Lu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 320
•16 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Lu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 320
File number(s): SYG 1191 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 16 March 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – whether the Tribunal failed to consider elements of the applicant’s claims considered. Legislation: Migration Act 1958 (Cth), ss 359, 499
Migration Regulations 1994 (Cth)
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Ghmire v Minister for Immigration and Border Protection [2014] FCA 899
Gill v Minister for Immigration and Border Protection [2017] FCAFC 51
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protections v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) (2004) 144 FCR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Vianev Minister for Immigration and Border Protection (2018) 263 FCR 531
Number of paragraphs: 55 Date of hearing: 23 February 2021 Place: Sydney Counsel for the Applicant: Mr L Karp Solicitors for the Applicant: Yingke Law Firm Solicitors for the Respondents: Mr E Taylor of Mills Oakley ORDERS
SYG 1191 of 2019 BETWEEN: YAN LU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
16 MARCH 2021
THE COURT ORDERS THAT:
1.The application in respect of which leave was granted on 23 February 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Ms Lu, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 April 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Lu a student visa.
The following statement of background facts is derived from the submissions of the parties.
Ms Lu is a citizen of China who arrived in Australia on 7 August 2003, aged 16, as the holder of a student (Subclass 570) visa.[1]
[1] Court Book (CB) 99
On 11 April 2017, Ms Lu applied for a student (Subclass 500) visa on the basis of her enrolment in a Diploma of Interpreting and an Advanced Diploma of Translating at George Education Group Pty Ltd.[2] In support of her application, Ms Lu provided (amongst other things) a written statement addressing the GTE[3] criterion[4] in which she claimed that she wanted to improve her English language ability so that she could find a good job as an accountant in China.
[2] CB 1-20, 99
[3] Genuine Temporary Entrant
[4] CB 26-31
On 17 May 2017, the Minister’s Department requested further information from Ms Lu including a statement addressing the genuine temporary entrant criterion.[5] The request noted that Ms Lu had remained onshore for a significant part of the time since her first arrival in Australia on 7 August 2003, that she was seeking a further student visa to 20 July 2018 which would extend her stay to almost 15 years and that she was seeking to study a package of courses at a lower level and in a field unrelated to her Bachelor and Masters degrees.[6]
[5] CB 45-56
[6] CB 51
In response, Ms Lu provided a further written statement, in English, in which she claimed that she lost confidence in her English skills after she started an internship and decided to study an interpreting and translating course because she had been told that the course placed “more emphasis on grammar”.[7]
[7] CB 57-58
On 27 June 2017, the delegate refused to grant Ms Lu the visa.[8] The delegate noted that the PRISMS[9] indicated that since her arrival in Australia, Ms Lu had completed: Intensive English & Senior High School; a Certificate IV in University Foundation Studies; a Diploma of Commerce; a Bachelor of Professional Accounting; and a Master of Finance.[10] The delegate found Ms Lu’s proposed courses were unrelated to her previous studies and at substantially lower level of qualifications than previously obtained.[11] The delegate also took into account that Ms Lu had resided in Australia for over 13 years and had obtained this enrolment one week prior to the expiry of her last substantive visa.[12] Overall the delegate was not convinced Ms Lu met the requirements of clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
[8] CB 92-101
[9] Provider Registration and International Student Management System
[10] CB 99
[11] CB 100
[12] CB 100
The Tribunal
On 16 July 2017, Ms Lu applied to the Tribunal for review and provided a copy of the delegate’s decision to the Tribunal.[13]
[13] CB 102-103
On January 2019, the Tribunal invited Ms Lu, under to s 359(2) of the Migration Act 1958 (Cth) (Migration Act), to provide further information in relation to her enrolment in a registered course of study and status as a genuine applicant for entry and stay as a student.[14]
[14] CB 111-118
On 22 January 2019, Ms Lu provided a number of documents in response[15] and requested an extension of time to provide additional documents,[16] which was granted.[17] Amongst the documents provided to the Tribunal was a letter of offer from Australian Ideal College for an Advanced Diploma of Leadership and Management, commencing on 7 January 2019.[18]
[15] CB 120-141
[16] CB 119
[17] CB 142-143
[18] CB 123-124
On 14 February 2019 Ms Lu sent three separate emails to the Tribunal attaching copies of documents that had already been submitted to the Minister’s Department.[19]
[19] CB 144-146
On 4 March 2019, the Tribunal invited Ms Lu to attend a hearing scheduled for 21 March 2019.[20]
[20] CB 147-154
Ms Lu attended the hearing on 21 March 2019, with the assistance of her representative.[21]
[21] CB 176-178
On 28 March 2019, Ms Lu provided a supplementary submission in which she sought to explain her “current study plan”. Ms Lu claimed that she had decided to study the Advanced Diploma of Leadership and Management because employers in Shanghai required job-seekers to have “soft skills such as communication and leadership” and the knowledge she had gained from her degrees was “not enough to suit a management role”.[22]
[22] CB 179-183
The Tribunal’s decision
On 11 April 2019, the Tribunal affirmed the decision under review on the same basis as the delegate.[23]
[23] CB 189-199
The Tribunal noted that a Mandarin interpreter was present to assist Ms Lu but her oral evidence was “mostly taken by way of direct exchanges” as it became “clear in the early stages of her evidence that she was quite willing and able to participate in that way”.[24]
[24] CB 190, [7]
The Tribunal identified that the issue arising in relation to the decision under review was whether Ms Lu satisfied clause 500.212.[25] The Tribunal identified that it was required to have regard to and assess Ms Lu against a number of specified factors in Direction 69 made under s 499 of the Migration Act.[26] It also appreciated that the list of specified factors should not be used as a checklist but was intended to guide decision makers to weigh up an applicant’s circumstances as a whole[27] and that consideration of the GTE criteria involved balancing the relevant factors in considering the overall circumstances of the case.[28]
[25] CB 191, [12]
[26] CB 191, [13]
[27] See: Item 1, Part 2 of Direction No. 69; Ghimire v Minister for Immigration & Border Protection [2014] FCA 899 at [3]; CB 191, [14]
[28] CB 191, [15]
The Tribunal accepted Ms Lu’s oral evidence that she had completed an Advanced Diploma of Translating but did not complete the Diploma of Interpreting, despite the fact that it was at odds with the PRISMS records, which stated the reverse.[29] The Tribunal found that Ms Lu was unable or unwilling to explain why she had not completed the interpreting course,[30] and did not offer an explanation for her failure to finish that course in her supplementary submission.[31]
[29] CB 192-193, [27]-[28]
[30] CB 193, [29]
[31] CB 193, [30]
The Tribunal found that in oral evidence Ms Lu conceded that she did not study during the period from 2008 to 2010 and when asked to explain she merely stated that she was having “personal issues” at the time and offered no further detail. The Tribunal did not accept that explanation.[32]
[32] CB 193, [31]
Having considered Ms Lu’s PTE[33] Academic Report[34] and her three GTE statements and “having engaged directly with her at the hearing”,[35] the Tribunal found that she was “a relatively mature, intelligent and astute individual who is well capable of communicating effectively in English, in both spoken and written word”.[36]The Tribunal found that despite her attempts to downplay this ability in the course of giving oral evidence, Ms Lu demonstrated that she had more than adequate proficiency in English.[37]
[33] Pearson Test of English
[34] CB 193, [32]
[35] CB 193, [33]
[36] CB 193, [33]
[37] CB 193, [33]
The Tribunal found that the most likely explanation for Ms Lu not completing the interpreting course was that she felt it was not going to improve her grammatical skills.[38] On this basis, the Tribunal did not accept Ms Lu’s first two GTE statements insofar as they suggested that the interpreting course would improve those skills.[39] The Tribunal also did not accept that the PTE scores would enhance her employment prospects as an accountant in China.[40]
[38] CB 193, [34]
[39] CB 193, [35]
[40] CB 193, [36]
The Tribunal expressed doubt that Ms Lu intended to return to China on completion of the vocational course in which she was enrolled.[41] It accepted her concession at the hearing that she was “well qualified” to find work as an accountant in China.[42] Whilst it had no reason to doubt that the market for inexperienced accountants in Shanghai was competitive, the Tribunal did not accept Ms Lu’s claim that a vocational course in leadership and management “at this stage of her academic career” would be of any discernible benefit or value to her in finding employment as an accountant.[43]
[41] CB 194, [37]
[42] CB 194, [38]
[43] CB 194, [40]
The Tribunal did not accept that Ms Lu intended to return to China on completion of her studies because she had completed higher level academic qualifications almost four years earlier and the translating course in July 2017 and then waited 18 months before commencing her studies in the leadership course.[44]
[44] CB 194, [41]
Having regard to the length of time she had spent in Australia (15 years) and the two lengthy, unexplained periods totalling three and a half years where she was not enrolled or attending classes, the Tribunal was “unable to accept” that Ms Lu was a genuine temporary student or that she intended to return to China to seek employment as an accountant on completion of her studies.[45]
[45] CB 194, [43]
The Tribunal found Ms Lu’s supplementary GTE submission put a “somewhat different complexion” on her plans to look for a job because she had suggested for the first time that she wanted to find “more remunerative employment as a manager”.[46] The Tribunal did not accept that it was an appropriate case to make an allowance for variations in Ms Lu’s study plan.[47] The Tribunal did not accept that she was undertaking the leadership course for the reason claimed, or that it would enhance her prospects of finding employment as an accountant and could not see the relevance of the course to her future employment as an accountant “at the entry level”.[48]
[46] CB 194, [44]
[47] CB 194-195, [45]
[48] CB 195, [46]
The Tribunal did not accept that the leadership course was consistent with Ms Lu’s current level of education or that it would be of any discernible or realistic benefit to her employment prospects or her promotional prospects “down the track”.[49] The Tribunal gave weight to the fact she had ample time in Australia to fulfil her genuine and temporary study plans and found that she was well qualified to seek employment as an accountant in her home country.[50]
[49] CB 195, [47]
[50] CB 195, [48]
The Tribunal was concerned about “the rather fluid way” Ms Lu had sought to demonstrate that she was a genuine temporary student and gave adverse weight to her seeking to advance her position by enrolling in vocational courses “ostensibly to improve her communication skills”, which it found “she did not really need” and then seeking to justify her enrolment in another unrelated vocational course in leadership and management which it had found was of little or no value to her intended career as an accountant.[51]
[51] CB 195, [49]
Whilst it accepted that Ms Lu had personal ties in China in the form of her parents and an apartment she owned in Shanghai, the Tribunal did not regard these factors individually or collectively to be of any significance or weight in the overall circumstances of the case, finding that if they were of any real significance, she would have returned to her home country more often than she did, particularly during the times she was not engaged in active study.[52] The Tribunal found that those factors did not provide a significant incentive for her to return to China.[53]
[52] CB 195, [50]
[53] CB 195, [51]
Other than the fact that she had been granted “numerous visas”, the Tribunal found there was nothing significant about Ms Lu’s immigration history.[54] The Tribunal further found that the absence of any military service commitments and political or civil unrest in China were factors of little significance and did not give them any weight in its overall assessment of the circumstances of the case.[55] The Tribunal noted that other factors of Direction 69 not expressly referred to in the decision were either because there was no evidence given about them or because they were not of any significance or weight.[56]
[54] CB 195, [52]
[55] CB 196, [54]
[56] CB 196, [55]
The Tribunal therefore found that Ms Lu was using the student visa to maintain residency in Australia[57] and was not satisfied she was a genuine applicant for entry and stay as required by clause 500.212. Accordingly, the Tribunal affirmed the delegate’s decision.[58]
[57] CB 196, [56]
[58] CB 196, [57]-[59]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 15 May 2019. At the trial of this matter on 23 February 2021, Ms Lu sought leave to file and rely upon a proposed amended application. Ms Lu read an affidavit by her solicitor, Jingyi Li, made on 4 February 2021 in support of that application. The Minister raised no objection and I granted leave. The solicitor’s affidavit also introduces into evidence a transcript of the hearing conducted by the Tribunal.
There is one ground with three particulars in the amended application:
1.The Tribunal erred by failing to consider the case advanced by the applicant.
Particulars
(a)Failure to consider the applicant’s claim and evidence that she undertook an Advanced Diploma of Translating course to assist her communication in a professional accounting environment.
(b)Error in misconstruing the applicant’s evidence in stating that the applicant accepted that completion of a course in management and leadership would not help her find employment in finance or accountancy.
(c)Failure to consider the applicant’s claim and evidence that she undertook the course in management and leadership to assist her to gain promotions once she had obtained a professional position.
I received into evidence the court book filed on 6 August 2019. I also received, subject to relevance, Ms Lu’s affidavit made on 17 February 2021. The only potential relevance of that affidavit would be an issue of futility in the event that jurisdictional error was established. Ms Lu deposes as to what she has been doing since the Tribunal’s decision. She has completed the Advanced Diploma of Leadership and Management which was the subject of the Tribunal decision and she has been keeping herself busy while awaiting the opportunity to return to China when it is safe to do so, in the context of the COVID-19 pandemic and the limited availability and cost of air travel to China. Ultimately, no issue of futility arose.
Ms Lu and the Minister both filed pre-hearing written submissions and made helpful oral submissions through their representatives at the trial. I have been assisted by those submissions.
CONSIDERATION
Ms Lu’s contentions
The Tribunal affirmed the decision under review primarily because it thought that Ms Lu did not meet the genuine temporary entry requirement of clause 500.212(a) because she had taken vocational courses superfluous to her vocational needs. These were the translating course, and the leadership and management course. She contends that the Tribunal has failed to lawfully consider the case that she advanced in making its findings about both vocational courses.
The relevant authorities include Htun v Minister for Immigration and Multicultural Affairs[59] where Allsop J (as his Honour then was) held at [42] that the Tribunal must “…address and deal with how the claim was put to it…” and Minister for Immigration v MZYTS and Border Protection,[60] where the Court held, at [38], that the Tribunal’s task could not be lawfully undertaken without a consciousness and consideration of all submissions, evidence and material advanced by the visa applicant. There is also NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2)[61] at [63] where the Full Federal Court held that to misconstrue a claim was to fail to consider it.
[59] (2001) 194 ALR 244
[60] (2013) 230 FCR 431
[61] (2004) 144 FCR 1
In addition, in Vianev Minister for Immigration[62] Rangiah J stated at [30]:
If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act, which if accepted would or could be dispositive of the decision, the Minister’s error may be characterised as a jurisdictional error. Further, if what is overlooked is better characterised as “information” (or “material”, or “evidence”), rather than an “argument”, there may be jurisdictional error where the “information” is sufficiently important, such that the error is serious enough to be described as jurisdictional. It is not essential that either the argument or information is “critical” in the sense that its acceptance by the Minister would necessarily have resulted in a different outcome.
[62] (2018) 263 FCR 531
Ms Lu submits that the principle to be derived from his Honour’s statement is relevant to judicial review of any migration decision. In addition, Colvin J stated in Viane at [68]:
Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation.
Ms Lu contends that the Tribunal erred because, first, the Tribunal found that Ms Lu’s English was satisfactory based on her giving evidence in English at the Tribunal hearing. However, she clearly put her need to develop her English skills on the basis that her English was not good enough for communication in a professional accounting environment.[63] The Tribunal erred by failing to consider and address the case actually advanced by Ms Lu.
[63] see CB 26, 57, 180, Transcript, page 12
Secondly, the Tribunal is said to have been in error in finding at [39][64] that Ms Lu’s completion of the leadership course would not help her find employment in finance or accounting. Ms Lu claimed that it would help her gain employment.[65] The Tribunal is said to have erred by misconstruing the claim that Ms Lu actually made.
[64] at CB 194
[65] Transcript, page 14, lines 8-18
Thirdly, the Tribunal adjudged the utility of the management and leadership course on the basis of whether it would be of benefit to her, “at this stage of her academic career”,[66] and whether it would assist her in “finding employment” in accountancy or finance.[67] Yet, in addition to claiming that that course would help her get employment, she also claimed that it would assist her to gain promotions.[68] Once more, the Tribunal is said to have erred by misconstruing and failing to consider and address the case actually advanced by Ms Lu.
[66] CB 194 [40]
[67] CB 195 [46]-[47]
[68] Transcript, page 21
Minister’s contentions
The Minister submits that Ms Lu’s complaint that the Tribunal failed to consider her claim that she undertook an Advanced Diploma of Translating course to assist her communication in a professional accounting environment cannot be made out. The Tribunal identified the claim[69] and based on Ms Lu’s English test results[70] and its own observations regarding her ability to communicate in English verbally and in writing, concluded that her English language proficiency was “more than adequate”.[71] It is clear from the Tribunal’s reasoning[72] that Ms Lu “sought to advance her position by enrolling in vocational courses ostensibly to improve her communication skills which the Tribunal has found she did not really need” that it did not accept that she had undertaken the Advanced Diploma of Translating course to assist her communication in a professional accounting environment. The Tribunal was not required to accept Ms Lu’s evidence uncritically.[73]
[69] at CB 192, [19]
[70] see CB 195, [52]
[71] CB 193, [32]-[33]
[72] at CB 195, [49]
[73] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Ms Lu relies on an extract from page 14 of the transcript of the Tribunal hearing in support of her complaint that the Tribunal misconstrued her evidence by finding[74] that she accepted the completion of a course in management and leadership would not help her find employment in finance or accountancy. However, the Tribunal actually found[75] that Ms Lu had accepted that a vocational course in management “was not directly relevant to a career in accounting or finance, and that completion of such a course would not help her find employment in those fields”. This finding is said to have been plainly open based on the following exchange, which is recorded at page 21 of the transcript:
MEMBER: I mean, do you say that the advanced diploma is related to your primary qualifications? Or is it related to what you want to do in China as an accountant? And if it is, you better explain to me how it links up with it.
WITNESS: Yes. Sorry, it’s not – the leadership course is not directly related to accounting and finance.
MEMBER: Yes.
WITNESS: But when you – in the, let’s say, in the work environment, when you have this kind of qualification, actually, in China you can get promoted quickly compared to other candidates, because when the senior manager look at your profile, they will look at those people who have already got the qualifications.
[74] at CB 194, [39]
[75] at CB 194, [39]
The Tribunal acknowledged that Ms Lu had also claimed, “somewhat inconsistently” that the vocational course in management and leadership would give her “an edge” in a “very competitive professional labour market in Shanghai”.[76] The Tribunal’s finding[77] demonstrates that it understood Ms Lu’s claim was that she hoped she may benefit from completing a course in management and leadership at some point in the future by being promoted quickly. The Tribunal was prepared to accept that the market for inexperienced accountants in Shanghai was competitive but it did not accept Ms Lu’s claim that a vocational course in leadership and management “at this stage of her academic career” would be of any real or discernible benefit or value to her in finding employment as an accountant or in promoting herself to other employers.[78]
[76] at CB 194, [39]
[77] at CB 194, [40]
[78] at CB 194, [40]
Even if the Tribunal did misconstrue Ms Lu’s evidence (which the Minister does not concede), the Minister submits that Ms Lu has not established that the error is material to the Tribunal’s decision.[79] It is necessary to have regard to the importance or the cogency of the finding and its place in the assessment of Ms Lu’s claims to determine the seriousness of the error.[80] Even if it were accepted that the Tribunal’s finding at [39] about the concessions made by Ms Lu at the hearing was inaccurate, it was not of sufficient importance to establish a jurisdictional error.[81] Whether or not Ms Lu conceded it to be the case, the Tribunal plainly did not accept that the Advanced Diploma of Leadership and Management would assist her in finding employment as an accountant or in finance because it was not relevant to those roles.
[79] Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [65]
[80] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
[81] ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30]
Insofar as Ms Lu alleges the Tribunal failed to consider that the proposed course would assist her to “gain promotions”, the Tribunal was plainly cognisant of her claim.[82] Whilst it accepted that she may aspire to and become a manager or even a partner in a large accounting firm or financial institution, the Tribunal found that “making predictions about this type of thing is speculative at best” and was not satisfied that the course was relevant to Ms Lu’s proposed future employment as an accountant at entry level.[83] Relevantly, the Tribunal also found that “other far more important indicia would come into play in determining the applicant’s promotional prospects than a vocational course in leadership”.[84]
[82] see CB 194, [40]
[83] CB 195, [46]-[47]
[84] CB 195, [47]
The Minister submits that the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances,[85] and Ms Lu has not demonstrated that the above findings lack an “evident and intelligible justification”.[86] Properly understood, these complaints are said to effectively seek impermissible merits review and should not succeed.[87]
[85] Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]
[86] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [76]
[87] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
For completeness, the Minister submits that no jurisdictional error is apparent in the Tribunal’s decision or its approach. Although there was no obligation on it to “formulaically address” or “laboriously set out” each and every matter in Direction 69,[88] the Tribunal referred to the specified factors throughout its decision and it is apparent that the matters that were considered relevant to Ms Lu’s circumstances or sufficiently material to her were given weight.
[88] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [4]-[8]
Resolution
Ground 1 contends “the Tribunal erred by failing to consider the case advanced by the applicant.” The particulars variously allege that the Tribunal:
(a)failed to consider Ms Lu’s claim and evidence that she undertook an Advanced Diploma of Translating course to assist her communication in a professional accounting environment;
(b)misconstrued Ms Lu’s evidence by stating that she accepted the completion of a course in “management and leadership” would not help her find employment in finance or accountancy; and
(c)failed to consider Ms Lu’s claim and evidence that she had undertaken the course in “management and leadership” to assist her to gain promotions, once she obtained a professional position.
Ms Lu’s submissions expand upon these particulars as noted above.
Ms Lu’s case before this Court, while clearly arguable, fails because the asserted errors of failure to consider and misconstruction are not made out. In this regard I prefer the submissions of the Minister to those of Ms Lu. Ms Lu’s pursuit of vocational studies in English arguably might have assisted her in gaining employment in accountancy in China but the Tribunal was not bound to find that they would and the Tribunal plainly considered the issue. The translating qualification would no doubt assist Ms Lu to read and understand documents written in the English language. The interpretation course she commenced might have assisted her to converse with English speaking clients but she did not put that and indeed did not complete the course. The Tribunal was entitled to find that Ms Lu was able to communicate orally effectively in the English language having regard to the fact that she had done so at the hearing conducted by the Tribunal.
Similarly, the Tribunal was not blind to the proposition that a vocational course in management and leadership being undertaken by Ms Lu might be of some future benefit to her but the Tribunal was entitled to find that it would not assist her to obtain employment in accountancy in China at the time of the Tribunal’s decision. Significantly, the Tribunal’s finding related to the then current point in Ms Lu’s career. It was a logical and reasonable finding that, at an entry level, with no experience, a vocational qualification in leadership and management would be of very limited value. It would be of greater value as Ms Lu gained employment experience and thus became eligible for consideration in a management or leadership role.
Ultimately, the asserted jurisdictional errors made by the Tribunal are merely expressions of strenuous disagreement with the Tribunal’s reasoning process and conclusions. Jurisdictional error is not established.
CONCLUSION
Ms Lu has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 16 March 2021
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