FEDERAL COURT OF AUSTRALIA

Yang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1337

MIGRATION – application seeking review of decision by delegate refusing claim for a subclass 571 (Schools Sector) visa – delegate not satisfied of applicant’s genuineness for entry and stay as a student in Australia – applicant’s level of regression in study deemed inappropriate – reliance on government policy by delegate – whether policy relating to regression was in existence – factors taken into account by decision-maker – whether delegate erred by taking into account an irrelevant factor – whether delegate’s decision was a bona fide attempt to exercise power

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 474

R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 cited

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited

NAML v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1190 referred to

NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 referred to

OU YANG (a minor) by his next friend STANLEY CHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 720 OF 2002

TAMBERLIN J

SYDNEY

30 OCTOBER 2002

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) in Beijing on 14 June 2002 that the applicant was not entitled to a subclass 571(Schools Sector) visa under the Migration Act 1958 (Cth) (“the Act”)

2                     The ground on which the applicant relies, in view of s 474 of the Act, is that there was no bona fide attempt to exercise the power to decide whether a visa should be granted.  In particular it is contended that the decision to refuse the application was made pursuant to a “non-existent policy” whereby the Minister deemed persons who fitted a particular set of circumstances not to be genuine applicants for entry and grant of such a visa.

3                     In the alternative it is submitted that the delegate’s decision fell so far short of a genuine attempt to address relevant criteria that it cannot be considered a bona fide attempt to reach a decision.

4                     At the end of the hearing, I formed the view that the applicant had failed to make out the grounds of review, and ordered that the application be dismissed with costs. I now publish my reasons for judgment.

schools sector visas

5                     The regulatory framework within which the decision was made is the criteria set out in Schedule 2 of the Migration Regulations (1994) (Cth) concerning subclass 571 (Schools Sector) visas.  Regulation 571.223 is concerned with criteria to determine whether an applicant is genuine for entry and stay as a student.  It requires that:

“The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(a)       evidence given in accordance with Schedule 5A in relation to:

(i)        the applicant’s English language proficiency for the purposes of this course; and

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

(iii)      other requirements under Schedule 5A; and

(b)       the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(c)        any other relevant matter.” (Emphasis added)

background

6                     The applicant is a national of the Peoples’ Republic of China who was born on 13 October 1985 and lived with his family in the Guangxi Zhuang Autonomous Region of China.  In June 2001, when he was yet to reach the age of 16, an application was lodged on his behalf with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) for a student visa to study in Australia.  That application was rejected in late December 2001 because the decision-maker was not satisfied that sufficient funds were available to support the applicant in Australia.

7                     A further application for a student visa was lodged on the applicant’s behalf on 16 April 2002 at which time the applicant had turned sixteen years of age.  In that application it was stated that he had achieved a “Year 12” qualification and that the course he intended to undertake was “English for High School Preparation” followed by “Year 10 at Coverdale Christian School”.  The stated intention was to acquire good English and finish university studies in order to obtain employment.  Mr Stanley Chan, the applicant’s uncle and friend in the application to the Court was nominated as the person with whom the applicant would stay in Australia.

8                     By letter dated 14 June 2002, the Department in Beijing informed the applicant that the delegate was not satisfied of the applicant’s genuineness for entry and stay as a student in Australia.  So far as relevant the letter reads as follows:

“Dear Ou Yang,

I refer to your application for a student visa.  Your application has been carefully assessed.  The information you have provided has been considered, but I regret to advise you that you have not been granted a visa.

All applications for student visas are assessed according to requirements set out in Australia’s migration law, and taking into account Australian government policy.  Relevant criteria for the grant of a subclass 571 – Schools Sector student visa includes the following:

‘The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to:

(a)        evidence given in accordance with Schedule 5A in relation to:

(i)        the applicant’s English language proficiency for the purposes of the course; and

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

(iii)      other requirements under Schedule 5A; and

(b)       the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(c)        any other relevant matter.’

                                    (regulation 571.223)

…

-   your situation in your home country;

-   your academic record;

-   your links with Australia;

-   whether your stated purpose in studying in Australia and proposed

     duration of stay is consistent with your circumstances;

-   whether the course you are seeking to take is consistent with and

     appropriate to your current level of education;

-   if you are a full time student in China, you are off an age similar to that of

     other full time students in China and are able to satisfy the decision-maker

     that you are or were a genuine student in China, and that the proposed

     course in Australia is consistent with, and is appropriate to, your current

     studies;

I have considered the specific circumstances of your case having regard to the factors above.  Overall, on the evidence before me I am not satisfied that you are a genuine applicant for entry and stay as a student in Australia.

…”.   (Emphasis added)

9                     The letter was in a printed form and there was a tick to a box containing the factors which would be taken into account.  There is no statement as to what specific circumstances of the applicant’s case were taken into account in respect of the factors and the conclusion is one expressed to be “overall on the evidence before me.” 

10                  Mr Chan, having received the notification, sent a letter to the Department’s Beijing office on 3 July 2002  in which he sought more detailed information as to the reasons why the visa had not been granted.  In response, he received a facsimile dated 5 July 2002, which included the following:

“Australian Migration legislation provides for each visa application to be assessed individually on its merits [in] accordance with prescribed legislation and government policy.  When assessing student visa applications decision-makers make a careful assessment informed by local experience and knowledge, while adhering to legislation, policy and procedural guidelines.

In the case of Ou Yang, he provided an offer letter which indicated he would be undertaking secondary school studies in Australia beginning at the Year 10 level.  As he is currently finishing the equivalent of Year 12 in China, this study plan was deemed inappropriate, as it represents a regression of 3 years in his studies.  A regression of 18 months is the maximum allowed under normal circumstances.”

…”

11                  On 7 August 2002, the solicitor for the applicant served a Notice to Produce which required production of the following:

1.         All documents which state that it is the respondent’s policy not to grant subclass 571(Schools Sector) visas to applicants who apply to study in Australia at a level or grade more than 18 months behind their current scholastic level in their home country.

2.         All documents which state that it is the respondent’s policy to deem applicants for subclass 571 (Schools Sector) visas, who apply to study in Australia at a level or grade more than eighteen months behind their current scholastic level in their home country, not to be genuine applicants for entry and stay as students in Australia.

12                  In response there is an affidavit from a solicitor for the respondent producing two documents.  The first is a “Checklist for Assessing Secondary Student Applications Sub Class 571 – AL(4) by the Department.”  This document is said to have been considered by the decision-maker in the form of a check list in making the decision the subject of the proceedings.  That document includes the following:

“-       Is applicant intending to jump ahead in their schooling, or intending to regress in their schooling by more than 12-18 months from current level? (assess this from the level they would be at, at the time they would enter the course in Australia).                                                  

  -        school reports show satisfactory attendance.”

13                  The affidavit also annexes a copy of a Departmental email memorandum which refers to a “local policy” in the following terms:

“I would like to clarify an Issue concerning the ‘too old’ students. 

Local policy is:

Students are not to go backwards more than 18 months in their schooling.  The 18 months is worked out from the time that they would be actually starting the school course (ie. after any English training).  Students who have finished year 12 in June are also not going to be entering school at a level appropriate to their academic background (they would have had a few months off, then want to do the end of year 11 before entering year 12 (no direct entry into year 12 without an IELTS/TOEFL score, under the old regs).

An example of an inappropriate entry level would be where you have an applicant who was doing year 12 when they lodged their application, has since finished (in June at the end of the school year) and now seeks to go to Australia to do maybe a month or two of year 11 starting in October or November and then Into year 12 next year.

Another example is where you have an applicant who is currently in year 12 and they want to enter school [sic] in Australia in year 10 and perhaps after doing English training.  They would be repeating year 10 and 11 and are likely to be 18 by the time they were to start year 10 next February.  The age itself is not the focus, it is the relevance and appropriateness of their intended study plan, when considered against their current education background.   This student would be seeking to regress more than 2 years – not acceptable.

..”

14                  This, in my view, is an expression of general policy.  The email in which it is contained is dated 4 September 2001 and there is nothing to show any modification to the local policy in the period up to 14 June 2002.  There is also in existence a Procedures Advice Manual used by the Department but it is common ground that it does not set out any policy to the effect that a proposed regression of more than 18 months in school studies establishes a lack of “genuineness” for the purposes of reg 571.223.

15                  The respondent also seeks to rely on information accessible on the Beijing Embassy website.  I am satisfied that the information referred to above when read as a whole is sufficient to establish that there was a policy in existence at the relevant date to the effect of that which is stated to have been applied in the present case.  However, there is another independent ground on which the applicant’s case must fail even if there was no such firm policy in existence which I set out below, namely, that it has not been established that the decision-maker failed to act bona fide.

16                  The applicant’s case proceeds on the following lines.  It is accepted that decision-makers can take government policy into account in making decisions: see R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577, 589-90.  However, it is said that the reasons for decision, in this case, assume that there was a policy in force and that such policy is consistent with the relevant statutory regime.  It is said that it could be expected that the reference in 571.223(c) to any other “relevant matter” would be elaborated on and covered by a published policy.  It is asserted that notwithstanding the attempts made by way of a Notice to Produce to obtain relevant documents said to embody the asserted policy, no such policy can be said to exist.  It is submitted that no admissible evidence of any policy has been provided.  I do not accept this latter submission, but it is appropriate in the present case to consider the other argument relating to lack of bona fides.

17                  The applicant submits that the inadequacy of the decision in this case goes further than taking into account an irrelevant consideration or failing to take a relevant consideration into account and that it amounts to a completely arbitrary application of a non-existent policy without regard to the circumstances of the case.  Accordingly, it is said that such an approach, is not a bona fide attempt to exercise the power in question and that therefore there was a lack of any honest or genuine attempt to undertake the task assigned to the decision-maker and consequently such failure was of a type which would merit personal criticism of the officer in question.  In the alternative, it is said that the attempt to exercise the power fell so short of what might reasonably be considered a genuine attempt that it cannot be considered on any objective view to be an attempt at all notwithstanding the subjective belief of the decision-maker.

18                  Even assuming contrary to my view that there was no relevant policy in force at the time of the delegate’s decision, I am not persuaded that the decision can be said to be other than a bona fide attempt to exercise the power in question.  I have recently considered the requirements of the necessary elements which would generally indicate a lack of bona fides in NAML v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1190.  The questions is also discussed by Allsop J in NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713. 

19                  The parameters within which the present decision is to be made include a broad reference to “any other relevant matter” and it should be borne in mind that the power is being exercised and the decision made by a Minister of State.  This suggests that a narrow view is not appropriate as to what may be considered to constitute a relevant factor in reaching a determination.

20                  Regardless of whether there was a policy in effect or not, the factors which have been taken into account by the decision-maker were set out in the letter of decision of 14 June 2002.  As a general observation this form of notification taken alone is, in my view, not a very satisfactory document in the sense that it may on occasions lend itself to a simple ticking off of factors in a formal manner without proper attention being paid to a careful consideration of the particular circumstances of each case.  There is no evidence that this approach was taken in the present case.  The subsequent explanatory letter sent from the Beijing office on 5 July 2002 indicates that particular circumstances pertinent to the applicant’s case were considered.

21                  A consideration of whether there will be a regression in study by an applicant in relation to the grant of a Schools Sector Visa, in my view, cannot be said to be irrelevant to the exercise of appropriate ministerial discretion so as to fall outside the ambit of what might be considered relevant to the exercise of that discretion.

22                  In addition to the consideration that the power is being exercised by the Minister and to the Minister’s satisfaction, it is also important that the subject matter for determination is whether the applicant is a “genuine” applicant for entry and stay as a student.  A determination of genuineness may relevantly involve a wide range of considerations and it has not been shown in this case that the selection of academic regression as a consideration could not reasonably be a relevant matter.  The letter to Mr Chan from the Beijing office of 5 July 2002, estimates a regression of several years in the proposed studies and this is a considerable period which on its face could, in my view, be legitimately taken into account by the decision-maker.  The fact that minds may differ on an appropriate regression period does not establish lack of bona fides.  To assert that there has been an error on the part of the Minister in applying a relevant factor is not sufficient to demonstrate lack of bona fides in the sense of a lack of an honest attempt to make the determination required by reg 571.223.

23                  For the above reasons I am not satisfied that the applicant has established that there has been any failure in this case to make a bona fide attempt to exercise the discretion conferred on the decision-maker.  The applicant’s case is based on the non-existence of the policy referred to and I am not persuaded that this has been established.  Based on the evidence available to me, I am satisfied on the balance of probability that such a policy was in place at the relevant time. 

24                  Accordingly, the application is dismissed with costs.

Associate:

Dated:              30 October 2002