Qiao v MIAC

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.