Zhou v Minister for Immigration
[2010] FMCA 653
•18 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHOU v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 653 |
| MIGRATION – MRT decision – Skilled Independent Overseas Student Residence visa – educational qualifications for skilled occupation gained in two years of study – whether information about start date of course was false or misleading in a material particular – conflicting information from deregistered education provider – whether applicant previously gave evidence inconsistent with visa application – whether Tribunal’s adverse conclusion was not based on probative evidence and logical grounds – jurisdictional error not established – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Migration Act 1958 (Cth), s.116(1)(b) Migration Regulations 1994 (Cth), Sch.1 cl.1128CA(3)(l), Sch 2 cll.880.214, 880.224 |
| Applicant A227 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 567 Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 Sydney International College of Business Pty Ltd v Vocational Education and Training Accreditation Board [2008] NSWADT 216 SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97 Talukder v Minister for Immigration & Citizenship [2009] FCA 916 Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 |
| Applicant: | RUI ZHOU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG501 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 18 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Archibald |
| Solicitors for the Applicant: | Hugh Solicitors |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG501 of 2010
| RUI ZHOU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Zhou brings these proceedings, seeking judicial review of the refusal of an application for a permanent residence visa, being a Skilled Independent Overseas Student Class DD subclass 880 visa. He applied for the visa on 5 April 2006. It was refused by a delegate on 11 May 2009, and the Tribunal upheld this decision on 19 February 2010. For the reasons which follow, I have concluded that he has not established any ground for relief.
Mr Zhou entered Australia in June 2004 on a subclass 573 student visa. It was renewed in August 2004 with an expiry date in August 2007. During the second half of 2004 he enrolled in a Business Studies course at ‘Insearch UTS’, and attended its classes until 12 November 2004. He later also claimed to have enrolled simultaneously in a two year Diploma of Hospitality Management course from September 2004 until March 2006.
No mention of that concurrent enrolment was made during administrative proceedings in 2005 concerning the cancellation of his student visa. The cancellation occurred as a result of ‘Insearch UTS’ giving Mr Zhou a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’) on or about 11 March 2005. This asserted that he had failed to attend and complete examinations for Term 9 of his business studies course, at the end of 2004 or early 2005. Mr Zhou conceded that he had not attended that part of the Insearch UTS studies in which he had been enrolled, but he claimed that this was with the permission of relevant people at Insearch UTS, while he sought enrolment in other education institutions. His claims were not accepted by officers of the Department of Immigration, and his student visa was cancelled under s.116(1)(b) of the Migration Act 1958 (Cth) on 29 April 2005.
On appeal, the Tribunal received evidence from Mr Zhou at a hearing on 22 September 2005, and considered documents received before and during the hearing. It accepted that he had abandoned his course with the agreement of Insearch UTS staff, and made a decision on 4 November 2005 setting aside the decision to cancel his student visa. There is some evidence that Mr Zhou later returned to ‘UTS’ to complete his business studies, but this is unclear.
Included in the evidence given by Mr Zhou to the Tribunal at the hearing in 2005 was an “Overseas Student Confirmation‑of‑Enrolment” (‘the CoE’), being a form apparently downloaded from a government database on 19 July 2005. This appears to be a well known document in overseas student circles, used as confirmation of enrolments for the purposes of the ESOS Act and possibly other purposes. The CoE given to the Tribunal referred to Mr Zhou becoming enrolled in a course provided by Sydney International College of Business Pty Ltd, trading as Sydney International College of Business (‘SICB’). It included:
B.COURSE DETAILS
Provider:
Sydney International College of Business Pty Ltd [01475A] (trading as: Sydney International College of Business)
Telephone: 02 XXXX XXXX
Fax: 02 XXXX XXXX
E-Mail: [address]
Course:
(THH 51202) Diploma of Hospitality (Management) [046952E]
Course Level:
Diploma
Course Start Date:
19/7/2005
Course End Date:
13/7/2007
Pre‑Paid Course Fee:
$AU 5000 (approximate)
Total Course Fee:
$AU 19000 (approximate)
The certificate also has the comment:
The student will undertake the Certificate III and IV in Hospitality (Commercial Cookery) for the first half of his course.
The CoE is noted as being ‘created’ on 19 July 2005 at 10:57:43.
Mr Zhou’s tender of the CoE in the course of the 2005 Tribunal hearing is, in my opinion, confirmed by a recording of the relevant part of the hearing which I shall discuss below. It is enough to note that Mr Zhou confirmed to the Tribunal that his cookery course had started in July 2005. This ‘start’ date shown in the CoE, confirmed in Mr Zhou’s 2005 oral evidence, is in conflict with his later claim to have commenced the course on 13 September 2004. That claim was first made in his 2006 permanent residence visa application.
On 5 April 2006 a migration agent acting for Mr Zhou lodged an internet application for a permanent residence visa, being an “Independent Overseas Student (Class DD, Subclass 880” visa. This subclass of visa is available to students who have gained qualifications in Australia relevant to a nominated ‘skilled occupation’, and also have other attributes which enable them to acquire sufficient qualifying points under a points test.
Among the visa criteria is the achievement of relevant Australian qualifications within 6 months preceding the visa application, such qualifications having been gained by study for at least two years. This requirement was found in Sch.1 cl.1128CA(3)(l) of the Migration Regulations 1994 (Cth) which provided:
(3)Other:
…
(l)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 instruction for that degree, diploma or trade qualification was conducted in English; or …
(ii) (not relevant to this case)
Schedule 2 in cl.880.214 prescribed a criteria to be satisfied at time of application, being:
880.214The Minister is satisfied that the applicant meets the requirements of paragraph 1128CA (3) (l) of Schedule 1.
Clause 880.224 required at time of decision:
880.224No evidence has become available since the time of application that the information given to satisfy Subdivision 880.21, or to meet the requirements of item 1128CA of Schedule 1, was false or misleading in a material particular.
No controversy emerges in the case before me as to the interpretation of cl.880.224, and it is sufficient to note that concept of materiality appears to invoke the broad test explained in Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352:
… a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made: see Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, Lockhart J, 12 October 1989). A statement will be relevant to that purpose if it may — not only if it must or if it will — be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.
The concept of “evidence has become available” was recently explained by Edmonds J in Talukder v Minister for Immigration & Citizenship [2009] FCA 916 at [20]:
In my view, the word ‘evidence’ is used, in contradistinction to the word ‘information’, which is also used in the clause, to impose a requirement that, whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of item 1128CA(3)(k) of Schedule 1 was false or misleading in a material particular, are sufficiently probative to lead to that conclusion.
Criterion 880.224 became relevant in relation to Mr Zhou’s visa application, as a result of a cookery course qualification, which he relied upon in his subclass 880 visa application. Subsequent investigations conducted both in the Department of Immigration and the Tribunal, raised substantial doubt whether he had, in fact, undertaken such a course for the period claimed in his visa application.
In the internet visa application lodged by Mr Zhou’s agent he identified as his nominated skilled occupation the occupation of cook. He responded to the details required to be inserted under the heading “Applicant educational qualification details”:
Applicant educational qualification details
In order to meet the basic requirements for this visa you must have post‑secondary qualification such as a university degree or trade certificate.
Please provide details of your Australian and/or overseas post‑secondary qualifications.
Details of Australian qualifications
Provide the following details in support of your declaration (with your most recent qualification first).
Qualification
Diploma
Course name
HOSPITALITY MANAGEMENT
Institution name
SIC
Campus
SYDNEY
Postcode
2000
Country
AUSTRALIA
Date from
13 September 2004
Date to
8 March 2006
The internet application contained a declaration:
I declare that the information I have supplied in this application is complete, correct and up‑to‑date in every detail.
Documents forwarded to the Department in support of the application, which were received by the Department of Immigration on 12 April 2006, included a document on the letterhead of “Sydney International College of Business”, stating:
Sydney International College
of Business
This is to certify that
ZHOU Rui
has fulfilled the requirements for
Diploma of Hospitality – Management
(THH51202)
dated 8 March 2006
[signature]
Principal Administrator
[signature]
Head of Faculty
Also forwarded were four pages on SICB letterhead, purporting to be an “Academic Transcript” issued on 8 March 2006. This showed Mr Zhou achieving results in a series of courses at that institution, the first of which being recorded on 13 September 2004 and the last on 30 January 2006. In particular, the first page purported to show that Mr Zhou had studied and passed subjects during September, October and November 2004 in relation to “Developing Customer Satisfaction”, “Introduction to Cookery”, and “Cookery 1 – Side Dishes”. It showed further courses being completed in January, February, March, April, May, June, July and August of 2005. That is, in the months immediately preceding Mr Zhou’s attendance at the MRT hearing on 22 September 2005.
Investigation of this claimed study was summarised in a six‑page report from a member of the ‘NSW Fraud Control and Investigations’ section of the Department of Immigration dated 18 March 2009. The first section of the report referred to a “Background”, and included the following statement:
·NSW investigators spoke to a senior member of the administration staff at SICB. The staff member was not willing to make a witness statement. However, she advised that SICB qualifications were issued to people who had not undertaken the study listed. She advised that for the non‑genuine students, [Mr X] would give the administrative staff the name of a ‘student’, the ‘dates of study’ and the ‘marks’. This information would be entered onto the system by the staff and a week later, [Mr X] would ask the staff to print the certificate. By contrast, genuine students would have their marks entered onto the system over the entire period they studied on a monthly basis.
The investigators also interviewed Mr Zhou on 17 March 2009, and put to him that there was evidence suggesting that he had, in fact, started at SICB in July 2005 and not during 2004. This included his statements to the Department and Tribunal during 2005. Mr Zhou maintained that there were reasons why he had not referred to those studies during the 2005 Tribunal proceedings, and that there were reasons why the SICB CoE given to the Tribunal was unreliable.
A delegate made a decision on the visa application on 11 May 2009. He refused the application, applying cl.880.224. He concluded:
Based on the above information, I am not satisfied your Certificate III in Hospitality (Management) from Sydney International College is a genuine qualification. I find that you were not able to credibly explain discrepancies in your application to investigators. The evidence obtained by DIAC Investigators, along with evidence provided by you during the interview, suggests that you in fact commenced the SICB course in July 2005, and not in September 2004 as you claimed in the electronic application form.
It is therefore my assessment that the information given by you to satisfy the requirements of Item 1128CA of Schedule 1, in particular the declaration you made for clause 1128CA(3)(l), is false or misleading in a material particular. I am therefore not satisfied that you meet the requirements of 880.224.
Mr Zhou appealed to the Tribunal. He presented evidence in support of his claims that he had, in fact, commenced his cookery course during 2004 and had pursued it concurrently with his ‘UTS’ course. He also claimed to have pursued it concurrently with a two‑month English course from 4 April 2005 to 24 June 2005 at ‘EmbassyCES’, which he and others appear to have assumed had some connection with Charles Sturt University.
The material identified by the Department’s investigations was thoroughly put to Mr Zhou in the course of correspondence, and at a hearing held by the Tribunal on 15 December 2009. No issue is now taken as to the procedures followed by the Tribunal when arriving at its decision in the matter.
The Tribunal made its decision on 19 February 2010. After identifying the relevant law, and recounting the history of the proceedings, the Tribunal explained its findings and reasons for affirming the delegate’s decision. In particular, the Tribunal identified three pieces of evidence which pointed against Mr Zhou’s assertions in the visa application that he had gained a cookery qualification in a course whose studies had commenced in 2004. It summarised these three items, after referring to evidence relied upon by Mr Zhou:
46.The applicant has stated that he started at SICB on 13 September 2004 and he has produced his uniform, a Student ID Card with student number 45829 and an expiry date of 25 February 2005 and 4 statutory declarations in support. However, his CoE states that the applicant started the Diploma of Hospitality course at the Sydney International College of Business (SICB) on 19 July 2005 and ended on 13 July 2007. In addition, in a letter he submitted to DIAC on 11 March 2005, he did not mention his SICB studies, although he claims to have been studying at SICB during this period. In addition, the tape recording of the MRT hearing held on 22 September 2005 reveals that the applicant stated that he enrolled at Sydney International College of Business (SICB) where he agreed he had started in July. A further voice on the tape states he had been there for about ‘three months.’
The Tribunal referred to the Government data base from which the CoE was issued, known as ‘PRISMS’. The Tribunal noted that the ESOS Act required a registered provider to give the Secretary details of a person who becomes an accepted student within 14 days of that event.
The Tribunal’s reasons for rejecting Mr Zhou’s evidence appears in the following three paragraphs:
49.The Tribunal finds that in the normal course of events, it could be expected that the course provider would comply with their obligations under the ESOS Act, that is they would record the applicant’s enrolment in PRISMS within 14 days of the applicant’s enrolment because the CoE is a key requirement for DIAC to issue a student visa. In this case, the applicant’s details as disclosed in the CoE were recorded in PRISMS on 19 July 2005 which prima facie suggests to the Tribunal that the applicant was accepted as a student from that date by SICB and not from September 2004 as identified by the applicant. The applicant has submitted that the CoE is a mistake and that SICB failed to issue it in September 2004 and that the Member should do more investigations to find out which document is correct and which is incorrect. He has stated that his results showing subjects dating from 13 September 2004 to 3 January 2006 and statutory declarations dated onwards support his claim. The Tribunal also notes that the Administrative Decisions Tribunal decision does disclose that there appear to have been concerns in relation to the adequacy of the general administration of the College. However in this case there are also serious allegations that students obtained false SICB qualifications and one staff member advised that there were non‑genuine students and administrative staff would be given their name, dates of study and marks and by contrast, genuine students would have their marks entered onto the system over the entire period they studied. There are also a number of prior statements that are consistent with the CoE, that is at hearing on 22 September 2005 the applicant agreed with the statement made by the Member he had been enrolled at SICB in July and a person who was authorized to speak for him stated he had been there for about three months. In addition, the applicant did not mention his SICB study in a letter he submitted to DIAC on 11 March 2005, even though he claims to have been studying at SICB during this period. The applicant stated that at hearing on 22 September 2005 his English was not good and it was his friend (and not adviser) who stated that he had been at SICB for three months however this statement was not correct as it was his friend’s understanding only. His current adviser also submitted that he did not mention the course in the 11 March 2005 letter because he did not have the CoE. The Tribunal accepts that it was his friend and not adviser who made the comments at hearing.
50.To the best of its knowledge, SICB is no longer operating in New South Wales and the Tribunal has been unable to seek any further information from it.
51.The Tribunal has considered the rest of the submission but is not persuaded by it because having listened to the hearing tape of 22 September 2005, the Tribunal considers that the applicant’s grasp of English as demonstrated throughout that hearing was such that he was able to understand what he and his friend were saying. The Tribunal also considers that if the applicant was enrolled at SICB in a diploma course as at 11 March 2005, then it is not unreasonable to conclude that he would have mentioned that in his letter of that date, especially given that he mentioned his English studies at Charles Stuart and even his offer from the Central Queensland University. The Tribunal has considered the statutory declarations from four persons suggesting that the applicant was enrolled at SICB as at September 2004, however three of these are not persuasive given that they are not based on the writer’s actual knowledge of the applicant’s attendance at the course. The statement from Li Jun Jie dated 9 February 2010 states that he was also studying with the applicant from September 2004 and that his student card number was 45830 and as the applicant’s number was 45829 this proved that they started the course at the same time. However, given the CoE, the serious allegation that students obtained false SICB qualifications and given the applicant’s statements at hearing on 22 September 2005 and the fact that he did not mention SICB in his letter dated 11 March 2005, the Tribunal gives greater weight to the CoE and the earlier statement by the applicant than it does to this statutory declaration, the alleged copy of his academic transcript, his student card with an expiry date of 25 February 2005 and his uniform. As a result, whilst the Tribunal accepts that the applicant commenced at SICB in July 2005, the Tribunal finds the statement in his application that he completed the Diploma of Hospitality Management at SICB from 13 September 2004 to 8 March 2006 and his academic transcript issued by SICB dated 8 March 2006 showing subjects dating from 13 September 2004 to 3 January 2006 was false or misleading in a material particular. Accordingly, the Tribunal finds that evidence has become available that the information in the application was false or misleading in a material particular. Given the findings made above, the Tribunal finds that the applicant does not satisfy the requirements of cl.880.224.
(emphasis in original)
Mr Zhou now applies to the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make these orders only if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide issues of fact arising under the visa criteria, nor to make any decision as to whether he qualifies for this visa or any other permission to stay in Australia.
Mr Zhou was represented today by counsel, who relied upon a further amended application containing the following two grounds:
1.The Tribunal fell into jurisdictional error by reason of there being no information before the Tribunal from which it could realistically make the final factual findings that it did nor draw the critical conclusions that it did leading to those final factual findings: …
2.The Tribunal erred by way of jurisdictional error for unreasonableness.
Each of the grounds is supported by argumentative particulars, and these were elaborated in counsel’s written and oral submissions.
Essentially, counsel submitted that the Tribunal made errors of fact amounting to jurisdictional error, by relying upon the three items of evidence which I have identified above, plus a fourth item being the “serious allegations that students obtained false SICB qualifications” found in the fraud investigator’s report. He submitted that none of this evidence provided evidentiary support which, as a matter of law, was capable of being relied upon by the Tribunal as ‘evidence’ within cl.880.224 when construed in the manner identified by Edmonds J.
Counsel’s written submissions sought to identify defects in the Tribunal’s reliance on these pieces of evidence, when addressing the jurisdictional error of ‘unreasonableness’:
34.The unreasonableness which forms the basis for the ground derives from:
(a)Reliance by the Tribunal on what is described as the normal course of events in relation to the College when it was clear that the administration of the College was clearly abnormal.
(b)Accepting and relying on the Confirmation of Enrolment which was produced from information supplied by the College yet rejecting the Applicant’s Academic transcript and student card produced by the same College.
(c)Reliance on allegations against the College to find against the applicant when there was no evidence connecting the allegations with the applicant.
(d)Incorrectly transcribing the earlier review hearing at CB 192 – 193 as compared to pages 39‑49 of the Hu affidavit.
(e)Referring to and relying on the incorrect transcript to find that the applicant made an admission which he did not make.
(footnote omitted)
In oral submissions, Mr Archibald accepted that the judgment of Crennan and Bell JJ recently in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [135], provided principles which it was appropriate to apply in relation to his arguments. Their Honours said:
135On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
In the third sentence of the above, three alternative grounds of jurisdictional error for illogicality, might be identified:
i)if only one conclusion is open on the evidence, and the decision‑maker does not come to that conclusion; or
ii)if the decision to which the decision‑maker came was simply not open on the evidence; or
iii)if there is no logical connection between the evidence and the inferences or conclusions drawn.
Counsel for Mr Zhou submitted that in the present case, the Tribunal’s reliance on the four pieces of evidence, in preference to the evidence presented by Mr Zhou corroborative of his having commenced his cooking course in 2004, fell within the second and third errors referred to by Crennan and Bell JJ.
I note that in SZMDS, the judgments of the other three justices addressed the third species of error, with a division of opinion emerging between Gummow and Kiefel JJ, on the one hand, and Heydon J, on the other hand, who joined with Crennan and Bell JJ to form the majority. The division of opinion essentially concerned whether an inference or assumption made by the Tribunal could be regarded as having a logical connection to the evidence before the Tribunal in that case.
Counsel for Mr Zhou also referred me to previous authority in the Federal Court concerning error of law based on findings for which there was ‘no evidence to support’, including SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231, Applicant A227 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 567, and Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511. Counsel for the Minister referred me to Flick J’s recent analysis of these principles in SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97 at [123] and following.
I do not consider that the present case turns on a fine analysis of law in relation to a relevant jurisdictional error, nor upon a fine analysis of the evidence before the Tribunal. In my opinion, the argument presented on behalf of Mr Zhou collapses, once the key factual conclusion of the Tribunal is analysed.
In my opinion, the key element in understanding the Tribunal’s reasons for rejecting Mr Zhou’s claim that he started his cookery course in 2004, was its finding that at the hearing in September 2005 Mr Zhou had given clear evidence that he had enrolled in a cooking course only in July 2005, and that he had confirmed the accuracy of the CoE he presented at that time. Once I conclude that this key finding had a sufficient evidentiary foundation, it is impossible to characterise the Tribunal’s conclusion that he had included false or misleading information in his 2006 visa application, or its decision affirming a decision to refuse the visa on that ground, as materially illogical or unreasonable in law.
Mr Zhou’s case attacked that finding of the Tribunal, by inviting the Court itself to listen to the recording of the Tribunal’s 2005 hearing, and to correct the versions set out in transcripts presented by the two parties to the Court. The relevant part of the recording was then played twice to the Court in the presence of counsel. I have arrived at clear conclusions as to what that recording shows at its critical passage.
The present Tribunal said in its statement of reasons that it also listened to the recording:
14.On MRT File N05/02429 there is a recording of a hearing held on 22 September 2005 in which the applicant gave evidence to a differently constituted Tribunal. The applicant did not request an interpreter and there was no interpreter at that hearing. An unidentified male requested and was given permission to speak by the applicant. At one point in the hearing, this male spoke extensively about the applicant’s circumstances.
15.At that hearing the following exchange took place:
Friend: I think the name of the Institution he is studying with is Sydney International College in Town Hall.
Applicant: This is my new College
Tribunal: Sydney International College
Applicant: I finished the Charles Stuart language course (illegible)..
Applicant: Do you need my student card?
Tribunal: So you started that in July
Applicant: Yes
Applicant: Where is my student card?
Friend: I think he is with them for about three months
Tribunal: July.
Having now heard the recording upon which the Tribunal based its own transcript, in my opinion, the Tribunal made no material error in transcribing what was said at the 2005 hearing. In particular, I agree that Mr Zhou answered “yes”, or more accurately: “yeah”, to the Tribunal’s question: “so you started that [Sydney International College cooking course] in July?”, plainly referring to July 2005. Moreover, this conclusion is assisted by the immediately preceding and subsequent parts of the recording.
After listening to the recording several times, in my opinion it is clear that the exchange extracted by the Tribunal occurred in the context of a longer exchange which can most accurately be transcribed as follows:
Tribunal Member (“TM”): But you’re saying you’re now enrolled in with, with which university?
Mr Zhou: Charles Sturt University
[Indistinct]
TM: Is he enrolled?
Friend: Ah, no, no, no … not now.
Ms Yu: No no
Friend: I think he is starting with – what’s the name of the university?
TM: He’s on a bridging visas …
Friend: Yeah
TM: I would have thought … he wouldn’t be allowed to be …
Friend: He initially applied for Central Queensland University and switched to ah Charles Stuart and he has.
TM: I think it’s Charles Sturt
Friend: Really?
Mr Zhou: I finished at Charles University, the language course, from t … 8 through to 9. Already finished. And I get a certificate and attendance in my, in my, new university.
[Indistinct]
TM: Do you have a certificate of enrolment?
Mr Zhou: Yep
TM: Form for for the new uni … new …
Ms Yu: Certificate … Enrolment
TM: A certificate of enrolment form.
Mr Zhou: Oh yeah.
Ms Yu: Certificate of enrolment
Friend: I think the name of the student now that he is starting with is Sydney International College in Town Hall.
Ms Yu: I’m pretty sure … wasn’t it
TM: What’s that down?
[Indistinct]
Mr Zhou: This one?
TM: No, that one.
Mr Zhou: This one, this is like my new new … college … yes
TM: Sydney International College.
Mr Zhou: This times I finished Charles University language course to to to …
TM: That’s it. I don’t need that.
Mr Zhou: And do you need my student card?
TM: So you started that in July?
Mr Zhou: Yeah
TM: But then you … it was
Mr Zhou: Where’s my student card?
Female: Indistinct
TM: So are you saying you already started this course?
Female: Yes [indistinct]
Friend: I think he’s been there for about three months.
TM: July. Ok. So you were allowed to enrol in this under your bridging visa?
Mr Zhou: Yes, as well. Bridging visa as well.
The person described as ‘Ms Yu’ is described in the ‘MRT hearing record’ as an ‘observer – friend’, who accompanied Mr Zhou together with the other male ‘friend’ The recording has sounds of people talking together and of papers being looked through at this point, which the transcript attempts to unscramble. I consider it probable that the PRISMS CoE downloaded on 19 July 2005 was passed over to the Tribunal member in the course of this exchange.
The Tribunal’s questions can then be understood after Mr Zhou identified “this one” as his “new college”. The CoE must then have been passed to the Tribunal, to allow it to read the words “Sydney International College”, which it put to him. It is clear, in my opinion, that the Tribunal was reading the PRISMS document at that point. The Tribunal then read the “course start date” shown on the CoE, and put it to Mr Zhou: “so you started that in July?”, and also when it said: “so you were allowed to enrol in this under your bridging visa?”.
I have no doubt that it was the voice of Mr Zhou, and not his male friend, who answered “Yeah” and “Yes, as well”, to these questions. The tone and speed of his responses, and the background of his production of the CoE, suggest that he fully understood what he was being asked.
Being now invited myself to make findings as to the evidentiary effect of the recording, in my opinion, there was clear evidence before the 2009 Tribunal that Mr Zhou had started his cookery course in July 2005, both in a contemporaneous document and also in admissions by Mr Zhou. That evidence also might appear to provide the best evidence as to the probable start date of his cooking course, in a situation where the Tribunal also was considering later documents purporting to have originated from SICB which were in conflict.
Based on the existence of that evidence before the Tribunal, I am not persuaded that there was no evidence upon which a Tribunal could logically and reasonably make a finding in terms of cl.880.224. The inferences from that evidence, once it was accepted, were overwhelming, and the Tribunal’s adverse conclusion certainly could not be characterised as having “no logical connection” to evidence before the Tribunal.
Moreover, I also do not accept that the other three pieces of evidence were unreasonably given weight by the Tribunal, when combined with the evidence given by Mr Zhou in 2005. I consider that the reasoning of the Tribunal in relation to those other pieces of evidence shows a reasonable and logical weighing of evidence, so as to arrive at a finding on the balance of probabilities that the information about a claimed cooking course contained in the visa application was false in relation to the commencement date of the course. The false particular was obviously material to the decision to be made on the visa application, and Mr Zhou does not contend otherwise.
I accept that evidence of general practice among education providers in relation to PRISMS, and of possible malpractices within a particular education provider, might not, when looked at in isolation, themselves be sufficient to provide ‘evidence’ for the purposes of cl.880.224. However, in my opinion it was certainly reasonable and open to the present Tribunal to take those matters into account, when assessing whether to give greater weight to Mr Zhou’s statements and evidence in 2005, than to his more recent statements and evidence.
I accept the submission of Mr Zhou that, looked at in isolation, the absence of reference to his undertaking a concurrent cooking course in Mr Zhou’s letter prepared in March 2005 in support of setting aside the Insearch UTS s.20 notice, might not provide sufficiently probative evidence that he was not concurrently enrolled in such a course. However, there is no apparent reason why he would not have referred to these studies if he was in fact enrolled in them, particularly where he was recounting his efforts to gain enrolments in other courses. I consider that the omission was a relevant part of the circumstantial evidence before the Tribunal, and I do not consider that it was ‘unreasonable’ in law for the Tribunal to give some weight to the absence of any claims about enrolment in a cooking course being made in Mr Zhou’s dealings with the Department of Immigration before July 2005. I am not persuaded that no reasonable Tribunal could give some weight to this evidence when weighing the other evidence.
Counsel for Mr Zhou took me to the decision of an Administrative Decisions Tribunal in Sydney International College of Business Pty Ltd v Vocational Education and Training Accreditation Board [2008] NSWADT 216, in support of an argument that the Tribunal could give no weight to the CoE printed out from PRISMS in 2005. In its decision, the ADT explained conclusions which, in effect, seem to have affirmed the deregistration of SICB. The factual basis for its adverse conclusions does not clearly emerge from the Tribunal’s statement of reasons, but it appears to be based on audits conducted in 2006 and 2007. That is, after the date when the relevant CoE came into existence.
The findings of the ADT did not specifically concern Mr Zhou, and do not appear to have addressed allegations of totally false transcripts and qualifications being issued by the college. The allegations which appear to have been upheld, involved a total absence in PRISMS of recordings of some students enrolled in the college, and the issuing of qualifications showing insufficient courses being studied during the audit period. In my opinion, the ADT decision did not require the Tribunal to give no weight at all to the CoE produced in July 2005. Certainly, in my opinion, it did not require the Tribunal to discount the weight to be given to the apparently contemporaneous CoE, when it was supported by explicit oral evidence given by Mr Zhou which confirmed its truth.
The Tribunal did refer to the ADT decision as providing reason to be concerned “in relation to the adequacy of the general administration of the College”, when considering what weight to be given to its documentations generally. However, in my opinion it did not deal with that part of the evidence in any irrational, illogical or unreasonable way, within the principles of jurisdictional error identified in the authorities cited above.
For all the above reasons, I am not satisfied that the two jurisdictional errors argued in the further amended application have been established. In my opinion, the Tribunal’s decision is a privative clause decision, and the application should be dismissed.
I certify that the preceding fifty‑two (52) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 8 September 2010
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