Qiao v MIAC

Case [2008] FMCA 380

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

  1. The application filed on 16 August 2007 and the amended application filed in court on 18 February 2008 are dismissed.

  2. 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

  1. 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

  1. The review applicant is a permanent Australian citizen and the father and sponsor of the visa applicant in his application for the visa.

  2. 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. 

  3. 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.

  4. The visa applicant claims to be a citizen of China who was born and raised in China. 

  5. 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.

  6. 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…

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AGLC
Qiao v MIAC [2008] FMCA 380
Case
[2008] FMCA 380
Decision Date

CaseChat Overview and Summary

In the matter of Qiao v MIAC, the Federal Court was asked to review a decision by the Migration Review Tribunal (MRT) regarding a visa application. The applicant, Qiao, sought to challenge the Tribunal's decision that he had not commenced his studies within a reasonable time after completing the equivalent of year 12 in 2003, which was a condition of his visa. The central issue before the court was whether the Tribunal had properly considered the relevant evidence and policy guidelines in reaching its decision. Specifically, the court needed to determine if the Tribunal had erred in law by failing to adequately consider the applicant's financial dependence on his parents and the associated difficulties in commencing his studies.

The court examined the Tribunal's decision and found that it had indeed considered the relevant policy guidelines and evidence. The Tribunal had explicitly referenced the Departmental Policy Guideline concerning clause 101.213 and the case of Sok, indicating that it had taken these into account in its deliberations. The Tribunal also noted that it was not bound by policy, a statement interpreted by the court as a correct expression of the principle that policy does not constitute a binding rule. The court concluded that the Tribunal's reasoning demonstrated it had applied and considered the policy, despite not making an express finding on the applicant's dependency on his parents. The court found that the Tribunal's conclusions that the applicant's delay in commencing his studies was not reasonable, and that his financial difficulties did not justify the delay, were supported by the evidence and open to the Tribunal.

The court dismissed the application, affirming the Tribunal's decision. It ordered that the applicant pay the costs of the first respondent, fixed at $4,400, payable within five months from the date of the orders.

Orders

Orders of the court

1.

The application filed on 16 August 2007 and the amended application filed in court on 18 February 2008 are dismissed.

2.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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