Dai v Minister for Immigration
[2007] FMCA 1345
•10 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1345 |
| MIGRATION – Child visa – whether jurisdictional error – meaning of ‘completion of equivalent to Year 12’ – no error – application dismissed. |
| Migration Act 1958, ss.359, 359A, 424A Migration Regulations 1994, cl.101.213 |
| NADR v Minister for Immigration & Indigenous Affairs [2003] FCAFC 167 Ban v Minister for Immigration & Anor [2006] FMCA 1693 SZEEU v Minister for Immigration & Indigenous Affairs [2006] FCAFC 2 WAJR v Minister for Immigration & Indigenous Affairs (2004) 204 ALR 624 Sok v Minister for Immigration & Anor [2005] FMCA 190 El Ess v Minister for Immigration & Multicultural Affairs [2004] FCA 1038 |
| Applicant: | MIN HUA DAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 285 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 22 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 10 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Hurley |
| Solicitors for the Applicant: | Australian Legal Advisory Centre |
| Counsel for the First Respondent: | Ms C. Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 285 of 2007
| MIN HUA DAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
In these proceedings the Applicant is the mother, Wen Jing Xue (also referred to as Wen Jin Xue) ("the visa Applicant").
According to the Tribunal decision, the visa Applicant is a citizen of China who was born on 16 April 1985. On 11 March 2003 the visa Applicant applied for a subclass 101 child visa. The visa Applicant was then aged 17 years. That application was withdrawn on 25 July 2003 due to the visa Applicant's inability to provide all necessary documents.
On or about 28 September 2005 the visa Applicant again applied for a subclass 101 child visa.
On 13 December 2005 a delegate of the First Respondent refused the application for the child visa (Court Book p.130).
An application was then lodged with the Tribunal on 13 February 2006.
On 13 November 2006 the request for hearing form was lodged and on 23 November 2006 an invitation to appear at the hearing was forwarded by the Tribunal to the Applicant.
On 12 December 2006 the Applicant lodged a submission which attached, amongst other things, a report from a psychologist in China (Court Book p.212), a record of her qualifications (Court Book p.215) and copies of certain money transfers (Court Book pp.190‑210).
The Tribunal conducted a hearing on 14 December 2006.
On 18 December 2006, pursuant to s.359A of the Migration Act 1958 ("the Migration Act") the Tribunal forwarded to the representative of the Applicant a letter seeking comment on certain information.
On 15 January 2007 (Court Book p.300) the Applicant responded to the request for comment on information by way of submission and documents.
As indicated earlier, the Tribunal made a decision which affirmed the delegate's decision to refuse to grant the child visa on 6 February 2007.
By way of further background, it is noted that the Applicant had arrived in Australia without the visa Applicant. The Applicant's marriage was dissolved by the Family Court of Australia on 7 December 1998. This meant that the visa Applicant remained in China with her father. The visa Applicant is the only child of the Applicant.
The visa Applicant, as indicated earlier, is a citizen of China and was born on 16 April 1985; hence, at the time of her second application she was then 20 years of age.
According to the Applicant's contentions, the Applicant completed a year 12 equivalent for the first time in 2003 and sat the Chinese National Tertiary Entrance examination ("the NTE"), though "failed to obtain a result that enabled her to enter her chosen career of journalism".
The Applicant's contentions claim that in September 2003 the visa Applicant returned "to repeat the year 12 equivalent". It is noted that this is referred to by the Tribunal as the visa Applicant undertaking "full‑time revision study" between September 2003 and April 2004.
It appears to be common ground, however, that in April 2004 the visa Applicant was persuaded not to sit the NTE.
In September 2005 the visa Applicant commenced a course for television production in Shanghai in China; in the same month, as indicated earlier in this judgment, the application for a subclass 101 child visa was lodged in China.
The Tribunal decision
In its decision the Tribunal member correctly states that the visa Applicant, who was aged 20 years at the time of her application, was required to satisfy clause 101.213 of the Migration Regulations 1994 ("the Regulations"), which, relevantly, provides:
“101.213
(1) If the applicant has turned 18:
(a) the applicant:
(i)is not engaged to be married; and
(ii)does not have a spouse; and
(iii) has never had a spouse; and
(b) the applicant is not engaged in full-time work; and
(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an education institution leading to the award of a professional, trade pr vocational qualification.
(2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.”
The Tribunal correctly found that the visa Applicant was required to satisfy paragraph (1) of clause 101.213.
In its findings the Tribunal then, relevantly, states:
“The visa applicant provided documentary evidence that she undertook a full-time English course between April 2005 and July 2005. The Tribunal accepts that the visa applicant was enrolled in a full-time English course between April 2005 and July 2005. There is no evidence before the Tribunal to suggest that the visa applicant’s intensive English course in 2005 was a full-time course of study leading to the award of a professional, trade or vocational qualification.”
The Tribunal then proceeded to consider whether the visa Applicant had, within a reasonable period after completing the equivalent of year 12 in the Australian school system, then undertaken a full‑time course of study at an education institution leading to the award of a professional, trade or vocational qualification.
The First Respondent, in written contentions before this court, then accurately sets out the submissions made in relation to this issue as follows:
“(a)notwithstanding there was a delay of two years between the visa applicant's completion of a year 12 equivalent in China in July 2003 and her commencement of full-time tertiary studies in September 2005, the visa applicant should be found to have satisfied clause 101.213(1)(c) of the Regulations as her decision not to study was a result of unique circumstances, namely:
(i)difficulties brought about by the withdrawal of the visa applicant's original subclass 101 application in 2003 by her mother (the applicant) and her lack of understanding about the reason for the withdrawal (the failure of the visa applicant's father to provide the necessary documentation);
(ii)the failure of the visa applicant to pass the national tertiary exam (the NTE) in June 2003;
(iii)the visa applicant's depressed psychological condition which persisted from 2003 to 2005 (in support of this submission the visa applicant submitted a record of psychological counselling dated 6 December 2006 [CB 212-214]; and
(iv)the visa applicant's unstable family environment (her grandfather was close to death and eventually died in 2005 and her father was in debt and being pursued by creditors);
(b)as the visa applicant failed the NTE in June 2003 she was not eligible for university and only received an offer for a trade course. However, as it was the visa applicant's dream to study journalism at university, she rejected this offer and decided instead to repeat the NTE the following year;
(c)from 1 September 2003 to 20 April 2004, the visa applicant studied in a revision course for the NTE. She performed well in three subjects (Chinese, English and Politics), however her maths was poor and after failing a few practice tests she took the advice of her instructors and withdrew from the NTE;
(d)from April to July 2005, the visa applicant undertook an English Short Course and in September 2005, the visa applicant commenced a diploma course for international commerce at Shanghai TV University. The visa applicant will graduate from this course in July 2007; AND
(e)the visa applicant undertook the courses referred to in her submissions as they would either assist her to get an offer in an undergraduate course, improve her employment skills or strengthen her knowledge.”
In its letter dated 18 December 2006 the Tribunal sought comment on information from the Applicant. In particular it sought information concerning statements made by the Applicant at the Tribunal hearing on 14 December 2006 that she had failed the NTE "in August 2003 and was not able to enrol in her chosen course of Bachelor of Journalism in Shanghai University".
The Tribunal also sought information concerning the visa Applicant's desire to study journalism and the decision to attempt the NTE again in 2004. The Tribunal referred to the visa Applicant's statement that she "studied for the entrance exam from September 2003 until April 2004 when she was advised by her teachers to abandon the attempt because she did not perform well at the trial examinations in March/April 2004".
Reference was also made to statements by the Applicant and the visa Applicant that they had little "or no contact with each other between May 2003 and May 2005".
In its letter the Tribunal specifically invited the Applicant to provide documentary evidence of the visa Applicant commencing a full‑time course of study in September 2005, and evidence of the nature of the visa Applicant's studies in Shanghai TV University and the formal studies by the visa Applicant between June 2003 and June 2005.
The Tribunal records that the Applicant's migration agent, by letter dated 15 January 2007, enclosed a number of documents which were responsive to the s.359(2) request and otherwise made further written submissions, including a further statement from the visa Applicant and a statutory declaration of the Applicant (Court Book pp.300‑369).
In affirming the delegate's decision, the Tribunal, after reciting the material provided by the Applicant and evidence given at the hearing, then made a number of significant findings, which have been accurately summarised in the First Respondent's contentions as follows:
“(a)at the time of the application, the visa applicant was aged 20 years and she was therefore required to satisfy cl.101.213 of the Regulations [CB 382];
(b)the visa applicant completed the equivalent of year 12 in June 2003 [CB 382];
(c)whilst the visa applicant had undertaken full-time revision classes for the national tertiary entrance examination between September 2003 and April 2004, there was no evidence to suggest that those classes were leading to the award of a professional, trade or vocational qualification. Instead, those studies were for the purpose of satisfying the national entrance requirements which would have entitled the visa applicant to then enrol in a course of study leading to the award of a professional, trade or vocational qualification [CB 382-383];
(d)the visa applicant has been a full-time student at Shanghai TV University since September 2005 and the diploma of international business course is leading to the award of a professional, trade or vocational qualification. However, the visa applicant commenced that course of study two years after completion of her senior high school, which is the equivalent of year 12 in the Australian school system [CB 383-384];
(e)the Tribunal was not satisfied on the evidence (including the psychological report dated 6 December 2006), that the visa applicant suffered from clinical depression and anxiety between 2003 and 2005. However, it did accept that the applicant was upset and disappointed because of the withdrawal of the applicant's sponsorship in May 2003, her failure to pass the NTE in 2003, her withdrawal from the 2004 exams on teachers' advice and her grandfather's illness and death [CB 385];
(f)whilst the visa applicant was affected by personal problems during the period between 2003 and 2005, those personal problems did not significantly affect her ability to make appropriate choices or to concentrate on her studies during that period. There was no evidence to suggest that the visa applicant was unable to enrol in a diploma, trade or vocational course in the 2004/2005 academic year had she chosen to do so after realising, in April 2004, that she would be unlikely to pass the NTE exam in the future [CB 385]
(g)taking into account all of the evidence, the migration agent's submissions, relevant case law and being guided by policy, the Tribunal was not satisfied that the two year period between completing the equivalent of year 12 and commencing a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification was reasonable in all of the circumstances [CB 385]; and
(h)the visa applicant did not satisfy cl.101.213 at the time of the application and therefore failed to satisfy an essential requirement for the grant of the visa. On that basis, the Tribunal was not required to consider the remaining criteria [CB 385].”
The Amended Application - Grounds
In the amended application filed 16 May 2007 the Applicant relies upon one ground and particulars subjoined to that ground. In the amended application particulars "(aa)" are not pursued. It is appropriate to set out the ground of review relied upon, and the particulars now sought to be pursued, as follows:
“18. The amended application sets out one ground of review:
The decision of the second respondent was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s 65 to grant or refuse the application and its powers to conduct a review under s 348 of the Act. The second respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
19.The applicant relies upon the following seven particulars (the particular identified as (aa) is no longer pressed):
(ab) the second respondent erred in law (on the assumption that cl 101.213(1)(c) was engaged) in failing to accept that the visa applicant did not " complete" the equivalent of year 12 in the Australian school system until April 2004;
(ac) further or alternatively the second respondent by its reasons makes its unclear whether the second respondent found that the period of time that was to be considered was a "reasonable time" for cl 101.213(1)(c), was the period between September 2003 and September 2005 and, or, the period from April 2004 to September 2005, or both and the second respondent thereby failed to conduct the review as required by s 368(1)(c) of the Migration Act;
(ad) the second respondent failed to conduct the review as required by ss 359 and, or s 359A of the Migration Act by failing to give the applicant particulars of information that would be a reason or part of a reason for affirming the decision being that the qualifications of the psychologist retained by the applicant were not accepted by the second respondent as qualifying that person to express an expert opinion.
(a)the second respondent misconstrued and/or misunderstood the criteria in cl. 101.213 required to be satisfied for the grant of the visa that within a reasonable time after completing the equivalent of year 12 in the Australian school system the applicant has been undertaking a full-time course of study;
(b)the second respondent applied the wrong test in relation to the criterion in cl. 101.213 required to be satisfied for the grant of the visa by reason of it imposing a gloss of whether the applicant was able to enrol in a course of full-time study rather than asking itself whether the time was reasonable by reference to a consideration of the activities she undertook and the legitimate reasons consistent with Ministerial policy (the PAMS) why she did not enrol;
(c)the second respondent failed to have effective regard to considerations in Ministerial policy (the PAMS) that it was bound to take into account in applying cl. 101.213 being the policy concerning the activities of the applicant in 2003/2004 and the policy that would treat 2004/2005 as a gap year so that overall it could be said that the delay of two years was reasonable in the circumstances;
(d)the second respondent misconstrued and misunderstood the terms and purpose of the Ministerial policy (the PAMS) which it sought to apply and/or misconstrued and misunderstood what the PAM required as a matter of policy in circumstances where the content and existence of the policy was a relevant factor or consideration which it was bound to consider and/or which it chose to apply being the policy concerning the activities of the applicant in 2003/2004 and the policy that would treat 2004/2005 as a gap year so that overall it could be said that the delay of 2 years was reasonable in the circumstances.”
Error of law - Failure to accept that visa Applicant did not complete year 12 equivalent until April 2004
Applicant's submissions
The Applicant's submitted that the particulars set out above in (ab) and (ac) overlap in relation to this issue.
It was submitted that the material provided to the Tribunal indicated that the visa Applicant completed year 12 level of schooling in June 2003 and had then sat the NTE. The phrase "after completing the equivalent of year 12," it was argued, bears the meaning of including sitting such tertiary entrance exams.
It was argued that the meaning includes in the term a person who "undertakes the process of completing year 12 consecutively as where they do not pass on the first occasion".
It was submitted that on the material before the Tribunal it had been established that the visa Applicant withdrew from the examination in March 2004 before it was held in June 2004 and it was submitted that the visa Applicant should be taken to have completed the equivalent of year 12 in the Australian school system at this point.
It was argued the Tribunal failed to construe "the word 'completes' according to its context and purpose".
It was submitted that it is necessary to identify the point in time where a student completes the equivalent of year 12 in the Australian school system. It was argued this may not be "the same as completing the twelfth year of school. It was submitted that it, "may occur where the student completes year 12 a subsequent time".
The Minister, it was argued, should not be bound by literal calculations of time; and, it was submitted, the regulations do not identify "year 12" but require an assessment of "equivalence", judged by reference to the Australian school system.
It was noted that the policy supports a conclusion that the judgment is to be made "in accordance with an understanding of the Australian education system, because it refers to, and acknowledges, a 'gap year'".
It was submitted that the Tribunal should have found the period of time from June 2003 to April 2004 was the equivalent of year 12 and the time from April 2004 to September 2005 "was explained as in the nature of a gap year, if not explained by the stresses the Applicant was undergoing".
It was submitted that by rejecting the contention that the visa Applicant was "unable" to enrol in a course the Tribunal took a particular irrelevant matter into account. It was argued the visa Applicant never contended this and the judgment called for by clause 101.213(c) was as to what the visa Applicant did and the course she chose, not the ones that she did not choose.
The Tribunal erred in failing to identify April 2004 as the commencement date of the period which was to be judged as the reasonable time or otherwise for the purpose of clause 101.213(c). The Tribunal failed to apply this meaning and erred in law.
First Respondent's submissions
It was argued by the First Respondent that to the extent that the "Applicant seeks to now challenge what amounts to a finding of fact" ie that the visa Applicant completed the equivalent of year 12 in June 2003, the ground amounts to an impermissible attempt to displace the factual findings of the Tribunal. Reference was made to the decision of NADR v Minister for Immigration & Indigenous Affairs [2003] FCAFC 167.
The Tribunal's finding concerning the visa Applicant's completion of the equivalent of year 12 in June 2003, it was submitted, was reasonably open to the Tribunal on the evidence before it. It was argued that the Tribunal had submissions made by the Applicant and that this was a finding urged upon the Tribunal by the Applicant, at least one which the Applicant otherwise had acquiesced (see Court Book p.181).
The First Respondent submitted that the Applicant now contends the Tribunal "should have found that the period from June 2003 to April 2004 was the equivalent of year 12 and that the visa Applicant completed year 12 at the point in time when she withdrew from the NTE in March 2004. It was submitted, however, that that claim was not made to the Tribunal and nor does it emerge from the material that was before the Tribunal. Accordingly, the Tribunal was not required to consider that argument.
It was further argued that clause 101.213(1)(c) of the regulations does not include the words "successfully" or "passing" when referring to completion of "year 12 equivalent". Accordingly, the regulations do not require a finding that the Applicant has "successfully" completed year 12 equivalent (see Ban v Minister for Immigration & Anor [2006] FMCA 1693 (Ban).
Relying on the authority of the court's decision in Ban it was argued that, "although the circumstances surrounding successive attempts by the visa Applicant to pass the NTE may be relevant to determining whether the delay between completion of year 12 and tertiary study is 'reasonable', they do not of themselves allow the visa Applicant to have the benefit of an indefinitely protracted year 12 equivalent completion date".
Reasoning
In my view, the First Respondent's submissions in relation to this issue are correct. I accept that the regulation does not provide any requirement that the Tribunal should find, or an Applicant should prove, that he or she has successfully completed the equivalent of year 12 or that that has been passed by the student.
Further, in my view, the Tribunal, whilst able to take into account factors raised by the Applicant in relation to the delay between completion of year 12 and tertiary study when considering whether that delay is "reasonable" may look at surrounding circumstances.
However, that, in my view, along with the other matters considered by the Tribunal arising out of this issue, are clearly matters of fact for the Tribunal. I can see no jurisdictional error arising from the Tribunal's decision in the manner in which it has reached its conclusions in relation to this issue.
Failure to identify relevant period of time in reasons
Applicant's submissions
It was argued that the Tribunal is required to have regard only to relevant matters and that clause 101.213(c) requires the Tribunal to make a judgment of whether the failure of the visa Applicant to do something, that is, enrol in the required course over a period of time, is reasonable. If the Tribunal considered the period of time other than that calculated by reference to regulations, then, it is argued, it took into account an irrelevant matter, namely that the wrong period of time.
The Applicant submitted that the judgment of what time is a "reasonable time" must be effected by the length of the period. In the present case the Tribunal accepted the Applicant suffered from the stressors that she had described, apart from the weight it gave to the report of the psychologist, which is the subject of a further ground raised by the Applicant.
It was argued that the reasons of the Tribunal demonstrated that it took into account an irrelevant matter, or, in the alternative, it did not allow a court to identify the reasons why the Tribunal made its decision, and accordingly a jurisdictional error has occurred.
First Respondent's submissions
It was argued there is no substance in this ground and that the Tribunal in its decision refers on a number of occasions either to a "two‑year period or, more specifically, the period of time spanning from 2003 until 2005 as being the period of interest".
It was argued that the Tribunal "ultimately found that the two‑year period between completing the equivalent year 12 and commencing the full‑time course of study was not reasonable, with the parameters being fixed earlier in its reasons at June 2003 and September 2005 respectively. It was submitted that there is therefore no basis upon which "it could sensibly be contended that the Tribunal had any other period in mind when considering and finally recording its findings".
It was otherwise noted that the Tribunal both at the hearing and in its s.359A letter clearly identified the period of time between 2003 and 2005.
Reasoning
In my view, the Tribunal has properly and appropriately identified the correct period of time as being the period from June 2003 to September 2005 and the First Respondent's submissions are correct. In my view, there is no proper basis upon which this ground could justify a finding that the Tribunal has committed jurisdictional error, and accordingly this ground fails.
Whether there are breaches of ss.359 and/or 359A of the Migration Act
Applicant's submissions
It was submitted that the Tribunal will commit jurisdictional error if the review is conducted without complying with procedural requirements of the Migration Act. Reference was made to s.359A(1)(a), which requires the Tribunal to give the visa Applicant "particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review".
The Applicant referred to the notice dated 18 December 2006 (Court Book p.296). It was argued the Tribunal "decided that the circumstance that the visa Applicant did not make her enrolment in September 2005 and enrolment made within 'a reasonable time' after completing the year 12 equivalent". The Tribunal, it was submitted, "reached this conclusion after giving the report of the Chinese psychologist 'little weight' because the report did not indicate a professional assessment of the visa Applicant's history was undertaken in an objective manner according to internationally‑recognised standards".
In reaching its conclusion it was argued the Tribunal had regard to information as to "what was the assessment conducted by the psychologist and information as to what are 'internationally‑recognised standards'". That was not information given by the Applicant for the purpose of the review, it was argued, within s.359A(4)(b) of the Migration Act. The Tribunal did not provide to the Applicant information setting out what is meant by "internationally‑recognised standards".
It was argued that by reference to "internationally‑accepted psychological testing" the Tribunal relied on information which should be regarded as more than a mere assessment of the psychologist's report and involves applying information to the report or evidence. This is in contrast with the information referred to by Allsop J in SZEEU v Minister for Immigration & Indigenous Affairs [2006] FCAFC 2, where the Court, relevantly, noted:
“205 Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].”
The Tribunal's decision proceeded on the basis that it had been told of a fact regarding international standards and it was argued that that is proscribed by s.359A. The consequence of that finding, it was argued, was that the "report of the psychologist that addressed the overall state of the Applicant was given less weight and the Tribunal was not persuaded that the visa criterion was established.
First Respondent's submissions
It was argued that the submissions by the Applicant "seeks to mischaracterise what is essentially the evaluative process of the Tribunal as 'information' and relies in any event on an imperfect account of the Tribunal's assessment of the report".
It was argued the Tribunal had determined to give little weight to the psychologist's report, on the basis that it did not demonstrate that a professional assessment of the visa Applicant's history had been undertaken in an objective manner according to internationally‑recognised standards.
The cogency of the psychologist's report, it was argued, cannot constitute "information" of a kind to invoke the operation of s.359A of the Migration Act. It was noted that the Federal Court in WAJR v Minister for Immigration & Indigenous Affairs (2004) 204 ALR 624 (WAJR), when considering the equivalent to s.424A, relevantly stated:
“[49] In my opinion s 424A of the Act does not apply to this case. The formation of a view about the evidence by the tribunal is not “information” of the kind contemplated in that section. Were it otherwise, it could be argued that the section would require the tribunal to advise an applicant of its adverse conclusions generally in advance of its decision for the purpose of inviting comment upon them.”
Reasoning
Whilst I share the concern raised by the Applicant in relation to the Tribunal's reference to the failure of the psychologist to "administer any internationally‑recognised psychological tests", I do not regard that as information but rather observation by the Tribunal of the process undertaken by the psychologist. It is perhaps relevant to set out in full the paragraph in the Tribunal's decision where it deals with the issue as follows:
“The visa applicant provided a psychological report which was prepared on the basis of one assessment on 6 December 2006. The visa applicant and the review applicant’s migration agent confirmed that the visa applicant did not obtain any assistance from a doctor, psychologist, psychiatrist or other counsellor prior to December 2006. The Tribunal notes that the psychologist who prepared the 2006 report obtained registration in July 2005 on the basis of a diploma qualification. The Tribunal notes that the psychologist did not administer any internationally recognised psychological tests, but appears to have prepared the report primarily on the basis of the visa applicant’s own account of events. The Tribunal gives little weight to the psychological report provided on behalf of the visa applicant as it does not demonstrate that a professional assessment of the visa applicant’s history was undertaken in an objective manner according to internationally recognised standards.
The Tribunal is not satisfied on the evidence before it that the visa applicant suffered from clinical depression and anxiety between 2003 and 2005, as claimed. The Tribunal does accept, however, that the visa applicant was upset and disappointed because of the withdrawal of the review applicant’s sponsorship in May 2003, her failure to pass the national entrance exams in 2003 and her withdrawal from the 2004 exams on teachers’ advice, as well as her grandfather’s illness and death. The Tribunal notes that, although the visa applicant ultimately withdrew from the national exams in April 2004 because of a fear of failure, she was able to perform well in her revision and practice exams in all subjects apart from mathematics, with which she has always struggled. The Tribunal notes that the visa applicant knew she would be penalised 20 points for resitting the examinations, and finds that it was the combination of the 20 point penalty and her poor performance in mathematics that led to her withdrawal from the 2004 exams. The Tribunal is not satisfied that the visa applicant’s personal problems significantly affected her revision studies between September 2003 and April 2004.”
In my view, it is also relevant to note that the Tribunal after considering the material further reached the following conclusion:
“… The Tribunal does not accept that the visa applicant was unable to enrol in a full‑time course of study at an educational institution leading to the award of a professional, trade or vocational qualification between 2003 and 2005.”
(Court Book p.385)
That issue concerning the inability of the visa Applicant to enrol in a full‑time course of study was further pursued by the Tribunal in the following paragraph from its decision:
“The Tribunal finds that the visa applicant was not enrolled in a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification between 2003 and 2005 because she did not wish to enrol in a lesser course than the journalism course on which she had set her sights during secondary school. The Tribunal has already accepted that the visa applicant was affected by personal problems during this period, but is not satisfied that those personal problems significantly affected her ability to make appropriate choices or to concentrate on her studies between 2003 and 2005. The Tribunal notes that the visa applicant was not enrolled in any course of study between April 2004 and April 2004, when the review applicant encouraged her to resume her studies. There is no evidence before the Tribunal to suggest that the visa applicant was unable to enrol in a diploma, trade or vocational course in the 2004/2005 academic year, has she chosen to do so after realising in April 2004 that she would be likely to pass the national tertiary entrance examination in the future.”
In my view, those passages demonstrate that the Tribunal has properly made an assessment of the facts, including the psychologist's report, in a manner free of error. Whilst it has perhaps used the expression "internationally‑recognised psychological tests" as part of its assessment, I do not regard that as introducing information of a kind which would then generate obligation on the part of the Tribunal pursuant to s.424A of the Migration Act.
Applying the decision of French J in WAJR, in the present case I am prepared to accept that in this instance the Tribunal's reference to those tests is no more than part of the Tribunal's formation of a view about the evidence and should be regarded as simply a general observation.
The more important issue is the lack of evidence leading to a conclusion that the visa Applicant was unable to enrol in a full‑time course of study or that the psychological evidence was otherwise relevant in the Tribunal's determination of the application before it. Accordingly, this ground fails.
Application of wrong test/misconstruction of criteria (cl.101.213)
Applicant's submissions
The Applicant in particulars (a) and (b) claims that the Tribunal applied the wrong test in relation to the criteria in clause 101.213 by asking whether the visa Applicant was able to enrol in full‑time study rather than asking whether the time was reasonable by reference to a consideration of the activities the visa Applicant undertook and the legitimate reasons consistent with ministerial policy as to why she did not enrol.
First Respondent's submissions
The First Respondent submitted that during the course of the hearing the Tribunal took into account in its decision the fact that other (non‑degree) courses were available to the visa Applicant between 2003 and 2005 but that this was a relevant consideration and entirely consistent with the principles enunciated in Sok v Minister for Immigration & Anor [2005] FMCA 190 (Sok), which were later applied in Ban.
Reference was made to the Supplementary Court Book where the Tribunal discussed this matter, in the following extract;
“MS GRAHAM: Does that follow Sok?
MR GILBERT: It follows Sok.
MS GRAHAM: Expand on it or not add to it?
MR GILBERT: It slightly expands upon it but really only applies Sok, and essentially says that the tribunal was aware of Sok and applied Sok and therefore there was no jurisdictional error.
MS GRAHAM: Yes, because Sok is very handy.
MR GILBERT: Yes.
MS GRAHAM: It would seem to me that when we look at that test, which I'm sure the court would say is not a test, but we're looking at item D, if you can get it in front of you. It's at paragraph 19 of the Magistrates' Court. So the actual period of time, I don't think that will be in dispute, is it?
MR GILBERT: No.
MS GRAHAM: It's from the end of the 2002-2003 school year, so May-June 2003, and then the start of the 2005 school year in China, which is September 2005.
MR GILBERT: Yes.
MS GRAHAM: So there's two full academic years.
MR GILBERT: It's around about two years, yes.
MS GRAHAM: Yes, and that there has been some part‑time English study, but certainly no full‑time course in that period. So I think these are going to be things that we won't be disagreeing on. So A, B and C, I don't think are going to be any issue.
MR GILBERT: No, can I just say I understand there is some evidence available that in the period when the visa applicant was studying to do the second national exam ‑ ‑ ‑
MS GRAHAM: Yes, which I need more information about. Yes.
MR GILBERT: She was doing - not a refresher course but - she didn't have to go back to school but there was a course. A bit like if you want to sit the bar exams in America, you may be qualified but you can do a course that helps you get better marks. So she was actually studying that, I understand, if you ask her.
MS GRAHAM: If evidence is provided of that I'll take it into account, but the court's fairly clear, it needs to be a full‑time course of study.”
(Transcript p.6 lines 20-43 and p.7 lines 1 -25)
It was argued that the Tribunal did take into account the matters claimed by the visa Applicant as giving rise to "unique circumstances" relating to the visa Applicant's deferral of study and then considered whether any study options were available to the visa Applicant during the relevant period. Accordingly, it was argued there was no error in the manner in which the Tribunal applied clause 101.213.
Reasoning
In my view, the proper reading of the Tribunal's decision referred to earlier indicates the Tribunal has correctly applied the principles set out in Sok and Ban and has otherwise reached a decision by applying clause 101.213 in a manner free of error.
I accept the First Respondent's submission that the Tribunal, whilst dealing with the activities undertaken by the visa Applicant and whether they provided legitimate reasons consistent with ministerial policy as to why she is not enrolled in an appropriate course, has not committed any jurisdictional error but rather taken into account relevant matters and dealt with them accordingly.
It follows that this ground fails.
Failure to have effective regard to considerations in ministerial policy (PAMS)
Applicant's submissions
The Applicant, relying upon particulars (c) and (d) set out earlier in this judgment, argued the Tribunal was bound to take into account the ministerial policy set out in the Procedures Advice Manual (PAM) which applied to clause 101.213, and in particular it should have treated the 2004/2005 as a gap year.
To some extent the arguments advanced in relation to this ground overlap with earlier grounds which have already been considered in this judgment.
First Respondent's submissions
The First Respondent submitted it was open to the Tribunal to make findings consistent with the approach that the objective of the visa Applicant during the two‑year period was to engage in courses which would assist her to get an offer and enrol in post‑secondary studies.
It was further submitted that the court should follow the decision of Gray J in El Ess v Minister for Immigration & Multicultural Affairs [2004] FCA 1038 where the court, relevantly, states:
“45. … PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. … A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.”
Reasoning
I accept, as submitted by the First Respondent that it is appropriate to apply the principles referred to by Gray J in El Ess.
In the present case I note that the Tribunal in its decision relevantly concluded:
“The Tribunal takes into account all of the evidence before it, as well as the migration agent’s submissions and relevant case law. The Tribunal is guided by relevant policy. The Tribunal is not satisfied, on the evidence before it, that the two year period between completing the equivalent of year 12 and commencing a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification was reasonable in all the circumstances.”
The Tribunal's findings, in my view, were reasonably open to it on the evidence and it was not bound to regard the relevant period as being a "gap year", even though in some cases that may be appropriate.
In the present case, however, I can see no error in the manner in which the Tribunal has dealt with the issue, even though it is evidenced that only passing reference was made to the policy which appears in the PAM series. The lack of detailed reference to the PAM series was understandable given that the visa Applicant, who was represented, did not appear to place great emphasis upon it in the proceedings before the Tribunal.
It follows, in my view, that this ground should fail.
Conclusion
For the reasons given, it is appropriate that the application be dismissed with costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 August 2007
7
2