Wu v Minister for Immigration

[2010] FMCA 1013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1013

MIGRATION – Review of decision of the Migration Review Tribunal – refusal of a Skilled – Independent Overseas Student (Residence) visa – “first” Tribunal decision found in favour of the applicant – Tribunal is not bound by the “first” Tribunal decision – Tribunal’s findings were open to it – Tribunal did not misunderstand or misapply the relevant law – grounds seek impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.359A, 476
Migration Regulations 1994 (Cth), Sch.1, Sch.2

Thongsuk v Minister for Immigration & Anor [2007] FMCA 655
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Pasula v Minister for Immigration & Anor [2010] FMCA 219
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Choo Ai Lin v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 291
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Applicant: QING WU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1232 of 2010

Judgment of: Nicholls FM

Hearing date: 6 September 2010

Date of Last Submission: 12 September 2010

Delivered at: Sydney

Delivered on: 23 December 2010

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms B Tronson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 2 June 2010 is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1232 of 2010

QING WU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 2 June 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal’) made on 28 May 2010 to refuse a Skilled – Independent Overseas Student (Residence) visa to Mr Qing Wu (“the applicant”).

2. The applicant applied for this visa on 9 August 2005. (See Court Book – “CB” – CB 1 to CB 24.)

Relevant Law

1. In essence, this visa is available to certain overseas students who have been studying in Australia and have completed a relevant Australian educational or trade qualification.

2. This class of visa (“DD”) contains one Subclass, that is Subclass 880 (Skilled – Independent Overseas Student). See item 1128CA of Sch.1 to the Migration Regulations 1994 (Cth) (“the Regulations”). The relevant criteria for this Subclass are set out in Part 880 of Sch.2 to the Regulations.

3. For current purposes I am satisfied, nor is it in dispute, that the Tribunal properly identified the relevant criteria to the disposition of this application. See [8] at CB 169:

   “The primary and secondary criteria to be satisfied at the time of application as set out in subdivision 880.21 of Part 880 of Schedule 2 to the Regulations. The relevant criteria are set out below:

   • the decision maker is satisfied that the applicant meets the requirements of item 1128CA(3)(1) of Schedule 1 to the Regulations: cl.880.214

   • the applicant’s qualifications are relevant to the skilled occupation nominated in her or his application: cl.880.215

   • no evidence has become available since the time of application, that the information given to satisfy subdivision 880.21, or to meet the requirements in item 1128CA of Schedule 1, is false or misleading in a material particular: cl.880.224.”

4. Further, the following part of item 1128CA(3) of Sch.1 to the Regulations is relevant:

   “Other

   …

   (1) Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration by the applicant that:

   (i) each of the following sub-subparagraphs applies in relation to the applicant:

   (A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of at least 2 years at that institution while the applicant was present in Australia;

   (C) all instructions for that degree, diploma or trade qualification was conducted in English; or

   (ii) each of the following sub-subparagraphs applies in relation to the applicant:

   (A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of less than 2 years at that institution while the applicant was present in Australia;

   (B) before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, as a result of a course of study, while the applicant was present in Australia;

   (C) the 2 or more degrees, diplomas or trade qualifications mentioned in sub-subparagraphs (A) and (B) were completed as a result of 1 or more courses of study undertaken over a total of at least 2 years while the applicant was present in Australia;

   (D) each of the degrees, diplomas or trade qualifications mentioned in sub-subparagraphs (A) and (B) was completed at the institution at which it was commenced;

   (E) all instruction for each of the degrees, diplomas or trade in sub-subparagraphs (A) and (B) was conducted in English.”

5. Clause 880.215 of Sch.2 to the Regulations is in the following terms:

   “The Minister is satisfied that each of the degrees, diplomas or trade qualifications mentioned in subparagraph 1128CA(3)(l)(i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application”

The Basis for the Application

1. The applicant nominated the relevant skilled occupation of “Cook” in his application (see CB 11.2).

2. He provided documentation relevant to two courses of study in Australia:

   1)A Diploma of Business Administration at the Sydney Institute of Business Technology (“SIBT”) (CB 38 to CB 39, CB 60 to CB 62).

   2)A Certificate in Hospitality (Commercial Cookery) from Sydney International College of Business (“SICB”) (CB 56, CB 63 to CB 64, CB 80 to CB 81).

The “First” Delegate’s Decision

1. A delegate of the first respondent refused the application on 27 January 2006 (CB 65 to CB 70). The delegate found that the applicant’s diploma from SIBT was not relevant to the nominated occupation of Cook. On this basis the delegate found that the applicant did not meet cl.880.215 of Sch.2 to the Regulations.

2. The applicant applied for review by the Tribunal on 22 February 2006 (CB 71 to CB 77).

The “First” Tribunal’s Decision

1. The Tribunal (as differently constituted) found that the applicant did meet cl.880.215. In essence that Tribunal member found that the skills gained in the Diploma of Business Administration from the SIBT could be used in the nominated occupation of Cook. Further, that the qualification from the SICB was a qualification “covered” by item 1128CB(3)(l) (CB 86 to CB 87).

2. The Tribunal remitted the application to the Minister’s department with the direction that the applicant met the relevant criterion on 4 June 2007.

Before the Department

1. By letter dated 1 July 2009, the Minister’s department wrote to the applicant and invited his comments on information it had obtained that he had not studied at the SICB and that the qualifications were “false or misleading” (CB 89 to CB 95).

2. The applicant responded on 25 July 2009 (CB 98 to CB 100).

3. A delegate of the Minister decided on 4 January 2010 that the applicant failed to satisfy one of the legal requirements for the visa. This was said to be because, at the time of the making of his application for the visa on 8 August 2005, the applicant had not provided a declaration that he met the requirements of item 1128CA(3)(l)(i) or (ii) of Sch.1 (CB 102 to CB 107).

The Tribunal

1. The applicant sought review by the Tribunal of this decision on 21 January 2010 (CB 109 to CB 116).

2. The Tribunal wrote to the applicant by letter dated 15 March 2010, as the Tribunal said pursuant to s.359A of the Act, ([26] at CB 173) inviting his comments on certain information that it said would be the reason or a part of the reason for affirming the decision under review (CB 127 to CB 132).

3. In essence, the information was that the applicant had relied on the two qualifications from SICB and SIBT to satisfy the relevant regulatory requirements. It also advised the applicant that there was adverse information indicating that his qualification from SICB was false. The Tribunal further advised that it “may overturn” the decision of the Tribunal as previously constituted, and find that the qualification from SIBT was not relevant to his nominated occupation of Cook ([26] at CB 173).

4. In response, the applicant indicated that he did not know the reason for the discrepancies identified ([27] at CB 173).

5. The Tribunal was not satisfied that the applicant’s studies were relevant to his nominated occupation (with reference to Thongsuk v Minister for Immigration & Anor [2007] FMCA 655 (“Thongsuk”)). ([46] at CB 176, [49] at CB 177.) This was particularly in light of the Tribunal’s consideration that “the requirement is to consider the actual nominated occupation and not some occupation that the applicant may wish to be employed in the future” ([47] at CB 177).

6. The Tribunal found that the applicant’s studies for the Diploma in Business Administration from SIBT: “… related to the operation and administration of a business and are not related to the duties of a Cook, which are primarily related to the preparation of food.” ([46] at CB 176.)

7. The Tribunal also found (at [46] at CB 177):

   “… that whilst there may be some slight similarities, the core subjects of the Diploma of Hospitality are focused on the management and operation of a food or cookery or hospitality business, whilst the subjects undertaken for the Diploma of Business are considerably more general and related to accounting, marketing and statistics. In any event, the Tribunal also considers that the relevant question is not what course the applicant might have undertaken but the course that he actually undertook. Accordingly, the Tribunal is not satisfied that the fact that the applicant could have undertaken a Diploma of Hospitality course which may bear some similarities to the Diploma of Business Administration, establishes that there is a relevance between the Diploma of Business Administration which the applicant actually undertook and his nominated occupation of Cook.”

8. In light of the finding (at [21] above), supported by the other findings (at [22] to [23] above), the Tribunal considered it unnecessary to further consider the question of the veracity of Mr Wu’s claimed studies at SICB ([50] at CB 177).

9. Ultimately, the Tribunal concluded that Mr Wu did not satisfy the requirements of c.880.215 of Sch.2 of the Regulations, and affirmed the decision of the delegate not to grant the visa ([51] to [52] at CB 178).

Application to the Court

1. The application to the Court is in the following, unparticularised, terms:

   “1. I am a genuine student of both SIC and SIBT.

   2. I am truly believed that two of the course that I studied were related.

   3. Lot of my classmates had the same situation as mine has got their PR, even Australia citizen already. It is not fair to me.”

   [Errors in original.]

Before the Court

1. At the hearing, Mr Wu appeared in person. He was assisted by an interpreter in the Mandarin language. Ms B Tronson of counsel appeared for the first respondent. In addition to the Court Book, the Court was assisted with written submissions filed on behalf of the first respondent.

2. The applicant’s submissions before the Court were in essence that it was difficult for him to understand why he was unsuccessful before the Tribunal. He pointed to two factors.

3. First, he had been successful before the earlier constituted Tribunal, yet was unsuccessful before the second.

4. Second, the Tribunal did not understand that he was in the same situation as many other of his “classmates”. Yet in their cases the relevant Tribunals expressed no doubts about the relevance of their studies to the nominated occupation of “Cook”. This is the complaint put forward in ground three of the application.

Consideration

1. Dealing first with this latter complaint. To the extent that the applicant complains that the Tribunal’s decision was unfair, it is the case that on judicial review of an administrative decision, the Court is concerned with the fairness of the procedures employed by the relevant decision maker, not the fairness of the outcome. (See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25], with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J.)

2. To engage in such consideration would lead the Court to stray across the line into merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

3. The applicant also appears to complain that the Tribunal should have come to the same conclusion as the unidentified Tribunals that considered the cases of his unidentified classmates.

4. That the applicant sought to make this complaint is supported by his assertion at the hearing before the Court that his migration agent had told him about a “Federal Court case” which was of assistance to him in this regard.

5. I granted leave for the applicant to advise the Court of any such authority following the hearing. The applicant subsequently submitted another Migration Review Tribunal case involving another student with similar claims for a Skilled Graduate visa. In that case that applicant was successful.

6. In addition, it appears that before the Court his complaint also sought to encompass the decision of the earlier constituted Tribunal. The applicant’s complaint appears to be that the (current) Tribunal was either bound by the earlier decision, or that it was unfair not to act consistently with what had been earlier found.

7. In relation to consistency, Ms Tronson referred the Court to Pasula v Minister for Immigration & Anor [2010] FMCA 219 (“Pasula”) per Smith FM (at [31] to [32]), where his Honour acknowledged that consistency of factual outcomes was desirable in administrative decision making within the same agency. However, I also respectfully agree with his Honour that there is no authority (at least of which I am aware) that suggests that the Tribunal is bound to give any weight to the desirability of consistency in these types of circumstances.

8. As a matter of law, this is whether the applicant refers to a specific decision of another Tribunal (as in Pasula at [8] to [9]) or to a more general set of unidentified Tribunal decisions as relate to the current case.

9. A distinction also needs to be drawn between the desirability of consistency in the application of policy in decision making, particularly with the same agency, and making findings of fact as against the relevant regulatory test.

10. In Pasula, Smith FM made reference amongst other authorities to Brennan J’s discussion of “policy” in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (“Re Drake”). This is plainly because, in that case, counsel for the applicant made reference to parts of the Immigration department’s “Procedure Advice Manual” (“PAM3”) to argue that the Tribunal in that case failed to take into account a relevant consideration. Namely statements from the PAM3 which were said not to have been taken into account by that Tribunal. (See Pasula at [15] and [19].)

11. For the sake of completeness, I note that in any event no jurisdictional error itself arises in any failure to apply any PAM3 type guidelines, although it may assist in finding some other error on the part of a decision maker. (See for example Choo Ai Lin v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 291 per Tamberlin J.)

12. In the current case, the applicant has made no such complaint or argument. The inconsistency which he alleges is not between the application of policy and the Tribunal’s reasoning, but inconsistency between two (or more) sets of Tribunal reasoning.

13. The Tribunal well understood that it was not bound by the earlier Tribunal decision and made specific reference to, and followed, Smith FM’s consideration in Pasula ([48] at CB 177). I respectfully agree with what his Honour relevantly said there, and there is plainly no jurisdictional error in this approach by the Tribunal.

14. In any event, the Tribunal in the circumstances was reviewing a different delegate’s decision to that considered by the earlier constituted Tribunal (CB 67 and CB 120).

15. What the Tribunal was relevantly required to do was to review this “second” delegate’s decision and to come to its own view as to whether it could be satisfied that the applicant met the relevant criteria for the grant of the visa. (Sections 338 and 247 and in particular s.348 and s.65 of the Act.) There is no jurisdictional error in the Tribunal proceeding to do just that. There is no error in finding that it was not bound, nor should be influenced for reasons of consistency or otherwise, by what the earlier Tribunal did or what any other Tribunals did in any other cases.

16. As a postscript to this set of complaints, I cannot help but notice that the earlier Tribunal’s consideration as presented in that decision record, and for that matter the Tribunal decision given subsequently to the Court by the applicant, fare poorly when compared with the current Tribunal decision record. Those decisions were characterised (particularly in the first instance) by a mere acceptance of what the respective applicants had said. This Tribunal decision is characterised by a comprehensive and reasoned examination of the circumstances before it.

17. Relevant to the applicant’s complaint now is that the Tribunal made findings which were open to it on what was before it, and it gave reasons based on the material before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). No error is revealed in these circumstances.

18. In this regard also I cannot see that the Tribunal misunderstood or misapplied the relevant law. The Tribunal properly understood that the question that the relevant legislative and statutory scheme required it to answer was whether the applicant’s courses of study were “relevant” to his nominated occupation.

19. In this, the Tribunal was guided by what was relevantly said in Thongsuk and Pasula and properly understood that (at [45] at CB 176):

    “… it requires the Tribunal to evaluate the relationships of the educational studies and achievement to the nominated occupation and be satisfied that the Australian educational achievement is occupationally relevant to the particular demands of the nominated skilled occupation as indicated in its ASCO definition. The relevance of the qualification must relate to the nominated occupation itself, and not to some different occupational qualification which might later be pursued by the applicant.”

20. As set out above, the Tribunal’s subsequent findings were open to it on what was before it and for which it gave reasons. The applicant’s complaint in ground two therefore, that he truly believes that the two courses that he studied were related, misunderstands the relevant regulatory test. It is not that the courses were necessarily related to each other, but that they each related to the nominated occupation.

1. Second, in whatever way the complaint is meant, it does not rise above a request for impermissible merits review. It merely seeks to challenge factual findings made by the Tribunal within the proper exercise of its jurisdiction. It therefore does not reveal jurisdictional error on the part of the Tribunal’s decision.

2. Ground one asserts that the applicant is a genuine student of both “SIC” (sic SICB) and SIBT. The implication is that the Tribunal was in error to find otherwise.

3. The difficulty for the applicant is that the Tribunal ultimately, made no such findings.

4. The Tribunal had earlier written to the applicant on 15 March 2010 (CB 127) inviting his comment on information that at that time it said it considered would be the reason or a part of the reason for affirming the decision under review. This information was that before the delegate it was alleged and found that the applicant’s qualification from SICB was “false” ([26] at CB 173).

5. However, on any plain reading of its consideration at the time of decision the Tribunal proceeded, at least, on the assumption that both qualifications were genuine and at least implicitly that the applicant was a genuine student at both SICB and SIBT.

6. Given how the Tribunal’s analysis proceeded, any express finding as to his being a “genuine student” was otherwise irrelevant. Noting in any event, as Ms Tronson submitted, that any such finding would have been a finding of fact within jurisdiction. That is, a matter for the Tribunal (NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167).

7. The applicant’s complaint fails to appreciate that the Tribunal proceeded on the basis that he was a genuine student, but that his qualifications were of such nature that they were not relevant to his nominated occupation. As such ground one, again, seeks impermissible merits review.

Conclusion

1. To succeed before the Court, the applicant would need to show, or the Court would need to discern, jurisdictional error on the part of the Tribunal. No such error is apparent. The application is to be dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  23 December 2010