Wang v Minister for Immigration - [2009] FMCA 168

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 168

MIGRATION – Migration Review Tribunal – student visa – whether requisite level of proficiency in English – whether jurisdictional error.

Migration Act 1958 (Cth), ss.65, 116, 357A, 476
Migration Regulations 1994 (Cth), regs.1.41 and 2.43, clauses 5A404, 5A406(1)(a), 572.223, 572.223(2)(a)(i)(A), condition 8202(3)

Chen v Minister for Immigration and Citizenship [2008] FMCA 1285
Chen v Minister for Immigration and Multicultural Affairs [2007] FMCA 2163
Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458; [2007] FCAFC 199
HWC v Corporation of the Synod of the Diocese of Brisbane & Ors (2008) 220 FLR 92; [2008] QSC 212
Isahak v Minister for Immigration & Anor [2008] FMCA 613
Liu v Minister for Immigration and Citizenship (2008) 218 FLR 150; [2008] FMCA 750
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Spring v Guardian Assurance plc [1995] 2 AC 296
Shrestha & Ors v Minister for Immigration and Citizenship [2008] FMCA 842

Applicant:

YATING WANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 163 OF 2008

Judgment of:

Lucev FM

Hearing date:

25 February 2009

Date of Last Submission:

25 February 2009

Delivered at:

Perth

Delivered on:

6 March 2009

REPRESENTATION

Counsel for the Applicant:

Ms L Chen

Solicitors for the Applicant:

Lily Chen & Associates

Counsel for the First Respondent:

Mr A Gerrard

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 163 OF 2008

YATING WANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Ms Wang, applies to this Court under s.476 of the Migration Act 1958 (Cth)[1] for judicial review of a decision[2] of the Migration Review Tribunal[3] dated 17 September 2008 affirming a decision of a delegate of the first respondent, the Minister, not to grant Ms Wang a Student (Temporary) (Class TU) Visa.[4]
[1] “Migration Act”.
[2] “Tribunal Decision”.
[3] “Tribunal”.
[4] “Student Visa”.

Issue

The issue is whether the Tribunal Decision may be subject to prerogative relief on the basis of jurisdictional error on the grounds alleged by Ms Wang in her application.

Statutory Scheme

The Student Visa for which the applicant applied was a subclass 572 visa. The relevant criteria for a subclass 572 visa are set out in the Migration Regulations 1994 (Cth).[5] Relevantly, clause 572.223 provides:
[5] “Migration Regulations”.
572.22 Criteria to be satisfied at time of decision
…
572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A) the applicant's English language proficiency for the purposes of each course of study that the applicant proposes to undertake.
Schedule 5A contains requirements in relation to five assessment levels. These assessment levels are specified by Gazette Notice under reg 1.41 of the Migration Regulations in relation to subclass 572 visas. The applicant, being a citizen of the People's Republic of China, was subject to assessment level 4.
Assessment level 4 sets out a number of alternatives for evidencing a substantial level of proficiency.
Division 2 Requirements for assessment level 4
5A404   English language proficiency
The applicant must give evidence that one of the following applies:
(a)     the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii)     achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b)     the applicant:
(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
(ii)     achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;
(c) the applicant:
(i) is fully funded; and
(ii)     has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii)   if the applicant is to undertake an ELICOS before commencing his or her principal course — will undertake an ELICOS of no more than 20 weeks duration;
(d)     the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A)     in Australia; and
(B)     in English; or
(ii)     successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A)     is specified by the Minister in a Gazette Notice for this sub‑subparagraph; and
(B)     was conducted outside Australia; and
(C)    was conducted in English; or
(iii)   as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:
(A)     was conducted in English; and
(B)     was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(iv)    successfully completed a substantial part of a course that:
(A)     is specified by the Minister in a Gazette Notice for this sub‑subparagraph; and
(B)     was conducted outside Australia; and
(C)    was conducted in English; and
(D)    was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v)     successfully completed a foundation course that was conducted:
(A)     in Australia; and
(B)     in English; or
(vi)    successfully completed a course in foundation studies that:
(A)     is specified by the Minister in a Gazette Notice for this sub‑subparagraph; and
(B)     was conducted outside Australia; and
(C)    was conducted in English;
(e)     the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;
(f) the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii)     at least 5 years of study in English undertaken in 1 or more of the following countries:
(A)     Australia;
(B)     Canada;
(C)    New Zealand;
(D)    South Africa;
(E)     the Republic of Ireland;
(F)     the United Kingdom;
(G)    the United States of America.

Facts

Ms Wang is a citizen of the People's Republic of China.[6] She first entered Australia in August 2005 on a student visa and attended English classes at the Murdoch Language Institute between August 2005 and July 2006, prior to commencing at Murdoch College.[7]
[6] Court Book 1(“CB”).
[7] CB 37 and 85.
In 2006, at the end of year 11, Ms Wang returned to China. She says that her family's business was in difficulty. Ms Wang claims that she did not want to return to Australia, but was persuaded by her parents that it was in her best interests to do so.[8]
[8] CB 85, 87, 89 and 90.
Ms Wang returned to Australia in January 2007. She resumed her course at Murdoch College. Ms Wang says her family's situation made it difficult for her to concentrate and study. She also says she took up part time work to try to relieve the financial burden on her family.[9]
[9] CB 85-86, 87, 88 and 90.
Ms Wang received a Certificate of Completion and a reference from Murdoch College at the end of 2007.[10] The Certification of Completion reads as follows:
“CERTIFICATE OF COMPLETION
Presented at the
ANNUAL GRADUATION CEREMONY
to
Wang Yating
For completion of the
WESTERN AUSTRALIAN UNIVERSITIES’ FOUNDATION PROGRAM
[10] CB 37-38.
Accredited by the
TERTIARY INSTITUTIONS SERVICE CENTRE
Principal 27 October 2007”[11]
[11] CB 38.
The reference, signed by a Teacher Advisor and the Principal, provided as follows:
“28 October 2007
It is with much pleasure that I provide this reference in favour of WANG Yating who has been a member of Murdoch College since July 2006, having previously completed studies in China. In that time she has undertaken senior level courses in the Western Australian TEE Programme (Year 11) and in 2007, in the Western Australian Universities’ Foundation Programme.
In the time that I have known her, Yating has shown herself to be a mature and responsible student who is capable of working hard to achieve her best. She has demonstrated the ability to work well both individually and as part of a group on any task. Her work is always very neatly presented. She has achieved consistent results in her chosen subjects. She is also a competent writer and speaker in the Chinese language.
Yating is a well-groomed young lady with a cheerful outlook. Her warm and friendly nature lends itself to a sound level of communication with both adults and peers. Yating is quietly well mannered and is sensitive to the needs of others.
Yating has been involved in the life of Murdoch College and this is evidenced by her participation in the Murdoch College Co-Curricular program during 2006. Her involvement in these activities has seen her develop her communication and group work skills.
I have no hesitation in recommending Yating to any position in her chosen field, and wish her all the very best for her future.”[12]
[12] CB 37. Whether the reference constitutes a negligent misstatement is not in issue here. It is noteworthy that the reference does not mention the applicant’s unsatisfactory grades in all subjects studied, her failure to achieve satisfactory course progress, failure to complete Year 12 or its equivalent, and her need to develop her English skills to a more functional level: see also paras.16 and 17 below. The reference is plainly misleading, no matter how literally correct it might be. It is disturbing that a reference was provided in this form by a major education services provider more than a decade after the House of Lords judgment in Spring v Guardian Assurance plc [1995] 2 AC 296 (“Spring”) suggested the possibility of a duty not to negligently cause economic loss to a prospective employer by the provision of an inaccurate reference, although in that case a specifically requested reference rather than a general reference was referred to: Spring at 342 per Lord Woolf. More recently in HWC v Corporation of the Synod of the Diocese of Brisbane & Ors (2008) 220 FLR 92; [2008] QSC 212 the Queensland Supreme Court has said that there is an arguable case of liability for breach of duty of care arising where a teacher, who had been engaged in improper conduct, had been allowed to resign and provided with a reference from the Principal of the school which allowed him to seek employment elsewhere, and having gained employment in another State, again engaged in improper conduct (sexual abuse) of a pupil, who now, as an adult, sought to bring civil proceedings for damages for personal injuries.
Ms Wang’s final results for 2007 were as follows:
“   Exam        Course      Grade or Level
Mark              Mark
Accounting   5               10                        E
Applicable Mathematics         11              18                       E
Calculus  13                        E
English Language &
Aust Cultural Studies          26                  33                        E”[13]
[13] CB 34.
A grade of “E” is unsatisfactory.[14]
[14] CB 35.
Thus, in each of her four subjects, including 'English Language & Australian Cultural Studies', Ms Wang was graded unsatisfactory.[15]
[15] CB 34-35.
Ms Wang lodged her application for a Student Visa on 13 March 2008[16]
[16] CB 1-18 and 44-45.
On 17 March 2008 the Department of Immigration and Citizenship[17] sent a fax to Murdoch College seeking confirmation that Ms Wang had achieved an academic result that was at least satisfactory.[18]
[17] “Department”.
[18] CB 39.
Murdoch College replied by email on 17 March 2008 advising that Ms Wang:
a)had not achieved satisfactory course progress for the purposes of condition 8202(3) of the Migration Regulations;[19] and
b)had not successfully completed secondary schooling to year 12 level (or its equivalent) for the purposes of clause 5A406(1)(a) of the Migration Regulations.[20]
[19] CB 42.
[20] CB 43.
Murdoch College also commented that:
Wang Yating's attendance at Murdoch College was satisfactory in the 2007 academic year, however her academic performance failed to meet the desired standard … I consider that she needs to develop her English skills to a more functional level before attempting higher level studies.[21]
[21] CB 43.
On 18 March 2008 a delegate refused Ms Wang’s application for a Student Visa on the basis that Ms Wang did not satisfy any of the prescribed criteria for a Student Visa, and specifically saying that as “you have not met the English requirements for the visa, I have thus refused your visa.”[22]
[22] CB 45-46. The quote is from CB 46.
On 3 April 2008 Ms Wang applied to the Tribunal for review of the delegate's decision.[23]
[23] CB 49-57.
On 18 August 2008 the Tribunal wrote to Ms Wang and told her that it had considered the material before it, but was unable to make a favourable decision on that information alone, and invited Ms Wang to a Tribunal hearing on 11 September 2008.[24]
[24] CB 74-75.
On 5 September 2008 a registered migration agent representing the applicant wrote to the Tribunal, and said:
a)that the Student Visa application was refused because “of her [Ms Wang] failing to satisfy condition 8202 – the unsatisfactory academic performance”;[25]
b)admitted that Ms Wang’s “academic performance was not satisfactory in 2007”,[26] and went on to attribute this to difficulties arising for the applicant from the position of the family business;[27] and
c)referred to Ms Wang having undertaken general English training at Murdoch Language Institute from August 2005 to July 2006, and that after one year of language study the applicant “succeeded in being admitted into the foundation course which was completed in October 2006”.[28]
[25] CB 85.
[26] CB 85.
[27] CB 85-86.
[28] CB 85.
Attached to the 5 September 2008 letter from the migration agent were statements from three persons other than Ms Wang. Each of these persons adverted to Ms Wang’s English proficiency, or lack of it, in their statements:
a)Gary and Jill Kellock – “she has enrolled in a course at UWA to further improve her English”;[29]
b)Yan Xiaoyu – “She can study without any interference. In order to improve her English language skills, she is studying in the English studying class currently”;[30] and
c)Silin Huang – “a shy girl who feels ashamed to speak English because the demerit of her English speaking.”[31]
In addition each of the witnesses wrote about Ms Wang’s personal circumstances, and in particular, the affect on her and her studies caused by her concern for her family’s business.[32]
[29] CB 88.
[30] CB 89.
[31] CB 90. Ms Huang identifies herself only as “Selina”, a cousin of “ELLA” in the statement, but is, the Court infers, the “Silin Huang” identified as a “cousin” of Ms Wang in the Response to Hearing Invitation and Tribunal Hearing Record: CB 83 and 90. It appears that Ms Wang was known as “Ella”: CB 29 and CB 88.
[32] CB 88-91.
At the Tribunal hearing on 11 September 2008 Ms Wang appeared with her migration agent as her representative, and was assisted by an interpreter.[33] The hearing was conducted by video and telephone between Perth and Melbourne, and three witnesses were called by Ms Wang.[34]
[33] CB 92.
[34] CB 92.

Tribunal Decision

On 17 September 2008, the Tribunal affirmed the delegate's decision to refuse Ms Wang’s Student Visa application.[35]
[35] Tribunal Decision, CB 106-114.
The Tribunal said it was regrettable that Murdoch College:
a)conducted a graduation ceremony at which Ms Wang, who received unsatisfactory grades for all subjects, was granted a "Certificate of Completion"; and
b)gave Ms Wang a "glowing reference" including the statement "she has achieved consistent results in her chosen subjects".[36]
[36] CB 113.
In relation to the requirements under Schedule 5A of the Migration Regulations, and in particular the English proficiency requirement, the Tribunal noted that Ms Wang provided no evidence of having sat an IELTS test, or any other evidence to demonstrate English language proficiency in accordance with clause 572.223(2)(a)(i)(A).[37]
[37] CB 113.
The Tribunal accepted that Murdoch College had provided Ms Wang with a "Certificate of Completion" but noted that:
a)Ms Wang’s academic transcript identified that in 2007 she failed to pass any of her subjects;
b)that her academic performance failed to meet the desired standard; and
c)Murdoch College had commented "that she needs to develop her English skills to a more functional level before attempting higher studies".[38]
[38] CB 114.
The Tribunal also noted that Ms Wang needed to use an interpreter for the bulk of the Tribunal hearing, although it did appreciate that a hearing was “a high-pressure environment.”[39]
[39] CB 114.
The Tribunal concluded by finding that Ms Wang had not provided evidence, in accordance with the requirements under the Migration Regulations in Schedule 5A for subclass 572 and assessment level 4 to which she was subject, in relation to her English language proficiency for the purposes of each course of study that she proposed to undertake. Consequently, the Tribunal found Ms Wang did not satisfy the requirements of cl.572.223(2)(a)(i)(A) which was an essential requirement of cl.572.223. The Tribunal Decision affirmed the delegate’s decision.[40]
[40] CB 114.

Grounds of application

The following grounds are alleged in the amended application filed on 30 January 2009:
a)the Tribunal did not take into account Ms Wang’s claim of "exceptional circumstances" that the financial hardship of the family business was beyond her control;
b)the Tribunal failed to give Ms Wang an opportunity to undertake IELTS examination; and
c)the Tribunal failed to consider that the education provider did not certify that the Ms Wang’s performance was unsatisfactory or satisfactory as required by law.

Jurisdictional error

The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error.[41] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[42]

Consideration

[41] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

[42] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Cummow and Hayne JJ.

Ground One

Ms Wang claims that the Tribunal failed to take into account that she did not satisfy the English proficiency requirement because of the "exceptional circumstances" of the financial hardship of her family's business.
The respondent submits that the claim that the Tribunal should have considered Ms Wang’s claims of exceptional circumstances is misconceived.
Section 65 of the Migration Act requires decision-makers to be satisfied of certain matters before granting a visa, in particular that the criteria for the visa in issue have been satisfied. If the decision-maker is not so satisfied then the visa must be refused. Section 65 of the Migration Act does not confer a power to be exercised as a discretion. The Tribunal was obliged to consider and apply the criteria for the visa in question. These criteria were those set out in the Migration Regulations in clause 572.223, Schedule 5A and, ultimately, assessment level 4. Discretion is not an element of the criteria. The Tribunal did not have a discretion to grant the applicant a visa on the basis of alleged exceptional circumstances.[43]
[43] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 647 per Gummow J; [1999] HCA 21 at paras.118-119 per Gummow J; Chen v Minister for Immigration and Citizenship [2008] FMCA 1285 paras.26, 28, 30-33 and 50 per Barnes FM; Chen v Minister for Immigration and Multicultural Affairs [2007] FMCA 2163 at paras.20-23 and 30 per Burnett FM (“Chen 2007”).
Ms Wang confuses refusal to grant her a visa pursuant to s.65 of the Migration Act (which is not discretionary and where exceptional circumstances are not a relevant consideration) with the cancellation of a visa pursuant to s.116 of the Migration Act (which is discretionary and where exceptional circumstances are a prescribed circumstance to be taken into account).[44]
[44] Chen 2007 at paras.31-34 per Burnett FM.
Ms Wang’s submission that the Tribunal failed to take into account her claim that her failure to meet the requisite standard of English was due to exceptional circumstances does not therefore establish jurisdictional error.
The Tribunal applied the criteria specified and had regard to the material relevant to the criteria. There was no error, let alone jurisdictional error. Therefore, this ground must fail.

Ground Two

Ms Wang claims that the Tribunal erred in failing to give her an opportunity to undertake the IELTS examination and in doing so failed to afford procedural fairness.
The common law rules relating to procedural fairness are excluded by the provisions of s357A of the Migration Act.[45] In any event, the Tribunal was not obliged to request that Ms Wang provide evidence of IELTS results. Ms Wang had already admitted in her application that she had not undertaken an English language proficiency test within the last 24 months.[46] That admission was determinative of the issue because Ms Wang did not satisfy cl. 572.223 of the Migration Regulations, in that she had not provided satisfactory evidence of her proficiency in the English language. Following the delegate's decision Ms Wang, who was represented before the Tribunal by a registered migration agent, was on notice that the determinative issue was the need to provide evidence of her proficiency in English and that one of the ways in which she could have achieved this was by providing evidence of an IELTS test score.[47] She did not do so. Rather, the evidence she put before the Tribunal confirmed her lack of proficiency in English.[48] The fact that Ms Wang’s registered migration agent has characterised the delegate’s decision as a refusal based on lack of academic performance is not material because it seems clear, and can be inferred from:
a)the delegate’s decision;[49] and
b)the statements of the three witnesses for Ms Wang sent to the Tribunal by the registered migration agent,[50]
that Ms Wang, through her registered migration agent, was aware of and on notice that the issue (or at least an issue) was her failure to meet the English language proficiency criteria.[51]
[45] Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at 225 per Heerey, Conti and Jacobson JJ; [2006] FCAFC 61 at paras.66-67 per Heerey, Conti and Jacobson JJ (“Lat”).
[46] CB 6 (question 33 in the Student Visa application).
[47] Shrestha & Ors v Minister for Immigration and Citizenship [2008] FMCA 842 at paras.63 and 65 (“Shrestha”) per Nicholls FM which considered a similar argument made in relation to the "financial capacity" criterion in cl.572.223 of the Migration Regulations.
[48] See paras.11, 22 and 27 above.
[49] See para.18 above.
[50] See para.22 above.
[51] Lat FCR at 223-224 per Heerey, Conti and Jacobson JJ; FCA at paras.49-59 per Heerey, Conti and Jacobson JJ; Shrestha at para.65 per Nicholls FM.
Ms Wang argued that s.357A(3) of the Migration Act, which requires the Tribunal to act in a way that is fair and just, somehow superimposed a requirement of general fairness on the Tribunal, notwithstanding that s.357A is an exhaustive statement of the requirements of procedural fairness. No such requirement is superimposed by s.357A(3) of the Migration Act.[52] In any event, nothing in the conduct of the matter by the Tribunal could be said to be unfair, in the context of the overall legislative requirements of the Migration Act.
[52] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 482 per Gummow J; [2005] HCA 77 at para.36 per Gummow J; Liu v Minister for Immigration and Citizenship (2008) 218 FLR 150 at 156 per Smith FM; [2008] FMCA 750 at paras.21-23 per Smith FM (“Liu”).
Ms Wang's claimed breach of procedural fairness therefore cannot succeed. There is no jurisdictional error, and this ground must fail.

Ground Three

Ms Wang submitted that the Tribunal failed to consider that the education provider did not certify that her performance was unsatisfactory (or otherwise), and that the Tribunal was required by law to do so.
As with ground one, Ms Wang’s reliance on non-certification of her performance appears to be based on confusion between refusal of a visa[53] and cancellation of a visa.[54] An education provider is only required to certify a visa holder's academic result as satisfactory under condition 8202 of the Migration Regulations. Regulation 2.43 of the Migration Regulations stipulates that non-compliance with condition 8202 of the Migration Regulations is a prescribed circumstance for cancellation of a student visa under s.116 of the Migration Act. However, this is not a cancellation of a visa. Rather it is a refusal under s.65 of the Migration Act to grant a visa.[55] What is relevant is whether Ms Wang meets all of the criteria for grant of a visa, not whether or not a condition of her prior visa had been breached. Whether Ms Wang had satisfied or breached condition 8202 of the Migration Regulations was not the relevant question to be determined by the delegate and Tribunal. Rather, it was whether or not Ms Wang could provide evidence of the applicant's English language proficiency in accordance with the requirements in Schedule 5A 404 of the Migration Regulations. Ms Wang’s reliance on Dai v Minister for Immigration and Citizenship[56] is therefore misconceived. Dai was a case concerning a mandatory requirement that the Minister cancel a visa if there is not compliance with condition 8202(3)(b) which requires achievement of “an academic result that is certified by the education provider to be at least satisfactory”. In Dai, by majority, the Full Court of the Federal Court determined that condition 8202(3)(b) conferred no statutory right on a visa holder allowing the visa holder to compel the education provider to furnish the required certification. Therefore, it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202(3)(b) in circumstances where the visa holder had been requested to, and had not, provided the requisite academic certification.[57] Dai is distinguishable from the circumstances of this case. In this case, although the Department initially asked about compliance with condition 8202, there is no requirement for certification by the education provider. Rather, Ms Wang must provide evidence of English language proficiency to the relevant standard. This Ms Wang has failed to do.
[53] Migration Act, s.65.
[54] Migration Act, s.116.
[55] Cf. Chen 2007 at para.33 per Burnett FM.
[56] (2007) 165 FCR 458; [2007] FCAFC 199 (“Dai”).
[57] Dai FCR at 463 per North J; FCA at paras.18 and 20 per North J; FCR at 466-467 per Gyles J; FCA at paras.30-34 per Gyles J; Isahak v Minister for Immigration & Anor [2008] FMCA 613 at para.99 per Lucev FM.
Ground three cannot be made out, contains no jurisdictional error, and must therefore fail.

Overall consideration

None of the three grounds of the application have been made out.
There was no evidence before the Tribunal that Ms Wang met the requisite level of proficiency in English in any of the specified ways. Rather, there was evidence before the Tribunal that Ms Wang did not meet the requisite level of proficiency in English. That evidence included the following:
a)her assessment of 'E' (unsatisfactory) in all four subjects, including 'English Language and Australian Cultural Studies';
b)Murdoch College’s advice that despite receipt of a reference and a Certificate of Completion, Ms Wang did not comply with condition 8202(3) of the Migration Regulations, and that she had not successfully completed secondary schooling to year 12 level or its equivalent in compliance with item 5A404 of the Migration Regulations ;[58]
c)the comment from Murdoch College’s Deputy Principal Stephen Fisher that Ms Wang’s attendance was satisfactory but "her academic performance failed to meet the desired standard" and that he considered that "she needs to develop her English skills to a more functional level before attempting higher level studies";
d)Ms Wang’s failure to provide an IELTS test result and advice that she had not taken an IELTS test previously;
e)Ms Wang’s failure to provide evidence that she had completed a Certificate IV course or higher while holding a student visa; and
f)Ms Wang’s witnesses’ statements concerning her English skills, or lack thereof.
[58] In Liu FLR at 155-156 per Smith FM; FMCA at paras.16-17 per Smith FM the Court observed (in the context of item 5A404) that there are discoverable requirements which involve a judgment in relation to whether the completion of an educational course has been successful. Smith FM found that "the present certificate … would not appear to be directed at providing such a qualification, since it appears to avoid any assessment of the sufficiency of the results indicated in the academic transcript. In effect, it merely certifies enrolment and attendance at classes … As Mr Liu's results illustrate, it says nothing about his achieved level of proficiency. Its tender would not appear to satisfy the policy objectives of Sch.5A item 5A404".
Given the evidence, the conclusion to affirm the delegate’s decision was a decision open to the Tribunal, and unaffected by jurisdictional error.

Conclusion

The Tribunal's Reasons for Decision do not involve jurisdictional error. The application must therefore be dismissed.
The Court will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: Sandra Gough

Date: 6 March 2009