FEDERAL COURT OF AUSTRALIA

Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1391

MIGRATION – student visa – claim of inflexible application of policy – form of notification of reason for refusal of grant of visa – determination of matters relevant to decision – appropriate educational level for visa applicant. 

Migration Regulations 1994:   560.224(1)(d)

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553 referred to

Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 referred to

British Oxygen Co Ltd v Minister of Technology [1971] AC 610 referred to

XIAO SHAO YONG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 134 of 2000

GOLDBERG J

2 OCTOBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

Introduction

1                     The applicant applies for an order of review pursuant to Pt 8 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs in Beijing on 25 January 2000 to refuse the applicant’s application for a Student (Temporary) Class TU Visa (Subclass 560 Student Visa).  The delegate decided that the applicant had not met the requirements of Regulation 560.224(1) of the Migration Regulations 1994 (“the Regulations”) and had therefore failed to meet a prescribed criterion for the grant of a visa Subclass 560.  Accordingly, the delegate, pursuant to s 65 of the Act, refused the applicant’s application.

Background

2                     The applicant is a citizen of the People’s Republic of China and lives in Guangdong.  He was born on 29 August 1981 and was 17 years of age on the date of his application for the visa on 9 August 1999 and 18 years of age on the date of the delegate’s refusal of his visa.  The applicant sought the visa so that he could attend Ivanhoe Grammar School at year 10 level commencing in October 1999.  The material placed by the applicant before the delegate showed that he had studied at a primary school from September 1988 to July 1994, had studied at a middle school (or high school) from September 1994 to July 1997 and had studied at another middle school (or high school) from September 1997 to the time of the application.  He had not completed the course of studies at that school.  The material also disclosed that Ivanhoe Grammar School had accepted the applicant to commence year 10 on 4 October 1999 or as soon as possible thereafter. 

3                     The Act provides for “prescribed classes of visas”:  s 31(1), and for the Regulations to provide that “visas or visas of a specified class may only be granted in specified circumstances”:  s 40(1).  Regulation 2.01(a) provides that for the purposes of s 31 the prescribed classes of visas are, inter alia, the classes set out in the respective items in Schedule 1 to the Regulations.  Regulation 2.03 provides that the prescribed criteria for the grant to a person of a visa of a particular class are:

“(a)     the primary criteria set out in a relevant Part of Schedule 2; or

 (b)      if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.”

Regulation 2.04 provides:

“For the purposes of section 40 of the Act, and subject to these Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2.”

Schedule 1 provides for a “Student (Temporary) (Class TU)” visa.

4                     The application was to be considered by the delegate by reference to the applicable criteria.  Section 65 of the Act relevantly provides:

“(1)     After considering a valid application for a visa, the Minister:

(a)        if satisfied that:

            …

(ii)        the other criteria for it prescribed by this Act or the regulations have been satisfied …

is to grant the visa; or

(b)        if not so satisfied, is to refuse to grant the visa.”

The criteria of the Subclass 560 visa are set out in Pt 560 in Sch 2 to the Regulations and are to be met at the time of the decision.  They include:

“560.224 (1)  Subject to subclauses (4) and (5), the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:

(a)        to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and

(b)        subject to subclauses (2) and (3), to the applicant’s comprehension of English for the purposes of the course; and

(c)        to whether the applicant intends to comply with any conditions subject to which the visa is granted; and

(d)        to any other relevant matter.

…”

5                     The notification of the delegate’s decision was in the form of a pro forma letter which stated:

“I have considered your application carefully and have taken into account the information provided.  However, I regret to tell you that you have been refused a visa for the following reason(s):”

It then set out seven paragraphs each of which specified a ground by virtue of which one of the criteria specified in Pt 560.224(1) was not satisfied.  Opposite each paragraph there was a box to be marked if that paragraph was to be an operative ground for the refusal of a visa.  In the case of the decision on the applicant’s application the letter stated that the applicant had been refused a visa “for the following reason(s)”.  The following box was ticked:

“A relevant factor in the consideration of Migration Regulation 560.224(1)(d) is whether or not the proposed course of study is relevant and appropriate given the applicant’s current educational level.  Careful consideration has been given to your circumstances, however it has been determined that the proposed course of study in Australia is neither relevant or appropriate to your current educational level.  Migration Regulation 560.224(1)(d) is assessed as not being met.”

After the seven paragraphs to which I have referred the letter continued:

“Based upon the information submitted in your application and supporting documents I am not satisfied that you are a genuine applicant for entry and stay as a student.  As a result of this you fail to satisfy Regulation 560.224.  As you have failed to meet a prescribed criterion for the grant of a visa subclass 560 your application is refused pursuant to Section 65 of the Migration Act.”

The submissions

6                     The applicant submitted that the delegate had not made the decision to refuse the visa on the merits of the case but had applied inflexibly a policy without regard to the particular circumstances of the applicant’s case.  It was said that accordingly the decision was reviewable pursuant to s 476(1) of the Act on the grounds that:

·                    The decision was not authorised by the Act or the Regulations;

·                    The decision was an improper exercise of the power conferred by the Act or the Regulations in that it constituted an exercise of discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

·                    The decision involved an error of law which error involved an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

7                     The applicant submitted that the form and structure of the letter which recorded the decision demonstrated that the delegate had not considered the applicant’s case but had applied a rigid rule of policy, namely that a relevant matter was the relevance of the applicant’s proposed course of study given his current educational level.  It was said that the form of the letter required the delegate to tick one or more boxes and that this resulted in a rigid application of policy.

8                     The applicant submitted that none of the material submitted by the applicant had been considered but rather a particular policy had been applied and that the delegate had not considered the nature of the course of study in concluding that the proposed course of study at Ivanhoe Grammar School was neither relevant nor appropriate to the applicant’s current educational level.  It was therefore submitted that the decision was an improper exercise of the power conferred by the Act and the regulations, relying on Minister for Immigration & Ethnic Affairs v Conyngham (1986) 11 FCR 528; Minister for Industry & Commerce v East West Trading Co Pty Ltd (1986) 64 ALR 466. 

9                     The applicant submitted, in the alternative, that whether or not a proposed course of study is relevant and appropriate, given an applicant for a visa’s current educational level, is not a relevant matter to consider in determining whether the applicant is genuine in his application for entry and stay as a student.

10                  The respondent submitted that the decision of the delegate did not involve the exercise of a discretionary power but rather required the delegate to be satisfied that the applicant was a genuine applicant for entry and stay as a student having regard to specified factors.  It was for the delegate to determine what were matters relevant to whether the applicant was a genuine applicant.

Reasoning

11                  It is a misunderstanding of the decision of the delegate to contend that it involved an inflexible application of a policy in exercise of a discretionary power or that it involved the exercise of a discretionary power.  A decision to grant or refuse a visa is not appropriately characterised as “an exercise of a discretionary power” as the decision whether or not to grant the visa depends upon the delegate being satisfied as to a number of criteria.  If relevant criteria are satisfied or not satisfied as the case may be the delegate does not have a discretion.  As Gummow J pointed out in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 604. 

“It will be noted that s 65(1) imposed upon the minister an obligation to grant or to refuse to grant a visa, rather than a power to be exercised at discretion.  The minister’s satisfaction was an anterior matter, being a component of the condition precedent to the discharge of the obligation to grant or refuse the visa.”

The majority of the High Court, Gleeson CJ, Gaudron, Gummow and Hayne JJ made a similar observation in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553 at 563:

“…s. 65(1) provides that, if the minister is satisfied that the criteria prescribed by the Act and regulations for a particular class of visa are satisfied, that the grant of a visa is not prevented by the Act or other Commonwealth law, and that the application fee has been paid, the minister ‘is to grant the visa’ and, if not so satisfied, ‘is to refuse to grant the visa’.  Thus, although the minister’s satisfaction (or, in the case of the tribunal, its satisfaction) is still required, s 65(1) imposes an obligation to grant a visa, as distinct from conferring a power involving the exercise of a discretion.  The satisfaction that is required is a component of the condition precedent to the discharge of that obligation.”

12                  It was for the delegate to be satisfied as to relevant matters and what were relevant matters was for the delegate to determine.  The fact that the Minister or the delegate has decided that in this class of case – applications for student visas – it is a matter relevant to the genuineness of the applicant whether the proposed course of study is relevant and appropriate given the applicant’s current educational level, is not to apply a policy inflexibly.

13                  It is also not appropriate to say that the delegate has elevated a policy to the status of legislation.  The ground for refusal is based upon the nature of the applicant’s proposed course of study in Australia and the nature of the applicant’s current educational level.  What has occurred is that the Minister and the delegate consider that a relevant factor in the consideration of Regulation 560.224(1)(d) is whether or not the proposed course of study is relevant and appropriate given the applicant’s current educational level.  The Regulation allowed the delegate to determine what are relevant matters.

14                  It does not follow that because there were a number of boxes to be ticked in the pro forma letter that a decision was made by reference to an inflexible application of a policy.  The other boxes which related to other criteria were not ticked, no doubt as a result of a consideration of the applicant’s application.  I am satisfied that the applicant’s application was considered by the delegate on the merits of the application. 

15                  The department’s case notes were placed before me by consent.  They were apparently made in the course of the decision‑making process and record observations by departmental officers.  They note the following assessment dated 24 January 2000:

“h       case was represented by we international trading pty ltd.

h                 pa is 18, and is taking year 12.

h                 Will take year 10 at ivanhoe grammar school

h                 Refusal suggested based upon inappropriate entry level.”

The following note appears dated 25 January 2000:

“I have reviewed the file and agree with the assessment made.  Refused pursuant to reg 560.224(1)(d)”.

These notes demonstrate that the applicant’s case was considered on its merits.

16                  There is nothing inappropriate in the Minister and the delegate determining that a particular matter is relevant to a visa application so long as consideration is given to the merits of the applicant’s application.  It is helpful in this context to have regard to the distinction between a policy, rule or a guideline which limits the manner in which an administrative officer is to exercise a power and a policy, rule or guideline which allows the administrative officer to exercise a power whilst providing a guide as to how the power might be exercised.  The delegate was not exercising a discretionary power so that s 476(3)(c) cannot be invoked.  Nevertheless principles applicable to the exercise of a discretionary power, having regard to formulated policies, are useful analogues.  In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J (as he then was) at 641 quoted with approval the following passage from the judgment of Lord Denning in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 626:

“I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply.  Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it.”

17                  A similar observation was made by Lord Reid in British Oxygen Co Ltd v Minister of Technology [1971] AC 610 at 625:

“What the authority must not do is to refuse to listen at all.  But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule.  There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing”.

These observations can be usefully applied to the issue in this case.  In the present case the delegate had regard to the applicant’s case and reached a level of satisfaction by reference to a matter to which the delegate was entitled to have regard.

18                  I turn to the alternative submission.  Given the language of Regulation 560.224(1)(d) it was for the delegate to determine if there were other matters relevant to whether the applicant was a genuine applicant for entry and stay as a student.  I do not accept that the matter considered relevant by the delegate was not relevant to the matter in respect of which the delegate had to be satisfied, namely whether the applicant was a genuine applicant for entry and stay as a student, having regard to the material which was before the delegate.  Counsel for the applicant disavowed that by making such a submission he was undertaking a merits review.  The submission was put on the basis that the delegate had determined an irrelevant matter and had therefore committed an error of law.  Properly analysed this submission says no more than that the delegate should not have reached the conclusion which was reached.  This is not an available ground of review.  In any event, I consider it was open to the delegate to conclude that the admission of an 18 year old student into year 10 at an Australian secondary school was not relevant and appropriate having regard to the applicant’s current educational level in China.

19                  I am satisfied that the decision was authorised by the Act and the regulations, it did not involve any error of law and was not an exercise of discretionary power in accordance with a rule or policy without regard to the merits of the applicant’s case.

20                  The application will be dismissed with costs.

Associate:

Dated:              2 October 2000