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). |
| 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…
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- Case
- [2020] FCCA 2292
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Tribunal erred in its assessment of the evidence concerning the first applicant's genuine temporary entrant status. Specifically, the court was required to consider if the Tribunal's findings regarding the applicant's shifting course of study, the perceived lack of benefit from her chosen academic path, her limited ties to her home country, her significant ties to Australia, and her overall conduct while in Australia were reasonably open to it on the evidence.
The Tribunal's reasoning focused on several key factors that cast doubt on the first applicant's stated intention to remain in Australia temporarily. These included her change of study from hospitality management to mental health after the initial visa refusal, without a satisfactory explanation, and the lack of clear evidence demonstrating how this new course would enhance her future employment prospects or remuneration in Vietnam. The Tribunal also considered the applicants' limited ties to Vietnam or China, contrasted with their substantial ties to Australia, including a prolonged period of residence, the birth of their child in Australia, and the child's ongoing schooling. Furthermore, the Tribunal noted the unusually lengthy duration of the first applicant's studies and periods of inactivity, which it found inconsistent with the behaviour of a genuine temporary student. The Tribunal also took into account the applicant's repeated declarations of intent to leave Australia after completing her studies, which, in the context of multiple student visa applications, suggested a pattern inconsistent with temporary residency.
The court ultimately found that the Tribunal had not erred in its assessment of the evidence and that its findings were reasonably open to it. The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 AustraliaAt [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.