Vu Vu v Minister for Immigration
[2020] FCCA 2292
•20 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VU VU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2292 |
| Catchwords: MIGRATION – Application for Student visa – finding that first applicant did not have a genuine intention to stay in Australia only temporarily – first applicant had stayed in Australia for more than 12 years on the basis of the issue to her of Student or Bridging visas – no jurisdictional error on the part of the Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360(1) Migration Regulations 1994 (Cth), Sch. 2, cl. 500.211, cl. 500.212(a). Australian Citizenship Act 2007 (Cth), s.12(1)(b). |
| Cases cited: SZBEL v Minister for Immigration (2006) 228 CLR 152. |
| First Applicant: | HAI NINH VU VU |
| Second Applicant: | MAO YE |
| Third Applicant: | HAI NINH VU VU AS LITIGATON GUARDIAN FOR YANG XIN YE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 21 of 2020 |
| Judgment of: | Judge Egan |
| Hearing date: | 31 July 2020 |
| Date of Last Submission: | 4 August 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 20 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | T Lawyers |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Minter Ellison |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The Amended Application for Review filed on 18 August 2020 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 21 of 2020
| HAI NINH VU VU |
First Applicant
| MAO YE |
Second Applicant
| HAI NINH VU VU AS LITIGATION GUARDIAN FOR YANG XIN YE |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 30 January 2018, the first applicant applied to the department for a Student (Temporary) (Class TU) (Subclass 500) visa. It was the sixth such visa that the first applicant had applied for.
On 14 March 2018, a delegate to the Minister refused to grant to the first applicant the visa.
On 15 March 2018, the first applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
The first applicant is a citizen of Vietnam aged twenty-seven years. Her husband, the second applicant, is a citizen of China aged thirty-five years. The third applicant is a child born in Australia in August 2015 as a result of the union of the first applicant and the second applicant.
The first applicant arrived in Australia on 18 June 2007 when she was aged fifteen years. Since that time, the first applicant has continually resided in Australia based on the grant to her of temporary student visas, or associated bridging visas, apart from occasional return visits to Vietnam and China. Her circumstances were summarised by the Tribunal at [59] of the reasons for its decision handed down on 18 December 2019 as follows:
“[59] With this in mind, the Tribunal notes that the First Applicant has enjoyed living in Australia for the last 12 years. As the delegate's decision record notes, she arrived in Australia on 18 June 2007 when she was only 15 years old. She has been residing in Australia on temporary student visas, or associated bridging visas, ever since. She spent the first three years of her stay in Australia completing her high school education in Tasmania, following which she spent two years studying English language courses. She then commenced the series of VET sector courses that have been referred to in paragraphs 41 and 42 above. While she was studying English in 2011, she met the Second Applicant who, according to his evidence, had also been in Australia since2007. They were married in September 2011. Together, they had a daughter in August 2015, the Third Applicant. The First Applicant has spent her entire adult life in Australia. Her four-year-old daughter, the Third Applicant, has only ever known Australia as home.”
In its decision, the Tribunal affirmed the decision of the delegate to refuse the visa.
On 14 January 2020, the first applicant filed an Originating Application for Review of the decision of the Tribunal.
On the date listed for the hearing of the application for review, the first applicant was granted leave to file and serve an Amended Application for Review which was annexure ‘ZG-3’ to the affidavit of Mr Zhi Gang Kho filed on 29 May 2020. The first applicant did not rely upon Ground 1(b) of such Amended Application for Review at the final hearing before the Court. The grounds for review in the Amended Application for Review were as follows:
“Grounds of the Amended Application
1. The Tribunal erred by failing to afford the applicant a hearing as provided for by s. 360 of the Migration Act.
Particulars
(a) The Tribunal failed to disclose to the applicant the issue, identified at [65] of its reasons, of whether the applicant had asked her migration agent to consider whether they had a pathway to permanent residence.
(b) …
(c) The Tribunal failed to disclose to the applicant the issue, identified at [102(i)] of its reasons, of whether the applicant genuinely intended to open a mental health clinic in Vietnam upon completion of her course in October 2020.
2. The Tribunal erred by failing to consider an issue raised by the evidence and its own findings.
Particulars
(a) Whether despite using the student visa to extend her stay in Australia (as the Tribunal found), the first applicant was still intending to stay in Australia temporarily.
3. The Tribunal misconstrued and misapplied paragraph 9(c) of Ministerial Direction number 69, in that it erroneously considered that general economic conditions in Vietnam, as compared to Australia was a consideration relevant to that paragraph.
4. The Tribunal misunderstood, and therefore failed to address a claim made by the applicant.
Particulars
(a) The Tribunal’s finding at para [102(h)] of its reasons, that the applicant would not need to obtain a Diploma of Mental Health to open a mental health clinic in Vietnam, failed to address the applicant’s express or implicit claim that she would need a knowledge of and a qualification in mental health to be able to provide mental health services in Vietnam.”
At the time of the review hearing before the Tribunal, the Tribunal was satisfied that the first applicant was then enrolled in a course of study as required by cl. 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
The Tribunal found that the first applicant did not meet the primary criteria as contained in cl. 500.212(a) of Schedule 2 to the Regulations – namely the genuine temporary student criteria. Clause 500.212(a) of Schedule 2 to the Regulations provided as follows:
“500.212
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;”
The Tribunal considered at length the evidence before it which went to the question as to whether or not the first applicant intended to genuinely only remain temporarily in Australia. For the purpose of analysing the evidence before the Tribunal, the Court generally adopts the categorisation of findings made by the Tribunal, as set out in the written submissions of the first respondent, as follows:
a)The first applicant’s shift in courses/career plans from hospitality management to mental health after visa decision made by the delegate.
At [36] – [44] inclusive of the reasons of the Tribunal, [1] the Tribunal set out how, after the decision of the delegate had been made, the first applicant changed her course of study to that of study for a Diploma of Mental Health. At [36], the Tribunal recorded that in a statutory declaration of the first applicant dated 21 January 2018, the first applicant had stated that after “careful consideration” she had considered that studying hospitality management would be best for her because Vietnam’s hospitality industry was beginning to flourish and so job opportunities in the sector were on the rise. The decision of the delegate was in part critical of the first applicant’s decision to study a hospitality management course. At page 5 of the delegate’s decision, it was said: “Considering the employment opportunities that are likely afforded to the applicant with their current qualifications, the lack of any strong personal desire to undertake this course and the lack of any previous work in this field I am unable to be satisfied that this course represents any significant value to the applicant. I find that the applicant has sought this enrolment for the significant residence opportunity it represents rather than any genuine desire for academic outcomes”. [2]
[1] Court Book (CB) pp. 303 – 306 inclusive.
[2] CB p. 155.
The Tribunal considered, and was alive to, the fact that the first applicant had changed her course of study in a significant way after the decision of the delegate was made. It was, in the circumstances, entitled to do so. The Tribunal had regard to the long history of prior study by the first applicant in community healthcare and social work, then of her study in hospitality management, before the commencement of her most recent study in the field of mental health. The Tribunal was entitled to find that it had significant doubts as to the genuineness of the first applicant’s intentions by reason of such inconsistency in course study. At [44] of its reasons, the Tribunal said as follows:
“[44] While the First Applicant's enrolment in a Diploma of Mental Health represents a reversion to studies in community healthcare and social work, the Tribunal remains concerned about her motivations for abandoning the hospitality management course. She has not provided any satisfactory explanation for that decision. As noted above, the decision to commence a Diploma of Mental Health appears to have come about as a result of the delegate's criticisms. The First Applicant's decision to revert to studies in community health raises a concern that her motivation for doing so was to increase the Applicants' prospects of a successful visa outcome in the present application on review. If that is the case, the Tribunal has reservations about the First Applicant being truly genuine in her pursuit of studying a course in mental health.”
b)It was not apparent how the Diploma of Mental Health course built on the knowledge and qualifications acquired from the first applicant’s previous studies in Australia in terms of job prospects or expected remuneration, either in Vietnam or elsewhere.
The Tribunal accepted that the subject matter of a Diploma of Mental Health course bore some relationship to previous courses of study which had been undertaken by the first applicant. Whilst the Tribunal acknowledged that there was a ‘common theme’ to such courses, to some of the first applicant’s prior work history (including work at a residential aged-care facility), and to the content of a Diploma of Mental Health, the Tribunal found that the study of such courses had not been designed to form a cohesive collection of qualifications for a particular career trajectory. It noted that qualifications in childhood care and aged care did not specifically relate to the first applicant’s mental health course of study.
c)The first applicant’s failure to explain why the Diploma was necessary or materially beneficial for her in terms of job prospects or expected remuneration.
The Tribunal was not satisfied, on the basis of the material which the first applicant had put before it that the first and second applicants’ stated intentions to set up a mental health clinic in Vietnam were either reasonable or genuine. At [48] – [53] of its reasons, the Tribunal noted that no business plan or any other documentation which comprehensively explained the proposed future operation of the business was presented to the Tribunal. Nor was there any evidence as to why the first applicant needed a Diploma of Mental Health to run such business. The Tribunal noted that the first applicant’s evidence about the proposed business was vague and non-specific about what services the planned business would provide. The Tribunal found that the first applicant’s plans were so lacking in articulated material foundation that the most logical conclusion for the Tribunal to draw was that the proposed business was merely an idea conjured up by the first applicant for the express purpose of attempting to sustain an unmeritorious student visa application which did not advance the claim that the first applicant had an intention of only remaining temporarily in Australia.
d)The first applicant and her family had limited ties to Vietnam or China.
At [55] – [56] of its reasons, the Tribunal noted that because of the period of time which the first and second applicants had spent living in Australia, there would have been no significant community ties which they had maintained in either Vietnam or China apart from close family contacts. Any previous community ties would have been significantly diminished with the passage of time. It was also noted that property ownership by each of the first applicant and the second applicant in both Vietnam and China had been adequately managed whilst they had lived in Australia, and that for that reason, the existence of such assets overseas had not operated as an incentive for the first applicant or the second applicant to return to either Vietnam or China. The Tribunal was entitled to have regard to such matters when assessing the question as to whether the first applicant intended to remain only temporarily in Australia or not.
e)The first applicant and her family had significant ties to Australia which constituted a significant incentive to remain permanently in Australia
At [57] – [70] of its reasons, the Tribunal weighed up the evidence before it relating to the ties which the first applicant had to Australia as a result of her having lived in the country since 2007. The Tribunal was entitled to look at the respective economic circumstances and living standards of each of Vietnam and Australia when considering the first applicant’s intentions. Ministerial Direction No. 69(9) provided as follows:
“9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
…
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia.”
(Emphasis added)
The Tribunal was entitled to find at [58] that the applicants would be better off staying in Australia than returning to live in Vietnam or China. The Tribunal noted that the applicants enjoyed living in Australia, and that they had strong links to Australia including the fact that they had lived there for the last twelve years (being the whole of the first applicant’s adult life), the applicants being a family which lived in Australia, the applicants being accustomed to living in the Australian community, and the fact that the third applicant was born in Australia and has spent her whole life residing in Australia. At [60] – [70] the Tribunal considered the fact that the third applicant had commenced her schooling in Australia, and that it was natural for parents to want such schooling to continue to be regular and uninterrupted. At [62], the Tribunal found that if the applicants were to leave Australia it would involve a major upheaval in their lives such that that factor constituted a strong incentive for the applicants to remain living in Australia permanently. That was something which the Tribunal was entitled to find, and it cast significant doubt on the first applicant’s declared intentions to remain in Australia only temporarily. At [64] – [69] of its reasons, the Tribunal considered the submissions made on behalf of the applicants by their migration agent to the effect that the applicants did not have any “permanent visa pathway” that would enable them to remain in Australia permanently. Apart from the reasonable inference which the Tribunal was open to draw, namely that such a submission was made in circumstances where the migration agent must have been asked by the applicants as to whether they might have a permanent residence pathway or not, the Tribunal independently considered the fact that a prolongation of study time for the first applicant in Australia, combined with a lengthy appeal process consequent upon any visa refusal, could nonetheless result in the third applicant being permitted to automatically become an Australian citizen when attaining ten (10) years of age – something which would then allow for the first and second applicants to obtain permanent residency as family members of the third applicant. [3] The Tribunal also noted that though the applicants did not own property in Australia, they had access to liquid funds totalling $250,000 from the sale of a business run by the second applicant in Tasmania, in addition to the equity which they each had in property owned by them which was situated overseas.
f)There were aspects of the first applicant’s behaviour in Australia which were “logically inconsistent” with her claim of being a genuine temporary student visa applicant.
At [75] – [92] of its reasons, the Tribunal weighed up the evidence before it for the purpose of considering whether the first applicant’s course of conduct whilst living in Australia was or was not consistent with her intending to only temporarily stay in the country. At [75], the Tribunal referred to the first applicant’s changes of direction in her course of study which culminated in her studying for a Diploma of Mental Health. At [76], the Tribunal noted that the courses of study had no common theme. It was noted by the Tribunal that the courses of study undertaken had taken eight years of full time study which period of time was unusually lengthy prior to course conclusion, and inconsistent with the course of study undertaken by a genuine student. At [77] – [79] of its reasons, the Tribunal noted that the first applicant had undertaken a series of relatively short and inexpensive courses of study which were matters to be taken into account under Ministerial Direction No. 69 (11). At [80] – [81] of its reasons, the Tribunal noted that after a Certificate IV qualification was issued on 17 December 2017, the first applicant had spent thirty-three (33) months either not studying anything at all, or had failed to make any meaningful progress in relation to courses in which she was enrolled. The Tribunal commented that such was a significant period of time for the first applicant to remain in Australia for a declared purpose of studying as a full time student. At [85] of its reasons, the Tribunal noted that the first applicant “had nothing to show by way of academic progress in the years of 2016 and 2017 and for most of 2018”, noting further that the second applicant was running a profitable business during that time between 2016 – 2018. The Tribunal was entitled to find that the first applicant had prioritised the care of the third applicant over the requirement for her to maintain full time study in an approved course as a condition of the grant to her of the visa. At [92], the Tribunal was entitled to find that the sheer length of the first applicant’s stay in Australia – either on a student visa or bridging visa – was inconsistent with the first applicant having an intention to stay only temporarily in Australia.
g)The fact that the first applicant had declared on six occasions in respect of student visa applications that she intended to study the nominated course in Australia and then leave.
At [93] – [96] inclusive of its reasons, the Tribunal considered it inconsistent with an intention to stay only temporarily in Australia for the first applicant to have declared on six (6) occasions that she intended to undertake a course of study and then leave Australia after its completion. The Tribunal was entitled to observe, albeit somewhat argumentatively, that “a non-citizen’s stay in Australia becomes less temporary and more permanent” upon the making of each consecutive student visa application. [4]
[3] Section 12(1)(b) of Australian Citizenship Act 2007 (Cth).
[4] See [95] of reasons at CB p. 322.
Ground 1
Ground 1(a) is an assertion that the Tribunal failed to afford to the applicant the opportunity to address issues which arose during the review hearing relating to the question as to whether or not the first applicant had asked her migration agent to consider whether the applicants had a pathway to permanent residence in Australia or not. It was submitted that the provisions of s. 360(1) of the Migration Act 1958 (Cth)(‘the Act’) required the Tribunal to allow the first applicant to address the Tribunal about issues relating to its finding at [65] of its reasons that the migration agent had presumably considered the question of permanent visa pathways on behalf of the applicants, and that that suggested that the applicants were genuinely interested in seeking a permanent residence pathway if one was available to them as opposed to the first applicant’s stated intention of only genuinely staying in Australia temporarily.
The Applicant relied upon SZBEL v Minister for Immigration (2006) 228 CLR 152, where the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) at [30] - [35] said as follows:
“[30] Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision?
[31] Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision‑making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.
[32] In Alphaone the Full Court rightly said:
"It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." (emphasis added)
[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.
[34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision‑maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision‑maker will have given reasons.
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.”
It was submitted that a breach of s. 360 occurred because the Tribunal had not raised with the first applicant, or with the migration agent during the course of the review hearing, whether or not the applicants had sought the agent’s advice as to whether they had a pathway to permanent residence or not.
First, the High Court in SZBEL reaffirmed that the provisions of s. 360(1) of the Act do not require the Tribunal to disclose to an applicant its thought processes, as it said at [48] as follows:
“[48] Secondly, as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Second, a decision-maker is required to put an applicant on notice of a relevant issue which is ‘critical’ to the decision of the Tribunal. As was said in SZBEL by the Court at [29]:
“[29] No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone. The Full Court (Northrop, Miles and French JJ) said:
"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." (emphasis added)
Whether or not an issue is either critical to the making of a decision or not, or whether an issue is not insubstantial in nature, depends on a consideration of the facts of each case. If there was a preponderance of material before the decision maker which collectively supported the making of factual findings adverse to an applicant after the decision maker had weighed up all of the evidence before them, then the failure on the part of a decision maker to afford to an applicant the opportunity to address one of a multiplicity of issues does not necessarily mean that the decision maker had fallen into jurisdictional error.
In the present matter, the finding by the Tribunal at [65] of its reasons was but part of a larger factual matrix upon which the Tribunal based its decision. The finding at [65] was not critical to the decision which was arrived at. It was nonetheless justifiable in the light of the other adverse findings of the Tribunal which went to the issue of whether the first applicant had a genuine intention to only remain in Australia temporarily.
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The submissions made on behalf of the applicants invite the Court to examine the Tribunal’s decision making processes with microscopic detail. The Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Further, it cannot be said that the first applicant was not aware that the question of her real intentions as to both temporary and permanent residency in Australia were central to a determination of her review application before the Tribunal. In such circumstances, the first applicant had a positive obligation to put before the Tribunal such submissions and evidence which refuted the argument that she did not genuinely wish to remain in Australia only temporarily. The Tribunal was not satisfied, on the evidence before it, that that was the case. The Tribunal’s findings that there was an absence of a business plan showing a clear future pathway for the applicants, either in Vietnam or China, after the completion of the mental health course of study, as well as the other findings of the Tribunal on the question of the genuineness of the first applicant in respect of her visa application, were based upon a consideration of all of the evidence before the Tribunal, including the length of time that the first applicant had lived continually in Australia. There is no merit to Ground 1(a) of the amended application for review.
As to Ground (1)(c) of the amended application for review, this ground asserted that it was not obvious to the first applicant that it was an issue as to whether or not the first applicant intended to genuinely open a mental health clinic upon her return to Vietnam. [5] It was further submitted that the finding of the Tribunal at [102(i)] of its reasons amounted to the first applicant being called a liar.
[5] [102(i)] of reasons of Tribunal at CB p. 326.
Again, the first applicant well knew that her expressed future business intentions would be the subject of close consideration by the Tribunal at the review hearing. So much was made clear by the questioning of the first applicant by the Tribunal Member on this issue at the review hearing when it was said: [6]
[6] Annexure ‘ZG-1’ of affidavit of Zhi Gang Kho filed on 29 May 2020 – Transcript page 10 –
107.
JH
Okay. Why do you want to do this Mental Health Diploma?
108.
HV
Because I had been, I did Certificate III in Aged Care and Community and I feel mental health is quite linked to my (ui) before…
109.
JH
Yes.
110.
HV
… my also my experience and skills.
111.
JH
Yeah okay. What do you plan to do once you complete this course in 2020?
112.
HV
So after I finish course I will go back to my country to open business.
113.
JH
Go back where?
114.
HV
Go back my country, Vietnam. I go back to Vietnam
115.
JH
What about China?
116.
HV
China I, actually I created my business so I can come to visit in China.
117.
JH
Mmm. What type of business are you going to open?
118.
HV
Men-, mental health clinic, like a psychology (ui) for help people with mental health, getting better, wellbeing.
119.
JH
Well this Mental Health Certificate doesn’t make you a psychologist does it?
In circumstances where an applicant knows that an issue will be live at a review hearing before the Tribunal, they should positively put before the Tribunal evidence of what their plans are in relation to that issue. Here, the Tribunal found that the absence of a business plan or any documentation pointing to a clear business pathway for the setting up of a mental health clinic diminished the force of the first applicant’s arguments on that point. It was not for the Tribunal to make out the first applicant’s case on that issue. The Tribunal performed its role in a very busy listings environment. It had a limited capacity to additionally address issues which were live issues well known by the first applicant to be central to the application for review. There is no merit to Ground 1(c) of the Amended Application for Review.
As to each of Grounds 1(a) and 1(c), the Court finds that even if the Tribunal ought to have asked the first applicant to comment further on the subject of the Tribunal’s findings at [65] and [102(i)] of its reasons, and that it was procedurally unfair for it not to have done so, any such failure was not so material such that it could have realistically resulted in a different decision being made by the Tribunal. The Tribunal carefully considered all of the first applicant’s claims but was unconvinced by all of them. It assessed the evidence in a logical and considered way and based its decision upon its cumulative assessment of such evidence.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell, Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Ground 2
Ground 2 of the Amended Application for Review constituted an assertion that the Tribunal did not properly consider the first applicant’s evidence in the light of the finding by the Tribunal at [72] of its reasons that the first applicant was genuinely interested in her course, and that on one view, the Diploma represented a progression of the first applicant’s studies and her work experiences.
At [75] and [76] of its reasons, the Tribunal qualified its position when it said as follows:
“[75] There are, however, many other aspects of the First Applicant's behaviour in Australia that are logically inconsistent with her claim of being genuine temporary student visa applicant. The first of those identified inconsistencies arises from her decision to enrol in, and then subsequently abandon, a Diploma of Hospitality and Management in favour of the Diploma of Mental Health she is now studying (see consideration of this issue in paragraphs 39 to 44 above). This particular inconsistency casts significant doubt on the genuineness of her current enrolment.
[76] The Tribunal also notes the further concern, raised in paragraph 47 above, relating to the necessity of undertaking the series of courses that the First Applicant has completed to date. Although having a common theme, the courses do not form part of a common career trajectory. If she is to complete her Diploma of Mental Health in October 2020, she will have four Certificate III qualifications, one Certificate IV qualification, and one Diploma qualification falling within the general field of community healthcare and social work. She will have taken eight years of full-time study in Australia to achieve these qualifications. It is highly unusual for a student to spend such a lengthy period of time studying full-time in the VET sector before entering the work force with a full-time job. Such a lengthy period of continuous full-time study might be understandable if a student had transitioned from studying subjects in the VET sector to studies in the Higher Education sector. But that is not what the First Applicant has done here. She has gone from one VET sector course to another but without any pre-defined career path. It is conduct that may be regarded as generally inconsistent with the kind of behaviour expected of a genuine student.”
The Tribunal further expanded upon its concerns about the genuineness of the first applicant’s intentions at [77] – [91] of its reasons, where it set out with particularity other factors which militated against acceptance of the first applicant’s claims. At [104], the Tribunal found that having regard to all of the considerations as set out in its reasons, the Tribunal was not satisfied that the first applicant intended to genuinely stay in Australia only temporarily. To the extent that the first applicant disagreed with such decision, the Court is being asked to undertake a merits review which it is not able to do. There is no merit to this ground of review.
Ground 3
By this ground it was asserted that the Tribunal misconstrued and misapplied paragraph 9(c) of Ministerial Direction No. 69 which relevantly provided as follows:
“The applicant’s circumstances in their home country
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a…
b…
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;”
First, the first applicant’s agent at [58] of the reasons of the Tribunal was recorded as having submitted that Vietnam was, relative to Australia, a poorer country. The Tribunal there also referred to UNHDI data which confirmed that the applicants would be far better off if they remained in Australia than if they were to return to either Vietnam or China.
Second, the Tribunal did not err in undertaking an assessment as to whether the economic circumstances of Australia would or would not “present as a significant incentive for the applicants not to return to their home country.” That is what the Ministerial Direction required the Tribunal to consider.
The Tribunal specifically dealt with the economic circumstances of the applicants at [56] of its reasons where it was said:
“[56] The Applicants have also referred to assets that they have in Vietnam and China. The First Applicant has a contingent beneficial interest in properties legally owned by her mother in Vietnam. The Second Applicant has direct and beneficial interests in properties located in China. These property interests appear to be capable of being managed while they are in Australia. In the event the Applicants come to be in a position to dispose of these interests, the assets can presumably be sold with relative ease. The Tribunal does not consider the existence of any assets of this nature to be operating as an incentive for the First Applicant to return to either Vietnam or China.”
The Tribunal was entitled to find that the economic circumstances of Australia were more appealing to the applicants than those in Vietnam or China. There was evidence before the Tribunal that the second applicant had successfully run a business in Tasmania and that such business had been sold for a substantial profit. The Tribunal finding was open to it. It did not err in making that finding.
Ground 4
This ground asserted that the Tribunal misunderstood a claim made by the first applicant, namely that the study by the first applicant for a Mental Health Diploma would have assisted her in gaining knowledge about mental health which would assist her in setting up a mental health clinic in Vietnam. There is no merit to this ground of review.
The Tribunal at [52] and [53] of its reasons specifically dealt with whether it was satisfied that the first applicant’s course of study in Australia in the field of mental health was either reasonable or genuine. It said as follows:
“[52] The Tribunal understood Mr Duri's submission to be that the First and Second Applicants would essentially be working in business together, the First Applicant providing the mental health 'services' while the Second Applicant sourced complimentary health 'products' associated with those services. Mr Duri also submitted that, on the evidence of both the First and Second Applicants, a Diploma of Mental Health from Australia would be highly regarded in Vietnam. The point he was making, it would seem, is that the qualification itself would provide a significant level of credibility to any business that the First Applicant plans to open.
[53] While the Tribunal accepts that a Diploma level qualification would be a value to the First Applicant, however she chooses to use it, the Tribunal does not accept that it is of such value as the First Applicant has claimed to be necessary for the opening of her proposed mental health clinic. Her claim in this respect is unsupported by persuasive evidence. On the material available, the Tribunal finds that the First Applicant has been unable to demonstrate that her declared motivations for undertaking the Diploma of Mental Health in Australia are either reasonable or genuine.”
The Tribunal made its finding at [53] in circumstances where it had already found that the first applicant had failed to provide any detail about any business plan or funding for the setting up of a mental health clinic in Vietnam. It was not convinced that the explanation for undertaking the course of study was justified by reference to the claimed intention to set up a mental health clinic. The Tribunal was in the best position to assess the first applicant’s credibility based upon all of the documentary evidence before it, as well as having had the benefit of receiving oral evidence from her at the time of the review hearing. The Court again adopts what was said by the Full Court in Applicant WAEE per French, Sackville and Healy JJ at [46] – [47].
Further, it could not be said that the first applicant’s claims relating to her intention to set up a mental health clinic were clearly articulated. The Tribunal was faced with vague claims which were unsupported by anything concrete. A Tribunal is only required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
It was for the first applicant to furnish to the Tribunal relevant documentation sufficient to enable it to properly assess an issue. The first applicant failed to do that. This ground of review is without merit.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” The first applicant has failed to establish jurisdictional error on the part of the Tribunal.
The first applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 20 August 2020
lines 107 – 119 inclusive.
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