ZHU v Minister for Immigration
[2017] FCCA 83
•20 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHU v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 83 |
| Catchwords: MIGRATION – Application for review of former Migration Review Tribunal decision – whether the Tribunal was unreasonable in not determining the application for the student visa before an offer of enrolment lapsed – offer of enrolment conditional – whether conditionality of offer was an irrelevant consideration – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476 |
| Cases cited: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 |
| Applicant: | HUIYUAN ZHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 64 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 19 October 2016 |
| Date of Last Submission: | 19 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr K Geering of Radisson Lawyers |
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper Australia |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 12 January 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 64 of 2015
| HUIYUAN ZHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 January 2015, seeking review of the decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 18 December 2014, which affirmed the decision of the Minister’s delegate not to grant a Student (Temporary) (Class TU) visa (“the visa”) to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). The applicant and the Minister have also filed written submissions.
Background
The applicant applied for the visa on 12 July 2013 (CB 1 to CB 28). She was assisted by a registered migration agent. A delegate of the Minister refused the application on 16 September 2013 (CB 52 to CB 58). The applicant applied for review of the delegate’s decision on 30 September 2013 (CB 59 to CB 77). An earlier constituted Tribunal affirmed the delegate’s decision on 11 March 2014 (CB 167 to CB 170). The earlier constituted Tribunal found that the applicant did not meet the requirements of cl.573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicant applied for judicial review of the Tribunal decision
(SYG 931/2014). The matter was remitted to the Tribunal, by consent, on 30 September 2014.
By letter dated 17 October 2014, the Tribunal invited the applicant to “provide information” to it (CB 185 to CB 187). In particular, it requested the following be provided by 31 October 2014, and noted that the applicant would “lose any entitlement you might otherwise have under [the Act] to appear before the Tribunal” if she did not respond (CB 186):
“- Details of the periods during which each of your past enrolments were current and an explanation of any periods in which you were not formally enrolled in any course in the higher education sector.
- Evidence that you have a current enrolment in a course in the higher Education sector or a current offer of such an enrolment.
- Information about what you propose to do when any current (or imminent) course of study is completed.”
By letter dated 3 November 2014, the Tribunal invited the applicant to “comment on or respond” to information, being “PRISMS (Provider Registration and International Student Management System)” (“PRISMS”) information that indicated that she was not enrolled in any educational course (CB 190). It also noted, that as no response had been received to the 17 October 2014 letter, no hearing could be granted (CB 191). The comments and information were to be provided to the Tribunal by 17 November 2014 (CB 191).
The applicant’s representative provided the information requested on 17 November 2014, including, relevantly, an “offer letter for the applicant’s current enrolment” for an “Advanced Diploma of Translating” (see CB 202 and CB 206).
The Tribunal, as reconstituted, and relevant to the matter before the Court, affirmed the delegate’s decision on 18 December 2014 (CB 227 to CB 230). The Tribunal found that the issue before it was “whether the applicant [met] the enrolment requirements for a student visa” ([12] at CB 229).
The Tribunal stated that the applicant’s offer of enrolment, provided on 17 November 2014, had been “conditional” on the applicant providing evidence that “she had a particular level of English language proficiency namely ‘overall IELTS of 7 or equivalent’” ([14] at CB 229). The Tribunal noted that the applicant had “provided no evidence” to it “that she had such a level of English language proficiency”, and that it was not aware of any such evidence.
Further, the Tribunal noted that the offer of enrolment lapsed if not accepted by the applicant within “21 days”. It found it had no evidence before it that the applicant had enrolled in the course ([14] – [15] at CB 229). Therefore, the Tribunal found that the applicant did not meet the requirement of cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations.
Application Before the Court
The grounds of the application before the Court are in the following terms:
“1. In circumstances as particularised below, the decision of the Migration Review Tribunal (‘Tribunal’) on 18 December 2014 to affirm the decision of the Minister’s delegate being a decision to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘decision’) was attended by jurisdictional error by the Tribunal not determining the application in a timely manner.
Particulars
(i) On or about 17 November 2014, the applicant provided the Tribunal on offer letter from her proposed education provider (the ‘Offer’). The Tribunal determined on 18 December 2014 that the Offer lapsed some 4 weeks after the Offer was provided to it.
2. In circumstances where the Tribunal received information from the applicant on or about 17 November 2014 being the Offer and other documents and that the Tribunal was to make an adverse finding against the applicant based on the Offer and other documents as provided, the decision of the Tribunal was attended by jurisdictional error by the Tribunal not inviting the applicant to comment on and/or clarify and/or rectify any perceived deficiencies in the Offer and other documents the Tribunal had determined.
3. The decision of the Tribunal was attended by jurisdictional error by taking into account an irrelevant consideration – that the Offer was conditional.
Particulars
(i) The Tribunal found (incorrectly, see application ground 4 below) that the Offer was conditional upon acceptance
with-in 21 days; and, that the applicant had to obtain a score of 7 or better in IELTS.
4. The decision of the Tribunal was attended by jurisdictional error by the Tribunal finding that the Offer was conditional upon:
(i) acceptance with-in 21 days; and
(ii) that the applicant had to obtain a score of 7 or better in IELTS.
5. In circumstances as pleaded in ground and particulars 1 above, ground 2 and ground 6 below, the decision of the Tribunal was attended by jurisdictional error by the Tribunal incorrectly finding that the applicant was not enrolled in:
(a) The course being the subject of the Offer. Or
(b) ‘Any other registered course.’
6. In the circumstances where the Tribunal failed to determine the application in a timely manner (please refer to application ground 1 above) and failed to invite the applicant to comment on and/or clarify and/or rectify any perceived deficiencies in the Offer and other documents (please refer to application ground 2 above), the decision of the Tribunal was attended by jurisdictional error by concluding that it was encumbered upon the applicant to provide evidence to it that she had met the conditions of the Offer.”
[Errors in original.]
Consideration
The applicant had applied for a student visa. It is not in dispute that the relevant regulatory scheme required that, at the time of decision, the applicant had to have been “enrolled in”, or be the “subject of a current offer of enrolment in”, a relevant course of study.
Ground one asserts that the Tribunal fell into error because on 17 November 2014, the applicant had provided evidence to it of such an offer of enrolment. The Tribunal knew that the offer would “lapse” on 1 December 2014. With that knowledge, the Tribunal “wait[ed]” until some four weeks after the date of that offer and did not make its decision until 18 December 2014. By this time, as the offer had “lapsed”, the applicant was found not to meet the requirement that she be “enrolled in”, or the “subject of a current offer of enrolment in”, a relevant course of study ([19] – [20] of the applicant’s written submissions).
The complaint is that the Tribunal did not determine the application in a “timely manner”, and this caused the applicant to fail to meet the necessary and relevant requirement for the grant of the visa.
The actual assertions of legal error appear to be that the Tribunal acted “unfairly” and should have contacted the applicant and sought further information from her before the offer “lapsed”. Before the Court the applicant said she relied on Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (“Kioa”) in this regard. Further, the applicant appears to claim that the Tribunal acted unreasonably. The applicant said she relied on Minister for Immigration and Citizenship vLi [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”) (see [21] – [22] of the applicant’s written submissions).
It is trite to say that in considering whether or not to grant the visa, the Tribunal was required to apply, in this case, the relevant regulatory criteria for the grant of the visa. In this light, it is important to note exactly what the applicant needed to relevantly provide to satisfy the relevant criterion, what the Tribunal asked her to provide, and what in fact she did provide.
The Tribunal found that the applicant did not satisfy the requirement in cl.573.231 of Schedule 2 to the Regulations (and analogous requirements in other student visa subclasses), because she was not enrolled in, nor was she the subject of a current offer of enrolment, at the time of decision.
At the relevant time, cl.573.231 of Schedule 2 to the Regulations was in the following terms:
“If subclause 573.223 (1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A and;
(ii) enforce at the time the application was made.”
When cl.573.231 of Schedule 2 to the Regulations is read in the context of the regulatory and statutory context in which it appears, it is clear that for a person to be granted a student visa they must, amongst other things, have been accepted for enrolment in a course of study or be the subject of a current offer of enrolment. This is part of the requirement that “the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily” (see cl.573.223(1)(a) of Schedule 2 to the Regulations at the relevant time).
Therefore, the relevant statutory scheme requires, for a student who intends a genuine stay in Australia, that they have evidence of enrolment in a course of study, or an offer of enrolment that is current at the time a decision is made on the grant of a student visa. This is what the Tribunal asked her to provide (see [5] above).
This then directs attention to the evidence provided by the applicant to the Tribunal. The “offer of placement for enrolment” letter given to the applicant by the relevant education provider was clearly conditional (see CB 206).
A “Special Condition” of the offer was that the applicant was required to provide to the education provider certain English language test results: “Conditional: To receive a full offer letter, this applicant is required to submit the overall IELTS of 7 or equivalent” (CB 206.5).
The letter from the education provider also contained the following: “[p]lease note that failure to fax your acceptance form and pay the first instalment within 21 days from the date of this letter will result in your offer being withdrawn” (CB 206.7). The document was dated 10 November 2014 (CB 206.3).
It is clear from its decision record that the Tribunal had specific regard to these conditions (see [14] at CB 229). It found that in the circumstances, the offer was no longer current as from 1 December 2014 (being 21 days from the date of the document), because the applicant had provided no evidence to the Tribunal that she had the requisite level of English proficiency as required by the terms of the “offer of placement for enrolment” letter.
When seen in light of all of the above, the timing of the making of the Tribunal’s decision is not unfair or unreasonable. The applicant’s complaint proceeds from the assumption that the applicant provided an offer of enrolment sufficient to have met the relevant requirements for the grant of the visa.
The Tribunal took the reasonable view that what the applicant had provided was qualified (given the stated conditions), in such a way that the applicant should be given the opportunity to fulfil the necessary conditions so as to “convert”, a qualified offer into, using the words of the offer itself, a “full offer”. By the Tribunal awaiting developments and allowing the applicant the opportunity to fulfil the requirements to make the offer of enrolment efficacious, this was not only not unfair or not unreasonable, it was in fact fair and reasonable.
For the sake of completeness I also note the following. First, and as the Minister submits, where any delay in decision-making is extreme, such as to affect the decision-maker’s capacity to make reasonable findings, particularly findings on credibility, this may amount to jurisdictional error (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470).
However, this is not such a case. The applicant was required by the relevant regulations, to provide evidence of enrolment in, or a current offer of enrolment in, a relevant course of study, such that she could satisfy the regulatory requirement that she remain in Australia for the purpose of “genuine” study. The document she provided was not such a document. The Tribunal’s finding that she had not provided the necessary evidence, as at the time decision, was reasonably open to it on what was before it.
Second, while the applicant made reference to various authorities before the Court, she was unable to satisfactorily explain how, in the circumstances presented, Kioa assisted her in revealing “unfairness” on the part of the Tribunal, nor how Li and Singh assisted in revealing that the Tribunal acted unreasonably in the exercise of the statutory discretion. The Tribunal’s conduct was fair and reasonable as that term is explained in various authorities (see for example Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611). Ground one is not made out.
Ground two asserts that the Tribunal fell into jurisdictional error because it failed to invite the applicant to comment on, or rectify, any “perceived deficiencies” in the “offer” of enrolment.
Plainly, ground two proceeds from the same grievance as set out in ground one. In ground two however, the submissions appeared to focus on a failure on the part of the Tribunal to make further enquiries of the applicant. The “offer” of enrolment was received by the Tribunal on 17 November 2014. The complaint is that the Tribunal made no attempt to contact the applicant, but adopted a “wait and see” approach, and then simply proceeded to a decision (see [21] of the applicant’s written submissions). It would appear that the legal errors asserted are again unreasonableness and the failure to afford procedural fairness.
Before the Court, the applicant’s submissions “limited” the ground to an assertion that it was unreasonable of the Tribunal not to offer the applicant an opportunity to comment on the offer of enrolment document before proceeding to a decision. The applicant relied again on Li.
Even in this context, the applicant was unable to satisfactorily identify what statutory discretion the Tribunal was said to have exercised unreasonably.
There is no obligation on the Tribunal to make out the applicant’s case for her. The Tribunal put the applicant on notice by its letters of 17 October 2014 and 3 November 2014, that in order for the applicant to satisfy the criteria for the grant of the visa, she needed to provide evidence of either an enrolment in, or a current offer of enrolment in, a relevant course of study. The issue determinative of the review was the absence of such evidence.
If the applicant had been in a position to supply to the education provider evidence of English language proficiency, as she was required to do, there is nothing to explain why she did not tell the Tribunal, given she had full notice of the relevant issue, that she had either sent this information to the education provider, or intended to do so.
The applicant was represented before the Tribunal by a registered migration agent. It must be said that, ultimately, when put on notice of relevant regulatory requirements, applicants, particularly where represented by professional migration agents, must be held to some obligation to make out their case. The Tribunal did not act unreasonably in this regard.
The stated complaint that the Tribunal did not invite the applicant to comment on “information” does echo the obligation on the Tribunal set out in s.359A of the Act. However, before the Court, the applicant appeared to resile from any allegation of a breach of s.359A of the Act.
In any event, the ground complains that the Tribunal did not invite her to comment on its intention to make an adverse finding, and on any “perceived deficiencies” in the information or documents that she had provided. It is the case however, that the Tribunal’s “adverse” views of the applicant’s information or documents provided to it, are not information for the purposes of s.359A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507). Nor did that information contain in its terms a “rejection, denial or undermining” of the applicant’s claims, such as to engage section 359A(1) of the Act (SZBYR at [17]). In any event, this was information given by the applicant in connection with the review. Even if s.359A(1) of the Act was engaged, the information fell within the exception in s.359A(4)(b) of the Act. In all, ground two is not made out.
Ground three asserts the Tribunal took into account an irrelevant consideration. This is said to be that the offer of enrolment was conditional. The argument appeared to be that the applicant was only required to show that she had a current offer of enrolment, not that it was an unconditional offer of enrolment.
For the reasons set out above, and given the relevant statutory scheme, the applicant’s ground is without merit. Clause 573.231 of Schedule 2 to the Regulations does require an enrolment or a current offer of enrolment. A conditional offer is not an offer of enrolment with sufficient certainty, or efficacy, to say that the regulatory requirement is satisfied. A conditional offer, given the existence of the conditions, can only be an offer of enrolment when the conditions are satisfied, or otherwise withdrawn. Plainly these matters were relevant. Ground three is not made out.
Ground four asserts the Tribunal fell into error when it found that the “offer” was conditional upon acceptance within 21 days, and that the applicant had to obtain a score of 7 in the IELTS test.
Given what was plainly set out in the terms of the “offer of placement for enrolment” letter from the education provider (see CB 206), it was open to the Tribunal to find that the “offer” was subject to certain terms. The applicant’s ground is so obviously lacking in merit that this possibly explains why no real effort was made at the hearing before the Court to explain it. Ground four is not made out.
Ground five asserts the Tribunal fell into jurisdictional error because it found that the applicant was not enrolled in a course which was the subject of the offer, and that the applicant was not enrolled in any other “registered course”.
This ground relied on the circumstances presented in grounds one and two (see above) and ground six (see below).
To the extent that the applicant relies on these other grounds for the purposes of ground five, the ground is not made out for the reasons given in relation to those other grounds. For the remainder, the Tribunal’s findings were reasonably open to it on what was before it. No jurisdictional error is revealed in these circumstances.
Ground six also asserts, with reference to grounds one and two, that the Tribunal fell into jurisdictional error when it concluded that it was incumbent on the applicant to provide evidence that she had met the conditions of the offer.
As the Minister submitted, it is by now well settled that it is for an applicant to present her, or his case, to the Tribunal, and for the Tribunal to make findings of fact reasonably open to it, and to reach, or not reach, the requisite level of satisfaction that the criteria for the grant of the visa have been met (Abebe v Commonwealth [1999] HCA 14; (1997) 197 CLR 510 and s.65 of the Act).
In the current case, the Tribunal gave the applicant the opportunity to make out her case. Jurisdictional error is not revealed simply because the applicant is unable to make out her case. The answer to the applicant’s ground is that it was incumbent on the applicant to provide evidence that she satisfied the criteria for the grant of the visa. The Tribunal’s finding that she had not done so was reasonably open to it. No jurisdictional error is revealed.
The grounds of the application are not made out as there is no jurisdictional error revealed by the grounds. It is appropriate that the application to the Court be dismissed. I will make that order accordingly.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 20 January 2017
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
13
3