Yu (Migration)

[2022] AATA 2730

Yu (Migration) [2022] AATA 2730 (22 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Huimin Yu

REPRESENTATIVE:  Ms Lena Hung, Lena Hung & Associates

CASE NUMBER:  2003806

HOME AFFAIRS REFERENCE(S):          BCC2018/6103257

MEMBER:Michael Ison

DATE:22 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·Public Interest Criterion 4003(b) of Schedule 4 to the Regulations for the purpose of cl 500.217(1) of Schedule 2 to the Regulations.

Statement made on 22 August 2022 at 2:18pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – refusal of visa application on basis that the visa applicant did not meet the criteria in cl 500.217(1) – whether applicant satisfies PIC 4003(b) – PhD research student – PIC 4003(b) determination made – request to DFAT to review and revoke PIC 4003(b) determination – DFAT determination upheld and was not revoked – appeal to the Federal Circuit and Family Court of Australia – PIC 4003(b) determination quashed – remitted for reconsideration with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2 – cl 500.217(1); Schedule 4 – PIC 4003, PIC 4003(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 February 2020 to refuse to grant Miss Huimin Yu a Student (Temporary) (Class TU) (Subclass 500) visa under s 65 of the Migration Act 1958(Cth) (the Act).

2. Miss Yu is a 29-year-old Chinese national who applied for the Student visa on 11 January 2019 to study a Doctor of Philosophy (PhD) at the University of South Australia.

3. Miss Yu’s application for the Student visa was refused because the delegate of the Minister found that Miss Yu did not meet Public Interest Criterion 4003 (PIC 4003) and therefore did not meet all of the primary criteria for the Student visa in cl 500.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

   RELEVANT LAW AND ISSUE FOR DETERMINATION

4. To be granted a Student visa, an applicant must satisfy the primary criteria in clause 500.2 of Schedule 2 to the Regulations.

5. Clause 500.217(1) of Schedule 2, which is one of the primary criteria, relevantly provides:

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

6. PIC 4003 is contained in Schedule 4 to the Regulations and provides (emphasis added):

   The applicant:

   (a)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests; and

   (b)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and

   (c)either:

   (i) is not declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; or

   (ii) if the applicant is declared - is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011.

7. Regulation 1.03 defines:

   Foreign Minister means the Minister for Foreign Affairs.

   proliferation of weapons of mass destruction includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of:

   (a)  weapons that may be capable of causing mass destruction; or

   (b)  missiles or other devices that may be capable of delivering such weapons.

8. Thus, to satisfy the primary criteria for the grant of a Student visa an applicant must satisfy PIC 4003(b), namely, there must not be a negative determination in the nature described under PIC 4003(b).

9. The delegate found that the Minister for Foreign Affairs, or a person authorised by the Minister for Foreign Affairs, had determined Miss Yu to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction by written determination made on 19 November 2019.

10. Accordingly, the issue for determination in this review is whether Miss Yu satisfies PIC 4003(b).

    BACKGROUND

11. Miss Yu first arrived in Australia on 23 April 2017 as the holder of a Tourist (Class FA) (Subclass 600) visa. Miss Yu went back to China in May 2017. Miss Yu then returned to Australia for five days in February 2018 on a second Tourist visa. Miss Yu finally returned to Australia on a third Tourist visa on 1 January 2019 and has lawfully remained in Australia since.  

12. On 13 January 2020 Miss Yu was offered a University President’s Scholarship at the University of South Australia to study a PhD under Professor Jun Ma’s research grant. This scholarship included the payment of a stipend to Miss Yu. Miss Yu’s PhD research topic focuses on two-dimensional materials for energy storage systems.

13. At the time of this decision Miss Yu holds a Bridging A (Subclass 010) visa that allowed Miss Yu to continue studying in Australia while she seeks review of the decision to refuse her application for a Student visa.

14. Miss Yu provided evidence, which the Tribunal accepts, that she was awarded her PhD on 23 June 2021 from the University of South Australia.

15. Miss Yu appeared before the Tribunal on 17 February 2021 to give evidence and present arguments, by video. The Tribunal also received oral evidence from Professor Jun Ma who also appeared by video.

16. Miss Yu was represented in this review by Ms Lena Hung, who is an Australian lawyer, from Lena Hung & Associates. Ms Hung also participated in the Tribunal hearing by video.

17. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    CONSIDERATION

    Has a PIC 4003(b) determination been made about Miss Yu?

18. If a valid PIC 4003(b) determination has been made about an applicant for a Student visa then the Tribunal has no discretion and the application must be refused.

19. When the Tribunal received a copy of the Department’s file it did not contain a copy of the PIC 4003(b) determination made about Miss Yu.

20. At hearing Miss Yu told the Tribunal when the Department of Home Affairs wrote to her to advise that a PIC 4003(b) determination had been made about her, she was not provided with a copy of the determination and had not been provided with a copy since.

21. Just prior to the Tribunal hearing Miss Yu made an application under the Freedom of Information Act (Cth) 1982 (FOI Act) to the Department of Foreign Affairs and Trade (DFAT) to obtain a copy of the PIC 4003(b) determination made about her and the documents relied upon to make that determination.

22. DFAT’s FOI officer made a decision on Miss Yu’s FOI request on 31 March 2021 and that decision included the release of the one-page PIC 4003(b) determination with the signature of the delegate of the Minister for Foreign Affairs deleted from the declaration.

23. The determination states (emphasis in the original):

    DETERMINATION UNDER THE MIGRATION REGULATIONS 1994

    I, Amanda Gorely, First Assistant Secretary, International Security Division (position 3566) in the Department of Foreign Affairs and Trade, do hereby determine in accordance with Public Interest Criterion 4003(b) in Schedule 4 to the Migration Regulations 1994, that Huimin YU (born 18 March 1993) is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

    [redacted signature]

    Amanda Gorely

    19 November 2019

24. The Tribunal accepts that on 19 November 2019 a determination under PIC 4003(b) was made by a delegate of the Minister for Foreign Affairs.

    If a PIC 4003(b) determination has been made, must the visa be refused?

25. Where an applicant for a visa is the subject of a PIC 4003(b) determination, the visa must be refused unless:

    ·Firstly, the applicant can prove that the determination was made not about them but was made about someone else. Put another way, it is a case of mistaken identity;

    ·Secondly, the applicant can prove the determination has subsequently been revoked; or

    ·Finally, the applicant can prove the determination was not validly made.

26. The applicant must satisfy the Tribunal of the existence of any of these matters otherwise the Tribunal must accept the PIC 4003(b) determination for the purposes of assessing whether an applicant meets cl 500.217(1) of the Schedule 2. This was acknowledged by Miss Yu in Ms Hung’s submission to the Tribunal dated 8 February 2021 (emphasis added):

    … while Miss Yu does acknowledge that the Tribunal cannot of itself, go behind the decision of the First Assistant Secretary and make an independent decision on a PIC 4003(b) assessment, Miss Yu would nevertheless like to draw the Tribunal’s attention to the absurdity of the situation within which Miss Yu finds herself. Miss Yu’s research forms a part of the Australian Research Council Research Hub for Graphene Enabled Industry Transformation, with her direct supervisors being researchers appointed within the hub. ... It should be noted that the research hub received a funding grant directly by the Australian Government to the amount of $2.7 million … which indicates a clear government endorsement of the type of research to be conducted within the hub.

    …

    It is submitted that while the Tribunal may not be able to depart from DFAT’s determination, it should nevertheless not be compelled to uncritically affirm the findings of DFAT when there are questions to be raised about the veracity of the initial determination, and the potential for it to be reversed. Given the processes that are presently being undertaken by Miss Yu towards obtaining a greater degree of clarification on the determination affecting her, and the intention to request for DFAT to revisit their original determination, it is requested that the Tribunal should delay the making of a decision until Miss Yu has had an opportunity to seek these steps to their conclusion.

27. The Tribunal accepted these submissions in Miss Yu’s circumstances and did not proceed to a decision having regard to the fact that Miss Yu was not given the opportunity to provide information about her PhD studies to the decision maker at DFAT or in person or to respond to the concerns of the delegate of the Minister for Foreign Affairs in writing prior to the PIC 4003(b) determination being made.

28. It was also of concern to the Tribunal that a delegate of the Minister for Home Affairs had decided to refuse Miss Yu’s application for a Student visa without having seen the PIC 4003(b) determination that was the basis of the refusal. The only ‘evidence’ of the determination on the Department file provided to the Tribunal was an email from DFAT to Home Affairs advising the latter that the determination had been made.

    Was the PIC 4003(b) determination made about Miss Yu?

29. The Tribunal notes that the PIC 4003(b) determination made on 19 November 2019 includes Miss Yu’s name and date of birth.

30. There is no information to indicate that the determination was made about another person with the same or similar name and date of birth as Miss Yu. There is no other information before the Tribunal to indicate that the PIC 4003(b) determination was not made about Miss Yu.

31. The Tribunal finds that the PIC 4003(b) determination made on 19 November 2019 was made about Miss Yu.

    Has the PIC 4003(b) determination been revoked?

32. On 12 April 2021 Miss Yu made a formal written request to the delegate of the Minister for Foreign Affairs to review and revoke the PIC 4003(b) determination made on 19 November 2019. Ms Hung provided the Tribunal with a copy of Miss Yu’s request and an eight-page submission from Ms Hung to DFAT in support of that request.

33. On 14 July 2021 Ms Hung provided the Tribunal with a copy of a letter Miss Yu had received from DFAT dated 4 June 2021 which stated in part:

    I confirm that the determination in respect of Ms YU has been reviewed and the determination stands.

34. Subsequently Ms Hung provided the Tribunal with a copy of a two-page DFAT document titled ‘Assessment of PIC 4003(b) determination’ which identified Miss Yu as the subject of the determination under review. This determination was dated 21 May 2021 and confirmed the determination made on 19 November 2019 was upheld.

35. The Tribunal accepts that on 21 May 2021 a delegate of the Minister for Foreign Affairs reviewed the PIC 4003(b) determination made about Miss Yu on 19 November 2019 and made a fresh determination that the original determination was upheld and would not be revoked.

36. The Tribunal finds that the PIC 4003(b) determination made about Miss Yu dated 19 November 2019 has been upheld by a determination made on 21 May 2021 and that determination has not been revoked.

    Can Miss Yu prove the PIC 4003(b) determination has not been properly made?

37. Given it is not for the Tribunal to go behind the making of a PIC 4003(b) determination, the Tribunal is bound by this unless Miss Yu can prove that the determination was not validly made.

38. On 14 July 2021 Ms Hung provided the Tribunal with copies of documents, including sealed court documents, showing that Miss Yu had commenced proceedings in the Federal Circuit Court of Australia, as it then was. These proceedings were issued against the Minister for Foreign Affairs and the relevant Assistant Secretary of DFAT on 9 July 2021. In those proceedings Miss Yu asked the Court to find that the PIC 4003(b) determination made about her was not made in accordance with law. In the proceedings Miss Yu claimed that there was no reasonable or rational basis for the PIC 4003(b) determination made about her and that she was denied procedural fairness when the determination was made.

39. In the Federal Circuit Court proceedings Miss Yu sought an order that the PIC 4003(b) determination made about her be quashed.

40. The respondents to Miss Yu’s litigation were subsequently amended so the Assistant Secretary became the first respondent and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs became the second respondent.

41. On 13 July 2021 Ms Hung, in a six-page submission, requested that the Tribunal withhold from making a decision on Miss Yu’s application for review until the Federal Circuit Court proceedings were resolved. The Tribunal agreed to this request.

42. On 1 September 2021 the Federal Circuit Court of Australia merged with the Family Court of Australia to become the Federal Circuit and Family Court of Australia (FC&FCA).

43. Miss Yu’s FC&FCA proceedings were initially set down for hearing on 27 April 2022. The hearing of Miss Yu’s proceedings were delayed twice by claims from DFAT of public immunity interest over certain documents contained within the Court Book for the proceedings.

44. On 2 August 2022 Ms Hung informed the Tribunal that the FC&FCA had, with the consent of the parties, quashed the PIC 4003(b) determination made about Miss Yu. Miss Yu’s representative provided the Tribunal with a copy of the sealed court order dated 2 August 2022 which states (emphasis in the original):

    THE COURT ORDERS BY CONSENT THAT:

    1. The determination of the First Respondent in accordance with Public Interest Criterion 4003(b) in Schedule 4 to the Migration Regulations 1994 (Cth) made on 21 May 2021 that the Applicant is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destructions be quashed.

    2. The First Respondent is to pay the Applicant’s costs of the proceeding, to be taxed if not agreed.

45. The Tribunal is satisfied, having reviewed the determination made on 21 May 2021, that the quashing of this determination by the FC&FCA on 2 August 2022 has the effect that at the time of this decision there is no PIC 4003(b) determination in relation to Miss Yu. This is because the 21 May 2021 determination upheld the effect of the 19 November 2019 determination but replaced it with a new determination in the same terms as the original determination.

46. The Tribunal finds that at the date of this decision Miss Yu has demonstrated that the PIC 4003(b) determination made in respect of her on 19 November 2019 was not properly made as the determination made on 21 May 2021 that replaced the determination made on 19 November 2019 has been quashed by an order of the FC&FCA made on 2 August 2022.

47. There is no information before the Tribunal to indicate that the Minister for Foreign Affairs or a delegate of the Minister has made a fresh and valid PIC 4003(b) determination about Miss Yu.

    Conclusion

48. The Tribunal finds that based on the evidence before it that at the time of this decision there is no PIC 4003(b) determination made about Miss Yu.

49. For these reasons, the Tribunal is satisfied that at the time of this decision Miss Yu meets Public Interest Criterion 4003(b) for the purposes of cl 500.217(1) of Schedule 2 to the Regulations.

50. Accordingly, the decision under review must be remitted for reconsideration of whether Ms Yu meets the remaining primary criteria for the grant of a Subclass 500 (Student) visa.

    DECISION

51. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Public Interest Criterion 4003(b) of Schedule 4 to the Regulations for the purpose of cl 500.217(1) of Schedule 2 to the Regulations.

    Michael Ison
    Senior Member