Yap v Minister for Home Affairs

[2020] FCCA 338

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAP v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 338

Catchwords:
MIGRATION – Visa – student visa – whether applicant satisfied a mandatory criterion – whether genuine temporary entrant – whether Tribunal failed in obligation to conduct a review – factual findings – where merits review sought – no error identified – application dismissed – where applicant had opposed costs if unsuccessful – rationale for awarding costs against unsuccessful applicant.

Legislation:

Migration Act 1958 (Cth), ss.65, 348(1) & 376
Migration Regulations 1994 (Cth), Subcl.500.212(a) to Sch.2

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: WEI LENG YAP

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 217 of 2018

Judgment of: Judge Heffernan

Hearing date: 4 February 2020

Date of Last Submission: 4 February 2020

Delivered at: Adelaide

Delivered on: 20 February 2020

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr Retallick for the Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent in the amount of FOUR THOUSAND DOLLARS ($4,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 217 of 2018

WEI LENG YAP

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 May 2018. That decision affirmed an earlier decision made by a delegate of the Minister on 24 November 2016 refusing to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (‘the Act’).  The application raises a single ground as follows:

   “1.The second respondent failed to carry out its task under s 348(1) of the Act to review the decision of the first respondent.

   Particulars

   (a)The second respondent identified the issue as whether the applicant was a genuine temporary entrant.

   (b)The second respondent found that the applicant was unable to satisfy the criteria of being a genuine temporary entrant because:

   (i)     She did not intend to study at the completion of her current course;

   (ii)    She didn’t have a clear plan for her return home;

   (iii)   She did not have the relevant qualifications that she needed to open a business on her return home; and

   (iv)   that she had taken a break between studies.”

2. On 11 July 2018, the applicant was given leave to file and serve any amended application by 28 September 2018.  She was also given leave to file and serve such further material, including the transcript of the hearing before the second respondent, that she may choose to rely on at a final hearing.  An order was also made on that day that the applicant file and serve an outline of submissions 10  business days prior to the final hearing.  The applicant did not file an amended application, file and serve further material, or file and serve a written outline of submissions.

3. The application is opposed by the first respondent.

Background

1. The applicant is a citizen of Malaysia.  She entered Australia in late 2013 on a temporary student visa.  Her purpose was to study a Certificate in Disability and a Diploma of Disability.  She applied for the subject visa in August of 2016.  Further information was requested from her as to what is known as the ‘genuine temporary entrant criterion’.[1]  A submission was provided to the delegate by her representative, together with supporting materials.  The delegate refused the application because they were not satisfied that the applicant met the genuine temporary entrant criterion.

   [1] Subclause 500.212(a) Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

2. The applicant applied for a merits review before the Tribunal within time on 6 December 2016.  She was invited to attend at a hearing scheduled for 15 February 2018.  In the letter inviting her to that hearing was enclosed a copy of the relevant Ministerial Direction which set out those matters which were pertinent to the assessment of the genuine temporary entrant criterion for student visas.  The letter also requested her to provide a copy of her confirmation of enrolment and documentation which demonstrated the past studies she had undertaken in this country.

3. The applicant’s representative provided submissions to the Tribunal and further evidence prior to the hearing.  The applicant appeared before the Tribunal with her representative and gave evidence and presented arguments in support of the application on 15 February 2018.  The Tribunal gave the applicant further time to submit evidence with respect to her enrolment and in early March the Tribunal was provided with a copy of a certificate of enrolment.

4. A certificate had been issued under s. 376 of the Act and was before the Tribunal. The Tribunal wrote to the applicant and sought a comment from her as to whether or not the certificate was validly issued. She was also asked about the particulars of the information contained in the certificate and invited to comment on it.

5. The applicant’s representative responded to that letter and pointed out that the Tribunal indicated that it would not be relying on the certificate at the time of the hearing.  The decision was affirmed on 7 May 2018 with the applicant being notified by the Tribunal on 9 May 2018.

6. The Tribunal correctly identified the dispositive issue as being whether the applicant was a genuine temporary entrant having regard to the matters set out in cl.500.212 and Ministerial Direction No.69.[2] Given that the secondary applicant was no longer a part of the application because the parties had separated and he had returned to Malaysia, the Tribunal placed no weight on the s.376 certificate or the information contained within it.

   [2]     Court Book (‘CB’) 310 at [19] – [21].

7. The Tribunal summarised the provisions of Ministerial Direction No.69 in a manner that was unexceptionable.  It specifically noted that the factors referred to in that Direction should not be treated as a mere checklist, but rather as a guide in coming to a conclusion about whether an applicant was a genuine temporary entrant.

8. One of the matters on which the Tribunal placed considerable weight was that the applicant had taken a break of several months from study in between December 2015 and August of 2016.  During that time, she undertook work.  The Tribunal correctly noted that this was in breach of her visa conditions.[3]

   [3]     CB, 311 at [25] – [26].

9. Having considered her evidence, it found that the applicant had made a conscious decision to stop studying and to undertake work.  It concluded that the provision for flexibility in the application of the ‘course gap policy’ for students in-between visas as contained in the Procedures Advice Manual of the Department was not applicable to the applicant’s circumstances.  This was because the gap in studies had not occurred in between visas.  The circumstances of this breach, and a consideration of the evidence, led the Tribunal to conclude that it was not satisfied that the applicant would abide by visa conditions in the future.  It concluded that her primary focus was on work and not on study.[4]

   [4] CB, 311 at [27].

10. Further, the Tribunal considered the applicant’s evidence as to her plans for her future once she returned to Malaysia.  It found her evidence to be vague and unconvincing.  The conclusion it reached was that she did not have a clear career goal for future employment in Malaysia.  Further, the Tribunal was not satisfied that the applicant would be qualified to establish a “learning and development institution” as planned, given her experience had been in hospitality and as a disability support worker.[5]

    [5] CB, 311 to 312 at [28].

11. On the basis of all of the above matters, the Tribunal concluded that the applicant was not a genuine temporary entrant and for that reason could not meet the criterion in cl.500.212(a) of the Regulations. It was for that reason that the Tribunal affirmed the decision under review.

Submissions

1. The applicant made brief oral submissions before me.  She was representing herself in the proceedings.  Her submissions commenced with the observation that paragraph 4 of the Decision Record of the Tribunal asserts that she had appeared at a hearing before the Tribunal on 15 December 2017 when, in fact, the Tribunal hearing had been on 15 February 2018.  In light of that submission, the applicant was referred to the decision hearing record in the Court Book.[6]  The record clearly indicates that the hearing was held on 15 February 2018 and that it commenced at 2.19 pm.  Further, as was submitted by counsel for the first respondent, the letter of invitation sent to the applicant clearly indicated that date and time.  On any view, it was clear that in preparing the decision record, the Tribunal member was dealing with this applicant in relation to the hearing that occurred on 15 February 2018 and on the basis of the claims as presented by the applicant.  The error in paragraph 4 of the decision record was simply a typographical error.

   [6]     CB, 290.

2. The applicant submitted that a consideration of paragraph 28 of the decision record showed that the Tribunal was judgmental about her career plan.  She submitted that the Tribunal did not understand the nature of the system in Malaysia.  She asserted that she did have a plan, but if things did not work out, she would just work in the healthcare industry.  She submitted that the Tribunal could not have reached that decision on the basis of the evidence.

3. The applicant submitted that the Tribunal member’s understanding appeared to be that both the course she had studied and the course she proposed to study “were the same” and that she had explained that both courses were different.  It was submitted that the Tribunal member did not think that the courses were important for the applicant’s future career.

4. With respect to the Tribunal’s finding that the period in which she undertook work was not within the flexibility provided by the Procedures Advice Manual of the Department, the applicant submitted that she had explained to the Tribunal the importance of obtaining work experience to assist her with her studies.  She was able to bring that experience back into the classroom.

5. In conclusion, the applicant submitted that she did not think that the application should be dismissed with costs and that there was a lot of jurisdictional error involved with it.  She clarified that submission when given the opportunity to make a brief reply to the first respondent’s submissions.  She told the Court that the error was the whole of the decision, which was unfair to her.  She opposed costs in the event that she was unsuccessful on this application on the basis that it was unfair to expect her to pay the costs of the first respondent, and that to do so would be like imposing a penalty on her.

6. The first respondent submitted that the ground of review as drafted was simply a complaint rather than a properly particularised error.  In truth, it was submitted the ground and the submissions of the applicant demonstrated a general disagreement with the factual findings of the Tribunal, and the applicant was inviting the Court to undertake an impermissible merits review.  It submitted that the Tribunal properly considered all of the evidence and claims made by the applicant against the criteria embodied in cl.500.212 and the matters set out in Direction No.69.  It submitted that the finding was open to the Tribunal for the reasons that it gave.

Consideration

1. I am not satisfied that the applicant has demonstrated that the Tribunal fell into jurisdictional error for the reasons complained of. In terms of the tasks that the Tribunal was required to undertake, s.348(1) of the Act provides as follows:

   “(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision.”

2. I am satisfied that the Tribunal did comply with its obligation to conduct a review. It properly identified that the dispositive issue was whether the applicant satisfied the genuine temporary entry requirement embodied in cl.500.212 of the Regulations. That requirement was a mandatory requirement. If the Tribunal came to the conclusion that the applicant did not satisfy that criterion, then it was obliged to affirm the decision of the delegate. Having identified the dispositive issue, it engaged in a consideration of the claims and evidence.

3. Further, I am not satisfied that there is any substance in the complaints made by the applicant about the factual findings of the Tribunal.  In my view, all of the findings were at least open to the Tribunal.  It was a relevant matter to which the Tribunal gave weight that the applicant had breached a condition of her visa during the currency of the visa by undertaking work.  The fact that she had done so was clearly relevant to an assessment of whether she would comply with conditions of a visa in the future.  It was also relevant to the question of whether or not she was motivated by a desire to study or principally motivated by a desire to work.

4. In addition, the Tribunal did not err when it concluded that the applicant did not have a clear career path on her return to Malaysia.  The fact of the matter was that there had been a change in the applicant’s stated intentions upon her return to Malaysia in-between 2016 and the hearing in 2018.  This can be seen by reference to the description of her incentive to return to Malaysia in the written submissions made on her behalf in support of the visa application.[7]  The Tribunal regarded that as an inconsistency in her claimed reasons.  It concluded that she did not have a clear goal.  Whilst that may not have been a conclusion reached by every Tribunal member, in these circumstances, I cannot say that it was a conclusion that was not open to this Tribunal, particularly given its findings with respect to the prior breach of the visa condition.

   [7]     CB, 58.

5. With respect to the applicant’s complaint about paragraph 25 of the decision record, the Tribunal specifically noted the submission of the applicant’s representative that it would be unreasonable not to acknowledge the link between the applicant’s qualifications and the work experience she undertook between December 2015 and August 2016.  Whether there was a link or not, the Tribunal was correct in finding that there had been a breach of the visa conditions.  Further, it was correct in concluding that the applicant’s circumstances did not fall within the flexibility referred to in the Procedures Advice Manual with respect to subclass 500 visas and gaps in study.

6. I am not satisfied that a fair reading of the Tribunal’s reasons establishes that the Tribunal member did not regard the courses as being valuable to her.

7. It was open to the Tribunal to conclude that it was not reasonable for the applicant to have taken the gap in order to perform work.

8. With respect to the finding that she had no clear plans, it is apparent that the Tribunal took into account the applicant’s evidence that she had family members with knowledge of the healthcare industry who would be able to assist her.  It noted that in the representative’s submission to the Department in September 2016, the claim was that the applicant would either seek employment in the homecare field or commence her own homecare venture.  It was not unreasonable, irrational or illogical for the Tribunal to conclude that on her evidence before it, she now planned to set up her own learning and development institution in Malaysia, was significantly inconsistent with the position that she had previously stated.

9. Further, the Tribunal specifically inquired of the applicant how she would go about setting up a learning and development institution and noted that her response was that she would register a business name and then go through the Department of Social Welfare and the Department of Education.  The Tribunal did not discount that the applicant may have had a change of mind about her future plans but nonetheless came to the conclusion that her evidence was vague and unconvincing.  It was on that basis that it concluded that she did not have a clear goal about future employment in Malaysia notwithstanding her qualifications and work experience to date.[8]  It cannot be said that such a finding was not open to it.

   [8] CB, 311 & 312 at [28].

10. It was on the basis of all of those reasons that the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

11. I accept the submission of the first respondent that the applicant’s application and submissions amounted to a request for an impermissible merits review.  Whilst the parameters of jurisdictional error are not rigid, they do not include undertaking a merits review, which is really what the applicant sought before this Court.  The applicant is extremely dissatisfied with the decision.  That is understandable, but it does not establish jurisdictional error.  The circumstances of the applicant and the complaints she makes are analogous to the comments of the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[9]

    “… the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

    [9] [2004] FCAFC 10 at [10].

12. Further, the single ground of application does not identify a species of jurisdictional error alleged to have been made by the Tribunal.  That has been held to be a sufficient basis of itself in which to dismiss an application.[10]  Out of deference to the fact that the applicant was unrepresented, she was given the opportunity to demonstrate in oral submissions that the Tribunal had erred.  She was unable to do so.

    [10]   WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

13. The applicant opposed an order for costs.  With respect to her submission that it would be unfair on her to be required to pay the costs of the first respondent, of which she pointed out was simply doing its’ job, I reject that submission.  In part, the awarding of costs against an unsuccessful party serves the purpose of discouraging persons from filing proceedings that have no merit.  Further, they serve the obvious purpose of diffusing the cost burden on the successful party who has been called upon to incur costs on an application that ultimately did not succeed.  It is appropriate to award costs as sought by the Minister.

14. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  20 February 2020