Yang v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 676

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Yang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 676

File number(s):

ADG 242 of 2020

Judgment of:

JUDGE CAMERON

Date of judgment:

5 July 2024 

Catchwords:

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.

Legislation:

Migration Act 1958 (Cth) s 474

Migration Regulations 1994 (Cth) sch 2 cls 500.211, 500.212

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Division:

General

Number of paragraphs:

14

Date of hearing:

5 July 2024

Place:

Adelaide

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

Solicitor for the Second Respondent:

Submitting appearance save as to costs

ORDERS

ADG 242 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

XUEYAN YANG

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	5 JULY 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $2,800.

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 CAMERON

INTRODUCTION

1. The applicant is a citizen of China who arrived in Australia on 17 November 2004.  On 27 August 2017, she applied to what is now the Department of Home Affairs (Department) for a Student (Temporary) (class TU) Student (subclass 500) visa.  On 22 January 2018, the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister).  The applicant then applied to the second respondent (Tribunal) for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

   RELEVANT LEGISLATION

4. Clause 500.2 of schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out primary criteria for the grant of a subclass 500 visa that must be satisfied at the time a decision is made on the visa application.  Clause 500 relevantly provides:

   500.211

   One of the following applies:

   (a)       the applicant is enrolled in a course of study;

   …

   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

   …

   BACKGROUND FACTS AND MIGRATION HISTORY

5. The applicant attended a hearing before the Tribunal by telephone on 14 May 2020 at which she gave evidence and presented arguments. In its decision, the Tribunal relevantly summarised the evidence and arguments before it as follows:

   (a)at the time of the Tribunal decision, the applicant gave evidence that her circumstances had changed and she no longer wished to pursue a student visa, but did not withdraw her application for review;

   (b)the applicant stressed to the Tribunal that at the time she lodged her visa application she did intend to undertake study if she was successful, but she no longer wished to do so;

   (c)since making the visa application, the applicant had had a baby and her partner had applied for a long-term visa in Australia;

   (d)the applicant said she hoped to stay in Australia and use her cookery qualifications to open a takeaway food shop;

   (e)the applicant did not wish to return to China because of connections that she and her partner had established in Australia and significantly, the birth of her child; and

   (f)if she returned to China or a third country, the applicant did not propose to seek employment.

6. In the Minister’s written submissions dated 28 June 2024, the applicant’s relevant migration history was summarised in the following terms which I adopt:

   4.        On 27 August 2017, the applicant applied for the visa.

   5. On 27 November 2017, the applicant provided evidence to the Department, including a genuine temporary entrant criterion statement, academic records and photographs.

   6. On 22 January 2018, a delegate of the Minister refused the application, based on a finding the applicant did not satisfy cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion).

   7. On 2 February 2018, the applicant applied to the Tribunal for review of the delegate's decision.

   8. By letter dated 12 March 2020, the Tribunal invited the applicant to providing information by completing an online request for student visa information form.

   9. It appears that on 2 April 2020, the applicant subsequently provided a completed request for student visa information form, together with supporting documents.

   10.On 14 May 2020, the applicant appeared before the Tribunal to give evidence and present arguments.

   11.      On 11 June 2020, the Tribunal affirmed the decision under review.

   (references omitted)

   The Tribunal’s decision and reasons

7. On 11 June 2020, the Tribunal affirmed the decision of the Delegate not to grant the applicant a Student (Temporary) (Class TU) visa.  The Tribunal’s reasons for doing so were summarised in the Minister’s written submissions in the following terms which I adopt:

   12. The Tribunal observed that the applicant gave evidence that her circumstances had changed, and she no longer wished to pursue a subclass 500 visa, but she did not withdraw her application for review. The Tribunal accepted the applicant's evidence that she no longer wished to pursue study.

   13. The Tribunal accepted that when the applicant made her application, she intended to pursue study.

   14. The Tribunal considered the applicant's evidence that she did not wish to return to China because of connections she had established with Australia, and the birth of her child, and found these were not reasonable reasons for not undertaking study in the applicant's home country as contemplated by Direction No 69.

   15. In view of the applicant's stated intention not to return to China, the Tribunal was not satisfied the economic circumstances consideration weighed in favour of the application. Similarly, the Tribunal found the military service commitments consideration was not relevant and accorded the political and civil unrest consideration no weight.

   16. The Tribunal observed the applicant's concession that she had strong family ties in Australia. The Tribunal also considered the applicant's acknowledgment that her intention to stay was likely to hinder her subclass 500 visa application.

   17. The Tribunal accepted the applicant's evidence that she no longer intended to return to China and found that the main purpose of the subclass 500 visa would be to maintain ongoing residence.

   18. Based on the applicant's evidence that she would not seek employment in her home country with her qualifications, the Tribunal did not accept the course would assist her to obtain employment or improve her prospects and found the relevance of her course to such employment did not assist her application. Likewise, the question of the applicant's comparative remuneration did not assist the Tribunal.

   19. The Tribunal observed there was no evidence or breaches of previous visas.

   20. The Tribunal found the applicant's intention to stay in Australia permanently was inconsistent with a temporary student visa and found the applicant did not satisfy cl 500.212(a).

   (references omitted)

   THE PROCEEDING IN THIS COURT

8. In the application commencing this proceeding the applicant alleged:

   1.The Second Respondent in making its decision of 12 June 2020 to affirm the decision of the delegate of the First Respondent to not to grant a Student (Temporary) (Class TU) visa committed jurisdictional error by failing to consider the relevant information supplied for the student visa application on 27 November 2017.

   2.Another jurisdictional error made by the Second Respondent was it took in to account irrelevant consideration when assessing the change of circumstances (i.e had a child) which took place after the student visa was refused by the First Respondent.

   CONSIDERATION  

9. It was apparent from the discussion between the bench and the applicant during the course of the hearing of this application, that the applicant had been under the mistaken impression that the accepted genuineness of her intention at the time she lodged the visa application to study and to stay only temporarily, would determine the outcome of the visa application overall.  However, it was also apparent that it became clear to the applicant during the course of those exchanges that the change in her circumstances and the change in her attitude to travel revealed in the Tribunal's decision and manifesting as at the time of the decision on the visa application, would be determinative of that application.

10. Given the concessions which the applicant made to the Tribunal about the change in her personal circumstances by the time of the Tribunal hearing, it seems unavoidable that the Tribunal would reach the conclusion which it did reach.  That conclusion was that the change in the applicant’s circumstances indicated that she wished to remain in Australia longer than the temporary period available under a subclass 500 student visa.

11. The two grounds of the application raise issues which, in substance, fail to deal with the real basis of the Tribunal's decision.

    Ground 1

12. The first ground alleges that the Tribunal failed to consider material which had been placed before it by the applicant. However, the Court was not taken to any element of those documents’ contents which would have cast any doubt on the appropriateness of the Tribunal's decision.  It may be that the Tribunal did not consider those documents, but unless they contained something which might have given the applicant a chance to achieve a different outcome at the Tribunal hearing, then any such failure would not amount to jurisdictional error.  As the Court has not been taken to anything in that collection of documents which might point to such a conclusion, it must be found that the first ground of the application does not disclose the basis upon which the Tribunal's decision might be set aside.

    Ground 2

13. The second ground of the application alleges that the Tribunal took irrelevant considerations into account, specifically the birth of the applicant's first child.  The fact that the applicant had been blessed with a child prior to the Tribunal hearing was something which she raised and it was hardly irrelevant to the Tribunal’s considerations. That the applicant wished to remain in Australia in the family unit which she was creating with her partner indicates that the birth of her child was far from an irrelevant consideration.

    CONCLUSION

14. Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       30 July 2024