Yin v Minister for Immigration and Citizenship [2025] FedCFamC2G 1870

1. The Applicant asserts by this ground that the Tribunal was in error by not checking the results of the English test undertaken by him in 2016, before making its decision.
2. At the Tribunal hearing, the Applicant referenced and was asked about the 2016 test undertaken in Canberra which he failed. The Applicant's evidence before the Tribunal was that he was unwell on the day of the test and he failed the test. No evidence of the test result was produced to the Tribunal. The Applicant claimed he could not access a copy of the results as he could not travel to Melbourne where they were located due to Covid-19 travel restrictions.
3. In this Court, the Applicant did not explain and indeed did not press the issue of how any evidence of the results of the 2016 English test could have disturbed the Tribunal's finding that through his provision of the 2014 test results, he provided a bogus document or information that is false or misleading in a material particular to the Department.
4. Further, the Applicant did not submit that the 2016 test would have had any bearing on the Tribunal's assessment of the circumstances relevant to the question of waiver of the PIC4020 criterion.
5. Even if the Applicant had been able to provide a copy of the test result to the Tribunal, it would not have been dispositive or even probative to the Tribunal's consideration of whether the Applicant through provision of the 2014 test result, had provided a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.
6. Further, the failed test result would not have been relevant to whether the compelling or compassionate circumstances necessary for a PIC4020 waiver, could be established.
7. The Applicant did not offer any further submissions at the hearing in respect of this ground.
8. I therefore find that no jurisdictional error is established by this ground, and it must fail.

1. The complaint arising from this ground appears to be that the ILETS testing centre did not check the test results when requested to do so by him, cancelled the result without strong evidence and did not allow the Applicant to respond to the outcome of the cancellation of the results.
2. This complaint has no relevance to the Tribunal's decision and arises from the Applicant seeking an internal review from ILETS of its decision to cancel the results and ban him from taking further ILETS tests.
3. The Applicant's assertion that the ILETS test result was cancelled after the Department notified them the test was fake, is not supported by the evidence that was before the Tribunal. In particular, the Tribunal had regard to an email from the Department to ILETS dated 20 August 2018, asking them to review the results of the Department's internal investigation of the Applicant's identification (CB49-50).
4. Following a review of the results by an ILETS investigations officer, it was confirmed in an email from ILETS to the Department on 28 August 2018, that an imposter sat the test and the results were then cancelled, with a 2-year ban imposed globally and a life-ban on the Applicant in mainland China.
5. It was open to the Tribunal on the evidence before it to be satisfied that the Applicant had provided a bogus document or false or misleading information to the Department. It was not the role of the Tribunal to review the steps taken by ILETS.
6. I therefore find that no jurisdictional error is established by this ground, and it must fail.

1. This ground is an allegation by the Applicant that he had an operation because of a nose cyst that was "size around an egg", and that his appearance had changed after the operation.
2. It can be inferred that this ground is an attempt by the Applicant to explain the difference in appearance of the photo of the person who sat the ILETS test and the Applicant's other identity documents provided for the health test.
3. There was no evidence before the Delegate or the Tribunal that the Applicant's appearance had changed because of facial surgery. The only evidence the Applicant gave in this regard was that there was a 9-year time difference between the photo on the identity card presented for the ILETS test and his other identity documents.
4. As was submitted on behalf of the First Respondent, this Court cannot take new evidence into account and review the merits of the Tribunal's decision having regard to that evidence. As such, this ground rises no higher than an invitation to this Court to conduct a merits review.
5. The Court does not have the power to consider new evidence that was not before the Tribunal, and it is impermissible to undertake a merits review of the Tribunal's decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
6. I therefore find that no jurisdictional error is established by this ground, and it must fail.

Additional matters raised by Applicant at hearing in this Court

1. At the hearing the Applicant made further oral submissions directed to the matters the Tribunal considered in assessing whether the whether the requirements of PIC4020(1) or (2) should be waived.
2. The Applicant submitted that he was not prepared for the hearing, and the Tribunal should have asked him to submit more information about his work and the many clients he had assisted.
3. The Tribunal provided the Applicant with the opportunity to submit relevant information prior to the hearing which he did. After the hearing, the Tribunal gave the Applicant a further opportunity to provide additional information relating to the question of waiver of PIC4020(1) or (2).
4. The Applicant took up this opportunity and provided additional material to the Tribunal including two supporting statements which were considered by the Tribunal and referred to at [41] of its decision. In particular, it took into account that the Applicant was considered a valuable employee and worked outside the parameters of his nominated occupation and had absorbed a managerial role.
5. To the extent the Applicant is suggesting he was not afforded procedural fairness, the Tribunal invited him to attend a hearing pursuant to s 360 of the Act. The Applicant attended the hearing with a representative to give evidence and make submissions and was assisted by an interpreter.
6. The Tribunal provided the Applicant with the opportunity to provide further evidence in respect of the question of waiver, which the Applicant accepted: s 359AA(1)(b)(iii) and (iv) of the Act.
7. Accordingly, the Tribunal complied with the requirements of Division 5 of Part 5 of the Act, and no error arises from the Applicant's complaint.
8. The Applicant made further submissions that the Tribunal had not taken into account the value of his contributions and services provided to the community during the Covid-19 restrictions and disagreed with the Tribunal's statement that that the occupation of Massage Therapist is not an occupation in demand in Australia and that it is not on the skilled occupations list.
9. The Tribunal considered at [46] and [47] of its decision whether Australia would miss out on a significant benefit that the Applicant could contribute to Australia's business, economic, cultural or other development if he is not granted a (Subclass 187) visa.
10. It also took into account that the nominated business had been running massage parlours around Australia for an extended period and had acquired other shops around Australia. It also had regard to the impact of Covid-19 and the ongoing lockdowns in various states of Australia.
11. Ultimately, the Tribunal found at [48] of its decision that there was no evidence there would be an adverse financial impact on the business if the Applicant was unable to continue to work for it.
12. The Tribunal considered the definitions of 'compelling' and 'compassionate' at [39] of its decision. Having regard to all the evidence that was before it, the Tribunal was not satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.
13. It is apparent from its decision record that the Tribunal provided a logical and evident foundation for its findings which were reasonably open to it on the evidence. It cannot be said that its findings were of the kind that no logical or rational decision-maker might have arrived at on the evidence before it: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [135]).
14. To the extent that the Applicant by these submissions was expressing disagreement with the Tribunal's findings, mere disagreement does not establish jurisdictional error: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J and Vo v Minister for Home Affairs [2019] FCAFC 108; (2019) 269 FCR 566 per Derrington, Banks-Smith and Colvin JJ.
15. I find that no error is established from the Applicant's submissions referred to above.

1. For the reasons given above, I find that no jurisdictional error is established and the application for judicial review is, accordingly, dismissed.

1. At the conclusion of the hearing, I invited submissions from the parties on costs.
2. The First Respondent sought costs fixed in the amount of $6,800 which is below the scale amount in Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). The Applicant did not object to the amount sought.
3. As the application has been dismissed, it is appropriate that costs should follow the event. The amount sought by the First Respondent is reasonable and I will therefore order costs in the amount of $6,800.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman.