Qiao v MIAC
[2008] FMCA 380
•28 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QIAO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 380 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether jurisdictional error – Child (Migrant) (Class AH), subclass 101 Child visa – “dependent child” under r.1.03 and r.1.05A of the Regulations – “reasonable time” under clause 101.213(1)(c) of the Regulations – whether breach of s.359A of the Act. |
| Migration Act 1958 (Cth), ss.65, 359A, 474 |
| Ivo Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (12 December 1995) Sok v Minister for Immigration & Indigenous Affairs [2005] FMCA 190 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | JIAN ZHONG QIAO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2527 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 18 February 2008 |
| Date of last submission: | 18 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms K. Welshman |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 16 August 2007 and the amended application filed in court on 18 February 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,400 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2527 of 2007
| JIAN ZHONG QIAO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal) signed on 6 July 2007 and notified to the applicant by letter dated 20 July 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant the applicant’s Child (Migrant) (Class AH), subclass 101 Child visa (the visa) under s.65 of the Migration Act 1958 (the Act).
Background
The review applicant is a permanent Australian citizen and the father and sponsor of the visa applicant in his application for the visa.
To be eligible for the visa, the visa applicant must be a dependent child of an Australian citizen or be a holder of a permanent visa.
The visa applicant was born on 24 November 1984 and was aged 22 at the time of the Tribunal hearing. He claims to be the dependant child of the review applicant.
The visa applicant claims to be a citizen of China who was born and raised in China.
He completed high school in 2003, and then commenced studying at the Tianjin Shibeitaikn Modern Technical College in 2004, some 13 months after he completed his high school studies.
The visa applicant applied to the Department for the visa on 6 November 2006. On 9 November 2006, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.101.213(1)(c) of Schedule 2 of the Migration Regulations 1994 (the Regulations) (see The relevant law) and does not satisfy the essential criteria for the grant of the visa.
On 21 December 2006 the review applicant applied to the Tribunal for review of the delegate’s decision.
The relevant law
At the time that the visa application was lodged, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.
The primary criteria require that at the time of application, the visa applicant must be a “dependent child” (as defined in r.1.03 and r.1.05A of the Regulations) of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen who has not turned 25: cl.101.211(1)(a) and (b) of Schedule 2 of the Regulations.
Relevantly, cl.101.213(1)(c) provides that:
Subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of education at an educational institution leading to the award of a professional, trade or vocational qualification.
Clause 101.213(1)(c) does not apply if the applicant is incapacitated for work.
The term “reasonable time” in cl.101.213(1)(c) is not defined in the Regulations. The Department’s Procedures Advice Manual (PAM 3) (The Departmental Policy Guidelines), provides the following guidance to decision-makers in regard to “reasonable time”:
Officers should consider the policy background; that the purpose of the visa is to provide for children who are genuinely still dependent on their parent/s.
Examples of breaks of more than 6 months from studies that might be considered reasonable are:
·if the break between completing studies in the Northern hemisphere and commencing studies in the Southern hemisphere is more than 6 months or
·a break due to having given birth or
·a break due to illness or
·dire financial necessity or
·if the applicant has commenced studies but moved between institutions and it has taken time to re-commence studies.
Note that in Australia now, it is considered acceptable and sometimes even desirable to have a “gap” year between school and post-secondary studies.
The Tribunal proceedings
On 21 December 2006 the review applicant applied to the Tribunal for review of the delegate’s decision (Court Book (CB) 43-50).
On 10 April 2007 the review applicant was sent a letter pursuant to s.359A of the Act (CB 57–59). The review applicant made comments in response by letter dated 4 June 2007 and also enclosed records of his attendance and achievements (CB 64-70).
On 3 July 2007 the applicant appeared before the Tribunal to give evidence and present arguments together with his migration agent.
The Tribunal’s findings and reasons (CB 99-101)
The Tribunal found that the applicant had commenced studies at a technical college some 13 months after completing his high school studies. In those circumstances, the Tribunal was not satisfied that the applicant had recommenced his studies within a “reasonable time” after completing the equivalent of Year 12, and therefore that he did not meet the requirements of cl.101.213(1)(c)). In reaching this conclusion, the Tribunal:
·did not accept that the desire of the visa applicant to wait 13 months to assess his options regarding his choice of tertiary educational institution following his failure at the university entrance examination, even having regard to the review applicant’s financial problems, established that the applicant commenced his studies within a reasonable time after completing his high school studies
·did not accept that any self-study undertaken by the visa applicant for his eventual course or towards his university entrance examinations would take some 13 months, nor that any studies undertaken at home, outside the context of a formal educational environment, would be meaningful studies
·accepted that the review applicant may have had financial difficulties during the 13 month period, however, did not accept that the evidence provided by the visa applicant in relation to his financial circumstances established that the difficulties were of such seriousness that he could not have commenced his studies at the technical college in 2003 after completing his high school studies, rather than waiting a further 13 months to reassess his options following his failure of the university examination, given the substantially lower fees than the visa applicant would have had to pay at university
·there was no evidence that the visa applicant was incapacitated for work.
For these reasons, the Tribunal affirmed the decision of the delegate not to grant the visa.
The proceedings before this Court
The review applicant filed the application in this Court on 16 August 2007 setting out 1 ground of review of the Tribunal decision.
On 18 February 2008, the review applicant filed in Court an amended application setting out 3 grounds of review.
At the hearing of the matter before the Court on 18 February 2008, Ms Welshman of counsel appeared for the review applicant. Ms Clegg of counsel appeared for the first respondent.
Ms Welshman confirmed at the hearing that the review applicant was proceeding on the amended application only.
Grounds of amended application
The grounds of the amended application are:
(1)The Tribunal failed to take into account a relevant consideration.
Particulars:
(i)The Tribunal failed to consider whether or not the Visa Applicant was genuinely dependent on his parents.
(2)The Tribunal took into account an irrelevant consideration.
Particulars:
(i)The Tribunal while purporting to consider whether or not the Visa Applicant had commenced full time studies within a reasonable time of finishing school, in fact considered whether or not it was possible for the Visa Applicant to commence full time studies immediately after finishing school, or sooner than he did.
(3)The Tribunal breached section 359A of the Migration Act 1958 by failing to give particulars of information that would be the reason, or part of the reason, for affirming the decision under review, and by failing to invite comment on it.
Particulars:
(i)The Tribunal in its decision affirmed the decision of the Minister’s delegate on the basis of a finding it would have been possible for the Visa Applicant to have commenced full time studies immediately after finishing school, or sooner than he did.
(ii)The Tribunal in its decision affirmed the decision of the Minister’s delegate on the basis of a finding that the Visa Applicant had failed to establish that his financial difficulties were serious enough to prevent him from commencing full time studies immediately after finishing school, or sooner than he did.
(iii)The Tribunal failed to give particulars of the information in (a) and (b), above, and failed to invite the Visa Applicant to comment on it.
Ground 1 of the amended application
Ms Welshman submits that the Tribunal has not applied Departmental Policy Guidelines which, in accordance with the well-established principle of administrative law, should have been applied unless there are cogent reasons to the contrary such as an injustice in a particular case.
She submits that whilst the Tribunal acknowledges the existence of the Departmental Policy Guidelines, it notes that it is not bound by the policy (CB 100). Ms Welshman submits therefore that the implication of this is that whilst the policy is referred to, the Tribunal has not applied it at all, as borne out by the rest of the Tribunal decision.
In this regard, she argues that the Tribunal, having first raised the policy, then not appearing to mention or examine whether or not the visa applicant was genuinely dependent on his parents, has not applied the policy and has not given any reasons for how the circumstances of this case would depart from the circumstances of a case where it would be inclined to apply the policy.
She referred the Court to the decision in Ivo Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (12 December 1995) at [19] – [30]:
Policy does not constitute a binding rule, unless a statute so provides, as does s.17(1) of the 1991 Act. Absent a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case, should do so. It is impossible to define or delineate the circumstances in which departure from policy is justified. Much depends upon the nature and context of the decision to be made, the nature of the policy to which regard is to be had and the nature of the individual circumstances to which attention is directed. In Re Drake (No 2), Brennan J said at 645 that, because of the part which policies play in fair administrative decision-making, the Administrative Appeals Tribunal should apply a lawful policy "unless there are cogent reasons to the contrary" such as "injustice in a particular case". In Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627, Davies J and Mr R A Sinclair spoke of "special or unique circumstances". No term will in itself adequately express the point. The decision must be made having regard to the decision and its context, the nature and ramifications of the policy and the nature and consequences of the individual circumstances which are relied upon (at [23]).
And …
In Re Drake (No 2) Brennan J used the words "cogent reasons" to encompass the totality of the relevant circumstances to be taken into account and the balancing exercise which must be undertaken, and so did the majority of the Tribunal in Re Evans when using the expression "special or unique circumstances" (at [30]).
Ms Welshman submits that a proper consideration of the evidence in this case (namely that the visa applicant was solely dependent on his father for his basic needs and the cost of his education and he had no other available support: (See CB 97 under Claims and Evidence), would have satisfied the Tribunal, if it was accepted that the visa applicant was genuinely dependent on his parents.
The Court has carefully considered the review applicant’s submissions. In this regard, the Tribunal expressly set out under the Relevant Law, the Departmental Policy Guideline in regard to clause 101.213 in its decision (at CB 96) in the context of the issue it identified in the present case of whether the visa applicant satisfies this clause.
It then expressly stated in its Findings and Reasons that it “had regard to the considerations identified in Sok and Departmental Policy” (CB 100.4). Whilst it then went on to say that it noted however that “it is not bound by Departmental policy”, I do not construe this statement as anything more than a correct statement of the well-settled principle “that policy does not constitute a binding rule…”: Ivo Skoljarev at [23].
This approach is reinforced by the Tribunal thereafter reiterating, in even clearer terms, that it has had “regard to all the circumstances and the considerations in Departmental policy and Sok”, before reaching its conclusion that it was not satisfied that the visa applicant recommenced his studies within a reasonable time after completing the equivalent of year 12 in 2003 (CB 100.8).
I consider that a fair reading of the Tribunal decision demonstrates that the Tribunal did, in fact, apply and consider the policy in the context of assessing and considering the visa applicant's evidence and his explanation for his not commencing his course of studies at an earlier point in time.
I consider that the Tribunal’s findings in this regard that:
[it] does not accept that the desire by the visa applicant to wait some thirteen months to reassess his options regarding his choice of tertiary education or institution, even having regard to the review applicant's financial problems, establishes that the visa applicant commenced his studies within a reasonable time after completing his high school studies (CB 100);
and that:
[it] does not accept that the evidence provided by the review applicant in relation to his financial circumstances, [accepting that he may have had financial difficulties during the relevant period] establishes that the difficulties were of such seriousness that he could not have commenced his studies at a technical college in 2003 rather than waiting a further 13 months to reassess his options following his failure of the university entrance examination (CB 101)
were open to it on the evidence and material before it.
Whilst the Tribunal did not make any express finding in regard to whether the applicant was genuinely still dependent on his parents, it was clearly implicit in its reasoning process in considering the applicant's explanation for his delay in commencing his tertiary studies in the particular time frame of his case, and the Tribunal’s reference to its acceptance that:
the review applicant could not afford to pay the substantial costs associated with attending university as a private student. Nevertheless, the evidence establishes that the visa applicant effectively waited for some 13 months, upon the advice of the review applicant, to see whether he could enter the university the following year as a public student and to reassess whether the review applicant could afford to pay the full fee cost for him to enter university. The Tribunal does not accept that the desire by the visa applicant to wait some 13 months to reassess his options regarding his choice of tertiary educational institution, even having regard to the review applicant's financial problems, establishes that the visa applicant commenced his studies within a reasonable period after completing his high school studies (CB 100)
and the Tribunal’s further references to its acceptance that:
… the review applicant may have had financial difficulties during that period … and to …his financial circumstances establish that the difficulties were [not] of such seriousness… (CB 101).
I therefore detect no jurisdictional error on this basis. Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
Ms Welshman submits that the Tribunal took into account an irrelevant consideration by asking itself when was the earliest the visa applicant could have commenced full time study. In this regard, the Tribunal found that the applicant's financial difficulties were not of such seriousness that he could not have commenced his studies in 2003 rather than waiting for a further 13 months (CB 101).
She submits that this involved the visa applicant commencing his study within 5 months of completing school. If so, then the question of whether or not he commenced his study within a reasonable time simply would not have been raised, because he would have completed it within 6 months.
Ms Welshman submits that what the Tribunal should have turned its mind to is not how quickly the visa applicant could have begun, but whether this 13 months was a reasonable period given the policy guidelines in relation to dependent children. She submits in this regard that:
the hypothetical scenario of the visa applicant commencing studies in 2003 seems to be an irrelevant factor, yet it does seem to form the basis of the Tribunal's decision to affirm the decision of the Minister's delegate.
She submits that the Tribunal should have interpreted the meaning of “reasonable time” in the light of the following factors in Sok v Minister for Immigration & Indigenous Affairs [2005] FMCA 190 at [19]:
In determining what period of time would be reasonable one must necessarily consider the following factors:
a) the actual period of time involved;
b) what activities if any were undertaken during that period of time;
c) the purpose for which those activities were undertaken; and
d) if no activities connected with the ultimate course of study were undertaken the reason for not undertaking activities related to the course of study.
Firstly, contrary to the visa applicant’s submission on the point, I do not accept that a fair reading of the Tribunal’s decision demonstrates that it took into account an irrelevant consideration by asking itself the wrong question, namely when was the earliest the visa applicant could have commenced full-time studies.
The Tribunal clearly considered the applicant's case in the context of cl.101.213(1)(c), and as to whether the relevant 13 month period was a “reasonable time” in the light of Departmental Policy Guidelines in relation to dependent children and the factors referred to in Sok.
In reaching its decision, the Tribunal took into account the review applicant’s explanation that he could not afford to fund the visa applicant as a private university student and accepted that the review applicant may have had financial difficulties during that 13 month period.
The Tribunal also took into account the activity of self-study by the visa applicant during that 13 month period before reaching the conclusion that it could effectively be discounted.
The Tribunal further took into account, on the basis of the review applicant’s own evidence, that the fees at technical college were substantially lower than for university, in reaching its conclusion that the visa applicant did not need to wait a further 13 months to reassess his options following his failure of the university examination. It was in this context of the substantially lower fee scale for technical college that the Tribunal stated that the visa applicant could have commenced his studies at the technical college in 2003 after completing his high school studies.
I consider that this finding was open to the Tribunal on the evidence before it and that this finding was made in the context of considering whether the 13 month period was a reasonable time in the given circumstances of the case.
Ultimately, the Tribunal was not satisfied that the desire of the visa applicant to wait 13 months to assess his options regarding his choice of tertiary educational institution following his failure at the university entrance examination, even having regard to the review applicant’s financial problems, established that the applicant commenced his studies within a “reasonable time” after completing his high school studies.
I do not consider therefore that the Tribunal’s reference to the visa applicant being able to commence his studies at an earlier point in time should be treated in isolation, and that the applicant's attempt to do so, misconstrues the reasoning process of the Tribunal on this point.
Secondly, far from not considering the factors in Sok, I consider that a fair reading of the Tribunal decision demonstrates that it clearly turned its mind to these very factors before reaching its conclusions on the matter (see CB, in particular at 100 and 101; and see further under grounds 1 and 3 of the amended application). Whilst the Tribunal does not refer to these factors in the precise words of Sok, I am satisfied that it has clearly dealt with each of them so far as they are relevant. In this regard, it considered that the actual period of time in this case was some 13 months. It further considered the visa applicant’s claim of self-study as the relevant activity undertaken by him during the 13 month interval, and the claimed purpose of self-study in regard to the visa applicant’s proposed future university studies.
Accordingly, Ground 2 of the amended application is rejected.
Ground 3 of the amended application
Ms Welshman submits that the Tribunal should have asked the visa applicant for an opportunity to comment on the particular aspect that he could have commenced his studies in 2003. She submits that if the applicant had known that this was going to be “a part of the reason” for affirming the decision under review, the applicant may have been able to provide some evidence to rebut it.
Ms Welshman submits that the Tribunal’s finding in this regard that an earlier start date was possible is “not merely a link in the Tribunal's chain of reasoning in its decision. It is the only reason the Tribunal gives for affirming the decision under review. It not related to a lack of evidence or doubts about the evidence. Rather it seems to be a criterion of its own… the visa applicant should have been given notice that this was going to be the reason for his application failing.”
In this regard, the s.359A letter (CB 57) sent to the review applicant clearly raises the issue of what his son (the visa applicant) was doing in the 13 month period, from July 2003 to August 2004, as crucial to its determination under clause 101.213, in the light of its reference to the “small piece of paper attached to the application form”. This handwritten note stated that:
In 2003 July – 2004 August [the visa applicant] was on holiday waiting for further education to start.
The applicant was left in no doubt that this would be the reason or part of the reason upon which the Tribunal might make an adverse finding against him (CB 97).
The response to the s.359A letter by the review applicant's representative (the response) indicates that the review applicant was aware of the importance of this matter (CB 64–70). He stated that the small sheet of paper provided with the visa application had been incorrectly translated by one of the review applicant's friends and that the visa applicant was on temporary leave from his studies during July 2003 and August 2004 because he was doing self-study at home during that time, and was not on a “luxury holiday” as translated.
Furthermore, the response provides an explanation for the visa applicant not enrolling in full-time university studies (his test score result was insufficient to get government funding, and the review applicant was unable to afford to privately fund him), and his being forced to delay his enrolment to the following year so that he could strengthen his ability to achieve a greater test score through self study at home.
The review applicant was squarely on notice that if the visa applicant had not commenced his tertiary studies within 6 months of leaving secondary school, then the Tribunal would have to assess what would be a reasonable time for him to commence such studies.
The response in this regard specifically addressed this 6 month period:
The visa applicant did not enrol into his full time education immediately following his previous study within 6 months entirely because their financial difficulties although he was invited to do so… if the review applicant had enough money in supporting the visa applicant’s course of study, he would have enrolled into a full time course in a University within 6 months, rather than self study at home, therefore meet the visa criterion (CB 65).
The response further specifically addressed, (under the heading “meaning of reasonable time under Regulation 101.213(1)(c)”) the four factors [in Sok] to be considered in determining what period of time would be “reasonable” (CB 69) and states:
Whether the time is reasonable will ultimately depend upon whether a reasonable person, when considering all of the circumstances would consider the time reasonable. If the period of time were as a result of capriciousness, neglect or perversity it would not be reasonable: see Thornton v The Repatriation Commission (1981) 52 FLR 285 at 292 and Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation [2001] FCA 138 (CB 70).
I consider that it was evident from the s.359A letter, and understood from the tenor of the review applicant's response, that he was clearly on notice that the Tribunal was concerned about the visa applicant's failure to commence full-time tertiary studies during the 13 month period. Clearly implicit in this, is its concern as to why the applicant had not commenced this study at an earlier point in time, and from which, subject to the applicant's response, it might draw an adverse conclusion.
Again, as stated under ground 2 above, I do not consider that the Tribunal’s reference to the visa applicant being able to commence his studies at an earlier point in time should be treated in isolation from its consideration of what amounted to “reasonable time” in the circumstances of the case, and that the applicant's attempt to do so, misconstrues the reasoning process of the Tribunal on this point (and see further under ground 2).
In any event, I find some merit in the first respondent’s submission that the s.359A letter was in this case superfluous in that the obligations of the Tribunal under this provision were not invoked since the concerns raised by the Tribunal in its letter went to its reasoning process about the facts given to it by the applicant rather than “information” itself; and further that both particulars (a) and (b) of ground 3 of the amended application fall within the rubric of the Tribunal’s reasoning process: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18].
Accordingly, Ground 3 of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 28 March 2008
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