Lai v Minister for Immigration and Citizenship
[2010] FCA 540
FEDERAL COURT OF AUSTRALIA
Lai v Minister for Immigration and Citizenship [2010] FCA 540
Citation: Lai v Minister for Immigration and Citizenship [2010] FCA 540 Appeal from: Lai v Minister for Immigration & Anor [2009] FMCA 1064 Parties: VAN QUY LAI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number(s): VID 870 of 2009 Judge: GRAY J Date of judgment: 31 May 2010 Catchwords: MIGRATION – visa – daughter seeking visa to live in Australia with natural father – visa criterion required daughter to have been undertaking full-time course of study at an educational institution leading to the award of a profession, trade or vocational qualification – policy manual stated that this would be the equivalent of an Australian TAFE certificate level course – whether Tribunal erred in relying on opinion of daughter as to equivalence of hairdressing course in Vietnam, rather than undertaking its own objective assessment – whether Tribunal obliged to assess equivalence of content of daughter’s course with content of course leading to Australian TAFE certificate – whether Tribunal obliged to make its own inquiries about nature and content of course in Vietnam and relevant Australian TAFE course Legislation: Migration Act 1958 (Cth), ss 65(1), 499 Migration Regulations 1994 (Cth), item 101 Sch 2, cll 101.21, 101.213(1)(c) Cases cited: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 distinguished
Lai v Minister for Immigration & Anor [2009] FMCA 1064 affirmed
Mak v Immigration Review Tribunal (1994) 48 FCR 314 distinguished
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429 followedRahim v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 223 distinguished
Date of hearing: 26 February 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 38 Counsel for the appellant: Mr J Gibson Solicitor for the appellant: Clothier Anderson & Associates Counsel for the respondents: Mr G Hill Solicitor for the respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 870 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: VAN QUY LAI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
31 MAY 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 870 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: VAN QUY LAI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
31 MAY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The nature and history of the proceeding
The question raised by this appeal is whether the Migration Review Tribunal (“the Tribunal”) took a wrong approach in determining whether an applicant for a visa had been “undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification” in Vietnam. The appellant, the father of the applicant for a visa, contended that the Tribunal misunderstood the criterion it was applying, asked itself the wrong question or identified the wrong issue when it relied on the opinion of the applicant for the visa as to the equivalence of her hairdressing course in Vietnam, rather than undertaking its own objective assessment of the content and nature of the training she was receiving and the skill level she would acquire. The appellant argued that the Tribunal should have assessed the equivalence of the hairdressing course with a course leading to an Australian TAFE certificate. He also argued that the Tribunal was bound to make inquiries about the nature and content of relevant Australian TAFE level hairdressing courses and the course the applicant for the visa was pursuing in Vietnam, before determining the question.
The appellant was born in Vietnam, migrated to Australia, and became an Australian citizen on 27 July 1995. While still in Vietnam, he had a relationship with a woman, as a result of which a daughter, Nguyen Thi Hong Loan (“Loan”), was born on 27 July 1988. Loan’s mother married another man and they brought up Loan. The appellant contributed financially to her upbringing. Loan’s mother has now died and the appellant wishes that Loan should come and live with him in Australia. Her stepfather approves of this proposal. Loan therefore made an application for a Child (Migrant) (Class AH) visa on 8 March 2007. On 27 February 2008, a delegate of the first respondent to this appeal, the Minister for Immigration and Citizenship (“the Minister”), refused to grant the visa.
The appellant then applied to the Tribunal, the second respondent to this appeal, for review of the decision of the Minister’s delegate. The Tribunal conducted a hearing on 21 October 2008, at which the appellant and other witnesses gave evidence and the appellant made submissions, with the assistance of a registered migration agent. The Tribunal’s decision was dated 23 March 2009 and was forwarded to the appellant with a letter from the Tribunal dated 24 March 2009. The Tribunal affirmed the decision of the Minister’s delegate not to grant Loan the visa she sought.
The appellant applied to the Federal Magistrates Court, seeking to set aside the Tribunal’s decision and have the matter determined again by the Tribunal. On 12 November 2009, the Federal Magistrates Court dismissed the appellant’s amended application and ordered the appellant to pay the Minister’s costs of the proceeding in the Federal Magistrates Court. The reasons for judgment of the learned federal magistrate are published as Lai v Minister for Immigration & Anor [2009] FMCA 1064.
The appellant’s notice of appeal to this Court was filed on 3 December 2009.
The legislation
Section 65(1) of the Migration Act 1958 (Cth) (“the Migration Act”) provides, so far as relevant to this case, as follows:
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
...
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; ...
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
The criteria for the visa for which Loan applied are set out in item 101 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”). Clause 101.21 provides for criteria to be satisfied at the time of application for the visa. Because she was over 18 years old at the time of her application, one of the criteria that Loan had to satisfy is found in cl 101.213(1)(c), namely that:
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 educational institution leading to the award of a professional, trade or vocational qualification.
The facts
In support of her application for a visa, Loan submitted a statement dated 13 September 2007, as to her circumstances in Vietnam. That statement made no reference to her participation in any hairdressing course.
In support of the application to the Tribunal, Loan submitted a statement dated 27 April 2008 by a person whose name was given as Quyen Kieu. The statement included information that the person owned a hairdressing salon named Quyen Kieu and continued:
I am training NGUYEN THI HONG LOAN, date of birth: 27/07/1988, on hairdressing course. The course started in 03/2006. The course lasts 3 years, from 2006 to 2009. The course includes: hair cutting, hair washing, nail making, and making up the bride. She has been taking this course, and she is very hard-working. She is also smart and skillful [sic].
Subsequently, there was also submitted a letter, dated 15 July 2008, from Quyen Kieu to the appellant, which included the following:
I am Loan’s teacher, now I own a hairdressing salon named Quyen Kieu.
…
Let me tell you a little about Loan’s work.
Loan is very hard-working and witted [sic]. She is very good at making nails and washing hair, but she is not yet good at hair make-up.
If she tries her best to study, she will soon be successful in her job.
…Yours truly,
Loan’s teacher,
Quyen KieuSubsequently, the migration agent assisting Loan and the appellant submitted to the Tribunal a statement. This statement quoted from the policy advice manual, known as PAM3, used by decision-makers under the Migration Act to ascertain government policy. The quote was in relation to the criterion in cl 101.213(1)(c) of Sch 2 to the Migration Regulations. The passage quoted is as follows:
9.4 Acceptable studies
...
Relevant streams
The criterion requires the (full time) course of study to be leading to a professional, trade or vocational qualification. The policy intention is that it be at least the equivalent of an Australian TAFE Certificate Level course. Courses of a lesser nature, such as hobby-type courses, single subject courses, and other courses of a very short duration are not acceptable.
The submission then proceeded:
In the present case is [sic] respectfully submitted that the course of study Loan is undertaking, being the course of study for a hairdresser’s qualification is a course of study leading to a trade qualification.
Pursuant to ASCO, the Australian Standard Classification of Occupations, 2nd edition, the trade qualification required for hairdressing is an AQF Certificate III or higher qualification.
In the matter of Jimeno (referred to supra) the applicant undertook a number of short full time courses in Automotive Engineering for the period early 2006 to March 2008. Further, he was at the time of the hearing – March 2008 enrolled in a full time Mechanical Technology course.
The Tribunal was satisfied that these courses had been undertaken at educational institutions that would lead to an award of professional trade or vocational qualification in the automotive industry.
The Tribunal was satisfied that the visa applicant had been undertaking a full time course of study at an educational institution.
In the present case, Loan did undertake a short course in clothing manufacture prior to undertaking her studies in hairdressing.
Accordingly the Tribunal may consider that the above courses were undertaken at educational institutions leading to the award of trade or vocation [sic] qualifications.
By letter dated 23 December 2008, the Tribunal invited Loan, through the appellant’s migration agent, to provide additional information, being: “details of your hours of tuition, your course results and details of whether or not you are required to undergo exams or how else your progress during the course is assessed.” The invitation to provide information was repeated in the same terms in a letter from the Tribunal dated 5 February 2009. In response to this invitation, the appellant’s migration agent forwarded to the Tribunal two affidavits, each dated 15 February 2009, of a person by the name of Liu Thu Chin. In the first of these, the deponent said “I am currently the owner of a hair salon trading as Quyen Kieu”. The affidavit contained the following:
I have been training Ms NGUYEN Thi Hong Loan, D.O.B 21/07/1988 since March 2007. The course will be finished on 2009 [sic]. Every week, Loan’s class starts at 8.00am and finishes at 4.00pm from Monday to Saturday. Loan course’s [sic] of training includes hair cutting, washing, blowing, and dying [sic], nail and beauty. The work is difficult but Loan loves her job. As her teacher, I see that Loan is excellent in manicure and hair washing and quite good in hair cutting and dying [sic], and make up. Loan is a hard-working student and she did make fast progress during the course. I believe she would become a good hair dresser [sic] and would have a bright future.
In the second affidavit dated 15 February 2009, the deponent again stated that she owned the hairdressing salon named Quyen Kieu. The substance of the affidavit was as follows:
I am training NGUYEN THI HONG LOAN, date of birth: 27/07/1988, on hairdressing course. The course lasts 3 years, from 2007 to 2009. The class begins at 8 a.m and ends at 4 p.m, from Monday to Saturday.
The course includes: hair cutting, hair washing, nail making, and making up the bride. She has been taking this course. She is very hard-working and. [sic] She is also smart and skillful [sic].Together with a letter dated 27 February 2009, the migration agent also forwarded to the Tribunal a further affidavit of Liu Thu Chin, dated 20 February 2009. This was in the same terms as the affidavit of the same date, quoted in [13] above, save that after the words “She has been taking this course” there was interpolated the following:
As her teacher, I have some remarks and score her very high as follow [sic]:
Hair cutting: 9/10. │ Nail making: 10/10.
Hair washing: 8/10. │ Hair dyeing: 8/10
Hair drying: 9/10. │ Make-up: 9/10.There was no response to the request for information about whether assessment was by examination or by other means.
The Tribunal’s reasons for decision record that, at the Tribunal hearing, Loan gave evidence that she worked six days a week learning hairdressing between 7.00 am and 4.00 pm. She did not receive payment for working at the hairdressing salon. The appellant sent her money, which she used to pay for her board and keep and for tuition at the hairdressing salon. She said that at the conclusion of the course she would receive a certificate or diploma. She was unsure whether this would be recognised outside the hamlet in which she was doing the course.
The Tribunal’s reasons for decision
The Tribunal’s reasoning on the issue of the criterion in cl 101.213(1)(c) of Sch 2 to the Migration Regulations was expressed in [53]-[55] of its reasons for decision:
53.The applicant turned 18 on 27 July 2006. The applicant left school after year 7 she was looking after her mother who at that time was a few weeks from dieing [sic]. On 16 August 2006 she commenced a two month sewing course. In March 2007 she commenced a hair dressing course with Quyen Kieu which is due to be completed in 2009. The applicant has not attended or completed an educational course the equivalent of year 12 in the Australian school system. The visa applicant is to learn about hair cutting, hair washing, nail-making, and making up the bride. She claims to do this 6 days a week and that her father pays for her to do this course. The visa applicant said she would get a certificate or diploma at the end of the course. She was unsure if this qualification would be recognised outside the Hamlet where she is doing the course.
54.The Tribunal is not satisfied on the evidence that since turning 18, or within six months of a reasonable time after completing the equivalent of year 12 in the Australian school system, of turning 18 that the visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The visa applicant has submitted that the visa applicant’s studies were deferred from July 2003 to August 2006 so that she could provide palliative care for her mother. In August 2006 after the death of her mother she undertook the sewing course. The Tribunal does not find to be a course undertaken at an educational institution leading to the award of trade or vocational qualifications. The visa applicant submitted that her studies were deferred for compelling and compassionate reasons, and the Tribunal should regard the commencement of her hairdressing course as reasonable in the circumstances.
55.Based on the visa applicant’s evidence the hairdressing course is being conducted at a hairdressing salon run by Liu Thu Chin( or Quyen Kieu) undertaken at an educational institution leading to the award of a professional, trade or vocational qualification. PAM 3 ‘requires the full time course of study to be leading to a professional trade or vocational qualification. The policy intention is that it be at least the equivalent of an Australian TAFE Certificate Level Course’. The visa applicant claims that this course is the equivalent of a TAFE course, but was unsure if it would be recognised outside the Hamlet where she is doing her training. The Tribunal is not satisfied on the evidence that her hairdressing certificate can be regarded as the equivalent of an Australian TAFE certificate level course.
At [57], the Tribunal concluded that Loan did not meet the requirements of cl 101.213(1)(c) of Sch 2 to the Migration Regulations and therefore did not satisfy the criteria for the visa she was seeking.
The federal magistrate’s reasons for judgment
At [29]-[31] of his reasons for judgment, the federal magistrate rejected the argument that the Tribunal’s finding that it was not satisfied that Loan’s hairdressing certificate could be regarded as the equivalent of an Australian TAFE certificate was so unreasonable that no reasonable person could have reached it. His Honour also held that the Tribunal did not rely on irrelevant information in relation to that finding. At [33]-[35], the Tribunal rejected the argument that the circumstances of the case required the Tribunal to make inquiries regarding the nature and content of the relevant Australian TAFE certificate hairdressing course and its equivalent with Loan’s hairdressing certificate course. His Honour reviewed authorities as to the circumstances in which a failure on the part of the Tribunal to make inquiries, or further inquiries would give rise to jurisdictional error. His Honour concluded that Loan was in the best position to provide material to establish the equivalence of her course in Vietnam with a course in Australia. The Tribunal had no detailed information of the course content in Vietnam and such information may not have been readily available. There was therefore not the scope for a duty on the Tribunal to inquire into facts well known by Loan and within her power to adduce. She was in the best position to establish her case, but failed to do so.
At [40], the federal magistrate rejected the contention that the Tribunal relied solely on Loan’s apparent lack of certainty regarding the recognition of her course outside her locality. His Honour held that the Tribunal also considered the whole of the evidence, including the evidence from the owner of the hairdressing salon at which Loan was pursuing her training. At [42], his Honour addressed the precise terms of the Tribunal’s finding, expressed in [55] of its reasons for decision (see [17] above), and found that the issue of equivalence of courses and the issue of uncertainty about recognition were separate issues. At [44], his Honour said that, having found that Loan failed to meet an essential requirement, it was unnecessary for the Tribunal to compare the content of the two courses. At [45]-[46], his Honour rejected the contention that the Tribunal failed to conduct an objective assessment of the content of the hairdressing courses in Vietnam and Australia.
At [48], his Honour rejected the argument that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case, by active intellectual engagement with the issues, particularly the issue of course equivalents. At [49]-[50], his Honour revisited the question whether the Tribunal had an obligation to make inquiries of its own. His Honour held that the Tribunal had not been supplied with sufficient information to require a more detailed comparison. At [51]-[53], the federal magistrate accepted arguments on behalf of the Minister, particularly the argument that recognition was an element of a “qualification”.
At [55]-[56], the federal magistrate held that neither reviewable error of fact nor error of law had been established, and there was no jurisdictional error, so the Federal Magistrates Court had no jurisdiction to interfere with the decision.
The comparison of courses
Counsel for the appellant contended that the Tribunal had failed to perform its statutory function by not dealing properly with the application of the criterion in cl 101.213(1)(c) of Sch 2 to the Migration Regulations. This contention was the subject of the first two grounds in the notice of appeal. The failure to perform the Tribunal’s function was said to be constituted by two things. One was relying on the opinion of Loan as to the equivalence of her hairdressing course in Vietnam, rather than making an objective assessment of the content, the nature of the training and the skill level acquired in each of the course Loan was pursuing and an Australian hairdressing course. The second was by not giving the question of the equivalence of the two courses active intellectual consideration.
It was clear that the Tribunal was obliged to apply to Loan’s application the criterion specified in cl 101.213(1)(c). Nor was there any objection to the Tribunal relying on the statement of policy in PAM3. The result was that the Tribunal’s task was to determine whether the course that Loan was undertaking at the date of her application for a visa was a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification the equivalent of, or of a higher standard than, a TAFE certificate. There is no doubt that the Tribunal reached the conclusion that it was not satisfied that the course Loan was undertaking in Vietnam could be regarded as the equivalent of an Australian TAFE certificate level course. On the face of it, the Tribunal did discharge its statutory function.
The contention that the Tribunal was obliged to make a detailed comparison of the content, the nature of the training, and the skill level acquired, in Loan’s course and an Australian hairdressing course leading to a TAFE certificate is problematic. The criterion itself requires that the course undertaken by an applicant for the visa must lead to the award of a “professional, trade or vocational qualification.” The gloss put on that by PAM3 is to advise decision-makers, as a matter of policy, that the appropriate level of the qualification is TAFE certificate level. It is true that the passage in PAM3 refers to “the equivalent of an Australian TAFE Certificate Level course.” This does not mean that the focus should be on the course content. Rather, the focus is on the outcome of the course, in the form of a “qualification”. The purpose of PAM3 is to ensure that decision-makers do not become overly generous in recognition of courses leading to something less than a qualification equivalent to a TAFE certificate. Examples are given in the second sentence of the passage quoted from PAM3 in [11] above, namely hobby courses, single subject courses and very short courses. The outcomes of those courses are not to be regarded as appropriate qualifications. In contrast, the outcome of a TAFE certificate level course is to be regarded as an appropriate qualification. It is on the standard of the qualification that the decision-maker is to focus.
If the focus were on the content of the course itself, there would be many cases in which the comparison process would be extremely difficult. There are many educational institutions in Australia offering professional, trade and vocational courses, leading to qualifications. The Tribunal could not be expected to make a comparison with every single institution’s possibly equivalent course. Nor could it be expected to make a selection from among the various courses offered, for the purpose of comparing the selected course with the course being undertaken by an applicant for the visa. Among various courses, there might be different emphases on different subjects, different methods of teaching and assessment and different foci within the subjects themselves. An obligation to make a detailed comparison between courses as to content is likely to be so onerous that it cannot have been intended by the framer of the legislative criterion. If the criterion does not require such a comparison, then it is difficult to see that a policy manual such as PAM3 could change the criterion by introducing such a requirement. Instead, the focus of the criterion, and of the policy statement in PAM3, is on the outcome of the course, rather than the content. The course undertaken by an applicant for a visa must lead to a qualification, properly described as a professional, trade or vocational qualification. A guide to the minimum standard for assessing such a qualification is that provided by PAM3, namely a TAFE certificate. The decision-maker is expected to focus on whether an applicant for a visa will acquire a qualification of this standard or higher on completion of his or her course.
It was therefore unnecessary for the Tribunal in the present case to make any detailed comparison of course content between the course being undertaken by Loan in Vietnam and any Australian course leading to a TAFE certificate. In any event, the Tribunal had not been placed in a position to do so. The information provided by Loan as to the content of her course in Vietnam was sparse. She provided no information as to the content of any Australian TAFE certificate course in hairdressing, to enable a comparison to be made. It is unclear why her migration agent referred the Tribunal to the Australian Standard Classification of Occupations. That is a document prepared by the Australian Bureau of Statistics and the Department of Employment, Education, Training and Youth Affairs, principally for statistical purposes. It is descriptive, rather than prescriptive of occupations. It has no effect to prevent someone who has no TAFE certificate being employed as a hairdresser in Australia. It does not prescribe any course content leading to an AQF Certificate III. For the Tribunal’s purposes, the appropriate level of qualification was supplied by PAM3.
It is implicit in the notion of a professional, trade or vocational qualification of the same standard as a TAFE certificate, or of a higher standard, that it will have widespread recognition. A qualification is a formal statement that a person has achieved an educational standard that is appropriate to employment in a particular occupation. Potential employers can have confidence that a person who has attained the qualification is likely to have been well enough trained to be employed in the occupation concerned. Such recognition is an important and necessary element of the notion of a qualification.
For this reason, it was appropriate for the Tribunal to take account of the absence of evidence that the certificate or diploma that Loan would receive at the end of her course would have widespread recognition in Vietnam, so as to enable her to use it to obtain a job outside the place in which she was doing her training. If this were the only reason for the Tribunal’s finding that it was not satisfied on the issue of equivalence, it would have been a sufficient reason. Loan had had ample opportunity to provide to the Tribunal evidence of the equivalence of the qualification she would receive with an Australian qualification. If she did not do so, the inevitable consequence would be that the Tribunal would find that it was not satisfied that the outcome of the course that she was undertaking would be the equivalent of a qualification for the purposes of the relevant criterion.
It is therefore incorrect to argue, as counsel for the appellant attempted to argue, that the Tribunal was wrong to rely solely on the opinion of Loan as to the recognition of the certificate she would achieve. The Tribunal was relying not upon that opinion, but upon the absence of evidence of recognition. It was the absence of that evidence that did not enable the Tribunal to find that it was satisfied as to the equivalence of the certificate with the required qualification.
It is by no means clear that lack of recognition was the only reason for the Tribunal’s conclusion. The first sentence of [55] of the Tribunal’s reasons for decision is difficult to construe. It appears that some words are missing. It is possible that the words before the word “undertaken” were intended to lead to a different ending of the sentence, and that the word “undertaken” and the words following it were intended to be the conclusion of another sentence. It is at least possible that the Tribunal’s conclusion as to equivalence was based in part on the absence of evidence about the method of assessment, to which the Tribunal referred in [47] of its reasons for decision. The first sentence of [55] of the Tribunal’s reasons for decision also makes it unclear whether the Tribunal reached a conclusion favourable to Loan on the requirement that the course be undertaken “at an educational institution”. The fact that Loan was learning her skills entirely in a hairdressing salon suggests that the Tribunal would have been unlikely to have reached a finding favourable to her on this aspect of the criterion. In the first sentence of [54], the Tribunal expressed a finding that it was not satisfied on the evidence that the elements of the criterion in cl 101.213(1)(c) of Sch 2 to the Migration Regulations had been made out. The elements to which it referred included both the requirement that the course be at an educational institution and the requirement that the course lead to the award of a professional, trade or vocational qualification. At all events, the Tribunal clearly found against Loan on the latter element of the criterion.
Counsel for the appellant attempted to rely on Rahim v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 223 and Mak v Immigration Review Tribunal (1994) 48 FCR 314. In each of those cases, what was in issue was the application of a criterion different in substance from the criterion found in cl 101.213(1)(c) of Sch 2 to the Migration Regulations. In the former, the relevant criterion required the comparison of an overseas trade qualification with Australian education or training standards for that trade. In the latter, there was a requirement to assess whether a degree, diploma, associate diploma or trade certificate was the equivalent to a degree, diploma, associate diploma or trade certificate awarded by an Australian educational institution. The criterion in the present case was expressed in much less precise terminology. Its focus was on the nature of the qualification to which the course being undertaken by an applicant for the visa would lead. The element of comparison was introduced only by PAM3, and only as to whether the qualification was of a standard equal to or higher than the standard of an Australian TAFE certificate. Nothing said in either Rahim or Mak can lead to the conclusion that the Tribunal in the present case was required to undertake the same sort of comparison as was necessitated by the criteria in those two cases.
Counsel for the appellant also sought to rely on Lafuv Minister for Immigration & Citizenship [2009] FCAFC 140, in support of the proposition that the Tribunal did not give consideration to a factor it was required to take into account, by demonstrating an active intellectual engagement with the question how that factor was to be taken into account. Lafu was a case in which the Full Court was considering a decision of the Administrative Appeals Tribunal (“the AAT”) affirming the cancellation of a visa the holder of which had failed to pass the character test. Pursuant to directions made by the Minister in the exercise of the power conferred by s 499 of the Migration Act, the AAT was obliged to consider a number of specified factors. One of these factors was the effect that cancellation of the visa might have had by way of general deterrence. As the passage from the AAT’s reasons for decision set out in [36] of the Full Court’s judgment demonstrates, the AAT had engaged in a discussion of general deterrence but had reached no conclusion other than that general deterrence was a factor that must be taken into account. At [49]-[54], the Full Court held that the AAT had not given real consideration to the factor of general deterrence as it related to the individual circumstances of the case. This was because the AAT had not reached any conclusion as to how it would weigh general deterrence as a factor, or as to the relevance of that factor to the particular facts of the case. In the present case, the Tribunal clearly did reach a conclusion as to the relevant criterion. Far from failing to take into account a factor, by not giving it real consideration, the Tribunal in the present case found that Loan failed in her application for a visa because the Tribunal was not satisfied that she met the particular criterion it was considering. While the AAT in Lafu was totally indecisive about the factor, the Tribunal in the present case was decisive about the criterion. There was no failure to take it into account by giving it active intellectual consideration. The real complaint of counsel for the appellant was as to the lack of reasoning that went into reaching the conclusion. In my view, the Tribunal demonstrated its reasons with sufficient clarity, despite the error in the first sentence of [55]. It is clear that the Tribunal was not satisfied that Loan’s certificate would not be the equivalent of an Australian TAFE certificate, because it would not be recognised widely, and that therefore the course she was undertaking was not a course leading to a qualification of the kind required.
The first two grounds of appeal must therefore fail. There was no jurisdictional error on the part of the Tribunal in finding that it was not satisfied that Loan met the criterion in cl 101.213(1)(c) of Sch 2 to the Migration Regulations. There was no error on the part of the federal magistrate in failing to hold that such jurisdictional error on the part of the Tribunal existed.
The duty to inquire
The proposition that the Tribunal was obliged to make inquiries as to the nature and content of relevant Australian hairdressing courses and the equivalence of Loan’s hairdressing course in Vietnam was the subject of the third and fourth grounds of the notice of appeal. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, the High Court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
Whatever may have been said in other cases about a duty to inquire, it is clear that the question is now whether there was a failure to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable by the Tribunal, so as to give rise to a failure by the Tribunal to perform its statutory function of reviewing a decision to refuse a visa, or to constitute jurisdictional error of some other kind. The difficulty for the appellant in the present case lies in attempting to point to a critical fact, the existence of which is easily ascertained, about which the Tribunal needed to initiate its own inquiries, in order to discharge properly its function of reviewing the decision of the Minister’s delegate to refuse Loan a visa. The critical fact on which counsel for the appellant relied was the comparison of a relevant Australian TAFE level hairdressing course with the hairdressing course Loan was undertaking in Vietnam.
As I have said in [25] above, a comparison of the content of courses was not part of the task that the Tribunal was required to undertake. The application of the criterion in cl 101.213(1)(c) of Sch 2 to the Migration Regulations required the Tribunal to focus on the standard of the outcome of the course, not on the detail of the content of the course. Further, if the Tribunal had embarked on a comparison of the kind proposed by counsel for the appellant, it is by no means clear to what sources it could or should have directed its attention. There are no doubt numerous courses in hairdressing conducted at TAFE institutions throughout Australia, each of them leading to a certificate. It would be surprising if all of them followed the same curriculum and contained precisely the same requirements of their students. How the Tribunal would be able to choose the relevant course for comparison is impossible to say. As to the content of the course in Vietnam, the Tribunal had attempted to ascertain from Loan details about its content. The Tribunal had made more than one such attempt. The information that was forthcoming was of a sparse nature. In one respect, that of the method of assessment, it was completely silent. It is not at all clear how the Tribunal should have gone about obtaining further information. In particular, it is not clear to what source or sources the Tribunal should have turned for such information. It follows that there was no fact the existence of which was easily ascertainable, which the Tribunal could have been expected to have ascertained.
The Tribunal was entitled to act on the information given to it by the applicant, and to expect her to make her case as to the nature of the certificate that she was pursuing and its correspondence with any Australian qualification. The Tribunal could not be expected to make Loan’s case for her when she had failed to make it for herself. The third and fourth grounds of the notice of appeal must also fail.
Conclusion
The appellant has failed to establish any jurisdictional error on the part of the Tribunal in dealing with Loan’s application for review of the decision refusing her a visa. The appellant has also failed to establish any error on the part of the federal magistrate in dealing with the judicial review of the Tribunal’s decision. The appeal must be dismissed. No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. The appellant will therefore be ordered to pay the Minister’s costs of the appeal.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate:
Dated: 31 May 2010
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