YANG v Minister for Immigration

[2020] FCCA 1080

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1080

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – judicial review – grounds of review – natural justice – Student (Temporary) (Class TU) (Subclass 500) visa

Legislation:

Migration Act 1958 (Cth), ss.359, 359A, 359AA

Migration Regulations 1994 (Cth), cl.500.212(a)

Applicant: XIANG YANG

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 912 of 2019

Judgment of: Judge Jarrett

Hearing date: 9 April 2020

Date of Last Submission: 9 April 2020

Delivered at: Brisbane

Delivered on: 7 May 2020

REPRESENTATION

The applicant appeared on his own behalf assisted by an interpreter

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The name of first respondent be amended to read Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. 

2. The application filed on 22 October, 2019 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 912 of 2019

XIANG YANG

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed on 21 October, 2019 the applicant seeks judicial review of a decision of the second respondent made on 27 September, 2019 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. I have the benefit of written submissions filed by the first respondent.  Despite direction permitting him to do so, the applicant has not filed an amended application to further particularise his grounds of review.  Nor has he filed any written submissions in support of his application.

4. For the reasons that follow I am of the view that the application fails to establish any jurisdictional error on the part of the second respondent and the application must be dismissed.

Background

1. The applicant is a citizen of China.  He first arrived in Australia on 2 November, 2012 as the holder of a Student (Temporary) (Class TU) (Subclass 573) visa.  On 30 April, 2018 the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa in order to complete a Certificate III in Painting and Decorating.  The course completion date for the Certificate III of Painting and Decorating was 3 January, 2020.

2. On 4 June 2018, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not meet cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

3. The applicant applied to the second respondent on 24 June, 2018 for review of the delegate’s decision. On 1 August, 2019 the second respondent wrote to the applicant, pursuant to s.359 of the Migration Act 1958 (Cth), requesting that the applicant provide further information. On 13 August, 2019 the applicant provided a response using Form M17 (Request for Student Visa Information). The applicant provided further supporting evidence including a statutory declaration and a letter of support from a potential employer in China.

4. On 27 August, 2019 the second respondent invited the applicant to attend a hearing to give evidence and present arguments.  The applicant attended a hearing on 27 September, 2019 with the assistance of his representative and an interpreter.  At the conclusion of the hearing, the second respondent affirmed the decision under review.

5. The second respondent found that the issue on review was whether the applicant met cl.500.212 of the Regulations. The second respondent identified that in considering that issue, it must have regard to the factors contained in Ministerial Direction 69.

6. In accordance with s.359AA of the Act, the second respondent put to the applicant information contained in the Provider Registration and International Student Management System database capturing his academic history that it thought it might be a reasonable part of the reason for affirming the decision under review.

7. When the applicant arrived in Australia he intended to complete some courses leading to a bachelor of commerce degree.  The tribunal considered whether the applicant had reasonable reasons for not undertaking that study in his home country.  The second respondent found that the applicant provided reasonable reasons for not undertaking the proposed course of study in his home country, namely that there were few such courses available in China.  The second respondent further found that:

   a)the applicant has family ties to his home country through the residence of his parents, family assets, a potential inheritance, an obligation as the only son to care for his parents, and prospective employment.  However, the second respondent thought that given the period of time the applicant has been in Australia and the failure of the applicant to return to China at any time since 2015, those circumstances did not represent a significant incentive for him to return to China;

   b)the applicant’s economic circumstances did not present as a significant incentive for the applicant not to return to China;

   c)the applicant did not have any military service commitments which would provide a significant incentive not to return to China.

   d)there was no evidence before the second respondent of political and civil unrest in China of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely; and

   e)there was no relevant evidence regarding the applicant’s circumstances in China relative to others in that country and the second respondent made no findings concerning the applicant in that respect.

8. The second respondent considered the applicant’s circumstances in Australia.  In that respect it found that the applicant had developed friendships through work and study in Australia and those social connections provided a strong incentive to him to remain in Australia.  Further in paragraph [31.b.] of its reasons, the second respondent said:

   b. The Tribunal accepts that applicants will change their career and study pathways and considers the change from commerce to business reasonable.  However, in considering the applicant’s pattern of enrolment, change in field of study, limited academic progression from 2012 to 2018 and the absence of any documents supporting his progress in a Bachelor of Business, the Tribunal does not consider the applicant’s progression and enrolment in a different field of study in a vocational training course. And the Tribunal considers that evidence of those matters suggests the student visa program is being used to circumvent the intentions of Australia’s migration program.

9. The second sentence in [31.b.] of the second respondent’s reasons does not make sense.  It appears that a word is missing at the conclusion of that sentence.  Given the other conclusions expressed in that paragraph, it seems to me that the missing word is “reasonable” such that the second sentence is intended to read “However, in considering the applicant’s pattern of enrolment, change in field of study, limited academic progression from 2012 to 2018 and the absence of any documents supporting his progress in a Bachelor of Business, the Tribunal does not consider the applicant’s progression and enrolment in a different field of study in a vocational training course reasonable”.

10. The second respondent also found that the matters considered by the second respondent including the applicant’s period of time in Australia, pattern of enrolment, length of study, reasons for his change in field of study and academic progression, led the second respondent to conclude that the applicant is using the student visa primarily to maintain ongoing residence in Australia.

11. While the second respondent considered the applicant’s change from Bachelor of Commerce to Bachelor of Business to be reasonable, it found the regression from his Bachelor of Business to painting and decorating not reasonable. 

12. Further, the second respondent found that notwithstanding that the applicant’s living expenses were likely to be less in China, the applicant’s period of time in Australia, pattern of enrolment, length of study, reasons for change in field of study and academic progression were evidence that the applicant was using the student visa program to circumvent the intentions of Australia’s migration program in order to maintain ongoing residence in Australia.

13. The second respondent considered the value of the proposed course of study to the applicant’s future.  It found that the applicant’s current course of study was a regression from the course he had travelled to Australia to complete, and from the Diploma of Commerce he had already attained.  The second respondent accepted the applicant’s current course of study to be relevant and useful to his future career goals and offer of employment, but did not accept the change in study pathway and academic progression to be reasonable given the qualifications the applicant had already obtained.

14. The second respondent considered the applicant’s immigration history and found that he had not been considered for, or subject to, any visa cancellations or refusals other than the subject visa and had not travelled to or from Australia other than his return trips to China in 2013, 2014 and 2015.

15. The second respondent was not satisfied that the applicant intended genuinely to stay in Australia temporarily and concluded that the applicant did not satisfy cl.500.212(a). The second respondent affirmed the decision under review.

The grounds of review

1. In his application for review, the applicant specifies three Grounds.  They are as follows (faithfully reproduced):

   1.  The applicant was denied natural justice as the decision of the second respondent (‘Administrative Appeals second respondent’) dated 30th September 2019, was made on an error of law on the face of record and a misinterpretation of relevant migration regulations.

   2.  Both of the First Respondent and Second Respondent failed to consider the applicant’s study in Australia as a positive and progressive process, which is, more specifically, the applicant has progressively completed a Diploma of Commerce and is currently enrolled in a Certificate III in Paint and Decorating.

   3.  The Second Respondent, though acknowledged the fact that the applicant’s economic circumstances do not present as a significant incentive not to return home, failed to vary, set aside, replace or remit the decision made by the First Respondent, but chose to affirm the decision made by the First Respondent. 

2. These grounds do not reveal jurisdictional error on the part of the second respondent. No error of law on the face the record or misinterpretation of the relevant migration regulations is apparent from the second respondent’s reasons for decision. As the first respondent submits, the second respondent complied with its procedural fairness obligations in Part 5, Division 5 of the Act by inviting the applicant to attend a hearing before it. The applicant attended the hearing with the assistance of his representative and an interpreter. The applicant was on notice from the delegate’s decision that his ability to satisfy the cl 500.212 criteria would be the determinative issue on review.

3. I also accept the first respondent’s submissions that the second respondent complied with its obligations under s.359AA of the Migration Act when it put the applicant’s PRISMS records to him at the hearing. The second respondent recorded that it provided the applicant a copy of the records, explained their relevance, and confirmed that the applicant understood the consequences of the information being relied upon. The second respondent offered the applicant an opportunity to seek an adjournment to consider, comment on or respond to the information. The applicant did not suggest that any of those matters recorded by the second respondent in its reasons for decision were inaccurate.

4. To the extent that the second ground invites the Court to review the delegate’s decision, the application is incompetent.  The Court has no jurisdiction to review the delegate’s decision.

5. To the extent that the second ground invites the Court to review the second respondent’s decision, the ground has no merit.  The second respondent’s reasons for decision clearly demonstrate that the second respondent considered the applicant’s study in Australia.  I accept the first respondent’s submission that the second respondent’s finding as to the value and progression of the applicant’s study was open to it having regard to the applicant’s pattern of enrolment, his initial intended study pathway, and the lack of evidence of satisfactory progression in the Bachelor of Commerce and Bachelor of Business.  The second respondent acknowledged that a Bachelor of Commerce and Bachelor of Business were related studies and considered a change from one to the other as reasonable.  It also considered reasonable the proposition that applicants will change their career and study pathways.  However the second respondent considered that the applicant’s enrolment in a vocational training program in painting and decorating to be a regression from his initial study pathway and from the Diploma in Commerce already obtained.  That was a view that was clearly open to the second respondent carrying out its review functions under the Act.

6. The third ground is misconceived.  By implication this ground contends that because one matter was found in the applicant’s favour (that his economic circumstances did not present as a significant incentive not to return home) the first respondent’s decision should have been reversed.  But such an argument fails to recognise that the task undertaken by the second respondent was a balancing exercise which required it to identify the relevant factors applicable to the applicant’s case and to weigh those matters and so as to reach a conclusion about whether the applicant was a genuine applicant for entry and stay as a student.  The second respondent’s reasons for decision reveal that it undertook that exercise and determined that he was not. 

Conclusion

1. The grounds of review relied upon by the applicant do not reveal jurisdictional error in the second respondent’s decision.  Nothing said by the applicant in his oral submissions advanced his case.  I am satisfied that the second respondent’s decision was not affected by jurisdictional error and the application must be dismissed with costs.

2. Additionally, I accept the first respondent’s argument that even if the applicant could demonstrate jurisdictional error in the second respondent’s decision, given that the applicant applied for the visa to study a course which was intended to be completed by 3 January, 2020 as a matter of discretion relief should be refused.

3. The first respondent seeks an amendment to the name of the first respondent in these proceedings to reflect the change in name of the first respondent.  That amendment is in order.  Otherwise the application will be dismissed with costs fixed in the sum of $5,000.00.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:

Date: 7 May 2020