Nguyen v MIBP
[2013] FCCA 1864
•22 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION | [2013] FCCA 1864 |
| Catchwords: MIGRATION – Refusal of offshore application for Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) Visa – whether delegate failed to take relevant considerations into account – whether delegate failed to comply with s.54 of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.54, 55, 65, 499, 501 Migration Regulations 1994 (Cth), cl. 573.223 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Citizenship v Anochie & Anor (2012) 209 FCR 497 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 Minister for Immigration and Citizenship v Taufahema & Anor (2010) 114 ALD 537 Minister for Immigration and Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 SZMGW v Minister for Immigration [2009] FMCA 88 SZRPA v Minister for Immigration & Anor [2012] FMCA 91 SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 |
Article:
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] FedLawRw 19; (1986) 16(4) Federal Law Review 386
| Applicant: | THI THU HUYEN NGUYEN |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2519 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 2 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitor for the Applicant: | Mr A. Pham of Andy Pham Lawyers |
| Solicitor for the Respondent: | Mr O. Jones of Clayton Utz |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 2 November 2012 and amended 20 March 2013 be dismissed.
The Applicant pay the First Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2519 of 2012
| THI THU HUYEN NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for judicial review of a decision of a delegate (the “Delegate”) of the Minister for Immigration & Border Protection (the “Minister”). The Delegate refused the applicant, Thi Nguyen, a Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa (the “Visa”) under s.65 of the Migration Act.
In accordance with the Court’s orders made on 29 November 2012, the solicitor for the respondent, the Minister, was required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant sought to rely on the two further exhibits, being two letters titled “Notifications of refusal of application for a Student visa – Subclass 573” identified as Exhibit “A1” and “Notifications of refusal of application for a Student visa – Subclass 572” identified as Exhibit “A2”.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material on or before 24 January 2013. The applicant filed an amended application on 20 March 2013 (the “Amended Application”).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant, Ms Nguyen, is a citizen and current resident of Vietnam. On 8 June 2012 she applied for the third time for a Student visa to permit her to study in Australia (application form at CB 10-27 and supporting documents at CB 28-182). She had had two previous refusals of the grant of a Student visa for failure to meet Clause 573.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”). Clause 573.223 of the Migration Regulations states:
573.223 (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 genuinely 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 intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
Clause 573.223(1)(a) is to be applied in conformity with a direction under s.499 of the Migration Act. The current direction is Direction no 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (the “Direction”). Clause 1 of the Direction states:
1. Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Clause 2 of the Direction states:
2. Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
Clause 2(b) of the Direction reflects s.54 of the Migration Act, which relevantly states:
Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made;…
Clause 6 of the Direction states:
6. Decision makers must have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
Sub-clauses 9(b) and (c) of the Direction state:
9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
…
b. The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.
c. Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.
…
Clause 14(a)(i) of the Direction states:
14. In considering the applicant’s immigration history, decision makers must have regard to the following factors:
a. Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.
The first refusal of the applicant’s Student visa application dated 2 November 2011 occurred because the delegate was not satisfied that Ms Nguyen had provided sufficient evidence to substantiate the level of funding required for her parents to support her proposed studies in Australia. He was therefore not satisfied that she was a genuine applicant for entry and stay as a student.
The second refusal, dated 5 April 2012, occurred because:
a)Although very poorly expressed, it appears that the delegate was unable to reconcile Ms Nguyen’s study proposal with her career prospects in Vietnam;
b)Information garnered during a telephone interview allegedly indicated that Ms Nguyen was unaware that she was enrolled in a package course in Business, and that she stated she would only study English and Accountancy; and
c)The delegate was not satisfied that Ms Nguyen had provided evidence of English language proficiency necessary to meet the assessment level in Clause 5A407 of Schedule 5A of the Migration Regulations.
Ms Nguyen’s Student visa application of 8 June 2012 sought to address these suggested deficiencies in the earlier applications. Evidence of her parents’ financial, business and property interests were provided in Vietnamese with English translations (CB 81-154). Ms Nguyen also provided a statement explaining what she wanted to study and why she thought the proposed course would assist her in helping to manage her parents’ business (CB 151-154). In addition, she submitted an International English Language Testing System (IELTS) test result form indicating that she had achieved an overall band score of 5.0 (CB 167). In her Student visa application form she had indicated that her proposed English course went from 6 August 2012 to 30 September 2012.
The Delegate’s decision refusing the third (current) Student visa application
On 27 September 2012 the delegate refused to grant Ms Nguyen a Student visa. The Delegate outlined the relevant legislation, which is also found in these reasons above. The Delegate summarised the Direction, made under s.499 of the Migration Act, effective from 5 November 2011 which stated matters that must be considered in assessing the genuineness of an applicant for a Student visa. Section 499 of the Migration Act states:
Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
Under the heading “The applicant’s circumstances in their home country”, the Delegate stated:
…I have carefully considered the applicant’s age, education, employment history and socioeconomic position in Vietnam. I note the applicant is an unmarried female from Vietnam with no dependent family and no evidence of formal employment in Vietnam…
(CB 200)
The Delegate also stated:
…At interview, [the Applicant] advised that upon completion of the course she would be able to assist her family’s business. The benefit of the proposed course to the applicant’s future in Vietnam is questionable and it appears unlikely that the course would improve the applicant’s employment or career prospects in Vietnam…
(CB 201)
Below the heading “The applicant’s immigration history”, the Delegate stated:
I have taken into consideration the applicant’s visa history and note that in the past the applicant has applied for two previous student visas which were refused. Though I have not given significant weight to the past refusals in making my decision, it is a concern that the applicant has failed previously to demonstrate that [her] intention to study in Australia is genuine.
(CB 201)
The Delegate concluded:
I have considered the factors set out in Ministerial Discretion No 53 and have placed weight on the applicant’s circumstances in their home country and the value [of] the course to the applicant’s future. On balance, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student because I am not satisfied the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances.
(CB 201).
Current Proceedings
An application for judicial review was filed in the Court on 2 November 2012. Orders made by consent of the Court on 29 November 2012, permitted the applicant leave to file and serve an amended application and any additional affidavits by 24 January 2013. The Amended Application was filed on 20 March 2013.
The Amended Application sought the following orders:
1. A WRIT OF CERTIORARI removing the decision into this Court to be quashed.
2. A WRIT OF MANDAMUS requiring the Respondent to re-consider and re-determine the applicant’s application for a student visa according to law.
3. Costs.
4. Any further or other relief that the Court considers appropriate.
The Amended Application pleaded two grounds:
1. The delegate failed to take relevant considerations into account.
Particulars
(a) The matters mentioned as being required to be considered in paragraphs 9(b), 9(c) and 14(a)(i) of Direction 53, made pursuant to s.499 of the migration Act.
2. The delegate failed to comply with s.54 of the Migration Act
Particulars
(a) Failure to consider the reasons why the applicant wanted to study in Australia and why she said that her proposed course of study would assist her in her future employment in Vietnam.
Applicant’s written submissions
The applicant argues that s.499(2A) of the Migration Act makes the matters dealt with in Direction No. 53 a relevant consideration in the Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 sense. That is, in respect of s.499 the word “must” imposes an imperative duty upon the Delegate. With that in mind it is useful to reflect on the matters that the Delegate did not consider. The applicant submits these are as follows:
a)The extent of Ms Nguyen’s personal ties to Vietnam, including the fact that she had a brother (CB 65) and her parents, who were clearly wealthy, had been able to support her at home. This was a relevant consideration pursuant to Clause 9(b) of the Direction;
b)Whether there were some economic circumstances which may have acted as an incentive not to return, including relative circumstances in Vietnam as compared to Australia. This was required to be considered pursuant to Clause 9(c) of the Direction. Had the delegate considered such circumstances he may have concluded that Ms Nguyen may have been more comfortable in Vietnam, as compared with Australia, given the evidence of her parents’ wealth; and
c)The reasons that the previous visa applications were refused, as was required by Clause 14(a)(i) of the Direction. Had the delegate done so he may have discovered that the previous applications were rejected because of lack of information, which Ms Nguyen had sought to rectify.
In addition, it is submitted that Ms Nguyen explained in detail as to why the courses that she had chosen to undertake would assist her in her proposed future career in her parents’ business (at CB 151-154). The applicant submits the Delegate was required by s.54 of the Migration Act, read with s.55, to have regard to that information. The applicant contends that it is abundantly clear that the assessment of the value of the course to her future in Vietnam indicates that the Delegate had no regard for it. Indeed, the applicant suggests that the value of a business course with a management component (see CB 153) would appear to be entirely consistent with her proposed future employment and involvement in her parents’ business.
It is argued by the applicant, noting the above considerations, the Delegate has therefore failed to take relevant considerations into account.
Minister’s written submissions
The Minster submits that all relevant considerations were taken into account by the Delegate. In determining the present case, three matters should be borne in mind:
a)The Direction explicitly states that it is a “guide” and “decision makers should not use the factors specified in this Direction as a checklist.” As a result, compliance by the Delegate does not depend on the form of words used. Rather, the question is whether, in substance, the matters laid down by the Direction were considered;
b)Judicial review for compliance with the Direction should reflect the general law of relevant considerations. In particular, the Court should recall the restriction on its function imposed by the High Court in Peko-Wallsend (supra) per Mason J at 41:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind…
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.
It is argued by the Minister that if the applicant complains that the Delegate did not give due prominence to particular matters her complaint cannot be entertained in this Court.
c)As with any proceeding seeking judicial review, the applicant should not be permitted before the Court to refashion their case before the decision-maker. The Delegate cannot err through “an application, never made, which might have been put on another basis”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [31]. Rather, “[i]t is for the applicant to advance [a claim]. The [Delegate] must then decide whether that claim is made out”: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] (both dicta are applied in Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308 at [41].
This is especially important where, as in this case, the applicant was professionally represented before the decision-maker. In SZRPA v Minister for Immigration & Anor [2012] FMCA 91 the Court held at [43] that where a claimant is professionally represented “it must be assumed that the claims which the claimant wished to make… were the ones expressly articulated by him and his advisers and that none where left to be inferred”; approved on appeal in SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10], [26].
The Amended Application complains that the Delegate failed to take into account Clauses 9(b), 9(c) and 14(a)(i) of the Direction. It also complains that the Delegate failed to take into account information provided by the applicant as to why she wanted to study in Australia and how that study would assist her employment in Vietnam.
The Minister submits that the relevant considerations and material were taken into account by the Delegate. The Amended Application, in truth, complains about weight, which is beyond the scope of review of the present proceedings. It also seeks to re-argue the applicant’s case before the Delegate, which is impermissible.
Clause 9(b) required the Delegate to have regard to the applicant’s “personal ties to their home country (for example family, community and employment)”. The Delegate complied. He noted “the applicant is an unmarried female from Vietnam with no dependent family and no evidence of formal employment in Vietnam” (CB 200). The Delegate then decided to “give weight to the Applicant’s circumstances in their home country” indicating that “the applicant does not genuinely intend to stay in Australia temporarily” (CB 200). The applicant is disputing that weight. It cannot be established that the Delegate failed to take into account Clause 9(b).
Clause 9(c) required the Delegate to have regard to the “economic circumstances” of the applicant so far as they would be a “significant incentive for the applicant not to return to their home country” (CB 200). The Delegate complied. He noted that there was “[n]o evidence of formal employment in Vietnam”. The Delegate was mindful of the applicant’s desire “assist her family’s business” (CB 201). The applicant complains that the Delegate should have preferred evidence of “her parents’ wealth” and concluded that the applicant “may have been more comfortable in Vietnam”.This was never expressly articulated to the Delegate and the applicant is refashioning her case. In any event, the Delegate had regard to the family business, but gave weight to the applicant not being formally employed. It was open to the Delegate to do so.
Clause 14(a)(i) of the Direction required the Delegate to consider “previous visa applications” and the “grounds on which they were refused.”The applicant complains that the Delegate did not do so and, if he had, he may have “discovered that the previous applications were rejected because of lack of information, which Ms Nguyen had sought to rectify” (applicant’s submissions). The relevance of this is not expressed to the Delegate. The Delegate stated that he had “taken into consideration the applicant’s visa history.”He then, in the applicant’s favour, decided not to give “significant weight to the past refusals”.However, the Delegate was concerned that “the applicant has failed previously to demonstrate that [her] intention to study in Australia is genuine” (CB 201). This reflected the reasons for the refusal of the previous visas. It was open to the Delegate to proceed this way.
The Minister contends that the applicant complains that the Delegate did not take into account of how the applicant’s course would assist her in her proposed future career in her parent’s business. This, it is submitted, is wrong. The Delegate stated that he had considered “documents and information provided by the applicant” (CB 199). The Delegate was mindful of the applicant’s belief “that upon completion of the course she would be able to assist her family’s business” (CB 201). However, the Delegate found that the “benefit of the proposed course would improve the applicant’s employment or career prospects in Vietnam.” In short, the applicant’s complaint goes to a matter of fact or weight. The allegation of failure by the Delegate to take into account information is not made out.
Applicant’s oral submissions
Ground One
Mr Karp, appearing for the applicant, tendered two documents, noted at [1] above. Mr Karp brought the Court’s attention to Exhibit “A1”, dated 2 November 2011 and highlighted in the reasons for decision the alleged “lack of information” provided by the applicant. The reasons state:
…[T]he applicant currently studies privately at home in Hai Phong, and wishes to broaden her knowledge and language proficiency in taking on her study in Sydney, Australia. However, I have found that there in no evidence provided in the application to support the agent’s claims. In addition, the applicant completed high school in 2007 and in her curriculum vitae indicated that she is at home currently. Given the lack of information and inconsistent statement relating to the applicant’s education background, I am doubtful on the credibility of her intention to study in Australia.
Mr Karp then took the Court to the following paragraphs, which go to the applicant’s parents’ financial position. Mr Karp indicated that in the current matter the parents’ financial position was addressed at CB 81-149. The evidence includes a translation of a document from the Department of Planning and Investment of Haiphong City which shows the contributed capital of the applicant’s parents to Duyenhai Joint Stock Electricity Assembly Company. Mr Karp took the Court to CB 84 which shows a summary of the salaries of the applicant’s parents in the 2009 financial year. Mr Karp took the Court to CB 92 which contains a certificate titled “Certificate of right to own house and use land”. Mr Karp argued that acknowledging that the first application was rejected for “lack of information”, the current application shows an abundance of official information in support of her visa application.
Similarly, in the current application, Mr Karp argues that the applicant addressed her reasons for wanting to study in Australia in a statement appearing at CB 151-154.
The second document Mr Karp referred to, being Exhibit “A2” noted at [1] above, is the second refusal of a Student visa by the delegate, dated 5 April 2012. Mr Karp argues that the delegate, at page two of the document, focuses on the applicant’s English proficiency. Mr Karp submits that in the current application, the applicant submitted an IELTS test (CB 167). The Delegate, in the second refusal, was also not satisfied that the applicant’s study proposal was relevant to increase her career prospects (see applicant’s statement CB 151-154). Mr Karp argues that in the most recent visa application, the applicant has attempted to address all the deficiencies in the previous two visa applications.
Mr Karp notes that the third and current Student visa refusal (at CB 199-202) sets out the legislative framework and the relevant criteria being clause 573.223 in Schedule 2 of the Migration Regulations, set out above at [5], which identifies what is required at the time of the decision. It is argued that, essentially, that the Minister has to be satisfied that the applicant is a genuine student for entry, having regard to her circumstances, immigration history and any other relevant matters.
Mr Karp notes that the relevant matters are set out in the Direction, which is made under s.499 of the Migration Act. Mr Karp contends that there is a question about how the Direction is to be construed and took the Court to Minister for Immigration and Citizenship v Anochie & Anor (2012) 209 FCR 497. This case dealt with another direction, relating to s.501 of the Migration Act which has since been superseded. Mr Karp argues that Perram J, in this case, directs how a direction, made under s.499 was to be construed. At [25] his Honour stated:
25. As a species of delegated legislation, Direction 41 is to be interpreted in accordance with the general principles relating to the interpretation of Acts of Parliament: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ citing DC Pearce, Delegated Legislation in Australia and New Zealand (Butterworths, 1st Ed, 1977) at 286 [628]; see also DC Pearce & S Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 4th Ed, 2012) at 461 [30.1]. The learned author of that work notes a possible qualification to that principle to which the Court did not refer in Agfa-Gevaert; that is, the need to keep in mind that regulations are often addressed to practical people skilled in a particular trade and hence often exhibit minor inconsistencies which ought to lead to their interpretation in light of practical considerations: see Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180at 183 per Lord Reid. As Professor Pearce notes, this principle has received support in Australia and is ‘eminently sensible’ in the case of ‘regulations that are endeavouring to deal with day-to-day situations and which impose obligations on persons who are in no position to consult a lawyer as to the meaning of the legislation’: Delegated Legislation in Australia (4th Ed) at 462-463 [30.3]. Murphy J accepted that a regulation was to be construed as one with its authorising statute, but nevertheless thought that ‘such regulations evolve in the same way described by Lord Reid and his observations are applicable to them’: Driscoll v J Scott Pty Ltd (1976) 8 ALR 593 at 598.
Then at [26] his Honour continued:
26. Assuming such an approach is available in the case of regulations generally, I do not think that approach should be taken to Direction 41. It is one thing to say that a shop or factory regulation should be read with a little latitude in light both of its likely authors and readers, another altogether to put Direction 41 in that category. Its subject matter shows that its intended readership consists of delegates of the Minister making difficult administrative decisions under a statute which itself is of considerable complexity, as well as the Tribunals and Courts that will, from time to time, be called upon to review decisions made by reference to the Direction. Assuming that Lord Reid’s statement forms part of Australian law, I do not think that it would be appropriate to apply it in this case. There may, indeed, be a reason in the future to doubt its on-going relevance. Previously, regulations were drafted (or at least settled) by the Office of Legislative Drafting and Publishing, which is within the Commonwealth Attorney-General’s Department. Following the passage of the Parliamentary Counsel and Other Legislation Amendment Act 2012 (Cth), the function of drafting subordinate legislation has been transferred to the Office of Parliamentary Counsel, which is also responsible for the drafting of statutes: see Explanatory Memorandum, Parliamentary Counsel and Other Legislation Amendment Bill 2012 (Cth). One assumption upon which Lord Reid’s statement is premised – a differing approach to drafting – is likely, as this régime progressively takes effect, to be falsified.
Mr Karp submits that his Honour’s statement applies directly to the construction of the Direction in the current proceedings.
Mr Karp notes that the Direction has been made under s.499 of the Migration Act and commenced on 5 November 2011. Under the heading application, it states:
This Direction applied to delegates performing functions, or exercising powers under section 65 of the Migration Act…
The preamble to the Direction sets out the functions of the Student visa program and states:
The Direction provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances… This Direction is binding on all decision makers.
Mr Karp submits that Clause 2.2 of the Direction relates back to Clause 2.1 of the Direction, in that the word “checklist” means in that context and that the Direction should not be used to the exclusion of all other indicia or evidence.
Mr Karp took the Court to Clause 9(b) of the Direction (outlined at [10] above). Mr Karp submitted that the requirement that the Delegate look at the extent of the applicant’s personal ties must be a requirement that the whole of the family situation be considered. Mr Karp took the Court to Clause 9(c) of the Direction (outlined at [10] above) and argued that the last sentence must have a proviso that this is to be considered where relevant.
The next relevant section of the Direction that Mr Karp drew to the Court’s attention is Clause 14(a)(i) (outlined at [11] above). Mr Karp submits that the words “or the grounds on which they were refused” are important in the current context. Mr Karp submits that the Delegate, under the heading “Assessment” stated that he has:
… [T]aken into consideration whether the applicant’s situation in their home country is such that it indicates that the applicant does not genuinely intend to stay in Australia temporarily. In addition, I have carefully considered the applicant’s age, education, employment history and socioeconomic position in Vietnam. I note that the applicant is an unmarried female from Vietnam with no dependent family and no evidence of formal employment in Vietnam. Given these circumstances, I cannot be satisfied that the applicant has personal ties that would serve as a significant incentive for them to return to Vietnam.
(CB 200)
Mr Karp contrasts this statement to Clause 9(b) of the Direction, which states:
9(b) The extent of the applicant’s personal ties to their home country…
Mr Karp argues that the Delegate is required to examine what those personal ties are, not simple states what they are not. Mr Karp submits that the Delegate does not give consideration to what the ties are, but simply to what the ties are not. Had he considered what the ties are, he would have had to consider that the applicant had parents in Vietnam whom she lived with, as expressed in her Statement at CB 151, and that she has a brother who also resides in Vietnam (CB 65). Mr Karp submits that the Delegate has not fulfilled the requirement set out above to consider the extent of the applicant’s personal ties to her home country.
Mr Karp took the Court to Clause 9(c) of the Direction, which states:
9(c) Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country…
Mr Karp submits that this consideration is not considered at all, other than to simply say that there is no evidence of formal employment. Mr Karp argues that this does not comply with the requirement that the Delegate consider her economic circumstances.
Mr Karp moved to Clause 14(a)(i) (outlined at [11] above) of the Direction and argued that the Delegate appears to ignore this requirement completely. Under the heading “The applicant’s immigration history” it states:
I have taken into consideration the applicant’s visa history and note that in the past the applicant has applied for two previous student visas which were refused. Though I have not given significant weight to the past refusals in making my decision, it is a concern that the applicant has failed previously to demonstrate that his (sic) intention to study in Australia is genuine.
(CB 201)
Mr Karp submits that had the Delegate considered the reasons for the past refusals he would have had to address them in the present application. Mr Karp argues that there is no indication that the Delegate has considered the reasons for the past refusals as he was required to do under Clause 14(a)(i) of the Direction.
Mr Karp interpolates that there are a number typing errors in the decision, which indicated the level of care that the Delegate has taken to assess the decision.
Ground Two
In respect of Ground Two, Mr Karp took the Court to s.54 of the Migration Act, which states:
Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
Mr Karp submits that the applicant, in her statement found at CB 151-154, gives a fulsome account of why she wants to study in Australia. The statement initially deals with her parents’ means, which is supported by documentation (CB 84-149). The applicant then explains why she has selected Lloyds and Williams as her colleges of choice. She states that they are both regarded highly in Vietnam and that completion of that course will equip her for the modern workforce and future employers. The applicant stated at [11] and [21] of her statement:
11. I have so many friends who had enrolled in similar courses conduct in Vietnam, and have made comparison, although the curriculum and subjects are mostly similar, however, I feel that I shall only subject to the same environment where most of the local Vietnamese are in the same class.
…
21. I had spoken to a lot of education providers in Hanoi, and Hai Phong City on similar courses in Business Administration and Accounting, and I do not have the same feeling as those being offered at Lloyds and Williams.
(CB 152-153)
The applicant claims that she wouldn’t otherwise have the same opportunity to practice and improve her English language skills. The applicant concludes the statement by saying that her parents support her. Mr Karp submits that this is made relevant by ss.54 and 55 of the Migration Act. Mr Karp questions where this is considered in the Delegate’s decision. He referred the Court to the Delegate’s decision, where it states:
While I accept and have placed weight on the fact that the applicant may wish to study in an English speaking environment, given the applicant has not investigates seriously study options in her home country, I cannot be satisfied that the applicant intends a genuine temporary stay in Australia.
(CB 200)
Mr Karp argues that the applicant did in fact investigate her study options in Vietnam and the fact that the Delegate refutes this is inconsistent with her statement. Further, Mr Karp submits that the Delegate has stated that the course that the applicant wishes to undertake is inconsistent with her economic or educational circumstances and that she has not been employed in a similar field to that in which she intends to study (CB 201). Mr Karp argues that again the terms and the language used by the Delegate are inconsistent with the Delegate having read the applicant’s Statement at CB 151-154.
Minister’s Oral Submissions
Mr Jones, representing the Minister, submitted that there are three matters that must be borne in the mind when dealing with the applicant’s complaints. The first matter is something that draws attention to Clause 1 of the Direction. This Clause indicates that it is not intended to be used as a checklist, but rather as a guide for decision-makers. Mr Jones contends that it is common ground that the matters set out in the Direction must be taken into account by the decision-maker, but what this Clause suggests to the Minister is that the question is not some slavish or mechanical recitation of the matters set out in the Direction. The question is whether a particular decision in substance can be understood to have regard to the matters set out in the Direction and it is submitted that the decision in the present proceedings answers that description.
The Minister submits that it was argued on behalf of the applicant that the Direction is not a checklist for the purposes of Clause 1 because Clause 2(b) recognises that other relevant information can be taken into account. The Minister submits that the two clauses cannot be combined or collapsed in this way, rather, the question to be asked is whether in substance the matters laid down by the Direction have been considered.
The Minister submits that the second matter looks at the limit on the law of relevant considerations. The Minister contends that the Direction and the wider law of relevant considerations should be read together: Peko-Wallsend (supra). It is argued that it is for the decision-maker, not the Court, to determine the appropriate weight to be given to the matters. Further, if the Court is satisfied that the decision maker has had regard to the matters set out in the Direction, then that is the end of the inquiry for the purposes of judicial review.
The Minister submits that the final matter is that judicial review is not a vehicle by which the applicant can refashion their case to what was put before the decision maker. Mr Jones drew to the Court’s attention SZRPA v Minister for Immigration (supra), a decision where the critical question is the claims that were expressly articulated, rather than those that were left to be inferred.
The Minister’s submits that all of the clauses contained in the Direction identified by the applicant and the information submitted by the applicant were taken into account by the Delegate. It is argued in respect of Clause 9(b), which concerns the extent to which the applicant’s personal ties were taken into account and were referenced by the Delegate in his decision, specifically at CB 200, notes that the applicant is an unmarried female, with no dependent family and no evidence of formal employment in Vietnam. The Minister submits, once read with the Delegate’s broader statement, that this shows that the applicant’s personal ties were considered. The Minister notes that at CB 199, the Delegate has listed all the information considered, which relevantly states:
…I have considered the following:
· relevant legislation contained in the Act and Migration Regulations 1994 (the Regulations), collectively “migration law”;
· information contained in the department’s Procedures Advice manual 3;
· documents and information provided by the applicant; and
· other relevant information held by the Department of Immigration and Citizenship (DIAC)
(CB 199)
Mr Jones contends that the applicant was arguing that the Delegate was identifying what was absent in the applicant’s circumstances and. as such, it should be inferred by the Court that the Delegate had not considered what was present in the applicant’s circumstances resulting in a breach of the Direction. The Minister, however, submits that what this reveals is that the Delegate was appraising the applicant’s circumstance and then decided that he could not be satisfied that the applicant had the relevant personal ties. The Minister submits that it is not a case of matters not being considered, but it is a matter of the case being assessed in accordance with the Direction.
Mr Jones then referred the Court to Clause 9(c) of the Direction. This Clause focuses on the applicant’s economic circumstances and the incentives for the applicant not to return to their country of origin. The Minister submits that the Delegate noted there was no evidence of formal employment in Vietnam, but was mindful of the applicant’s desire to assist her family’s business, evidenced at CB 201 under the heading “The value of the course to the applicant’s future”. Mr Jones argued that there was enough information in the decision to reveal that regard was had by the Delegate in relation to the applicant’s economic circumstances.
The Minister took the Court to Clause 14(a)(i) which relates to the applicant’s previous visa applications and is set of at [11] above. The Minister submits that the sole question is whether the Delegate had regard to the previous applications which, in turn, is relevant to the general criterion of whether the applicant is genuine or intends to stay in Australia. The Minister submits that there has been adequate regard to the previous applications, where the Delegate states:
I have taken into consideration the applicant’s visa history and note that in the past the applicant has applied for two previous student visas which were refused. Though I have not given significant weight to the past refusals in making my decision, it is a concern that the applicant has failed previously to demonstrate that his (sic) intention to study in Australia is genuine.
(CB 201)
The Minister submits that this extract shows that the Delegate did not hold against the applicant that her past two Student visa applications had been unsuccessful. The Minister referred the Court to Exhibit “A1” which states:
…I am doubtful on the credibility of her intention to study in Australia.
Similarly, Exhibit “A2” states:
…I am not satisfied, given the applicant (sic) individual circumstances, that the applicant intends a genuine temporary stay in Australia.
The Minister submits that the Delegate in the current proceedings had regard to the past refusals and the grounds for those refusals which is shown in the above passage of the Delegate’s decision (CB 201), specifically in the final line which leaves it open for the Court to conclude that the Clause 14(a)(i) of the Direction has been observed.
The Minister contends another issue is how far the Delegate took into account the information submitted by the applicant. The Minister submits that regard was had to the statement (located at CB 151-154) submitted by the applicant. The Minister, once again, referred the Court to the list of dot points (CB 200) which identifies the documents and information that the Delegate considered. The Minister submits that unless it is submitted to be false, the Court should conclude that this indicates regard was had by the Delegate in the terms the Delegate has indicated.
The Minister submits that the Delegate was mindful of the applicant’s belief that upon completion of the course she would be able to assist with her family’s business. The Delegate went on to say that he considered the benefit of the proposed course to be questionable. The Delegate also indicated that the applicant had not seriously investigated study options in her home country and that he could not be satisfied that the applicant genuinely intended to stay in Australia temporarily for the duration allowed in the Student visa. The Minister submits that the question is whether or not the Delegate has cast his mind to the material and in these proceedings the Delegate did cast his mind to the material, assessed that material and validly reached conclusions. As such the Court’s function as a matter of judicial review is not engaged.
In relation to the applicant’s argument in regard to Anochie (supra), the Minister submits that the argument doesn’t appear to be alleging that the Delegate misconstrued the Direction, it appears to be that the delegate understood, but failed to observe the Direction. Finally, the Minister submits that the issue in regards to the typographical errors, that under beneficial construction these matters can be ignored, and the Ministers rejects the applicant’s assertion that the Delegate’s decision reveals a general lack of care.
Consideration
As indicated above, on 27 September 2012 the Delegate of the Minister, Australian Consulate-General, Ho Chi Minh City, refused to grant the applicant the Student visa as sought. The Delegate was not satisfied that the applicant “is a genuine applicant for entry and stay as a student because I am not satisfied the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances… On the basis of the available evidence I am not satisfied that the applicant meets the requirements of clause 573.223 in Schedule 2 of the Regulations” (CB 201).
Mr Karp drew the Court’s attention to the previous applications by Ms Nguyen that were refused on the basis of lack of information. The first decision dated 2 November 2011 (Exhibit “A1”) contains the following reasons for the refusal of the application:
After careful consideration of all the information you have provided, I was not satisfied that you meet the relevant criteria for the grant of this visa as set in Australia migration law. Your application was refused because you did not satisfy subclauses 573.223(2)(a)(i) and 573.232 of Migration Regulation 1994 (the Regulations)…
The applicant is 22 year old, wishes to undertake an English course, a Certificate III course in Business, a Certificate IV course in Business then followed by a Diploma course in Management and an Advanced Diploma course in Management for a total period from 10/10/2011 to 19/09/2014.
I have noted in the statement of the applicant’s authorised agent that the applicant currently studies privately at home in Hai Phong, and wished to broaden her knowledge and language proficiency in taking on her study in Sydney Australia. However, I have found that there is no evidence provided in the application to support the agent’s claims. In addition, the applicant completed high school in 2007 and in her curriculum vitae indicated that she is at home currently. Given the lack of information and the inconsistent statement relating to the applicant’s education background, I am doubtful on the credibility of her intention to study in Australia.
The applicant stated that her study and stay in Australia will be funded by her parents and provided one bank book of VND 1,233 million, which was deposited on 13/07/2011. The applicant’s proposed study plan falls into the assessment level 3. Therefore her presented funds do not meet requirements of being held at the bank at least three months prior to the visa application lodgement. Therefore, I am not satisfied that the applicant gives the sufficient evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant.
In supporting the financial capacity of the applicant’s financial sponsors, Mr Nguyen Van Toi and Ms Nguyen Thi Hanh, the applicant provided evidence of their employment indicating that his parents are listed members of Duyen Hai Electricity Assembly JSC and their combined income of year 2010 was VND 308.200 million (approximately VND 26 million a month). While I acknowledge her parents’ employment and investment with this company, but in the lack of official document I am unable to determine that how the company has been operated to generate sufficient business income and to pay for the applicant’s parents. Therefore, I am not satisfied that the applicant has provided sufficient evidence to substantiate the claimed income.
In conclusion, I am not satisfied that the applicant provided sufficient evidence to substantiate the level of funding required, Further, the regular income of the applicant’s sponsor was insufficient to accumulate the level of funding being provided to the applicant in accordance with the requirement mentioned in Schedule 5A for the highest assessment level which is specified under Clause 5A511. Therefore, I am not satisfied that the applicant met the subclause 573.223(2)(a)(i) and 573.232.
The second decision, dated 5 April 2012 (Exhibit “A2”) provides the following reasons for the refusal of the second application:
After careful consideration of all the information you have provided, I was not satisfied that you meet the relevant criteria for the grant of this visa as set in Australia migration law. Your application was refused because you did not satisfy subclauses 572.223 of Migration Regulation 1994 (the Regulations)…
The applicant is 23 year old, proposes to undertake an English course, a Certificate III course in Business, a Certificate IV course in Business then followed by a Diploma course in Management and an Advanced Diploma course in Management for a total period from 16 April 2012 to 12 December 2014.
I have taken into consideration the information and the supporting documents relating to the financial capacity of the applicant’s parents and acknowledged that they are able to generate sufficient funds to cover the applicant’s study and stay in Australia.
The applicant’s proposed courses falls into the assessment level 3, which require the applicant to show her English language proficiency. In the absence if evidence of English proficiency, I am not satisfied that the applicant meets the requirements mentioned in Schedule 5A for the highest assessment level for the applicant;
In assessing whether or not the applicant intends to enter Australia as a genuine student, I have taken into account the applicant’s individual circumstances and her education background. I note that the applicant completed high school in 2007 and has not attempted a similar course or investigated study options in Vietnam. I am unable to reconcile that her study proposal with obtaining a Diploma qualification from Australia which is unlikely to increase her career prospect. I am not satisfied, given the applicant individual circumstances, that the applicant intends a genuine temporary stay in Australia.
I have also considered the answers the applicant provided to this office during a phone interview conducted by a case officer, including: the fact that the applicant was unaware that she was enrolled in a package course in Business and she stated that she would study English and Accountancy.
Based on all information before me, I am not satisfied that the applicant provided evidence of English language proficiency in accordance with the requirements mentioned in Schedule 5A for the highest assessment level which is specified under Clause 5A407. Further, having regard to the applicant’s circumstances and other relevant matters, I am not satisfied that the applicant a genuine applicant for entry and stay as a student because I am not satisfied that the genuinely intends to stay in Australia as a genuine student. Therefore, I am not satisfied that the applicant meet the requirements of subclause 572.223(2).
The substantive argument advanced by Mr Karp on behalf of the applicant is that the decisions of the Minister’s delegates made on 2 November 2011 (Exhibit “A1”) and 5 April 2012 (Exhibit “A2”) identify the deficiencies in those applications which resulted in the applicant retaining Andy Pham Lawyers to prepare a new application that sought to rectify those deficiencies. The new application, which was received in the Australia Embassy Hanoi on 8 June 2012, is found in the Court Book at CB 1-194. Mr Karp submits that the substantial volume of attachments attached to the application is focused on addressing the previously identified deficiencies. The November 2011 decision identified the lapse of any formal education undertaken during the period after the applicant completed secondary school and the timing of the application to undertake tertiary education in Australia, together with the financial position of the applicant’s parents who were guaranteeing to provide funds for the applicant to undertake the course of study as well as for associated living expenses. The second decision of 5 April 2012 rejected the applicant’s Student visa application because of her lack of English proficiency and the nominated course of study being inconsistent with her stated goal for undertaking the programme of study.
The Court does not have the benefit of being able to examine the contents of the previous applications that were rejected by the Delegate and must rely upon the decision records only which have been tendered as exhibits. However, a review of the Court Book, which contains the contents of the third application, demonstrates that a considerable volume of material has been marshalled and presented to the Delegate.
In support of the third Student visa application signed on 15 May 2012 by the applicant and lodged by her agent Andy Pham Lawyers on Wednesday 30 May 2012, there is a substantial volume of material attached. Significantly, there is a statement prepared by the applicant (CB 151-154) which contains the following paragraphs that explain why the selected courses would assist her in her proposed future career in her parents’ business:
14. Although, I have been off from school since 2008, but for the majority of the time, I do receive private tuition at home with a Philippine English teacher. I do have a suitable command in English language.
15. During day to day, I involve with my parents family business in Hai Phong, mainly assisting them with banking needs, book keeping, records auditing and many other roles.
16. I am of the view that upon completion of my studies in Australia, not only that the course chosen will broaden my specific knowledge on business administration and accounting, knowing that good business management will involve excellent approach to interpersonal skills, book keeping, sound accounting methodology to ensure the best cash flow for any business, as no doubt cash flow is an important part in any business.
The courses that I have chosen are suitable and cater to my individual needs as most the subjects I have chosen are structured so that my qualifications in stages with a spread of assessments. Courses from Lloyds International College for courses in:
(a) General English (commencing on 6 August 2012-30 September 2012);
(b) Certificate III in Business (commence date 5 October 2012 – 04 April 2013);
(c) Certificate IV in Business (commence date 05 April 2013 – 02 January 2014);
(d) Diploma of Management (commence date 3 January 2014 – 2 October 2014):
And courses from William Business College in:
(f) Bachelor of Business (Accounting) (commence date 10 November 2014 – 21 July 2017).
17. I chose to study at Lloyds and Williams because it immediately caught my eyes. It was not the average College. Its location and its surrounding in Sydney are absolutely beautiful.
18. What are being offered are Lloyds and Williams are realistic. The options sound perfect and just what I wanted. The courses directly focus on what I wanted to study which is business administration and accounting.
19. My ultimate dream is to be able to assist and manage my parents family business upon my return and that Lloyds and Williams will be one step closer to my dream.
20. I shall be able to experience something different and I will absolutely loving the experience. The programs designated at Lloyds and Williams are designed to suit me individual needs, not only to benefit from vocational skills training, but I would prefer the flexibility and co-ordination for mature age student like myself.
21. I had spoken to a lot of education providers in Hanoi, and HaiPhong City on similar course in Business Administration and Accounting, and I do not have the same feeling as those being offered at Lloyds and Williams.
22. The course I had chosen with the College will aim to engender the qualities within me. In my view, flexibility, friendly and focused education is the key to a successful career.
23. I had spoken to my parents, both are fully support my intention to study in Sydney, a great and vibrant city. My parents will undoubtedly employ me on my return to Vietnam. My future employment prospect will improve at a higher standard, as I will be exposing to a higher standard of education in a foreign country like Australia.
(CB 152-154)
The Delegate’s assessment was set out below five sub-headings and makes the following observations:
The applicant’s circumstances in her home country
I have taken into consideration whether the applicant’s situation in their home country is such that it indicates that the applicant does not genuinely intend to stay in Australia temporarily. In addition, I have carefully considered the applicant’s age, education, employment history and socioeconomic position in Vietnam. I note the applicant is an unmarried female from Vietnam with no dependent family and no evidence of formal employment in Vietnam. Given these circumstances, I cannot be satisfied that the applicant has personal ties that would serve as a significant incentive for them to return to Vietnam.
Also, I have noted that the applicant has completed high school in Vietnam in 2007 (sic) and has not undertaken any tertiary or further studies since. While I accept and have placed weight on the fact that the applicant may wish to study in an English speaking environment, given the applicant has not investigated seriously study options in her home country, I cannot be satisfied that the applicant intends a genuine temporary stay in Australia.
I give weight to the applicant’s circumstances in her home country which indicates that the applicant does not genuinely intend to stay in Australia temporarily.
(emphasis added – basis for claim in ground 1 – breach of Direction 53g(b)) (CB 200)
The Delegate continued:
The applicant’s potential circumstances in Australia
I have considered the applicant’s potential circumstances in Australia and have not identified any factors that are relevant to the applicant’s intention to stay in Australia temporarily.
The value of the course to the applicant’s future
I find that the course the applicant is seeking to undertake is inconsistent with their economic or educational circumstances. The applicant has not been employed in a similar field as she intends to study in Australia. At interview, advised that upon completion of the course she would be able to assist her family’s business. The benefit of proposed course to the applicant’s future in Vietnam is questionable and it appears unlikely that the course would improve the applicant’s employment or career prospects in Vietnam. The significant cost if the course is unlikely to be offset by the potential income derived by the applicant in her expected employment field.
I give weight to the value of the course to the applicant’s future which indicates that the applicant does not genuinely intend to stay in Australia temporarily.
The applicant’s immigration history
I have taken into consideration the applicant’s visa history and note that in the past the applicant has applied for two previous student visas which were refused. Though I have not given significant weight to the past refusals in making my decision, it is a concern that the applicant has failed previously to demonstrate that his (sic) intention to study in Australia is genuine.
Other relevant matters
I have considered whether any other matters are relevant to this assessment and have not identified any that are relevant to the applicant’s intention to stay in Australia temporarily.
(CB 201)
The Delegate’s decision then states:
I have considered factors set out in Ministerial Direction No 53 and have placed weight on the applicant’s circumstances in their home country and the value to the course to the applicant’s future. On balance I am not satisfied that the applicant is a genuine applicant for entry and stay as a student because I am not satisfied the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances; the applicant’s immigration history; the intentions of the applicant’s parents, legal guardian or spouse (if the applicant is a minor); and any other relevant matters. On the basis of the available evidence I am not satisfied that the applicant meets the requirements of clause 573.223 in Schedule 2 of the Regulations.
As the applicant does not satisfy the requirements of clause 573.223, I find that they do not meet the criteria for the grant of a Subclass 573 (Higher Education Sector) visa. As I have found that the applicant does not satisfy clause 573.223, it is not necessary for me to consider the other criteria for this subclass of visa.
(CB 201)
The balance of the material attached to the applicant’s application for a Student visa is taken from the Index to the Court Book and has been listed below. This list of information is included to identify the range and scope of documents without a detailed analysis of each item and appears as follows:
No.
Description
Date
Page
5
School Record
2004-2007
33-54
6
Graduation Certificate
20/11/2007
55
7
Details of relatives
1/07/2012
56
8
Passport
-
57-58
9
Identity Card
19/07/2011
59-60
10
Birth Certificate
11/07/2011
61-62
11
Curriculum Vitae
11/07/2011
63-68
12
Justice Record Note
01/07/2011
69-71
13
Confirmation of Enrolment from Lloyds International College and Williams Business College
25/05/2012, 28/05/2012
72-80
14
Confirmation of business contribution capital at Duyen Hai Joint Stock Electricity Assembly Company issued by Department of Planning & Investment of Hai Phong City – Applicant’s father
02/05/2010
81-83
15
Confirmation of business income contributed capital at Duyen Hai Joint Stock Electricity Assembly Company issued by Department of Planning & Investment of Hai Phong City for the financial year in 2009 & 2010 – Applicant’s father
04/05/2010
84-86
16
Certificate of Business & Tax Registration Joint Stock Company – Business Code 0200571593
04/05/2010
87-91
17
Certificate of Right to Own House and Use of Land in English & Vietnamese, issued by People’s Committee of Hai Phong City – Applicant’s father
24/05/2000
92-100
18
Household Book issued by Deputy Chief of Police of Le Chan District – Applicant’s father
29/09/2009
101-104
19
Saving Card at Sea Bank – Applicant’s mother
13/07/2011
105-111
20
Confirmation of business contributed capital at Duyen Hai Joint Stock Electricity Assembly Company issued by Department of Planning & Investment of Hai Phong City – Applicant’s mother
02/05/2010
112-114
21
Confirmation of business income contributed capital at Duyen Hai Joint Stock Electricity Assembly Company issued by the Department of Planning & Investment of Hai Phong City – Applicant’s mother
02/05/2010
115-118
22
Passport – Applicant’s father
-
119-122
23
Certificate of Land Use Rights under the name of the applicant, Ms Thu Huyen NGUYEN issued by An Hal District at Lot 1095/196
30/12/2002
123-132
24
Original & notarized House Rental Contracts of 163 Nguyen Duc Canh St (formerly known as 154 Nguyen Duc Cahn)
12/12/2006,
29/12/2008,
28/12/2009,
28/12/2010
133-136
137-139
140-142
143-144
25
Other documents provided by the Applicant
-
151-154
27
Letter from the Applicant’s representatives to Thu Thuy, Australian Consulate General, attaching duplicates of many documents provided to the Australian Embassy-Hanoi (see [1] above), in addition to:
13/07/2012
155-161
28
GTGT (in Vietnamese)
-
162-166
29
International English Language Test results
16/06/2012
167
30
Confirmation of Enrolment in Williams Business College
10/07/2012
168
31
Bank Statement issued by TechcomBank for full period from 4 January 2012 to 26 June 2013 for Duyen Hai Joint Stock Electricity Assembly Company as to trading income
04/01/2012-26/06/2012
169-179
32
Undertaking as to full and & unconditional financial sponsorship
03/07/2012
180-182
The material identified at Items 5-32 of the Index above was included in the third application by the applicant’s agent in order to address the identified deficiencies in the previous two applications. These can be summarised as:
a)Parents financial status;
b)Immigration status;
c)Reason for undertaking course of study;
d)English proficiency; and
e)Personal ties to home country.
I believe, in many cases before this Court and the Federal Court, the principles establishing the approach that should be adopted in the interpretation of Directions issued by the Minister under s.499 of the Migration Act have been properly expressed. Both parties have referred the Court to the decision in Peko-Wallsend (supra).
Mr Karp referred the Court to Anochie (supra) and particularly [25]-[26] of that decision. These paragraphs are reproduced above at [38]-[39] above. Mr Jones’ observations in respect of Perram J’s reasons in Anochie is that it was not advanced on behalf of the applicant in these proceedings that the delegate this misconstrued the Direction, rather, that the delegate understood, but failed to observe the Direction.
In the Minister for Immigration and Citizenship v Taufahema & Anor (2010) 114 ALD 537 his Honour Buchanan J considered s.499 of the Migration Act which permits the Minister to give written directions to a person or body having functions or powers under the Act. The person or body must comply with such a direction (s.499(2A)). His Honour made the following observation at [32]-[36]:
32. The statutory direction in s 499(2A) of the Act, that the AAT comply with the Direction, had the result that it was bound to treat each of the matters which it was required to consider as a “fundamental element” (R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329), although generally, and subject to any effective direction, the weight to be given to particular considerations remains a matter for the decision-maker (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41). In Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 Rares J expressed the view (at [110]) that the combined effect of these, and other, judicial statements was that a decision-maker was required to treat consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process. His Honour’s views were referred to by a Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at [267]. Counsel for the Minister submitted in the present case that the views expressed by Rares J were “cited approvingly”. For my own part I think the emphasis given by the Full Court was on the need to treat the relevant factors as central or fundamental elements in making the decision.
33. Whatever approach is to be preferred, in my view no criticism of the decision of the AAT is available by reference to this requirement. It is clear that each of the relevant factors, and the need that they be considered in accordance with the significance placed upon them by the Direction, were at the forefront of the attention of the AAT. The present proceedings provide no opportunity for a complaint about the weight given to particular factors, or the overall conclusion, unless the AAT misunderstood, or failed to perform, its statutory duty.
34. In general support of the arguments by the Minister that the AAT had failed in its duty to give proper attention to the matters about which complaint was made, I was referred to a recent decision of a Full Court in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1. In the course of its reasons the Full Court at [48] referred to the observations of the High Court in Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 (at 272):
48 ... reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
35. The Full Court went on (at [49]):
49 When the allowances called for by this passage are made, we remain of the view that the AAT’s reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played ...
36. Later, the Full Court said (at [53] – [54]):
53 ... In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons. The problem is that [124]–[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all.
54 Notwithstanding her Honour’s careful analysis, our own careful analysis of the AAT’s reasons convinces us that so far as those reasons reveal, the AAT did not reach a conclusion in relation to whether and to what extent general deterrence was relevant to the circumstances of Mr Lafu’s case. Apart from reciting the requirement that that factor be taken into account, the AAT’s reasons do not indicate whether the AAT was influenced, and if so by what process of reasoning, by the factor of general deterrence, in deciding that Mr Lafu’s visa was to be cancelled. We conclude that the AAT did not give real consideration to the factor of general deterrence as it related to the individual circumstances of Mr Lafu’s case.
In an article written by Paul Wentworth concerning the High Court decision in Peko-Wallsend (supra), “Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] FedLawRw 19; (1986) 16(4) Federal Law Review 386”, the learned author addresses the “Principles of Law” considered in that decision as follows:
Preliminary - The principles of law
One important aspect of this decision of the High Court is Mason J's clear and definitive statement of the principles of law governing the ground of judicial review of failing to take into account relevant considerations. This ground of review is embodied in s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which is substantially declaratory of the common law. His Honour identified five propositions which he considered to be established by the cases.
The first proposition is that before the ground of failure to consider relevant matters can be made out the decision-maker must be bound rather than merely entitled to take a matter into account. Being bound to consider certain matters implies a duty which must be performed by a decision-maker in order to properly exercise his or her discretionary power; any failure to perform the duty indicates an improper exercise of that power.
The factors which the decision-maker is bound to consider are determined by the construction of the statute conferring the discretionary power. This is Mason J's second proposition. Furthermore, His Honour reaffirmed earlier decisions of the Court which had laid down that where a statute confers a discretion which is apparently unconfined, the factors to be considered when exercising the discretion are likewise unconfined except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
The third proposition stated by Mason J was that not every failure to take into account a consideration to which the decision-maker was bound to have regard would result in the decision being impugned because it might. be so insignificant that the failure to consider it could not materially affect the decision. Brennan J specifically addresses significance in his treatment of the ex parte communication. His Honour points out that a decision-maker is not bound to consider all the minutiae.
The facts to be brought to mind are the salient facts which gave shape and substance to the matter: the facts of such importance that, if they are not properly considered, it could not be said that the matter had been properly considered.
Fourthly, Mason J emphasised the limited role of the courts when exercising judicial review. The role of the court is to set limits on the exercise of the discretion and not to substitute its own decision for that of the administrator. His Honour added that what follows from this is that, in the absence of any statutory indication, the weight to be given to the consideration to which the decision-maker is bound to have regard is generally for the decision-maker and not the court to determine. A qualification put by Mason J was that, in some cases, where excessive weight has been given to a factor of no great importance or no weight given to an important factor the court may review the decision. His Honour was of the opinion, however, that the preferred ground in dealing with such an issue is s 5(2)(g) and s6(2)(g) of the Judicial Review Act: that the decision was so unreasonable that no reasonable person would have made it. The test has been accepted in England and Australia but there has been considerable diversity in its application. Mason J found some guidance in the close analogy between judicial review of administrative decisions and appellate review of judicial discretion where there has been a failure to give proper weight to a matter. His Honour said that a mere preference for a different result will not justify the court in reviewing the latter:
So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.
The fifth proposition emphasises that the preceding four propositions apply to the review of administrative decisions made by Ministers of the Crown when exercising discretionary powers. However, in the context of the subject matter scope and purpose of the statute, the Minister may be entitled to take into account broader policy considerations.
(footnotes omitted)
In the Amended Application, Ground 1 claims that the Delegate failed to take into relevant consideration aspect of Direction no 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications which are issued by the Minister under the provisions of s.499 of the Migration Act, commencing on 5 November 2011. The specific elements that are claimed to have not been taken into consideration were:
The applicant’s circumstances in their home country
9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
…
b. The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.
c. Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.
…
The other element set out in the Direction that the applicant claims has not been considered by the Delegate is:
The Applicant’s Immigration History
…
14. In considering the applicant’s immigration history, decision makers must have regard to the following factors:
a. Previous visa application for Australia or other countries, including:
i.if the applicant previously applied for an Australia temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.
…
(emphasis added)
I first turn to the applicant’s personal ties to her home country Vietnam. The relevant passage of the Delegate’s decision that is in dispute is as follows:
I note the applicant is an unmarried female from Vietnam, with no dependent family and no evidence of formal employment in Vietnam. Given these circumstances, I cannot be satisfied that she has personal ties that would serve as a significant incentive to her return to Vietnam.
(emphasis added) (CB 200)
Clause 9(b) of the Direction required the Delegate to examine what the applicant’s personal ties are. The claim is that the Delegate simply expressed the nature of this examination as what the ties were not, by making no reference to that fact that:
a)She lived with her parents (CB 151 (Statement), CB 63-65);
b)She had a blood brother, Nguyen Khanh Toan (CB 65); or
c)Personal activities – staying at home (CB 65).
Issues not addressed in submissions by either parties, however, important to the issue in Clause 9(b) concerned the evidence in respect of:
a)The parent’s apparent comparative affluence;
b)The parents’ business interests; and
c)The applicant’s association with that business and expression of a desire to eventually return to and run the operation.
The problem with this approach is that the concept of a checklist is being adopted, which is directly contrary to the provisions of Clause 1 of the Direction. Similarly, it is contrary to the approach to review addressed by his Honour Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259 at 291 where his Honour stated:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law: Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 286-287.
In Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594, French CJ and Kiefel J stated at [9]:
9. …[A] decision-maker is not … required to expose his or her thought processes or provisional views for comment before making the decision…
Taking the pieces of evidence that have been identified to address the issue of the applicant’s ties to her home country, it is for the decision-maker to attribute the appropriate weight to each item as part of its fact finding function: Wu Shan Liang (supra), per Brennan CJ, Toohey, McHugh and Gummow JJ at 281-282. It is not open to this Court to engage in any re-examination of the findings of fact made by the decision-maker, nor is it open for the Court to embark on a re-assessment of the evidence relating to those facts: Peko-Wallsend (supra) per Mason at 41-42. The Delegate’s reasons clearly showed that it considered the situation as required by Direction 53 and referred to the factors that the Delegate believed and accepted were the main factors that were likely to determine the applicant’s future actions in respect of her returning to Vietnam.
Clause 9(c) of the Direction required the Delegate to examine the economic circumstance of the applicant that would present as a significant incentive for the applicant not to return to their home country. The claim being advanced on behalf of the applicant was that this element of the evaluation was not considered at all, other than simply to say that there was no evidence of any formal employment, whereas there was material that made reference to how the applicant was living, in particular, that she was living with her parents who were wealthy on a relative basis. Essentially, the argument is that economic circumstance encompassed more than formal employment. However, under the heading “The value of the course to the applicant’s future” the Delegate’s notes that the applicant has not been employed in or associated with a similar field to the cause of study she plans to undertake. This is coupled with the observation that the study plan is inconsistent with her stated future employment objectives and the significant cost compared to the potential of earning future income. Taking these comments into account, the claim that the applicant’s economic circumstances were not considered cannot be sustained.
Clause 14(a)(1) of the Direction concerns the applicant’s visa history, which the applicant complains was ignored because of the Delegate’s finding in the following passage:
I have taken into consideration the applicant’s visa history and note that in the past the applicant has applied for two previous student visas which were refused. Though I have not given significant weight to the past refusals in making my decision, it is a concern that the applicant has failed previously to demonstrate that his (sic) intention to study in Australia is genuine.
(CB 201)
The claim advanced by the applicant in respect of this issue being that had the Delegate considered the reasons for the two prior refusals he would, at the very least, have had to substantially address those reasons in the third Student visa application. This, in effect, was that the inadequacies of the previous two applications had been significantly and substantially addressed by the retention of a migration agent to prepare the present application to resolve those shortcomings.
I agree with the submissions made by Mr Jones at [57] above that the Delegate does not focus on the alleged inadequacies of the first two applications, rather, appears to follow the substantial findings in both previous applications, that state:
…I am doubtful of the credibility of her intention to study in Australia (Exhibit “A1”).
…I am not satisfied given the applicant (sic) individual circumstances, that the applicant intends a genuine temporary stay in Australia (Exhibit “A2”).
Although no direct statement to this effect is made by the Delegate in the Decision Record currently before the Court, the finding is considered with the review of the previous visa applications that the Delegate’s underlying concern was the applicant’s real intention in seeking the visa and the likelihood that she intended not to return to Vietnam.
After reviewing the Decision Record together with the submissions of both sides, I believe the approach adopted by Mr Jones for the Minister set out at [50]-[60] above is correct. Consequently, Ground 1 cannot be sustained and should be dismissed.
In respect of Ground 2 of the Amended Application, the claim is that the delegate failed to comply with s.54 of the Migration Act which states:
Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(emphasis added)
The operation of this requirement was considered by her Honour Barnes FM (as she then was) in SZMGW v Minister for Immigration [2009] FMCA 88 at [53]-[59]:
53. I note first, that in addition to referring to the need for an active intellectual process, Black CJ also suggested in Tickner v Chapman (at 462 – 463) that “The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance.” Burchett J expressed the view (at 476) that to “consider” material such as a report or representations, the Minister was required “to apply his own mind to the issues raised” by those documents. Kiefel J stated (at 495) that the “intellectual process” of considering representations requires that the Minister “have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them.” Her Honour continued: “From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.”
54. Tickner v Chapman turned on the need for the personal involvement of the Minister in consideration of representations attached to a report as a prerequisite to the making of a declaration. Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 is more directly in point. The statutory requirement in question was in the Migration Act (s.54(1)). It provides that the Minister (or delegate under s.496) must “have regard to” certain information in a visa application (albeit not information the decision-maker “gets”) in deciding whether to grant or refuse to grant a visa. What was in issue in Singh was whether the Minister had had regard to six written character references in refusing to grant a visa to the applicant on the basis that he did not pass the “character test” in s.501(6) of the Act.
55. In determining the meaning of the concept “have regard to” in s.54(1) Sackville J commenced by considering the language of the relevant statutory provision. His Honour observed the use of mandatory language and accepted that s.54(1) imposed a duty on the Minister, a breach of which would lead to invalidity of the decision (at [53]). The relevant part of s.424 is similarly worded. It imposes an obligation on the Tribunal if it gets information that it considers relevant, in that it states that the Tribunal “must have regard to that information in making the decision on the review”. It was not suggested that a failure to comply with such a procedural requirement of Division 4 of Part 7 of the Migration Act would not constitute jurisdictional error (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 24; (2005) 228 CLR 294 at [77]per McHugh J, [173] per Kirby J and [206] – [208] per Hayne J and SZKCQ at [52] – [58] per Buchanan J).
56. Sackville J pointed out (at [54]) in Singh, that the expression “have regard to” was capable of different meanings depending on its context. In the context of a broadly-worded provision which required a decision-maker to have regard to all the information in a visa application, his Honour (at [57]) rejected a construction which would have required the decision-maker to take such information into account as a fundamental element in the decision-making process (cf R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J). Sackville J accepted (at [54]), that the expression “have regard to” in s.54) simply means to give consideration to something, so that “In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than to treat them as fundamental elements in the decision-making process.”
57. Moreover, as Sackville J pointed out (at [55]), the information that a Tribunal “gets” during a review may range “over a wide field and may take many different forms. It may go to the heart of the applicant’s case or may be of marginal relevance.” Notwithstanding the rather different statutory context of s.424(1), which requires a Tribunal member to have regard to information it gets in conducting a review “that it considers relevant”, the notion of “an active intellectual process” directed at such information is also apposite in relation to the concept “have regard to” in s.424(1).
58. Section 424(1) gives the Tribunal power to get “any information that it considers relevant” and then provides that if the Tribunal does get such information it must have regard to it in making the decision under review. Information which a Tribunal obtains in conducting a review of an application for a protection visa that it considers relevant may also take many different forms and be of varying degrees of relevance. The generally expressed requirement in s.424(1) that the Tribunal have regard to information in making a decision can be distinguished from a provision which requires a decision-maker to have regard to one matter only (see R v Hunt) or which specifies a list of factors to which regard must be had (see for example s.501(6)(c) of the Migration Act discussed by Sackville J in Singh at [55]). Further, as Sackville J noted in relation to s.54(1), s.424(1) is not a provision applicable to a power to be exercised by a particular person (such as the Minister). It applies generally to all Tribunal reviews by all Tribunal members where the Tribunal gets any information it considers relevant. The degree of relevance of such information (or, indeed, of particular parts of a source of information) may well differ. In those circumstances it cannot have been contemplated by the drafters of s.424 that any information, no matter how marginal its relevance, must be treated as a “fundamental” element in making the determination.
59. Nonetheless, in the context of s.424 (as in s.54), the expression “have regard to” requires more than that the decision-maker is merely aware of the information. The first respondent did not suggest otherwise. Rather there must be “a process of consideration” of the information which requires more than mere knowledge that the information exists. In Singh Sackville J (at [59]) expressed doubt that much was to be gained by attempting to be more precise about the extent to which the decision-maker was bound to consider the information in a visa application. His Honour referred with approval to the suggestion by Weinberg J in A v Pelekanakis and Another [1999] FCA 236; (1999) 91 FCR 70 at 82 that the duty would not be discharged “if no realistic regard is had to that information” (and also see Wen v Minister for Immigration and Multicultural Affairs [2000] FCA 320; (2000) 61 ALD 653 at [56]). The same may be said in relation to s.424(1). For consideration to be “realistic” or “genuine” (cf Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] per Gleeson CJ and Gummow J), there must, as the applicant contended, be “an active intellectual process” directed at the information as Black CJ discussed in Tickner v Chapman and as Sackville J accepted in Singh. However, as acknowledged in both Tickner v Chapman and Singh, in a particular case “The extent of the required intellectual process must depend on the nature of the information and its degree of relevance” (Singh at [59]).
The applicant, in her statement of 25 May 2012, gives an account of why she wants to study in Australia. The relevant paragraphs addressing this issue are [14]-[23] (which are reproduced at [66] above). Accordingly, it is necessary to consider whether, on the balance of probabilities, the delegate engaged in an active intellectual process in respect of the materials contained in those paragraphs of the applicant’s statement. It is relevant to have regard to the Delegate’s statement of reasons as evidence of his decision making process and whether he had regard to the information in question as well as the contents of the applicant’s statement.
In the Delegate’s decision the contents of the applicant’s statement are addressed as follows:
The value of the course to the applicant’s future
I find that the course the applicant is seeking to undertake is inconsistent with their economic or education circumstances. The applicant has not been employed in a similar field as she intends to study in Australia. At interview, advised that upon completion of the course she would be able to assist her family’s business. The benefit of the proposed course to the applicant’s future in Vietnam is questionable and it appears unlikely that the course would improve the applicant’s employment or career prospects in Vietnam. The significant cost of the course is unlikely to be offset by the potential income derived by the applicant in her expected employment field.
I give weight to the value of the course to the applicant’s future which indicates that the applicant does not genuinely intend to stay in Australia temporarily.
(CB 201)
The argument advanced on behalf of the applicant is that her statement contains a fulsome account of why she wants to study in Australia. Focusing specifically on the context of the applicant’s study program in her statement, the applicant sets out information regarding her parents’ business as follows:
5. My parents have been operating and working at Duyen Hai Joint Stock Electricity Assembly Company respectively as Director and Secretary. The Company has been in operation as our family business since 2003, at this stage has good reputation across Hanoi and Hai Phong City.
6. Most of the electrical works engaged by my parents’ Company are large governmental projects at the State level, where ongoing technical supports are required at installation of cable for radio, television, broadband networks, and other electrical needs.
(CB 151)
Then the applicant indicates her involvement in that business at [15], where it states:
15. During day to day, I involve with my parents family business in Hai Phong, mainly assisting them with banking needs, book keeping, records auditing and many other roles.
(CB 152)
Significantly, the applicant then makes a claim that the proposed study program in Australia would result in her suitability for a future role within her parents business, as follows:
16. I am of the view that upon completion of my studies in Australia, not only that the courses chosen will broaden my specific knowledge on business administration and accounting, knowing that good business management will involve excellent approach to interpersonal skills , book keeping, sound accounting methodology to ensure the best cash flow for any business, as no doubt cash flow is an important part in any business.
…
(CB 152)
Leaving aside the relative quality of the education providers, the opportunity for the applicant to practice and improve her language skills, and her parents’ financial support, the key issue being addressed by the Delegate is whether the future employment objectives of the applicant would be satisfied by the courses undertaken in Australia. This question is specifically addressed by the Delegate in the following passage:
I find that the course the applicant is seeking to undertake is inconsistent with their economic or education circumstances. The applicant has not been employed in a similar field as she intends to study in Australia. At interview, advised that upon completion of the course she would be able to assist her family’s business…
(CB 201)
Against this claimed objective of the proposed educational program the Delegate is aware that the person making this claim finished secondary school eight years earlier and had not since undertaken any subsequent education. The applicant did not indicate that she has taken up any specific role within her parents’ business to indicate she was pursuing a targeted career. There is no suggestion that in this eight year period the applicant has sought to gain experience in any particular field within her parents’ business aimed at becoming a possible future manager. I have formed the view that the Delegate, in reaching this decision, has participated in an active intellectual process comprising evaluating the applicant’s stated claims against the practicality of any suggested achievements.
The relative merits of one educational facility as opposed to another or the relative standing at various Sydney colleges enjoyed within Vietnam are not specifically relevant to the decision that the Delegate came to because this information has no impact on the decision whether the applicant’s intention to stay in Australia is temporary as opposed to permanent. The argument that the language used by the Delegate in the Decision Record is inconsistent with the contents of the applicant’s statement, suggesting that the Delegate has not taken the contents of that document into account cannot be sustained. The Delegate has considered the material that is directly relevant to the decision that is required to be made and the absence of further commentary on the other material that is supplementary to the key issue does not establish that the delegate did not have regard to that material. In the circumstances, I am satisfied that this Ground cannot be sustained and should be dismissed.
Consequently, the Amended Application should be dismissed with costs.
I certify that the preceding ninety- six (96) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 22 November 2013
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