Ngo v Minister for Immigration - [2012] FMCA 850

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NGO v MINISTER FOR IMMIGRATION

[2012] FMCA 850

MIGRATION – Refusal of offshore application for Student (Temporary) (Class TU) Subclass 572 Visa – natural justice.

Migration Act 1958 (Cth), ss.66 & 476
Migration Regulations 1994 (Cth), sch.2, sub-cls.572.223 & 573.223

Rashid v Minister for Immigration & Citizenship (2007) FCAFC 25 at 16-17.
Saeed v Minister for Immigration & Citizenship [2010] 241 CLR 252 at pp 258 – 259.
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591.
F Hoffmann-La Roche & Co. A G v Security of State for Trade and Industry (1975) AC 295 at 369.

Applicant:

THI LOAN NGO

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

ADG 295 of 2011

Judgment of:

Simpson FM

Hearing date:

17 May 2012

Date of Last Submission:

17 May 2012

Delivered at:

Adelaide

Delivered on:

21 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Ower, of counsel

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr Tredrea, of counsel

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

Application dismissed.
The applicant shall pay the costs of the respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 295 of 2011

THI LOAN NGO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application for review of a migration decision in exercise of this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”).

Background

The background to this dispute has been helpfully summarised in the written submissions of each of the parties.
The Applicant is a citizen of Vietnam.
On 5 August 2011, the applicant applied for a Student (Temporary) (Class TU) Subclass 572 Visa Offshore. The Applicant indicated in her visa application that she intended to undertake General English and Certificate III and IV in hairdressing at the Carrick Institute of Education.
The Applicant had a dependant two year old child who was also included in the application.
The Applicant was born on 17 October 1974 and was therefore 37 at the time of her application.
The Applicant had two older siblings, Ngo Quang Vinh and Ngo Thi Mai, who both reside in Australia.
The Applicant received a good education in China, having completed her secondary education with a Graduate Diploma of General Secondary Education in 1992. She then went on to obtain tertiary qualifications and in 2001 was awarded a Bachelor of Science Degree in English Linguistics and Literature.
The Applicant had on two previous occasions been refused visas to enter Australia. She was refused a Class VC (Spouse) Visa in 1996, and a Subclass 580 (Guardian) Visa in 2008.
On 17 October 2011, a Delegate of the Minister refused to grant the Applicant the student visa. The relevant decision is set out in a departmental letter to the Applicant dated 17 October 2011. The decision indicates that the Delegate refused to grant the visa as she was not satisfied that the Applicant was a “… genuine applicant for entry and stay as a student…” having regard to “… any other relevant matter[1]”. The Delegate stated:
“I have carefully considered information provided in your current application and departmental records. In addition, I have carefully considered your education in Vietnam where you have achieved a Bachelor of Arts in English and attended many courses in nail decoration and office skills. You are of working age and currently employed as a manicurist at a beauty salon. I have also considered the income from the numerous sponsors, including your sister in Australia, who have provided the funding for a hairdressing course that is a considerable expense. I am concerned with the likelihood of possible non-compliance given your migration past history and I am concerned you appear to be more motivated by your desire to travel to Australia rather than to reside as a student. As a result, I am not satisfied you are a genuine applicant for entry and stay as a student. You do not meet Subclause 572.223(2)(a)(ii)(B) and your application is refused.”
[1] The Subclause 572.223(2)(b)(ii) criterion.
The application filed in this Court on 15 November 2011 contained four grounds. In the Applicant’s Outline of Submissions filed on 14 May 2012, it was indicated that grounds 1, 2 and 3 would not be pursued. The remaining ground, ground 4, was in the following terms:
“The Delegate committed jurisdictional error by failing to comply with ss.57 and 58 of the Migration Act.
Particulars
4.1The delegate did not inform the applicant as to what evidence the delegate considered to constitute “other relevant matter(s)” for the purposes of an assessment of genuineness under subclause 572.223(2)(a)(ii)(B) and failed to inform the applicant of the relevance of the applicant’s completion of a Bachelor of Arts in English, her attendance of many courses in nail decoration and office skills, the fact that she was of working age and currently employed as a manicurist at a beauty salon, the fact that funding for a hairdressing course is a considerable expense, the likelihood of possible non-compliance given her “migration past history” and the basis of the delegate’s concern that the applicant appeared to be more motivated by her desire to travel to Australia rather than to reside as a student, or the inferences that would be drawn from these facts.”
At the hearing of the application, counsel for the Applicant applied to amend paragraph 4 so that it read, “The Delegate committed jurisdictional error by failing to comply with the rules of natural justice” with the particulars earlier referred to remaining. The amendment was allowed.

The Legislation

The relevant criteria for the grant of the visa sought by the Applicant are set out in Schedule 2 of the Migration Regulations 1994 (“the Regulations”). Subclause 572.223 provides that in order to be granted a visa, the following provisions must be satisfied:
“(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)The Minister is satisfied that the applicant intends generally to stay in Australia temporarily, having regard to:
(i)         The applicant’s circumstances; and
(ii)    The applicant’s immigration history; and
(iii)   If the applicant is a minor – the intention of a parent, legal guardian or spouse of the applicant; and
(iv)   Any other relevant matter; and
(v)     The applicant meets the requirements of subclause (2).
(2)    An applicant meets the requirements of this subclause if:
(a)The applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)The Minister is satisfied that the applicant is a genuine Deciapplicant for entry and stay as a student, having regard to;
(i)          The stated intention of the applicant to comply with any condition subject to which the visa is granted; and
(ii)    Any other relevant matter; and
(c)The Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements of Schedule 5A relating to the applicant’s financial capacity.” (my emphasis)
These proceedings are principally concerned with the emphasised portion of this subclause.

Decision

This is not a case where the Delegate of the Minister was required to provide written reasons for the decision.[2] As noted in paragraph 10 of these reasons, the Delegate nevertheless gave brief written reasons for the decision. The Court was entitled to receive further admissible evidence to assist in proving what in fact were the reasons for the Delegate’s decision and what matters the Delegate took into consideration.[3] On this basis, copies of certain documents created by the Delegate and described as “Case Notes” were included in the Court Book.
[2] Sections 66(2) and (3) of the Migration Act.
[3] Rashid v Minister for Immigration & Citizenship (2007) FCAFC 25 at 16-17.
I note in particular, the following entries in the Delegate’s Case Notes:
·    “Insufficient evidence of income from sponsors to accumulate levels of funding in original bbks (sic)”;
·    “Risk factors applied for this student on her own merits: female aged 37, divorced an Australian citizen in June 98, had a son w/o father’s name on BC right after legal divorce, has been nail technician for (at least) 04-05 years to date”;
·    “Despite any submission, great concerns of migration motivation vs studying purposes.[4]”; and
·    “For further assessment, please be advised of the following requirements:
[4]     This entry was made after noting details of applicant’s two previous unsuccessful applications for visas to gain entry to Australia
…
Statement from Ms Ngo giving details ALL her past relationships.”
It was submitted on behalf of the Applicant, that the Delegate’s concern that resulted in the decision not to grant the visa arose from two previous applications for visas that had been made by the Applicant. On 24 May 1996, an application by the Applicant for a spouse visa had been refused on the ground that the sponsor had withdrawn his sponsorship. On 9 May 2008, the Applicant had been refused an application for a Subclass 580 Visa on grounds that the relevant Delegate “was not satisfied that you are genuine applicant (sic) for entry and stay as a student guardian”.
It was submitted on behalf of the Applicant that despite the Delegate’s concerns about the current application for a visa, the Applicant was not notified that her previous migration history would be taken into account as an adverse matter against her or that it was a relevant issue to the application. Instead, on 8 August 2011, the Delegate wrote to the Applicant’s migration agent and requested information concerning her financial status and details of “…ALL her past relationships”. That information was provided by the Applicant by email on 1 September 2011 together with a further written submission provided on 10 October 2011.
Counsel for the Applicant submitted that fairness required that if the Delegate was going to take into account the “past migration history” of the Applicant as an adverse matter, such a matter should have been put to the Applicant for comment and explanation. This was not done. Counsel for the Applicant submitted that the common law requirements of nature justice should apply[5]. It was said that there had been a denial of nature justice in that the Delegate did not inform the Applicant of the matters contained in the Delegate’s Case Notes earlier referred to.
[5] Saeed v Minister for Immigration & Citizenship [2010] 241 CLR 252 at pp 258 – 259.
The extent of the common law requirements for procedural fairness were summarised by the Full Court of the Federal Court in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd[6]
[6] (1994) 49 FCR 576 at 590 – 591.
In particular, the Court stated:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly effected by the decision is to be given the opportunity of being heard. That would ordinarily require the party effected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dickson v Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffmann-La Roche & Co. AG v Security of State for Trade and Industry [1975] AC 295 at 369:
“… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it – Kioa v West, supra, at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case: Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). …”
The terms of Subclause 573.223(2)(a)(ii)(B) permit a Delegate to take into account any relevant matter. However, where the matter “is obtained from some other source”, that is, other than the Applicant, the Delegate is required to give the Applicant an opportunity of dealing with it.
In my opinion, this Application should fail. This is not a case where a Delegate has made a decision on information provided by a source other than the Applicant. The Applicant completed Departmental Form 157(A), being an Application for a student visa, which was signed by her on 20 May 2011. She completed paragraph 25 of the Application giving full details of her previously applications for visas, being the past migration history that the Applicant now says should have been brought to her attention by the Delegate for the Applicant’s comment and explanation.
Further, it is to be noted that at paragraph 44 of the Form, the Applicant was told:
“If there is any other information or documentation you would like taken into consideration in assessing your application, attach it to the application. Remember that a decision may be based solely on the information you provide in this application.”
In these circumstances, and on the basis of the authorities earlier referred to, there was no requirement for the Delegate to give the Applicant a further opportunity to put material before her. What the Delegate did complied with the requirements of procedural fairness referred to in the Alphaone case referred to above. The rules of natural justice do not require the Delegate to disclose what he or she is minded to decide so that the parties may have a further opportunity to make comments.[7]
[7] F Hoffmann-La Roche & Co. A G v Secretary of State for Trade and Industry (1975) AC 295 at 369.
The application should be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Simpson FM

Date: 21 September 2012