Yong v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 798
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yong v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 798
File number(s): SYG 220 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 29 August 2024 Catchwords: MIGRATION – application for judicial review – student visa – review of a decision by the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal afforded procedural fairness – whether the Tribunal failed to give proper, genuine and realistic consideration – no judicial error established – application dismissed Legislation: Migration Regulations 1994 (Cth)
Migration Act 1958 (Cth)
Cases cited: SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 15 August 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms N Gollan Second Respondent: Submitting appearance save as to costs ORDERS
SYG 220 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VOON PIEW YONG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.The application filed on 3 February 2020 is 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 MCCABE:
The applicant says he should be granted a Student (Temporary) (class TU) (subclass 500) visa (student visa). A delegate of the respondent Minister (the Delegate) disagreed, and the decision to refuse the visa was affirmed by the Administrative Appeals Tribunal (Tribunal). The applicant is now seeking judicial review of the Tribunal’s decision.
As I explained to the applicant at the hearing, the Court’s role is limited to reviewing the Tribunal’s decision to determine whether there has been jurisdictional error. The Court cannot consider the merits of the applicant’s original application for a visa. Assessing merit is the responsibility of the executive government, of which the Tribunal is part. The Court focuses on whether there was a legal or procedural error in the Tribunal’s decision-making. If the Court is satisfied the Tribunal’s decision is affected by a material jurisdictional error, the proper course – indeed, the only course – is to refer the matter back to the Tribunal for reconsideration according to law.
Background
The applicant is a Malaysian national who arrived in Australia in February 2017 on a Tourist (subclass UD 601) visa that had been granted the previous month. Towards the end of his permitted three-month stay in Australia on that visa, he enrolled in a course. The applicant applied for the student visa that is the subject of these proceedings on 1 May 2017. On 26 July 2017, the Delegate refused the student visa. The Delegate was not satisfied the applicant met the ‘genuine temporary entrant’ criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 27 July 2017, the applicant sought review of the Delegate’s decision by the Tribunal. In the course of the Tribunal’s review, the applicant was invited to provide information in support of his case. He completed and provided the Request for Student Visa Information form that the Tribunal used as part of its information-gathering process: Court book at pp 53ff. He included a brief statement: Court book at p 67. The applicant’s representative also provided written submissions dated 25 February 2019: Court book at pp 88ff. The applicant attended a hearing before the Tribunal on 14 March 2019. He gave evidence and made submissions with the assistance of an interpreter.
On 6 January 2020, the Tribunal affirmed the Delegate’s decision.
The law governing the Tribunal’s decision
The outcome of the application before the Tribunal ultimately turned on the answer to a question derived from cl 500.212 of Schedule 2 to the Regulations. That clause set out the following requirement for applicants seeking this class of student visa:
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.
In considering the applicant’s circumstances as required under cl 500.212(a), the Tribunal was obliged to have regard to Direction Number 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction 69). Direction 69 provided a guide as to the factors which should be considered when determining if the applicant satisfies the genuine temporary entrant criterion.
Proceedings before this Court
The applicant commenced the current proceedings through an application filed on 3 February 2020. The application set out the following under the heading “Grounds of application”:
1.I was denied procedural fairness
2.The member did not consider my personal tie to Malaysia and my economic situation as a whole before he made an unfavourable decision.
In his affidavit that accompanied the application, the applicant said (relevantly):
I was denied procedural fairness. The member did not consider my circumstances comprehensively and did not give me [a] chance to provide further submissions.
The applicant does not suggest in the application or affidavit that the Tribunal misunderstood the law, nor is there any suggestion that the Tribunal asked itself the incorrect question. I did not discern any error in the Tribunal’s summary of the law and the terms of Direction 69 in its reasons at [3] and [7]-[10]. The only possible issue raised in the grounds of appeal relates to the decision-making process.
After outlining the role of the Court, I asked the applicant at the hearing to explain what he said was wrong with the decision under review. I noted what had been said in the grounds of review. The applicant said he was unaware of the grounds because his migration agent had put together the application for judicial review. The applicant said he understood the problem with the decision lay in the fact the Tribunal found he had left the country on more than one occasion, and that his failure to explain those absences had been held against him. But that is not what the Tribunal found. In its decision, the Tribunal noted one absence from the country in 2018; it did not suggest there was anything untoward about that trip, nor did it mention (much less give any weight to) any failure of the applicant to mention other trips. I note the applicant’s representative in written submissions lodged with the Tribunal (Court book at pp 88ff) did not make anything of the applicant’s trip or trips overseas.
Ground 1
The first ground is an unparticularised assertion about a denial of procedural fairness. When I asked the applicant about this at the hearing, he was unable to assist me to understand his complaint. The applicant said his representative had prepared the documents and the arguments without reference to the applicant – which would explain why the applicant apparently believed the problem lay in the explanation he had offered for his travel history when that was not an issue.
The written submissions provided on behalf of the minister point out that claims the Tribunal failed to afford procedural fairness in its review must be assessed with reference to Division 5 of Part 5 of the Migration Act 1958 (Cth) (the Act): see s 357A. Those provisions effectively modify the common law and authoritatively restate the requirements of the natural justice hearing rule. One of the provisions which imposes a specific requirement is found in s 359 of the Act. That section provides (relevantly):
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
The requirement that the Tribunal “have regard to” to the information provided by the applicant in response to the invitation issued under s 359 will be satisfied where it appears the Tribunal engaged in “an active intellectual process” that suggests the information was genuinely considered: see SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49], per Barker J.
In this case, the letter from the Tribunal dated 24 January 2019 qualifies as an invitation to provide information, and the applicant’s responses to the questionnaire had to be considered. The Tribunal noted in its reasons that it had considered the statement provided by the applicant in reaching its view: at [22]. The balance of the Tribunal’s reasons make clear that it had, in fact, engaged appropriately with the information that was provided.
The Tribunal considered the applicant’s circumstances in his home country at [14] of its decision as follows:
14.The Tribunal considered the applicant's circumstances in his home country. Apart from the fact that he is a part owner in a properly in Malaysia in which his mother resides and that after leaving school and prior to coming to Australia he spent some time in Saudi Arabia the applicant provided virtually no information of his activities, work history or prospects other than he had worked in a restaurant in Malaysia (and in “cosmetics”). No evidence was provided by the applicant of any employment either in Malaysia, ‘Arabia’ or Australia was provided. Given that the applicant was born on 28 November 1987 and is now aged 32 and provided no relevant information when questioned, the Tribunal is unable to assess the applicant’s employment history. This raises concerns not only as to his past work history but also the declaration of his future intentions with respect to employment and the utility of the courses (which he claims) when completed in Australia will assist in employment in his home country (or elsewhere). The Tribunal takes this as an indication of the applicant’s unwillingness to provide comprehensive and accurate information on an important subject matter of a relevant factor.
The Tribunal considered the applicant’s economic situation at [15]:
15.The Tribunal considered the applicant’s economic situation. The applicant informed Tribunal that he does not work in Australia. The Tribunal asked the applicant how he was supporting himself and the applicant gave evidence that his father (deceased since 2002) had left insurance and that his mother had been paying his expenses since his arrival in Australia in 2017. No evidence was provided to the Tribunal of the receipts of funds from his mother in Malaysia to substantiate his claim that this was the source of his economic support whilst staying in Australia. The Tribunal takes this as an indication of the applicant’s unwillingness to provide comprehensive and accurate information on an important subject matter of a relevant factor.
The Tribunal considered the extent of the applicant’s person ties to his home country at [16]:
16.The Tribunal considered the extent of the applicant’s personal ties to his home country. The applicant gave evidence to the Tribunal that his relatives in Malaysia (i.e. his immediate family) are his mother (62), two elder sisters (35) and (33) and the younger brother (25). The applicant initially claimed that he owned a property in Malaysia which he half owned with his mother and asserted that this property was his mother’s residence. However on examination of the documents that the applicant produced to the Tribunal he conceded that there were four owners of the property (as evidenced from the documentation) and that he was an owner of just a quarter shares. The title documents that he provided were dated 2007 and could not be considered current from any perspective. These may represent the current ownership of the property but this has not been established to the Tribunal satisfaction. The documents certainly do not establish that the applicant is a half owner together with his mother (as the applicant claimed in oral evidence to the Tribunal prior to detailed examination of the documents that had been provided by his immigration representative). The Tribunal takes this as an indication of the applicant’s unwillingness to provide comprehensive and accurate information on an important subject matter of a relevant factor.
The Tribunal considered whether the applicant had sound reasons for not studying in his home country if similar courses were available at [17]:
17.… The applicant gave evidence as to his work prior to coming into Australia. He stated that he had worked in a restaurant in “Arabia” and that he had also studied and worked in “cosmetics” in Malaysia. The applicant was unable to explain in any detail what he meant by “cosmetics” and he responded to questions on this matter by saying that it was associated with “banquets”. He was given opportunity to elaborate and explain this activity but he did not provide any intelligible description of this activity or employer associated with it. In Malaysia and “Arabia” he had worked in a kitchen as both a waiter and as a supervisor but provided sketchy or no adequate details. The Tribunal takes this as an indication of the applicant’s unwillingness to provide comprehensive and accurate information on an important subject matter of a relevant factor.
The Tribunal considered the value of the course to the applicant’s future, namely, to his remuneration and career prospects at [18] of its decision:
18.… The applicant stated that he intended upon his return to Malaysia to apply work with an international hotel and to work for an [sic] multinational enterprise as a manager. The applicant produced no evidence of any prospective employer or target job… The applicant gave evidence that in Malaysia he could expect an income of 3500 ringgit’s a month which he claimed would be roughly equivalent to $A1200 a month. The Tribunal was not provided with any evidence of these potential earnings or employment and this weighs against the applicant.
The Tribunal considered the applicant’s migration history, including visa and travel history for Australia and other countries at [19], as I have already discussed.
The Tribunal also considered the applicant’s circumstances in Australia, specifically, the extent of his ties with Australia that might present an incentive to remain at [20], and found as follows:
20.… Based on the above evidence and the presentation of the applicant as a person (now 32) having no work identifiable work history (anywhere) and no proven means of support in Australia and not having any identifiable job prospects on return to Malaysia on completion of his course in Australia (concluding 17 January 2020), the Tribunal considers that the evidence (as a whole) strongly suggests that the student Visa program is being used by the applicant to circumvent the intention of the migration program and instead to maintain ongoing residence in Australia.
The Tribunal found at [21] that there were no other relevant matters to consider.
In light of that analysis, I am satisfied the Tribunal did invite the applicant to provide information – information that was summarised in written submissions provided by his agent – and that information was actively addressed, weighed and considered in the course of the Tribunal’s deliberations. The applicant was not denied procedural fairness as that concept is understood in Tribunal reviews of migration decisions, so this ground is not made out.
Ground 2
The second ground of review focused on the Tribunal’s supposed failure to the applicant’s personal tie to Malaysia and his economic situation as a whole.
I have already set out the contents of paragraphs [14]-[16] of the Tribunal’s reasons which expressly address the applicant's circumstances in his home country, the applicant’s economic situation, and the extent of the applicant’s personal ties to his home country. The Tribunal discussed the applicant’s ownership of a property, his family in Malysia, his means of support in Australia and other evidence provided by the applicant that related to matters the Tribunal was required to consider. I am not satisfied the Tribunal failed to consider the applicant’s economic circumstances as a whole. Significantly, the Tribunal commented repeatedly on the applicant’s apparent “unwillingness to provide comprehensive and accurate information on an important subject matter of a relevant factor”: at [15]. That tends to indicate the Tribunal was open to receiving relevant additional information, but none was forthcoming.
Ground 2 is not made out.
CONCLUSION
For the reasons above, there is no jurisdictional error apparent in the Tribunal’s decision. The application for review dated 3 February 2020 must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 29 August 2024
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