Wu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 797
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797
File number: PEG 117 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 31 August 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in applying cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal’s decision was “illogical” or “irrational” – whether the Tribunal erred by failing to invite the applicant to attend a hearing – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359, 359B, 359C, 360, 363, 363A, 379A, 379G & 476 and Part 5
Migration Regulations 1994 (Cth), cll 500.211 & 500.212 in Schedule 2 and reg 4.17
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beejadhur v Minister for Immigration & Anor [2020] FCCA 2238
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of hearing: 20 July 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 117 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PO-YA WU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Taiwan (Court Book (“CB”) 2-4). She first arrived in Australia in April 2015 as the holder of a working holiday visa. She then returned to, and remained in, Australia as the holder of a student visa from November 2017 to September 2021 (CB 85).
On 19 August 2021, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (being the visa the subject of this proceeding) (the “visa”) (CB 1-25). The applicant was assisted with her visa application by a migration agent (the “representative”) (CB 26-32). The applicant provided a Genuine Temporary Entrant Statement (“GTE statement”) with her visa application (CB 33-34). In her GTE statement, the applicant indicated that she was seeking to study Certificates III and IV in Commercial Cookery and a Diploma of Hospitality at the Australian Association of Education and Research (CB 33).
On 26 October 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 41-45). The delegate found that the applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). In particular, the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 44-45).
On 12 November 2021, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 46-53). In that application, the applicant appointed the same representative to assist her with her Tribunal review (CB 50).
On 27 January 2022, the Tribunal invited the applicant (through her representative and pursuant to s 359(2) of the Migration Act 1958 (Cth) (the “Act”)) to provide information in relation to the requirements that she be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student (CB 58-61). That invitation relevantly provided:
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.
…
The written information requested in the Request for Student Visa Information form should be received by 10 February 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 10 February 2022, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 10 February 2022 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 13 February 2023 (being three days after the period allowed and set out in the invitation letter), the applicant provided the Tribunal with a completed “Request for Student Visa Information” form and supporting documents (CB 62-78 & 82).
On 9 May 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 81-94).
On 9 June 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. That application is brought pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 14 pages long and spans 38 paragraphs. The final six pages contain a copy of Ministerial Direction No. 69 (“Direction 69”).
The Tribunal began by explaining that the applicant had applied for the visa on 19 August 2021 to undertake study in Australia. The Tribunal noted that the visa was refused by a delegate of the Minister on 26 October 2021 and that the applicant had sought review of that refusal decision by the Tribunal. The Tribunal confirmed that the applicant was assisted in relation to her review (at [1]-[4]).
The Tribunal acknowledged that the applicant’s circumstances may have changed since making her application and explained that, on 27 January 2022, it had sought additional (and updated) information from the applicant (pursuant to s 359 of the Act). The Tribunal confirmed that a response to that request was received on 13 February 2022, but noted that that response had not been provided within the requisite time period. The Tribunal explained that, when an applicant fails to provide information within the prescribed period, that applicant loses their entitlement to appear at a Tribunal hearing and the Tribunal may make a decision on the review without taking any further action (at [5]-[8]).
The Tribunal considered whether information that the applicant met the visa requirements was likely to be forthcoming and whether it should adjourn the review (pursuant to s 363(1)(b) of the Act). Noting that it was not required to indefinitely defer its decision-making process, the Tribunal ultimately considered that the applicant had been given a fair opportunity to provide relevant information and elected not to exercise its discretion to adjourn the review. The Tribunal proceeded to make its decision based on the information before it (at [9]-[11]).
The Tribunal noted that it was for an applicant to satisfy the visa requirements and the Tribunal was not required to make their case. The Tribunal also confirmed that it had had regard to the written material filed on behalf of the applicant and all relevant documents on both the Tribunal and Departmental files (at [12]-[13]).
The Tribunal then summarised the enrolment and genuine temporary entrant criteria set out in cll 500.211 and 500.212 in Schedule 2 of the Regulations. The Tribunal explained that when determining whether the applicant met the genuine temporary entrant criterion, it was required to have regard to Direction 69 (noting that the Direction is not intended as a checklist but rather a guide to decision-makers only) (at [14]-[21]).
The Tribunal made the following findings in relation to the factors set out in Direction 69:
(a)the Tribunal noted that the applicant had only applied for the visa (the subject of this review) in the month before her visa expired. This raised concerns that she may be using the student visa program to maintain residence in Australia (at [22]);
(b)the Tribunal noted that the applicant undertook a tourism course in China between September 2009 and June 2012 and worked for an airline company from May 2013 to April 2015 (earning the equivalent of $18,000 AUD per year) (at [23]);
(c)the Tribunal noted that the applicant had applied for the visa to study Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management (at [24]);
(d)the PRISMS records (obtained and reviewed by the Tribunal) were consistent with the information provided in the applicant’s submissions and the Tribunal commended the applicant on her course progress (noting that it supported a finding that the applicant was a genuine student) (at [25]);
(e)the Tribunal was concerned that the applicant had been onshore for more than six years and had concerns about the true nature of the applicant’s intentions onshore (and whether she could be considered a genuine temporary entrant) (at [26]);
(f)noting inconsistencies in the delegate’s decision and the visa application regarding completion of a Bachelor of Business Administration, the Tribunal considered it was likely that the applicant’s tourism study had been mis-described. On that basis, the Tribunal proceeded on the basis that the applicant’s proposed study was consistent with her current level of education (at [27]);
(g)the Tribunal noted that the applicant had completed Certificates II and III in Spoken and Written English, an English course and a Diploma of Aviation Management whilst in Australia (at [28]);
(h)the Tribunal accepted the applicant’s submissions in relation to the impact of the COVID-19 pandemic (changing her career plans from aviation to hospitality) and noted that it allowed for reasonable changes to career and study pathways and considered the proposed courses would likely improve and assist the applicant’s future career (at [29]);
(i)while the applicant had not provided evidence in relation to her community ties in Australia, the Tribunal considered it was reasonable to conclude that over the six years the applicant had been onshore, she had likely “cultivated a satisfactory life and established strong ties to the Australian community” (acting as a strong incentive for her to remain onshore) (at [30]);
(j)the Tribunal did not place any weight against the applicant for not travelling home since early 2020 (noting that COVID-19 had made international travel nearly impossible). The Tribunal acknowledged that the applicant’s parents, siblings and in-laws lived in Taiwan and that she contacted them every day and spoke with her mother twice a week. On that basis, the Tribunal accepted that the applicant had personal ties to her home country but did not consider those ties acted as a significant incentive for her to return (at [31]);
(k)the Tribunal considered that the applicant had provided reasonable reasons for studying in Australia but those reasons were finely balanced (at [32]);
(l)the Tribunal noted that the applicant had provided evidence of her remuneration in Australia and had concerns that the applicant’s economic circumstances in Australia might be acting as a significant incentive for her to remain in Australia (at [33]); and
(m)the Tribunal acknowledged the applicant’s evidence of overseas holidays and found that there was no evidence that the applicant had any travel, visa or immigration issues in the past. Further, the Tribunal noted that the applicant did not have any potential military service obligations or political or civil unrest concerns in her home country (at [34]).
The Tribunal ultimately considered that the factors weighing against the applicant were greater than those in her favour. The Tribunal was concerned that the applicant was motivated by factors other than study and could not be satisfied (on the material and evidence before it) that the applicant genuinely intended to stay in Australia temporarily (at [35]).
Having had regard to the applicant’s circumstances and all relevant matters, the Tribunal was not satisfied that the applicant was a “genuine applicant for entry and stay as a student temporarily” (as required by cl 500.212 in Schedule 2 of the Regulations). On that basis, the Tribunal affirmed the decision refusing to grant the applicant the visa (at [36]-[38]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 9 June 2022 contains two particularised grounds of review, as follows:
1.The Administrative Appeals Tribunal misapplied the law in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) being the criterion that the “applicant is a genuine applicant for entry and stay as a student” by failing to recognise that the clause required a finding as to whether the applicant’s intended length of stay was temporary or permanent.
PARTICULARS
(1)The Tribunal found that the Applicant had genuinely studied in the courses in which she had been enrolled and was to be commended (paras 25 and 28 of the Tribunal’s Decision Record dated 9 May 2022).
(2)The Tribunal also found that the Applicant had changed her future career plans from aviation to hospitality, and that her proposed courses are relevant to and likely to assist the applicant’s future career (para 29 of the Decision Record).
(3)Despite this, the Tribunal then found that, taking the evidence as a whole, the Applicant was using the student visa program as a means of maintaining residence in Australia, without making a finding that the Applicant intended to remain in Australia other than on a temporary basis.
2.The Tribunal erred by making an illogical, alternatively, legally unreasonable decision in finding that the Applicant failed to satisfy clause 500.212 of Schedule 2 to the Regulations because it misapplied the law.
PARTICULARS
(1)The Applicant repeats the particulars in Ground 1, paragraphs (1) to (4) above.
(2)Further, the Tribunal found that the Applicant had planned to return to Taiwan after completing her hospitality qualifications to start her own restaurant (para 29 of the Decision Record).
(3)Despite this, the Tribunal did not find that the Applicant genuinely intended to stay in Australia as a student.
The applicant also filed an affidavit in support of that judicial review application (affirmed and filed on 9 June 2022). That affidavit sets out the applicant’s migration history and also states that the applicant “believes that the Tribunal’s decision was wrong at law”.
On 2 September 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. No additional materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 9 June 2022, a Court Book numbering 94 pages (marked as Exhibit 1), the affidavit of Georgina Roberta Ellis affirmed and filed on 14 April 2023 (taken as read and in evidence at the hearing), written submissions filed on behalf of the Minister on 3 July 2023 and the affidavit of service of Benjamin Mayne (affirmed on 12 July 2023 and filed on 14 July 2023).
The applicant appeared before this Court on 20 July 2023 without legal representation. An interpreter was made available to assist the applicant at that hearing and, whilst the hearing initially commenced in English, the interpreter was later utilised as needed throughout the hearing. The Court is satisfied that no issues arose in this regard. The applicant was able to adequately communicate with the Court and participate in the hearing. Ms Ellis appeared on behalf of the Minister.
The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained to the Court that the Tribunal had asked her to supply some additional information. However, the material was submitted late (through her migration agent) and the Tribunal did not give the applicant a chance to appear at a hearing. Instead, the Tribunal simply dismissed the application.
The applicant also raised concerns that, when the Department rejected her student visa application, it said that she was not suitable to be a student due to her age, that she was a single, unmarried woman and had stayed in Australia for too long. It was on that basis, she stressed, the Department determined that the applicant was not a genuine student.
The applicant also noted that another reason for the refusal was because of her travel history, noting that she had travelled a lot to the United States, Korea, Canada and Japan. She explained that the Tribunal “seemed to think” that the applicant was trying to immigrate to those places. The applicant did not think this was fair because “everyone likes to travel”.
The applicant also explained that she had used a “legal school” and a “legal agent” and they had provided her with a confirmation of enrolment. The applicant said that she was not sure if there was any connection between her representative and the school or if her representative received any commission for choosing that school but she had “just followed what the agent had said”. The applicant stressed that she “just told them that [she] wanted to study cookery and they directed [her] to that school”.
These issues, to the extent that they address jurisdictional error, will be considered below.
RELEVANT STATUTORY FRAMEWORK
Before considering the applicant’s grounds of review, it is useful to first outline the relevant legislative provisions applicable in this matter.
The applicant’s grounds of review (as outlined in her judicial review application) essentially raise concerns about the Tribunal’s application of the provisions set out in cl 500.212 in Schedule 2 of the Regulations. Those provisions relevantly provide 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; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The meaning and proper construction of the above clause has been considered in a number of recent decisions of the Federal Court of Australia (the “Federal Court”). The Full Court of the Federal Court (the “Full Court”) recently summarised the principles to be taken from those decisions in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (“Dait”), explaining as follows:
35.In summary, the authorities may be distilled into the following four mutually inclusive propositions:
(1)An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit (at 535 [31]); Eros (at [8]–[9]); Sanjel (at [18]).
(2)Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]–[15]); Vidiyala (at [28]).
(3)It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]–[33]).
(4)An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).
Clause 500.212 in Schedule 2 of the Regulations will be discussed further below when considering the applicant’s grounds of review.
CONSIDERATION
Grounds of review
Ground 1
As outlined above, ground 1 provides:
1.The Administrative Appeals Tribunal misapplied the law in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) being the criterion that the “applicant is a genuine applicant for entry and stay as a student” by failing to recognise that the clause required a finding as to whether the applicant’s intended length of stay was temporary or permanent.
PARTICULARS
(1)The Tribunal found that the Applicant had genuinely studied in the courses in which she had been enrolled and was to be commended (paras 25 and 28 of the Tribunal’s Decision Record dated 9 May 2022).
(2)The Tribunal also found that the Applicant had changed her future career plans from aviation to hospitality, and that her proposed courses are relevant to and likely to assist the applicant’s future career (para 29 of the Decision Record).
(3)Despite this, the Tribunal then found that, taking the evidence as a whole, the Applicant was using the student visa program as a means of maintaining residence in Australia, without making a finding that the Applicant intended to remain in Australia other than on a temporary basis.
By ground 1, the applicant essentially claims that cl 500.212 in Schedule 2 of the Regulations required that the Tribunal make an express finding that the applicant intended to stay in Australia permanently. The Court disagrees for the reasons that follow.
The Full Court outlined what is required in this regard in Dait as follows:
28.Like any construction inquiry, the Court must begin and end with the statutory text, read in its statutory context and having regard to its apparent purpose: Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 (at 519 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ).
29.The starting point is s 65 of the Act. As Crennan, Bell, Gageler and Keane JJ explained in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 (at 188–189 [34]):
The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts - to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) - depending on the existence of one or other of two mutually exclusive states of affairs (or “jurisdictional facts”) - the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters.
(Citation omitted).
30.Hence the section is directed to satisfaction of the existence of the fact identified in the relevant criterion.
31.The presently relevant criterion, clause 500.212, requires satisfaction of a single state of affairs. It contains one sentence. The conjunction “because” connects the chapeau with subcl (a), implying a relationship of cause and effect: Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Australia, 2019) (at [12.11]). The conjunction “and” also marries subcll (a), (b) and (c), each of which is connected back to the chapeau by the combined conjunctive effect of the terms “because” and “and”. Further, each of subcll (a)(i)–(iv) and (b)(i)–(ii) is connected to its parent and, by extension, to the chapeau, by way of a colon or the conjunction “and”. This creates a waterfall effect, brought to a close by the full stop at the end of subcl (c). The combined effect of “because”, “and” and the use of colon unites each composite part of cl 500.212, giving rise to “a whole idea or conception: “a genuine applicant for entry and stay as a student””: Eros (at [8]). This reading is supported by the verb “is” in the chapeau, which encapsulates a single state of being.
32.In saying this, subcll (a), (b) and (c) nonetheless demand discrete inquiries as a matter of language and can be read and understood in isolation. Accordingly, satisfaction of cl 500.212 requires the cumulative satisfaction of discrete elements. Each of subcll (a), (b) and (c) are integral elements of the criterion. These elements are bookended by conjunctive devices, which reflect the need for the decision-maker to undertake a piecemeal analysis, and for the applicant to satisfy each step in that analysis in order to qualify as “a genuine applicant for entry and stay as a student”. If a decision-maker is not satisfied that an applicant meets subcl (a) or (b) alone, the decision-maker need not continue their inquiry. This is because an adverse finding in relation to either subcl (a) or (b) forecloses any possibility of a favourable outcome.
Applying the principles from Dait (outlined above), in this matter the Tribunal was thus required to be satisfied that the “applicant [was] a genuine applicant for entry and stay as a student” because she genuinely intended to stay in Australia temporarily. There was no requirement for the Tribunal to make an express finding that the applicant wanted to stay here permanently. It was simply required to either be satisfied that applicant intended to stay in Australia temporarily or not satisfied that the applicant intended to do so.
As correctly submitted by the Minister (at [18]-[19] in written submissions filed in this Court on 3 July 2023), the Regulations direct the Tribunal to ask whether it is satisfied that the applicant genuinely intends to stay in Australia temporarily. Put differently, it is a satisfaction-based criterion: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [4] (Logan J). There is a difference between non-satisfaction of a particular criterion on the one hand (that is, the Tribunal not being satisfied that the applicant intends to stay in Australia temporarily) and a positive finding to the contrary on the other (that is, the Tribunal finding that the applicant intended to stay in Australia permanently).
The Court does not consider that there was any error in the way the Tribunal approached its task in this matter. The Tribunal had regard to the Direction 69 factors when assessing whether the applicant satisfied cl 500.212 in Schedule 2 of the Regulations (at [22]-[37]) and ultimately concluded that the applicant was “using the student visa program as a means of maintaining residence in Australia” (CB 88, [35]).
The applicant is correct when she says that the Tribunal acknowledged the course progress made by her and commended her on her course progress (at [25]). The Tribunal also outlined the courses that the applicant had studied in Australia (being Certificates II and III in Spoken and Written English, an English course and a Diploma of Aviation Management) (at [28]). The Tribunal placed weight in the applicant’s favour in that regard (at [25]).
However, the Tribunal also had concerns about the length of time that the applicant had been onshore (being over six years). The Tribunal also had concerns that the applicant may have been “using the student visa migration program as a means of maintaining residence” (at [26]). As previously set out by this Court in Beejadhur v Minister for Immigration & Anor [2020] FCCA 2238 (at [97]) (with respect to similarly worded phrase “maintaining ongoing residence”), the Court considers this to be a clear finding that the applicant did not intend to stay in Australia temporarily.
To the extent that the applicant suggests that the Tribunal should have found in her favour based on considerations of her chosen course of study and future travel plans (referencing paragraph [29] of the Tribunal’s reasons at CB 86-87), the Court again disagrees.
As submitted by the Minister, the factors set out in Direction 69 are not to be used as a checklist. Rather, they are meant to serve as a guide to decision-makers. The Tribunal in this matter considered all of the relevant factors (based on the evidence provided to it by the applicant) when weighing the applicant’s circumstances (as a whole) and ultimately found that the applicant did not satisfy the genuine temporary entrant criteria (see paragraphs [20]-[37] of the Tribunal’s reasons).
The Court is satisfied that the Tribunal’s findings were open to it and no jurisdictional error arises in relation to ground 1.
Ground 2
Ground 2 states:
2.The Tribunal erred by making an illogical, alternatively, legally unreasonable decision in finding that the Applicant failed to satisfy clause 500.212 of Schedule 2 to the Regulations because it misapplied the law.
PARTICULARS
(1)The Applicant repeats the particulars in Ground 1, paragraphs (1) to (4) above.
(2)Further, the Tribunal found that the Applicant had planned to return to Taiwan after completing her hospitality qualifications to start her own restaurant (para 29 of the Decision Record).
(3)Despite this, the Tribunal did not find that the Applicant genuinely intended to stay in Australia as a student.
To the extent that the applicant claims that the Tribunal found that the applicant planned to return after completing her hospitality qualifications (at [29] in its reasons), the Court disagrees.
The Court notes the Tribunal’s comments as follows (footnotes excluded):
29.The applicant has explained the way in which the COVID19 Pandemic changed her future career plans from aviation to hospitality. The Tribunal accepts these submissions. The applicant plans to use her proposed qualifications to find a chef position in her hometown while living with her parents and then starting her own restaurant combining her cuisine with Western cuisine she will learn in Australia. The applicant anticipates earning TWD75,500 per month using the qualifications and states in the questionnaire that her income will be increased by virtue of her Australian qualifications and how highly they are regarded in her home country and region. The Tribunal allows for reasonable changes to career and study pathways and considers the proposed courses are relevant to and likely to improve and assist the applicant’s future career.
The Tribunal’s footnotes in that passage reference both the applicant’s response to the Tribunal’s invitation to provide information and the delegate’s decision. The Tribunal here was simply setting out the evidence before it (as provided by the applicant to both the Department and the Tribunal). The Tribunal made no positive findings (at [29] or elsewhere in the decision) that the applicant would return upon completion of her proposed hospitality studies.
In so far as the applicant suggests that the Tribunal’s findings were illogical or irrational, the Court also disagrees.
In SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
131.The test for illogicality or irrationality must be to ask whether logical or irrational or reasonable lines 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, 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.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.
SZMDS sets a very high threshold for findings of irrationality or illogicality.
Here, it cannot be said that the Tribunal’s ultimate finding (being that the applicant did not genuinely intend to stay in Australia temporarily) was not open to it on the evidence before it.
A considered reading of the Tribunal’s decision and reasons shows that the Tribunal assessed all of the evidence before it. That evidence included study history and completion of courses in Australia together with the applicant’s reasons for changing areas of study following the COVID-19 pandemic.
The Tribunal was concerned, however, that the applicant had already been onshore for a period of six years and it also had concerns that the applicant was motivated by factors other than study (including her economic circumstances onshore which the Tribunal considered may be a significant incentive for the applicant to remain in Australia). The Tribunal undertook a balancing exercise in relation to the relevant factors set out in Direction 69. After careful consideration of the evidence before it, the Tribunal ultimately determined that the factors weighing against the applicant were greater than those falling in her favour.
That conclusion was open to the Tribunal on the evidence before it. While the applicant may disagree with the Tribunal’s finding, and while this Court may have decided differently, that is not the test upon review. The Tribunal’s findings were legally sound.
No jurisdictional error arises in relation to ground 2.
Applicant’s oral submissions
Whether the Tribunal erred by failing to invite the applicant to attend a hearing
As outlined above, the applicant (in oral submissions to the Court) took issue with not being “given a chance to appear at Tribunal hearing”.
As explained by this Court in Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390, the Tribunal is required (by s 360(1) of the Act) to invite an applicant to appear before it to give evidence and present arguments. However, there are some exceptions to this requirement, which are set out in ss 360(2) and (3) of the Act, as follows:
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Relevant to this matter is s 360(2)(c) of the Act.
In this regard, s 359C(1) of the Act is of note. That section relevantly provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
As outlined above, on 27 January 2022, the Tribunal invited the applicant (through her representative) to provide information to the Tribunal. That invitation letter:
(a)invited the applicant to give the Tribunal (in writing) information relevant to her current enrolment status and addressing the genuine temporary entrant criterion: ss 359(2) and 359B(1) of the Act;
(b)was sent to the applicant’s representative (as required by s 379G of the Act) via email (being a method specified in s 379A of the Act) at the last known email address provided in connection with the review: s 359(3) of the Act; and
(c)gave the applicant 14 days within which to respond, being the prescribed period set out in reg 4.17(4) of the Regulations: s 359B(2) of the Act.
Critically for the applicant here, the invitation letter required a response be provided to the Tribunal by no later than 10 February 2022. Further, any request for an extension of time within which to respond to the invitation letter also had to be received by 10 February 2022.
On 13 February 2022, the applicant filed a completed information questionnaire and supporting material with the Tribunal in response to that invitation (CB 62-78 & 82).
Section 359B of the Act provides:
359B Requirements for written invitation etc.
…
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
Relevantly, the applicant’s response was received after 10 February 2022. No request was made (either on or prior to 10 February 2022) for further time to respond. As outlined by the Full Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40, the Tribunal thus had no power to extend time within which the applicant could respond to the invitation letter.
The effect of the applicant’s failure to respond to the Tribunal’s invitation letter or to request an extension by 10 February 2022 was that ss 359C, 360(3) and 363A of the Act were enlivened. This meant that the applicant lost any right or entitlement to appear at a hearing before the Tribunal. That is, the Tribunal had no discretion (nor any power) to permit the applicant to attend a hearing. The Tribunal was, in effect, required to determine the application on the papers or materials before it.
No jurisdictional error arises in relation to the Tribunal not inviting the applicant to attend a hearing before it and proceeding to determine the matter on the materials before it.
Whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal
The applicant raised concerns about her representative, both in relation to a failure to provide information to the Tribunal within the requisite timeframe (resulting in the applicant losing her right to appear at hearing) and in relation to the school chosen by her representative and the possibility that her representative was receiving a commission for selecting the school.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
There is no evidence before the Court in relation to any commission being paid to the applicant’s representative and the Court makes no findings in that regard. Insofar as the applicant’s representative was late in providing material to the Tribunal, this amounts to no more than negligence or incompetence. It does not amount to fraud. Further, negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
An applicant’s recourse for negligence, incompetence or bad advice (and the Court makes no findings about the applicant’s representative in this regard) is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority.
No jurisdictional error arises in this regard.
Whether there were any issues in relation to specific reasons in the Department or Tribunal decisions
In her oral submissions before this Court, the applicant raised concerns about the Department’s findings as to why the applicant was “not suitable to be a student”. Specifically, the applicant was concerned by the delegate’s findings in relation to her age, her relationship status and the length of time that she had been in Australia.
The Court does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. Further, any error in the delegate’s decision and reasons would be “cured” by the Tribunal decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
The applicant also raised concerns about “findings” in relation to her travel history. The applicant (in oral submissions) noted that she had travelled a lot to the United States, Korea, Canada and Japan and that “they” seemed to think that the applicant was trying to immigrate to those places. The applicant did not think this was fair and told the Court that “everyone likes to travel”.
It was not clear from the applicant’s comments whether she was referencing the delegate’s decision or the Tribunal’s decision in this regard (noting that both make reference to the applicant’s travel).
Insofar as the applicant was referencing the delegate’s decision, as outlined above, the Court has no jurisdiction in relation to that decision.
To the extent that the applicant was referencing the Tribunal’s decision, the Court notes that the Tribunal did not make any adverse findings against the applicant in relation to her travel. The Tribunal referenced the applicant’s evidence and, relevantly, stated (footnotes excluded):
34.The applicant has travelled to: Japan, Singapore, Korea, Malaysia, Canada and the USA for between three and five days from 2016-2019 for holidays with friends, family and her boyfriend or as a transfer. There is no evidence that the applicant has had any travel, visa or immigration issues in the past. The applicant does not have any potential military service obligations or political or civil unrest concerns in China.
The Tribunal’s footnotes in the above passage reference the applicant’s response to the Tribunal’s invitation to provide information and the delegate’s decision. Further, the Tribunal goes on to say that there was no evidence that the applicant “had any travel … issues”. The Tribunal did not make any reference to the applicant wanting to immigrate to any of those countries and it did not place any negative weight on the applicant’s travel.
The Court considers that the Tribunal was simply summarising the applicant’s evidence about her travel history and made no adverse findings based on that information.
No error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 9 June 2022 has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 August 2023
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