Yin v Minister for Immigration

[2020] FCCA 171

FEDERAL CIRCUIT COURT OF AUSTRALIA

YIN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 171

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Applicant: RONG YIN

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1948 of 2019

Judgment of: Judge Driver

Hearing date: 30 January 2020

Delivered at: Sydney

Delivered on: 30 January 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1948 of 2019

RONG YIN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Ms Yin, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 July 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Yin a temporary student visa.  The background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 21 January 2020. 

2. Ms Yin is a 31 year old citizen of China who first arrived in Australia on 21 September 2007 holding a Subclass 572 Student visa.  Ms Yin has since held eight student visas and one Subclass 485 Temporary Graduate visa.  Ms Yin completed the following courses:

   ·Bachelor of Business;

   ·Masters of Professional Accounting;

   ·Masters of Finance;

   ·Advanced Diploma of Leadership and Management;

   ·Graduate Diploma of Business;

   ·Diploma of Human Resources Management;

3. Ms Yin applied for the present visa on 15 March 2017. She completed her last course on 7 December 2018, but submitted a new Confirmation of Enrolment (CoE) on 14 January 2019 for an Advanced Diploma of Information Technology Business Analysis, to be completed on 5 January 2020. The delegate refused the visa on 14 June 2017 on the basis that Ms Yin did not satisfy clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) because the delegate was not satisfied that Ms Yin was a genuine temporary entrant (the genuine temporary entrant criterion). Ms Yin applied to the Tribunal for review of that decision on 4 July 2017.

4. Ms Yin appeared at a hearing before the Tribunal on 7 January 2019 to give evidence and present arguments. She was assisted in relation to the review by a registered migration agent. The Tribunal affirmed the decision on 8 July 2019.

The Tribunal hearing

1. At the hearing, Ms Yin stated that she had completed a Bachelor of Business and then decided to study a Master of Accounting as she believed it would widen the field for jobs in the future. She claimed that due to her age, she did not think she had any advantage over others, and decided instead that she would like to work in management, or possibly open a restaurant or start an international business.[1]

   [1] at [10] of the Tribunal decision

2. Ms Yin indicated that she had an older sister who resides in Australia, while her parents and grandparents continue to live in China. She claimed that her incentive to return to China was that there were more opportunities there, and that there were no issues preventing her returning to China in the future.[2]

   [2] [12]

The Tribunal decision

1. The issue before the Tribunal was whether Ms Yin met the genuine temporary entrant criterion.[3] In considering this, the Tribunal had regard to Direction No 69 at [17].

   [3] [15]

2. The Tribunal accepted at [19] that Ms Yin had some ongoing personal ties to her home country, but was not satisfied that they served as a significant incentive for her to return to China.

3. Ms Yin claimed that she intended to take up a position offered to her by a Chinese air-conditioning company when she had completed her then current course. She submitted a letter of offer of employment from Beijing Ding Li Fang Yuan Air Conditioning Equipment Co Ltd dated 16 May 2017. At the hearing, Ms Yin made various claims of wanting to do management work, open a restaurant or start an international business, without reference to that job offer.  At [20], the Tribunal was not satisfied that a company would offer a position to an applicant in 2016 (noting that the offer letter from the air conditioning company, although dated 16 May 2017, states the position was offered to Ms Yin “last year”) when the candidate has continued enrolling in courses additional to the stated requirements of the job.

4. The Tribunal considered Ms Yin’s GTE (genuine temporary entrant) statement dated 15 March 2017 in which she declared that “my sister will provide all tuition fees and living expenses for my study in Australia”. It found Ms Yin’s part-time employment in Australia, the on-going financial support provided by her sister, and her parent’s regular visits to Australia through their job as flight attendants indicated that her ties to Australia were significant. It found at [21] that these ties weighed against Ms Yin in the assessment of whether she is a genuine temporary entrant for study.

5. Ms Yin submitted a CoE after the Tribunal hearing for an Advanced Diploma of Information Technology Business Analysis. She provided no explanation satisfying the Tribunal as to why she enrolled in the course. The Tribunal found at [22] that Ms Yin had had ample opportunity to achieve her academic goals in Australia, and did not place any weight in her favour on the value of the course to her future.

6. The Tribunal was not satisfied that Ms Yin intends genuinely to stay in Australia temporarily, and accordingly, found that she was not a genuine applicant for entry and stay as a student as required by clause 500.212 of the Regulations.

7. These proceedings began with a show cause application filed on 31 July 2019.  Ms Yin continues to rely upon that application.  The grounds in it are:

   1. The Tribunal made jurisdictional error when making its decision to refuse my visa application

   2. The Tribunal ignored the academic evidence what I provide to support my genuine study intention.

   3. The Tribunal ignored the benefit of all the qualifications what I achieved in Australia to my future career in China under I got a job offer from an air condition company in 2017.

8. I have before me as evidence Ms Yin’s affidavit accompanying her application and the book of relevant documents filed on 9 September 2019.  Only the Minister filed written submissions in accordance with procedural orders made by a registrar.

9. I invited Ms Yin to tell me what she says is wrong with the Tribunal decision.  She said nothing was wrong with the Tribunal decision.  When I enquired why she was, therefore, in Court pursing her application, she told me that she was concerned that she was not accepted as a genuine student.  I explained to her the difference between being a genuine student and being a genuine temporary entrant for study.  Ms Yin is adamant that her studies have all been worthwhile and, indeed, she exhibits a strong intention to continue studying if possible.

10. Ms Yin confirmed that she had completed this month the course she was undertaking at the time of the Tribunal hearing, but she has not made any firm plans to return to China.  She has the belief that because the requirements of prospective employers change over time, she needs to continue studying in order to meet those requirements.  As I explained to Ms Yin, there must come a point at which study finishes and full-time work begins. 

11. There is no substance in the grounds raised in Ms Yin’s application.  I agree with the Minister’s submissions in relation to the grounds. 

Ground 1

1. Ground 1 merely asserts that the Tribunal made a jurisdictional error but does not identify any such error. In the absence of any particulars the ground cannot have any prospect of success.

Ground 2

1. To the extent that Ground 2 contends that the Tribunal was unaware of, or did not take into consideration, Ms Yin’s record of academic achievement, such a complaint fails at the factual level.  At [7], the Tribunal expressly noted Ms Yin’s academic records and discussed at [9]-[11] with her the particular study path she had chosen at the hearing.

2. To the extent that Ground 2 complains that it was unreasonable for the Tribunal to find that Ms Yin did not meet the genuine temporary entrant criterion because she had successfully completed most of the courses she has undertaken and was therefore a genuine student, such a complaint misunderstands the Tribunal’s reasoning. The Tribunal was required to consider the factors in Direction 69 in assessing the genuine temporary entrant criterion for a student visa. As noted above, the Tribunal found that many of these factors weighed against Ms Yin, in particular, her immigration history (which refers to both her travel and visa history) during the 12 years since her arrival in Australia, undertaking numerous courses and the lack of apparent value of the present course to her future employment plans.

3. In the circumstance it was open to the Tribunal to find at [23]:

   Given the amount of time the applicant has spent as a temporary resident in Australia, the Tribunal does not accept the applicant is a genuine student. In making this assessment, the Tribunal took into account the applicant’s situation overall and the fact  she recently enrolled in a new course that is unrelated to her previous studies. The Tribunal places weight on the applicant’s circumstances as indicating the Student Visa is intended primarily for maintaining residence in Australia.

4. I am not satisfied that the complaint in Ground 2 raises any arguable ground of review.

Ground 3

1. Ground 3 is similar to Ground 2, but contends that the Tribunal “ignored the benefit of all the qualifications what I achieved in Australia to my future career in China”. This does not rise above the level of an invitation to merits review. Contrary to what is asserted, the Tribunal did not ignore the value of the course to Ms Yin’s future career. Rather, at [22], it expressly considered this issue and did not “place any weight in the applicant’s favour on the value of the course to her future”.

2. I am not satisfied that the complaint in Ground 3 raises any arguable ground of review.

3. I conclude that Ms Yin is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

4. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Ms Yin enquired about her rights of appeal, but did not oppose a costs order. 

6. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

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

Associate: 

Date: 3 February 2020