Yu v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 294

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Yu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 294

File number(s):

SYG 297 of 2019
SYG 298 of 2019

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

5 April 2024

Catchwords:

 MIGRATION - Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – Whether the applicant satisfied the requirements under the genuine temporary entrant criterion –Whether the Tribunal’s decision was affected by legal unreasonableness – no merit – application dismissed  

Legislation:

Migration Act 1958 (Cth) s 65

Migration Regulations 1994 (Cth) cls 500.212(a), 500.311

Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Re Minister for Immigration and Multicultural Affairs: Ex parte Duraurajasingham (2000) 168 ALR 407

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

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of last submission/s:

2 April 2024

Date of hearing:

2 April 2024

Place:

Parramatta

Solicitor for the Applicants:

Appearing in person

Solicitor for the Respondents:

Mills Oakley Lawyers

ORDERS

SYG 297 of 2019
SYG 298 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

WEI YU
First Applicant

XINGUANG ZHANG

Second Applicant

MI ZHANG (by her Litigation Guardian Wei Yu)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	5 APRIL 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2.The Applications are dismissed.

3.The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $5200.00.

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 D HUMPHREYS

INTRODUCTION

1. These are two Applications made by Ms Yu and Mr Zhang (SYG298/2019) and their daughter, Miss Zhang (SYG297/2019). The applicants are all citizens of China. Miss Zhang was born on 6 February 2017 in Australia. The first and second applicants applied for a Student (Temporary) (Class TU) Subclass 590 (Student Guardian) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’) on 23 October 2016. Ms Yu is the primary applicant and prospective student, Mr Zhang, and subsequently Miss Zhang, are the secondary visa applicants, being part of a family unit.

2. On 17 February 2027, a delegate of the Minister for Immigration and Border Protection refused to grant the visa as the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate was not satisfied that the genuine temporary entrant criteria had been met.

3. The applicants applied for a merits review of the decision in the Administrative Appeals Tribunal (‘the Tribunal’). On 22 January 2019, the Tribunal affirmed the decision under review. The applicants have then sought judicial review in this Court.

   BACKGROUND

4. Ms Yu arrived in Australia on 7 July 2013 as a holder of a Subclass 573 student visa, to study an English course and a Bachelor of Business Management degree at Central Queensland University. Ms Yu completed about half a year of study before learning that her father had been diagnosed with cancer. She claimed that this news impacted her ability to study, and she returned home to China to be with her father in January 2015.

5. Ms Yu claims that due to her study being impacted by her father’s diagnosis, she did not return to her Bachelor of Business degree and instead enrolled in a VET course, being a Certificate IV of Business. However, she did not finish this course, as her father passed away in May 2015. Ms Yu enrolled in her Bachelor of Business degree on numerous occasions but subsequently cancelled those enrolments, as she had gone back to China due to her father’s illness, or because she had not had time to seek leave from her education provider. She later organised compassionate leave after her father passed away. In addition to this, there was a restructuring in the College necessitating a change in provider. Ms Yu then became pregnant, and this impacted her plan of study.

6. At the time of the Tribunal hearing Ms Yu had only completed an English course.

7. In October 2015, Ms Yu enrolled in an Advanced Diploma in Leadership and Management which she completed after the Tribunal hearing. Ms Yu submitted to the Tribunal that she intended on beginning a bachelor’s degree in January 2019.

8. Ms Yu previously studied a degree in Tourism Management in Cyprus, due to her hometown being a tourist destination. She stopped undertaking her degree in Cyprus due to the economic crisis in Europe at the time and chose to come to Australia to study instead. She stated that she chose Australia over continuing her education in China because she believed that an international degree would be advantageous when seeking employment.

9. Ms Yu, Mr Zhang, Miss Zhang and Ms Yu’s brother all live in Australia. Ms Yu’s mother and Mr Zhang’s parents all live in China. Mr Zhang works in restaurants. Ms Yu is not currently employed.  

10. Ms Yu purports to have employment opportunities in China and claimed she intends to complete her studies in Australia and move back to China to open a hotel with a friend.

    ADMINISTRATIVE APPEALS TRIBUNALS DECISION – MS YU AND MR ZHANG

11. The Tribunal decision is relatively short. After setting out the background at [4] - [8], the Tribunal set out the submissions that were made to the Tribunal at [9] – [16].

12. The Tribunal instructed itself as to the relevant legislative requirements contained in cl 500.212 of the Regulations and Direction No 69 "Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications” (“Direction No 69”) at [17] - [19].

13. At [21] – [22] the Tribunal considered the applicant’s submissions and her reasoning as to why she did satisfy cl 500.212 and Direction No 69. At [22], the Tribunal concluded that Ms Yu did not have sufficient ongoing ties to China, and that her mother, in-laws and an alleged job offer were not a “strong incentive” for the applicant(s) to return to China. This was largely because the Tribunal found that Ms Yu’s immediate family, including her husband and child (the second and third applicants) are living in Australia, as well as her brother. The Tribunal also found that the alleged job offer is from 2016 and is similar to her employment in China from 2005 and 2008. The Tribunal found that it was not credible that a business would offer someone a job four years prior to them completing their degree.

14. The Tribunal explored the fact that Ms Yu arrived in Australia in 2013 with the intention of studying a bachelor’s degree but did not complete said course, and instead enrolled in a lower-level course, at [23]. The Tribunal found that there was no evidence that Ms Yu sought to change her visa to prevent her from breaching its requirements for her to undertake the bachelor’s degree when it became too difficult for her to complete the studies after her father became ill, and subsequently when she became pregnant. The Tribunal further found that it had been open to her to postpone her studies when her father passed away to prevent her from breaching her visa obligations, instead she chose to enrol in a lower-level course.

15. At [24], the Tribunal concluded that due to the amount of time Ms Yu had been living in Australia and the fact she intended to live in Australia till 2021 to complete her Bachelor of Business Management, she had had ample opportunity to complete her studies and achieve her educational aims.

16. At [25], the Tribunal considered that Ms Yu was vague and noncommittal about her future plans regarding her employment, stating in her submissions that she intended to do some work experience in a hotel before opening one herself. She did not provide evidence, other than stating that an international degree is advantageous, explaining how a Bachelor of Business would assist her in gaining further employment on top of her existing qualifications and work experience. The Tribunal found at [25] that the evidence before it regarding Ms Yu’s circumstances placed weight on the applicant’s circumstances that indicated she intended to continually enrol in courses to maintain residency in Australia.

17. At [26] - [27] the Tribunal found that Ms Yu was not a genuine applicant for entry and stay as a student under cls 500.212 and 500.212(a) of the Regulations. Further, the Tribunal found at [28] that the criterion for Subclass 500 (student visa) was not met, affirming the delegates decision.

18. At [29] – [30] the Tribunal assessed that due to Ms Yu’s application not satisfying the primary criteria (cls 500.212 and 500.212(a) of the Regulations), then Mr Zhang’s application is also unable to meet the criteria as he is not a family member of someone a person who satisfies the primary criteria of cl 500.212.

    ADMINISTRATIVE APPEALS TRIBUNALS DECISION – MISS ZHANG

19. The Tribunal’s decision regarding Miss Zhang is very short, comprising of 10 paragraphs. Paragraphs [1] – [5] addressed the background of the Application. In paragraphs [6] – [7] the Tribunal instructed itself of the requirements under cl 500.212 of the Regulations.  

20. The Tribunal concluded at [8] – [9] that as Ms Yu’s application did not satisfy the requirements of cl 500.212 then Miss Zhang does not meet the requirements of cl 500.311 of the Regulations.  

21. At [9] the Tribunal affirmed the decision under review.

    GROUNDS OF REVIEW

22. In Ms Yu’s and Mr Zhang’s Application dated 14 February 2019 they raised the following ground:

    The tribunal failed to take into account substantially of applicant’s explanation to tribunal.

23. No other grounds of review were raised by Ms Yu and Mr Zhang.

24. In Miss Zhang’s Application dated 14 February 2019 she raised the following ground:

    I am the member of the family unit of a person who was the applicant of student visa. The tribunal failed to take into account of substantially of applicant’s explanation.

25. No other grounds of review were raised by Miss Zhang.

26. No particulars were supplied in either application to support the above grounds.

    THE APPLICANT’S SUBMISSIONS

27. The first applicant appeared before the Court unrepresented.  She acknowledged she appeared on behalf of her husband and her daughter. She was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to her.  The Court also ensured the first applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.

28. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

29. Despite Court orders, no written submissions or other material was provided to the Court by the applicants in support of their cases. The first applicant told the Court she did not know what to say in relation to legal errors. When asked what matters the Tribunal failed to take into account, she replied her father’s passing and the fact she was suffering from post-natal depression. She agreed she had not completed a bachelor’s degree since coming to Australia, but had passed an English course and an Advanced Diploma course.

30. At the conclusion of the respondent’s oral submissions, the first applicant was asked if she wished to state anything in reply.  She told the Court that if given a chance to stay she would complete her course and return to China.

    THE RESPONDENT’S SUBMISSIONS

31. The respondent’s submissions were relatively short. After setting out the background in relation to the Tribunal decision in relation to Ms Yu, the respondent’s noted that the sole ground of judicial review alleges the Tribunal did not consider ‘substantially’ the applicant’s explanation, however the applicants did not identify the ‘explanation’ the Tribunal failed to consider.

32. The respondent noted that if this ground alleges that the Tribunal failed to consider the evidence provided, the Tribunal had regard to the evidence and material submitted by reference to Direction No 69 and provided cogent reasons for its findings. The Tribunal is not required to refute line by line the material provided by the applicant in coming to its decision; (see: Re Minister for Immigration and Multicultural Affairs: Ex parte Duraurajasingham (2000) 168 ALR 407 at [67]).

33. The respondent’s legal representative noted that the Tribunal expressly considered the matters raised by the first applicant orally at the hearing in relation to her father’s passing and her depression but did not accept them as sufficient to weigh in favour of the grant of the visa sought, taking account of the totality of the evidence.

    CONSIDERATION: MS YU

34. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

35. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). No material has been provided to the Court as to what explanation was not considered by the Tribunal.

36. A fair reading of the Tribunal’s decision record indicates that the Tribunal carefully considered all of the evidence and material provided by the applicant. This included the matters set in Direction No 69. The issue of the death of the first applicant’s father was considered expressly at [23] of the Tribunal decision, along with the claim of depression following her pregnancy. The Tribunal noted that at no time did the applicant seek to defer her studies such that she did not breach her visa obligations.

37. The Tribunal rejected the explanations given for the failure of the applicant to complete her study at [24] onwards concluding at [25] that the applicant was using the student visa program to maintain her residency in Australia.  This conclusion was open to the Tribunal on the evidence before it and for the reasons it gave. The decision is not infected by any legal unreasonableness, irrationality or illogicality. The sole ground of judicial review has no merit.

38. Given Ms Yu was the primary applicant, her husband’s application must also fail on the basis that the primary applicant does not satisfy the primary criteria for the grant of a visa.

    CONSIDERATION: MISS ZHANG

39. Miss Zhang, the primary applicant’s minor daughter’s visa is dependent upon her mother being granted a visa. For the same reasons as set out above the Court is not satisfied that any ‘explanation’ was not considered by the Tribunal. The sole ground of judicial review has no merit.

    CONCLUSION

40. Both applications must be dismissed. The Court will hear from the parties as to the question of costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       5 April 2024