Ou Yang v Minister for Immigration & Multicultural & Indigenous Affairs

The appellant's contentions on the appeal 13 Although acknowledging that a decision-maker can take into account government policy provided that it is consistent with the relevant statutory regime, Mr Karp of Counsel for the appellant contended that a decision-maker cannot arbitrarily assume, or erect for himself or herself, a criterion of general application by calling it a "policy". It was further contended that the affidavit of Mr Leerdam was inadmissible and that, consequently, the two exhibits to that affidavit were also inadmissible. It was the second of those exhibits, the Departmental email memorandum of 4 September 2001, which was relied on by the learned primary Judge as "an expression of general policy." 14 In the absence of admissible evidence of any policy governing the use of periods of "regression" as guides to the "genuineness" of applicants, it was submitted that the Minister's delegate had erred in applying an arbitrary rule that "a regression of 18 months is the maximum allowable under normal circumstances." In addition, it was pointed out that the delegate had disregarded the fact that the appellant, at the date of his application, had been aged 16 years - an age at which most students in New South Wales have not completed their certificates of completion of secondary schooling. 15 However, as we understand it, the appellant was aged 16 years and five months when he made his second application in which he proposed to enrol from 14 October 2002 for the balance of year 10 at Coverdale Christian School. By then he would have been aged 17, an age by which most students have at least embarked on Year 12. On the assumption that he successfully proceeded to year 11 in 2003, and Year 12 in 2004, the appellant would have been 19 years old at the time of completing his secondary schooling in Australia. As previously stated, the certificate produced by the appellant from the Liuzhou Municipal Second Middle School indicated the marks which he had achieved in each semester from September 1999. No marks were indicated for "Grade 3" and the certificate suggests that the applicant was to complete his studies at the Liuzhou School in about September 2001. 16 It was contended that, by failing to have regard to these and other circumstances relevant to the appellant, and by peremptorily applying an "18 month regression rule" the decision-maker had not made a bona fide attempt to exercise the power reposed in him. Alternatively, it was put that the attempt to exercise the power had fallen so far short of what might reasonably be considered a genuine attempt that it could not be considered, on any objective view, to be an attempt at all; see NAML v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1190 at [28].

The Minister's contentions on the appeal 17 Mr Smith of Counsel for the Minister contended that it was not open to the Court at first instance or on appeal to infer the absence of a relevant policy from the respondent's failure to comply with the notice to produce which called for the production of any documents "which state that it is the respondent's policy" not to grant a particular visa to particular persons or to deem certain persons not to be genuine applicants for entry and stay as students in Australia (emphasis added). The notice to produce was incapable, so it was contended, of requiring production of documents which embodied the Minister's policy at any earlier time and specifically as at 16 April 2002. In any event, so the argument went, failure to comply with such a notice would not establish the absence of some unwritten policy or practice in accordance with that which the decision-maker purported to apply. 18 In the second place, Mr Smith contended that it was not open to the appellant, simply by tendering the notice to produce, to shift to the Minister the onus of proving the relevant policy. What should have been done, it was submitted, was to tender the notice together with the documents purportedly produced in response to it, or obtain an admission on behalf of the Minister that nothing was produced. 19 As to the alleged jurisdictional error imputed to the decision-maker, Counsel for the Minister pointed out that the Regulations required that regard be had to the stated intention of an applicant to comply with any conditions subject to which the visa is granted and to any other relevant matter. In response to the argument that by adverting to the allegedly non-existent policy, the decision-maker had been led to take into account an irrelevant matter, Mr Smith: (i) repeated the argument canvassed above that the non-existence of the alleged policy had not been established; (ii) contended that "regression" or a discrepancy between education levels in Australia and an applicant's country of origin may be a relevant matter; (iii) argued that the existence of the alleged policy was a question of fact and even if the delegate had been mistaken as to that question, his mistake led him to take into account a consideration that was not irrelevant but was concededly relevant to the issue of "genuineness". 20 The appellant's contention that he had, at the time of his application, been approximately the same age as his educational counterparts in New South Wales was said to be based on a misunderstanding and, in any event, to be unsupported by any evidence.

The alleged policy 21 If the sole basis for the decision-maker's decision had been that a pre-ordained standard existed prohibiting a "regression" of 18 months (the "policy"), that could have founded any one of the following errors of law; (i) if a non-existent "policy", applied by the decision-maker through a mistake of fact, had itself directed attention to an irrelevant consideration; or (ii) if the policy had existed and directed attention to an irrelevant consideration; or (iii) if the policy had existed and been followed without regard to the merits or circumstances of the individual case. 22 The question of whether or not a formal policy existed may conceal the real issue. Either "regression" in a proposed course of study is a relevant consideration when assessing whether an individual is a "genuine student" or it is not. Whether there was a policy, or whether the decision-maker misdescribed a consideration he presumed to be relevant or determinative as being a policy, are really distractions from that more fundamental question. 23 It might be concluded that a proposed course of study is inappropriate having regard to an applicant's existing level of education (measured, at the least, by years of formal education completed), in that an applicant would not derive any apparent benefit from studying at a level below that which he or she had already attained. A proposal to undertake a course of study from which an applicant is unlikely to derive an educational benefit leaves open the inference that an application for a visa could be made for a purpose unrelated to an applicant's academic advancement. 24 However, such a method of reasoning required, in our view, more than a mere comparison between, on the one hand, the appellant's assertion in the second application that he possessed the "Year 12" qualification in China and, on the other hand, his "intended course" in Australia (as described in the second application as "Year 10" with a commencement date of "16/10/02"). An acceptable finding would require some examination of points at which secondary education in China could be regarded as equivalent to identified standards of educational progress in Australia. Such an examination would refer at least to the number of years of formal education which had to be completed to arrive at comparable benchmarks in the relevant system in each country. Mr Smith contended that the decision-maker had found that Grade 3 of the senior middle section of the Liuzhou School was the equivalent to having obtained a Year 12 finishing or leaver's certificate in Australia. We do not consider such a finding to be the inference most readily open on the letter dated 5 July 2002 to the appellant from the Australian Embassy in Beijing. The preferable inference in our view is that the decision-maker concluded from the appellant's attribution to himself of a "qualification" of "Year 12" that he had completed 12 years of formal education in China. It is to be noted that the certificate from the Liuzhou School makes no reference to "Year 12" or the total number of years of education which the applicant had completed. 25 A "regression" could also be measured by comparing an applicant's age, with the average age of Australian students at the point in the Australian system which he or she proposes to enter. As noted above, if the information in the application is correct, the appellant was aged 16 years and five months. At the time he proposed to commence studies in Australia at a year 10 level, he would have been 17. This would have put him about eighteen months behind his average Australian counterparts. However, age difference alone is a crude measure of "regression" because it fails to take account of differences in various systems within the same country, let alone international differences. Those differences would include variations in age at entry to the system, course content and varying rates of acceleration through the system. Age difference also fails to take account of individual circumstances such as injury or disability or other events which require a student to repeat a year. In any event, there is no indication in the present case that the appellant's age was itself a factor which operated on the decision-maker's mind. 26 The error committed by the decision-maker is indicated by this passage in the letter of 5 July 2002 quoted at [8] above; 'Ou Yang … 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 ... A regression of 18 months is the maximum allowed under normal circumstances.' (Emphasis added.) 27 In their ordinary meaning, the words we have emphasised suggest that under normal circumstances something is to be allowed or disallowed with reference to the period of "regression" alone. The state of the evidence in the present case falls far short of demonstrating that that consideration is available to a decision-maker as a single determinant. There is nothing before the Court about whether senior middle section, Grade 3 at a school of the type of Liuzhou Municipal Second Middle School is equivalent to something beyond Year 12 in New South Wales (whether in terms of the curriculum or simply years of formal education completed), other than the appellant's assertion that he had acquired the qualification "Year 12". As noted above, the other material submitted by the appellant tended against a conclusion that he had completed twelve years of schooling. 28 The inference open on the statements made to the appellant is that the decision-maker made a purely arithmetical calculation of the period of "regression" by comparing "Year 12" and "Year 10" and made no further enquiries. That might not have been fatal if it could also have been inferred that the decision-maker had made an informed comparison between the two educational systems, or at least, between the total of years of schooling completed by the applicant and by a Year 10 student in New South Wales. However, we have been unable to draw that additional inference and find that the decision-maker fixed on a "regression of 3 years" on a purely arithmetical basis. 29 If "regression" is to be measured in a way capable of rendering it a relevant consideration, an applicant's total completed years of formal education, (leaving aside for the moment differences in content and methodology between educational systems) would be one useful, consistent and not unduly onerous criterion to adopt. Where information enabling its adoption is not apparent on the face of an applicant's papers and "regression" is proposed to be taken into account, an applicant could simply be asked for the relevant information. Material to permit the comparison which we have suggested is readily available and has an obvious bearing on the question of "regression"; (Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; Luu v Renevier (1989) 91 ALR 39). The need for a decision-maker to have regard to such readily available material is particularly acute where, as here, an applicant has no notice that a concept like "regression" is to be applied in determining the application; cp Kioa v West (1985) 159 CLR 550. There was an absence of information in the form completed by the appellant or, at best, there was an ambiguity between that document and the further material submitted by him as to the number of years he had spent in formal education. The obscure statement that he had acquired a "Year 12" qualification in China was not borne out by the translation of his Chinese school certificate. In such a case of "obvious omission or obscurity" a decision-maker should adopt the simple expedient of requiring further information from the applicant (Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at 353); though, if the reply is unhelpful, a decision-maker is clearly not obliged to go further (Ertan v Hurford (1986) 72 ALR 695 at 702). 30 There also appears to have been no consideration given as to how long the appellant would in fact have remained in Year 10 in Australia. As previously mentioned, the letter from Coverdale Christian School specified that he was to commence on 14 October 2002. If the school adhered to an ordinary academic year, it was to be expected that the appellant would soon have been in Year 11. On that assumption, his "regression" would have been more accurately assessed as two, rather than three, years of schooling. Had that view been taken, the appellant might have demonstrated by reference to individual circumstances or the fact that he had not completed Year 3 at the Liuzhou School, that the "regression" could be regarded as within the accepted limit of eighteen months. 31 For the sake of completeness, we observe that we would have reached the same result if a policy as to "regression" had been proved, as the matters to which we have drawn attention would have supported a conclusion that the policy had been applied without regard to the merits of the case. A crude arithmetical application of a "regression" policy without enquiring how far the two educational systems coincided or without investigating the circumstances particular to an individual applicant would clearly cause the decision-maker's discretion to miscarry. This is not even a case such as Wen Di Gu v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 414 where the decision-maker had fallen into error by insisting on a strict adherence to a preconceived (and inaccurate) paraphrase of a legislative requirement. Here, what might have been a relevant factor, or what might have formed, in conjunction with other information, part of a relevant process of reasoning, has been the sole focus of the decision-maker's consideration. To test the concept of "regression" only by comparing a claimed "Year 12" qualification in China with entry to Year 10 in Australia is to risk making a central finding on the basis of insufficient relevant evidence. To rely on that comparison without reference to any other information - even information as obviously relevant and readily obtainable as the number of years of schooling the appellant had completed is so arbitrary as to invalidate the decision. That is particularly so when there was presumably evidence as to whether the appellant had completed twelve years schooling or whether he had completed the stage of educational development reached by students embarking upon "Year 10" in New South Wales some three years earlier. 32 An unsatisfactory aspect of the appeal is that the facts on which the application must be decided, if remitted to the decision-maker, will have changed and that the new lapse of time itself will probably be relevant to the issue of "regression" if that consideration is applied free from any error of law. However, that does not warrant the Court, in its discretion, refusing relief under s 39B of the Judiciary Act. The consequential lapse of time will not have rendered the application nugatory, even if the appellant might be better advised to make a fresh application. 33 The appeal should be allowed, the decision of the respondent should be set aside and the matter remitted to be determined according to law. The respondent should pay the appellant's costs of the hearing below and of this appeal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan and Finkelstein.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: OU YANG (a minor) by his next friend STANLEY CHANG

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

DOWNES J 34 On 14 June 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused an application by Ou Yang for a student visa. Ou Yang challenged that decision by an application in this court pursuant to s 39B of the Judiciary Act 1903. Tamberlin J dismissed the application. Ou Yang now appeals to the Full Court. 35 Ou Yang was born in China on 13 October 1985. He is a Chinese citizen. In April 2002 he made his visa application to the Australian Embassy in Beijing. He sought a visa to attend the Windsor Institute of Commerce and Languages to improve his English and thereafter to enrol at the Coverdale Christian School in Year 10. 36 By notification dated 14 June 2002 Ou Yang was informed that his application had not been granted. The notification document was in a standard form setting out different grounds for refusal with boxes to be checked to indicate the grounds acted upon. Only one box was ticked. The adjacent ground was as follows: "Under policy, decision-makers may take into account a number of factors in assessing the genuineness of an applicant. These include the following factors, which are not exhaustive: - 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 of 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 genuine applicant for entry and stay as a student in Australia." 37 The uncle of Ou Yang, who is his next friend by whom he sues in these proceedings, wrote to the Embassy seeking further particulars of the refusal. The reply from the Embassy, dated 5 July 2003, contained 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." 38 In assessing Ou Yang's application the Minister's delegate was acting under reg 571.223 of the Migration Regulations 1994 which is set out in the reasons of Ryan and Finkelstein JJ. The regulation requires the decision-maker to be "satisfied that the applicant is a genuine applicant for entry and stay as a student" having regard to matters such as "English language proficiency for the purposes of this course … financial capacity … and any other relevant matters." 39 The grounds of appeal in this matter shifted during the course of the preparation of the appeal and the hearing of the appeal. Leave was granted to amend the notice of appeal at the beginning of the hearing. Leave was also granted to amend the notice of appeal further at the end of the hearing to cover a ground that had emerged during the course of the hearing. 40 This appeal is governed by the so-called privative clause inserted into the Migration Act 1958 in October 2001 as s 474. In Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359; [2003] FCAFC 168 a unanimous Full Court concluded that the failure of a review tribunal "to apply the relevant criterion for the grant of a … visa … will constitute a jurisdictional error and the decision made under it will not be protected by s 474." In Lobo the failure arose from the application of a policy which required certain business visa applicants to satisfy a test which was narrower than the criterion, thereby imposing a requirement which was not present in the criterion. 41 Lobo had not been decided when this appeal was argued. However, the arguments presented to us skirted around the matters which the Full Court in Lobo found to be persuasive. The present case is, however, quite different to Lobo. To understand why, it is necessary to refer to its history. 42 This is not an application to review the decision of a migration review Tribunal. This matter came to the Court direct from the decision of the Minister's delegate. No detailed reasons for the decision have been provided. There are no findings of fact and no statement of the evidence upon which such findings were based, as would be required of a review Tribunal (ss 368 and 430 of the Act). The Act provides no right to detailed reasons of this kind for a decision refusing a student visa and no right to merits review. The information contained in the letter of 5 July 2003 was provided voluntarily by the Embassy. 43 Unlike the position in Lobo, where there was no doubt that a policy was applied and the real question was whether the policy was narrower than the criterion, the first issue in the present case is whether there was any policy. The appellant apparently sought to address the issue by serving a notice to produce. At the hearing, the respondent attempted to file and read an affidavit responding to the notice. The appellant objected to the reading of the affidavit. The affidavit was rejected. Before us, as well as before Tamberlin J, the appellant argued that these circumstances provided evidence of the absence of any relevant policy. Counsel also relied upon Jones v Dunkel (1959) 101 CLR 298. 44 Tamberlin J found that there was a relevant policy. He based his finding on an affidavit filed on behalf of the Minister. The material in the transcript of the hearing before Tamberlin J suggests that the affidavit he relied upon was not the rejected affidavit. It was an affidavit on the Court file which was apparently not referred to by either party before Tamberlin J. Tamberlin J also found that even if there was no policy the matters shown to have been taken into account were relevant and there was no appealable error in any event. 45 As I understand the way the appellant finally put the case on the appeal the argument was as follows: 1. The trial judge erred in law by relying upon material not in evidence. 2. The trial judge ought to have found on the evidence that there was no relevant policy. 3. Accordingly, the decision-maker purported to apply a policy which did not exist, thereby taking into account an irrelevant consideration. 4. In any event, the decision-maker acted upon a finding that the appellant's chosen course involved an excessive regression in his studies. Taking that matter alone into account was taking into account an irrelevant consideration. 5. Alternatively, the purported policy was applied arbitrarily. 6. Alternatively, the policy was ultra vires the Migration Regulations. 7. None of the above grounds are excluded from judicial review by s 474 of the Act. 46 I will proceed on the basis that the affidavits and annexures apparently not admitted into evidence cannot be relied upon. That does not seem to me to justify a finding that there was no relevant policy. First, the applicant bore the onus. In the absence of positive evidence of the absence of the policy said to have been relied upon no finding that there was no policy was warranted. Any Jones v Dunkel presumption is rebutted here. Secondly, I do not accept that there was no evidence as to any policy. The evidence might not be ideal, but it was provided by the terms of the notification of 14 June and the letter of 5 July. The decision under review must be tested on its own terms. The references to policy in the documents cannot be disregarded to enable an argument to be raised that non-existent policy was being applied. 47 Since 1975, when the modern Commonwealth regime of administrative review began to be implemented, expectations that administrative decisions will be accompanied by detailed reasons and that relevant documents will be available for scrutiny, have increased. However, these expectations are not universally realised. Where, as here, comprehensive reasons have not been given it is a mistake to consider that a decision can be subjected to the same level of judicial review as a fully reasoned decision. The most significant right introduced into the law by the Administrative Decisions (Judicial Review Act) 1977 was not so much the right to judicial review itself, which was broadly available at common law, but the right to be furnished with comprehensive reasons which was conferred by s 13 of the Act. 48 The proper way to approach this matter is to look at what evidence there was as to policy. The criticised passage in the 5 July letter is itself a statement of policy: "A regression of 18 months is the maximum allowed under normal circumstances." It is to be noted that this statement was not made by the actual decision-maker. 49 It has not been argued that regression is irrelevant. Nor could it be. The argument is that regression alone is not relevant. I do not agree. If regression is relevant as one of the matters to be considered, then it is relevant generally. For every administrative decision there must be a number of relevant factors. Acting on only one of them will frequently be an error. But that does not make individual factors irrelevant. The real case made by the appellant is not that regression alone is irrelevant but that it was acted on to the exclusion of other relevant factors or that too much weight was put on it. The latter ground would seem only to be available where the decision is manifestly unreasonable (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41). 50 With these observations in mind it is necessary to consider two questions. First, is the revealed policy relating to regression unlawful. Secondly, was there anything unlawful about the application of this policy in the present case. 51 There is nothing about the stated policy relating to regression which demonstrates unlawfulness. Most importantly, it is clear that the policy described relating to regression is not absolute. It operates "under normal circumstances". That shows that the policy does not offend the statutory obligation not to exercise "discretionary power in accordance with a rule or policy without regard to the merits of the particular case" (s 5 of the Administrative Decisions (Judicial Review) Act 1977); nor does it offend the associated common law obligation. Indeed, it shows that regression will not be the sole consideration. That is also clear from the list of matters set out in the notification of 14 June which is expressly stated to be "not exhaustive", and from the first paragraph quoted above from the 5 July letter. 52 I turn to the question whether the application of the policy involved error. To my mind it would not be right to construe the letter of 5 July as containing comprehensive reasons for decision or addressing fully the relevant policy or its role in the decision-making process. So understood, and in any event, I see no relevant error. 53 It is not open to us to review the findings of fact. Although submissions were put to us about the correctness of the statement that there would be "a regression of 3 years" this is simply not a matter for judicial review. In any event, the meagre facts before us would not enable the making of any finding. We do not know how extensive were the enquiries which resulted in the statement. The first paragraph quoted from the 5 July letter suggests that they may have been substantial. It would be a mistake for us to assume that everything before the decision-maker was before us. The decision-maker may have made the most extensive of enquiries before coming to a decision. 54 A regression of 3 years is plainly a relevant factor. The real question is whether other relevant factors were excluded by the decision-maker. Again, it is important to remind ourselves that we are not dealing with comprehensive reasons for decision. The letter of 5 July, not written by the decision-maker, is simply an attempt to give some explanation for the decision. I would regard it as drawing attention to major considerations rather than as setting out all the considerations. So understood, it would be wrong to find that the decision-maker had taken into account only one consideration: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272. 55 Even assuming that the only consideration taken into account by the decision-maker was regression I do not see how the appellant could succeed. Regression is relevant, so that taking it into account is not an error. The argument would have to be that other, identified, relevant considerations were not taken into account. No such argument has been, nor could be, put. The argument then becomes that too much emphasis has been placed upon regression. But such an argument, as Mason J explained in Peko-Wallsend at 41, is an argument of manifest unreasonableness. Again, no such argument was put here. 56 An argument was put to us that the policy was "ultra vires" the Regulations. The argument may have been abandoned because it was deleted from the final amended notice of appeal. However, the argument must fail once it is accepted that regression is relevant and that any relevant policy was not inflexible. 57 I do not need to deal with the alleged error of Tamberlin J in acting upon evidence not before him. There was evidence of policy, inadequate though it may have been, in the notice of 14 June and the letter of 5 July. The Court must do the best it can with that evidence. The ground that the decision-maker acted upon a nonexistent policy must fail. No flaw is revealed in the policy as disclosed and no error is demonstrated in its application to the decision. 58 This is an unfortunate case. The superficial facts before us undoubtedly attract sympathy to the appellant's cause. I see no reason why a foreign student should not drop back, when attending a course in Australia, to make up for the student's inadequacy in English. However, this is judicial review. We do not set policy. We do not review findings of fact unless they are tainted by errors of law. Sympathetic though I am to the appellant's cause, to the extent to which it emerged before us, it does not seem to me that any ground for judicial review is attracted. I do not need to consider s 474. 59 The appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Solicitor for the Appellant: Craddock Murray Neumann