Federal Court of Australia Seng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1883 Appeal from: Seng v Minister for Immigration [2020] FCCA 1705 File number: VID 475 of 2020 Judgment of: LEE J Date of judgment: 24 December 2020 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where Tribunal affirmed decision of Minister's delegate to refuse grant of student visa – whether Tribunal's reasons unreasonable, illogical or irrational – no jurisdictional error established – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 359, 360, 499 Migration Regulations 1994 (Cth) Sch 2, cl 500.212 Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 24 December 2020 Counsel for the Appellant: Mr A Aleksov Solicitor for the Appellant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS VID 475 of 2020 BETWEEN: KHAI SYUEN SENG Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: LEE J DATE OF ORDER: 24 DECEMBER 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 2. Order 1 not be entered until the revised reasons for judgment are published. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from Transcript) LEE J: 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for review of a decision of the second respondent (Tribunal) affirming a decision of the delegate of the first respondent (Minister) to refuse to grant the appellant a Student (Temporary) (Class TU) Visa. 2 The appeal is a relatively narrow one, particularly as it has been presented during the course of oral argument. But in order to understand it, it is necessary to recount briefly some detail of the Tribunal's decision. 3 At the beginning of 2017, the appellant applied for a review, and was thereafter invited under s 359(2) of the Migration Act 1958 (Cth) (Act) to provide information about her proposed course of study, having regard to Direction Number 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction No. 69), a Ministerial direction made under s 499 of the Act (a copy of which was provided to her). 4 The appellant responded and provided to the Tribunal a number of documents, including those relating to her academic background and her certificates of enrolment in Commercial Cookery and a Diploma of Hospitality Management course. 5 A hearing took place on 11 July 2018. Counsel for the appellant, Mr Aleksov, during the course of his comprehensive submissions, took me to various aspects of the transcript of that hearing, including the introductory parts. Although it is not entirely pellucid, it appears that a number of review applicants were welcomed by the Tribunal member and, after oaths and affirmations were administered, the Tribunal member proceeded to deal with the cases of the review applicants by way of some sort of list. In any event, the appellant's matter appeared to be called on as the first matter. 6 The transcript reveals that the exchanges between the Tribunal member and the appellant took place in the following way. The Tribunal member asked either open-ended or leading questions and received responses which were brief. From time to time the Tribunal member then sought that the appellant expand upon various answers, but most questions received very short responses. It will be necessary to return to this later. 7 No further documents were provided in support of the application at the hearing. The oral evidence ranged in various regards including the appellant informing the Tribunal that her mother had arrived in Australia approximately two months before the appellant's arrival and was now studying the same course as the appellant. 8 The appellant received information that the Tribunal had affirmed the delegate's decision less than a month after the hearing had been completed. 9 The following extract, which is taken from the Minister's written submissions on the appeal (at [10]–[15]), was accepted by the parties as an accurate summary of the Tribunal's reasons: The Tribunal identified that the issue arising in relation to the decision under review was whether the appellant satisfied cl 500.212 [of Schedule 2 to the Migration Regulations 1994 (Cth)] and was a genuine temporary entrant for study (AB 107, [8]). The Tribunal had regard to Direction No 69 in assessing the genuine temporary entrant criterion (AB 108, [10]-[11]). The Tribunal gave little weight to the appellant's evidence that her mother had arrived in Australia approximately two months earlier with the intention of studying (AB 108, [15]). The Tribunal considered clauses 13 and 14 of Direction No 69 with respect to the appellant's immigration and travel history and the appellant's evidence that she had not departed Australia since 10 October 2016 and had complied with migration laws in other countries she had travelled in. The Tribunal found that the appellant's travel movements were "unremarkable" (AB 108, [16]). The Tribunal considered the appellant's evidence in relation to clause nine of Direction No 69. The Tribunal found that the appellant's personal connections overseas (the fact that she had four siblings and her father was in Malaysia and kept regular contact with them through social media) did not demonstrate a distinct incentive for the appellant to cease residence in Australia (AB 109, [18]). The Tribunal had regard to the material the appellant submitted including her [Certificates of Enrolment (CoEs)] and statement of completion for a Certificate I and Certificate II in [English as an Additional Language (EAL)] and accepted the appellant's explanation that the courses would provide her with an opportunity to engage in the English language (AB 109, [19]–[20]). The Tribunal considered the appellant's evidence that she received financial support from her father, including money for rent and found that this could be an incentive for the appellant to remain in Australia beyond her current proposed set of courses (AB 109, [21]). The Tribunal had regard to the appellant's statement and found that although she had maintained a consistent interest in hospitality, her future plans did not lie outside Australia. The Tribunal was concerned that this indicated that the appellant would seek further enrolments to maintain ongoing residence in Australia (AB 109, [22]). The Tribunal considered the factors in clause 12 of Direction No 69 in respect of the appellant's evidence that the proposed courses would provide her with cooking and management skills to pursue her career goals opening her own dessert shop. The Tribunal found that the appellant did not explain her plans in detail, which suggested that she was using the Student visa to maintain ongoing residence (AB 110, [23]). The Tribunal was concerned that the appellant entered Australia on a tourist visa so that she could apply for the Student visa while onshore. The Tribunal found that remaining in Australia approximately two years later was not the behaviour of someone who intended on travelling as a tourist. The Tribunal noted that the appellant intended on lengthening her stay until 27 September 2020 and did not accept that she was a genuine temporary entrant (AB 110, [24]). The Tribunal also considered the appellant's oral evidence at the hearing that she would stay in Australia if she could and found that the appellant had a clear plan in her mind to use the Student visa program to maintain ongoing residence (AB 110, [25]). The Tribunal accepted that the appellant had no military service commitments in Malaysia nor concerns about political situation or civil unrest in her home country. The Tribunal found that the other concerns held by it outweighed these findings (AB 110, [27]). The Tribunal considered the appellant's circumstances overall and was not satisfied that the appellant intended to stay in Australia temporarily and that she was not a genuine appellant for entry and stay as a student, as required by cl 500.212. 10 I then come to the decision below. The primary judge heard the application for judicial review of the decision of the Tribunal almost two years after the application was first filed in September 2018. The hearing took place in June 2020 and reasons dismissing the application were delivered in late June. Given that the way the argument was put on appeal closely tracked the argument put before the primary judge, it is unnecessary to dwell further on the judgment below, except to the extent I refer to it in dealing with the grounds of appeal. 11 By the time of the hearing of the appeal three grounds were pressed, albeit the third ground was pressed somewhat lightly. 12 It is possible to deal with grounds 1 and 2 together, which are in the following terms: 1. The FCC erred in not accepting the argument that the decision of the Tribunal is affected by jurisdictional error because: In relying on a failure to provide "details" in circumstances where there was no reason to think that the applicant could reasonably have been expected to know that she needed to provide more details than she had provided, the decision of the Tribunal was affected by legal unreasonableness in failing to appreciate that the limits of its questioning at hearing did not leave open the conclusion at Reasons [23]. 2. The FCC erred in not accepting the argument that the decision of the Tribunal is affected by jurisdictional error because: In relying on a failure to provide "details" in circumstances where there was no reason to think that the applicant could reasonably have been expected to know that she needed to provide more details than she had provided, the Tribunal had failed to notify the applicant of an "issue" in the review that was not obvious on the known material. 13 The relevant material to which reference should be made is set out in the primary judge's reasons (at [40]) where his Honour extracted a portion of the transcript of the hearing before the Tribunal as follows: MR EDGOOSE: […] What are your future plans back in Malaysia regarding employment? INTERPRETER: I want to open my own dessert shop but now I want focus on study. MR EDGOOSE: Do you know how much you could possibly get paid with your dessert shop? INTEPRETER: I'm not really, no, clear about that. MR EDGOOSE: Do you have a partner? INTERPRETER: My older sister she said she would sponsor me. MR EDGOOSE: Sorry, as in personally, do you have a partner? MS SENG: No. MR EDGOOSE: Your sister will help you with starting the dessert shop financially? MS SENG: My sister and my dad. MR EDGOOSE: And your dad? MS SENG: Mm. MR EDGOOSE: So what is the value of your current course and your batch of courses to your future plans? INTERPRETER: Learn more cooking still. I have my own dream. MR EDGOOSE: What is your own dream because we all have dreams. INTERPRETER: Open a dessert shop (indistinct) to myself. 14 As can be seen, the responses in the extracted transcript have the character of the exchanges that I described above. The Tribunal then noted as follows (at [23]): The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant. The applicant informed the Tribunal that the proposed package of hospitality courses will provide her with the cooking and restaurant management skills to pursue her dream by opening her own specialist desert [sic] shop in the future. The applicant, when pressed by the Tribunal said that her goal was to complete all of her courses, to open up her own desert [sic] shop and that it would be supported financially by her father and sister. The Tribunal acknowledges that the applicant has a dream to open her own dessert restaurant in the future however the applicant was not able to explain in detail to the Tribunal about the proposed future plans. The Tribunal considers that the applicant is not a genuine temporary entrant and the Tribunal finds that the applicant is using the student visa to maintain ongoing residence in Australia. (Emphasis added.) 15 The argument which was, if I may say so, engagingly put for the appellant, was that it needs to be accepted that the Tribunal had significant concerns that when the appellant first arrived in Australia in October 2016 on a tourist visa, she used this visa to gain entry into Australia and then applied for a student visa while onshore. 16 It was common ground that it is more advantageous to a person to apply for a student visa onshore, rather than offshore, for various reasons including access to a bridging visa while in Australia, which visa is not available when applying for a student visa overseas. This was obviously a matter of real concern to the Tribunal member: see the Tribunal's reasons at [24]. In the light of this, it was accepted by Mr Aleksov that the appellant had a "mountain" against her which brought into even sharper focus the need to ensure that other material which may well have supported her claims was dealt with appropriately. 17 The appellant submitted that the difficulty with the way in which the Tribunal member approached the matter, rising to the level of unreasonableness, was that while acknowledging the appellant's dream of opening a "dessert" restaurant, the Tribunal noted that the appellant was "not able to explain in detail" those proposed future plans in circumstances where the Tribunal member, in contradistinction to other more specific enquiries made in relation to other topics, did not ask the appellant to provide further corroborative detail or some information which might add verisimilitude to her contention that she intended to open the restaurant. In those circumstances, it was submitted, it was wrong to characterise what occurred as her being "not able to explain in detail" to the Tribunal her proposed future plans. 18 Related to this is the argument encompassed within the second ground of appeal to the effect that the lack of detail given by the appellant was itself an "issue" in the review within s 360 of the Act, and the appellant was required to be informed of it by the Tribunal. 19 Although Mr Aleksov said everything that could be said for his client, I do not think, on close analysis, these arguments have any substance. It may be accepted that there is somewhat of an infelicity in the penultimate sentence of the Tribunal's reasons at [23]. It is an unusual use of the expression "not able to explain in detail" to ascribe that failure to circumstances where there was no specific attempt to elicit the information, or no request to explain. But although I consider that the Tribunal would have been better to express itself in different terms, at the end of the day, the Tribunal is not required to press the appellant for details that she did not give and it was obviously incumbent upon her to provide the evidence that she wished to rely upon in support of the claims for the visa. 20 Importantly, there are two further contextual points to be made. First, the appellant was on notice pursuant to cl 12 of Direction No. 69 that the relevance of the course she was undertaking to her future employment and remuneration was a matter for the Tribunal to consider. If she was not able to provide details on these subjects, that is something the Tribunal could legitimately take into account and that followed necessarily from the terms of Direction No. 69. This seems to me to be a very different case than the circumstance such as confronted the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 where the assumptions which underlay credibility findings made by the tribunal were not obvious, and could not reasonably have been anticipated from the evidence adduced or from the tribunal's statements at the hearing. 21 The second contextual matter is that although the last sentence of [23] is expressed in conclusionary terms, it is plain from a fair reading of all of the Tribunal's reasons that the provision of a lack of detail about her future plans was simply one of a number of aspects of the appellant's evidence which lead the Tribunal to be unconvinced that the appellant intended to stay temporarily in Australia and was a genuine applicant for entry and stay as a student. In particular, at [24] of the reasons, the following was said: The Tribunal has significant concerns that the applicant when she first arrived in Australia on 10 October 2016 on a tourist visa used this visa to gain entry into Australia so that she could apply for a student visa while onshore. The Tribunal considers that this is not the behaviour of a person who initially intended to travel to Australia as a tourist and approximately two years later remains in Australia having applied for a sub-class 500 visa on 3 December 2016. In that time the applicant has completed a basic set of certificate courses in EAL. The applicant now proposes to lengthen that stay until 27 September 2020 to study a package of hospitality courses. The Tribunal does not accept that the applicant is a genuine temporary entrant and that the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia. 22 The primary judge correctly held that the Tribunal did not need to inform the appellant about its reservations in relation to her evidence at any point during the hearing and although a Tribunal must advise of any adverse conclusion not obviously open on the known material, it is, of course, not otherwise required to expose its thought processes or provisional views for comment. 23 For these reasons ground 1 and ground 2 must fail. 24 It is only necessary to deal with ground 3 of the appeal shortly (in the same manner it was dealt with in oral submissions). That ground was as follows: 3. The FCC erred in not accepting the argument that the decision of the Tribunal is affected by jurisdictional error because: The decision of the Tribunal is affected by illogicality, irrationality, or legal unreasonableness because the Tribunal erroneously reasoned that false statements in another visa application were probative of an intention to stay beyond the conclusion of the student visa. 25 As the primary judge made clear, the Tribunal was required to consider the appellant's immigration history. Indeed, the Tribunal correctly directed itself (at [9] and [10]) to the provisions of cl 500.212 and of Direction No. 69 which make express reference to an applicant's immigration history. On a fair reading of the Tribunal's reasons, the Tribunal was making the point at [24] (extracted above) that the appellant's immigration history indicated that she came to Australia on a tourist visa but with the intention of applying for a student visa onshore. It was clearly open for the Tribunal to have regard to this matter. No illogicality or unreasonableness has been established. 26 For these reasons jurisdictional error is not established, and the appeal must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate: Dated: 24 December 2020