ongoing residence in Australia and was not satisfied that the applicant intended to stay in Australia temporarily.
The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 1 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the history of the matter, the Tribunal noted at paragraph 6 of its decision, that on 8 October 2019, it had written to the applicant seeking his response to a request for Student visa information under s 359(2) of the Migration Act 1958 (“the Act”). This included information as to details of the applicant’s education and work before arriving in Australia, travel and visa history, enrolment and study in Australia, his current and proposed courses of study, his work and experience in Australia, his family and community ties in Estonia and Australia, his assets and future employment and plans.
At paragraph 7 of its decision, the Tribunal noted that the applicant indicated that he had completed the following courses: an Advanced Diploma in Accounting, a Bachelor of Business (Accounting), a Skilled Migration Internship (Accounting), a Diploma of Leadership and Management and was currently enrolled in an Advanced Diploma of Leadership and Management.
The applicant provided a statement of purpose dated 28 October 2019 in which he stated that he had decided to study Leadership and Management while self-employed at Bradley’s Pool Service, and would complete his Advanced Diploma in April 2020.
At the Tribunal hearing in April 2020, the applicant indicated that he had withdrawn from his studies at the institution he was originally involved with and now wished to study the Advanced Diploma at an institute in Hobart, since he had never explored Tasmania. The applicant provided the Tribunal with a Certificate of Enrolment (“COE”) for an Advanced Diploma from a vocational training institute in Hobart, together with letters dated 2019 from a physiotherapist in Lakemba, regarding the lower back pain that the applicant had experienced.
At paragraphs 12 to 15 of its decision, the Tribunal instructed itself as to the relevant criteria it was required to consider, being those matters contained in cl 500.212 of the Migration Regulations 1994 (“the Regulations”), together with Direction No 69, ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’, made under s 499 of the Act.
At paragraph 17 of its decision, the Tribunal reviewed the applicant’s academic progress over the extended period of time which the applicant had been in Australia and was of the view that it did not constitute satisfactory academic progress. The applicant’s enrolment in Advanced Diploma in Leadership and Management in Canberra was cancelled by his education provider at the end of 2019. The current COE submitted to the Tribunal was dated on 23 April 2020, after the applicant was sent a hearing invitation on 2 April 2020. The hearing invitation letter stated that a current COE was a requirement for the grant of a Student visa. It was the Tribunal’s view that the applicant enrolled in his new course for the purposes of his visa application review, rather than a genuine interest in studying.
At paragraph 22 the Tribunal noted its concerns that the applicant had provided no evidence of a considered plan for his future career in Estonia. The applicant told the Tribunal that he was considering opening his own business but was unable to tell the Tribunal what kind of business he would open. The Tribunal noted that the applicant had last returned to Estonia in 2013 and found it questionable that the applicant would have much knowledge of the current market demand of the business he was contemplating within Estonia. When pressed, the applicant said that he would provide advice about Australian Accounting and Marketing systems. The Tribunal noted that the applicant had not obtained any experience in Australia in this area, but had worked in a swimming pool cleaning and maintenance business which he established in 2015.
In relation to the applicant’s family ties, the Tribunal noted that he has no job in Estonia and that the only asset he disclosed, was the family home. While the Tribunal accepted that the applicant has parents and siblings in Estonia, it was not satisfied that this of itself was a significant incentive for him to return there, given that he had last visited Estonian 2013.
By contrast, the Tribunal noted that the applicant had been in Australia for almost 11 years and that he has established a successful business. When the applicant was asked about his incentive to return home, he mentioned only that if he wanted to stay in Australia, he could have applied for a Partner visa with his Australian girlfriend as his sponsor, as this avenue of permanent residence had been available to him for some years earlier, but he had not done so.
Considering the entirety of the evidence before it, the Tribunal was not satisfied that the applicant intended to generally stay in Australia temporarily. Accordingly, the Tribunal was not satisfied that the applicant met the criteria in cl 500.212(a) of the Regulations, and affirmed the delegate’s decision to refuse the applicant his visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are set out in an application filed with the Court on 2 June 2020. They are as follows:
Ground One
The Administrative Appeals Tribunal has denied procedural fairness.
Ground Two
The Administrative Appeals Tribunal has made irrelevant considerations and has failed to make relevant consideration. The Tribunal decided to suit itself denying the visa application the visa that he is entitled to.
No particulars were provided in respect of the above grounds of judicial review.
An additional ground of judicial review was set out in an Amended Application filed with the Court on 6 October 2020. This ground is as follows:
Ground Three
In deciding to affirm the refusal of the applicant’s Student Visa under Section 65 of the Migration Act 1958 (the Act) the Administrative Appeals Tribunal (the Tribunal) made a jurisdictional error in it failed to take into account:
a) A relevant consideration; and/or
b) Relevant material.
Particulars
At paragraph 22 of the Decision Record, the Tribunal states, with reference to the Applicant saying he wants to establish a consulting business in Estonia:
“…given his evidence is that he last visited Estonia in 2013, the Tribunal finds it questionable that he would have much knowledge of the current market demand for such a business there”.
If the Tribunal was not make a negative inference in this regard, it should asked Applicant what inquiries he had made and research he had conducted as to establishing a consulting business in Estonia, and allowed his to respond accordingly. It is perfectly possible in the modern age to do these things remotely from a third party country, so the suggestion that he needed to go to Estonia to look into establishing a business there is not in keeping with modern modes of communication and technology, and as such, the Tribunal failed to take into account a relevant consideration and/or relevant material, and thus made a jurisdictional error.
THE APPLICANT’S SUBMISSIONS
The hearing was conducted by Microsoft Teams video conference. The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an Interpreter and the Court was satisfied that he was able to meaningfully participate in the hearing and understand the proceedings. The Court also ensured that the applicant had access to a pen and paper so that he could make notes should he wish to, during the course of the hearing.
At the commencement of the hearing the Court carefully explained the procedure that the hearing would follow. The Court also explained that it was undertaking judicial review, not merits review. The applicant’s case could only be successful, if there was jurisdictional error within the Tribunal’s decision.
In his written submissions, in relation to ground one, the applicant notes that the conclusions of the Tribunal at paragraph 21 of the decision record that:
“Given that this COE was only issued on 23 April 2020, after the applicant was sent a hearing invitation on 2 April 2020 clearly stating that the current COE was a requirement for the grant of a Student visa, it is the Tribunal’s view he enrolled in the course for the purposes of his visa application review, rather than a genuine interest in studying”
The applicant asserts given the strong negative inference made as to the applicant’s intentions, that the Tribunal was bound to put their thought process to the applicant at the hearing or post hearing and give the applicant an opportunity to address its concerns. Not to do so, amounts to a breach of procedural fairness.
In relation to ground two, it is submitted that the Tribunal failed to ask itself the correct question. At paragraph 17 of the decision record, the Tribunal concluded that the applicant’s course progress over an extended period of time was not satisfactory. The applicant asserts that perceived course progress is not a factor that is to be taken into account in assessing whether or not someone is a genuine student. The applicant asserts that he has never had a Student visa cancelled for failure to achieve satisfactory course progress. In these circumstances the Tribunal should not have drawn the inference that it did.
In relation to ground three, the applicant asserts that the Tribunal was wrong to make a negative assessment of the applicant’s knowledge of business opportunities in Estonia, given that he last visited Estonia in 2013. The applicant asserts that the Tribunal should have asked the applicant what inquiries he had made, and research he had conducted, to establish a consulting business in Estonia and then, to allow him to respond accordingly. The applicant asserts that research can be carried out remotely via the internet. Accordingly, the Tribunal failed to take into account a relevant consideration, and thus made a jurisdictional error
When invited to make oral submissions, the applicant told the Court that he had been unable to contact his lawyer. Accordingly, he would rely upon the written submissions previously filed with the Court.
At the conclusion of the first respondent’s submissions, the applicant was asked if there anything he wished to say in reply. The applicant told the Court, “No’.
THE FIRST RESPONDENT’S SUBMISSIONS
In the written submissions, the first respondent notes that the Tribunal took into account relevant considerations specified Direction No 69 “Assessing the genuine temporary entrant student visa and student Guardian visa applications” made under s 499 of the Act.
It was submitted that the Tribunal took into account all relevant issues and evidence pursuant to that Direction, including the applicant’s immigration and study history, and that since 2009, the applicant had only completed an Advanced Diploma, and Bachelor of Accounting and a Diploma of Leadership and Management. The applicant had only completed 30-40% of the Diploma of Leadership and Management and had not been studying for most of 2019 up until the date of the hearing. It was only when the applicant was provided with information that required a current COE for the grant of a Student visa, that he produced one.
Further, the Tribunal was not satisfied that the applicant had provided evidence of a considered plan for a future career in Estonia and had not gained any relevant work experience in relation to his proposed future career in Estonia. The applicant also did not provide any strong evidence of ties that would serve as an incentive for him to return to Estonia.
In relation to the grounds of judicial review, it was submitted that in relation to ground one, the Tribunal complied with its obligations under s 360 of the Act and provided the applicant with a “real and meaningful opportunity” to participate in the hearing and give evidence. The Tribunal was not required to expose its thought processes or provisional views for comment before making a decision: see Minister for Immigration and Citizenship v SZGUR (2011) 273 ALR 223 (“SZGUR”). Further, there was no information that the Tribunal was required to put to the applicant pursuant to s 359A of the Act.
In relation to ground two, the applicant contends that under Direction No 69, satisfactory course progress is not a requirement when considering a Student visa application. Whilst the first respondent notes that an applicant’s academic progress in Australia is not listed in Direction No 69 as a separate factor to be considered where relevant, it does indirectly related to other factors which relate to evidence that the student visa program is being used to circumvent the intentions of the migration program and was being used to maintain ongoing residence.
The Tribunal’s reasons set out some specific concerns regarding the applicant’s academic progress and go directly to the issue that the Student visa program was being used an ulterior purpose. It was relevant to whether the applicant was a genuine temporary entrant to Australia for the purpose of study: see Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [36]. The first respondent submitted that it was open to the Tribunal on the material before it, to have regard to this issue.
In relation to ground three, the applicant contends that the Tribunal should have asked the applicant what enquiries he had conducted, in regards to establishing a consulting business in Estonia. It was submitted that the particulars to ground three misrepresent the Tribunal’s reasoning. The Tribunal noted that the applicant initially stated that he did not know what kind of business it would be, before proposing “a consulting business which would assist Estonian Baltic businesses to enter the Australian market”. It was in this context that the Tribunal made the statement that the applicant vaguely referred to opening a large organisation or his own business.
Whilst it is true that the applicant may have been able to make some plans to establish a consulting business in Estonia to assist businesses enter Australia without travelling to Estonia, this issue was clearly raised with the applicant at the hearing, with there being no indication that the applicant gave evidence that he had conducted enquiries and research from Australia.
It is for the applicant to make out his application before the Tribunal: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”). Accordingly, in the absence of any such evidence regarding enquiries or research conducted from Australia or any experience in running consulting business, it is a logical chain of reasoning that led to the Tribunal stating that the applicant is a person who had not been Estonia since 2013, and may not “have much knowledge of the current market demand for such a business there”.
CONSIDERATION
The applicant has been in Australia for over 11 years. The applicant has been granted a number of different visas, including a further Working Holiday visa, a number of Student visas and a temporary Graduate Work visa between 2010 and 2017. Notwithstanding his completion of a number of courses, the applicant sought a further visa to study for an Advanced Diploma of Leadership and Management.
In relation to ground one, the applicant submits that the Tribunal was bound to put their thought process to the applicant, be it at hearing or post hearing, to give the applicant an opportunity to address its concerns. No such absolute requirement exists. All that is required under s 360 of the Act is that the applicant must be invited to appear before the Tribunal to give evidence and present arguments. The Court is satisfied that the applicant was afforded “a real and meaningful opportunity” to participate in the hearing and give evidence in support of his application.
The Tribunal alerted the applicant to the determinative issues arising on the review, when it wrote to him prior to the hearing, advising that it would be considering whether he met the requirements of cl 500.212 of Schedule 2 to the Regulations. The Tribunal also provided the applicant with a copy of Direction No 69. The Court agrees with the first respondent that the Tribunal was not otherwise required to expose their thought processes or provisional views for comment before making the decision: see SZGUR. Ground one reveals no jurisdictional error.
In relation to ground two, the Court is of the view that whilst not specifically referred to in Direction No 69, academic progress is a relevant consideration in the overall determination by the Tribunal, of whether the applicant is a genuine temporary student entrant, or on the other hand, is using the student entrant criteria for the purpose of maintaining residence in Australia. The Tribunal found that it did not consider the applicant’s academic progress to be satisfactory. This was a matter that the Tribunal was entitled to take into account in the overall mix of whether or not the applicant satisfied the criteria for a genuine student entrant. Ground two reveals no jurisdictional error.
In relation to ground three, the applicant contends that the Tribunal should have asked what inquiries he had made in relation to establishing a business in Estonia. The Court agrees with the first respondent that it was for the applicant to provide all relevant evidence such as to prove his case: see Abebe.
An assessment of the evidence of the applicant given to the Tribunal, indicates that his intentions were vague that he had no relevant work experience within Australia in relation to such a business.
The Court agrees with the first respondent that it was a reasonably available inference for the Tribunal to conclude that the applicant did not “have much knowledge of the current market demand for such a business there”. This was a legitimate matter that that the Tribunal could take into account in assessing whether or not the applicant met the requirements for genuine student temporary entrant. Ground three reveals no jurisdictional error.
As the applicant was unrepresented, the Court carefully reviewed the Tribunal decision, but was unable to detect any jurisdictional error that was not articulated.
CONCLUSION
Accordingly, as no jurisdictional error has been made out, the application is dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 19 February 2021
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