Qu v Minister for Immigration & Multicultural Affairs

(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. (2) If the Minister has regard to the applicant's comprehension of English, the Minister may require the applicant to undertake an English language test that is conducted by an agency other than Immigration. (3) If the applicant is required to undertake a test and does not undertake it, or does not pass it, the Minister is not to grant the visa." Subclauses (4) and (5) are inapplicable to the present case, as they concern only citizens of Burma. 3 The application was dealt with by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), who was an officer of the Department of Immigration and Multicultural Affairs based in the Australian Embassy in Beijing. The applicant was advised of the result by a document dated 8 July 2000, signed on behalf of the second Secretary (Immigration). The document was in the following form: "I refer to your application for a Student (Temporary) Class TU visa. The Migration Regulations set out the requirements which applicants must satisfy for a Student (Temporary) visa (Class TU) application to be successful. These are summarised at Attachment A of this letter. If you are unable to satisfy all the requirements for the grant of the visa then Australian law requires that the visa be refused.

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): ˙ In consideration of Migration Regulation 560.224(1)(a) relating to the genuineness of an applicant, the decision-maker is required to consider whether the applicant has sufficient financial ability to undertake the proposed course without contravening any condition of the visa relating to work. Consideration of this criterion is reasonably based upon the economic and other circumstances of the applicant, their spouse (if married) and parents. You have presented evidence of family savings. However it has been assessed that the level of savings held in bank accounts for a period of at least six (06) months immediately prior to visa application lodgement is insufficient to meet the costs associated with your proposed education and stay inAustralia. Whilst you may have also presented evidence of the possession of non cash assets, these cannot be taken into account as they are not readily disposable and are only of value if sold or borrowed against. Migration Regulation 560.224(1)(a) is assessed as not being met. ť In consideration of Migration Regulation 560.224(1)(a) relating to the genuineness of an applicant, the decision-maker is required to consider whether the applicant has sufficient financial ability to undertake the course without contravening any condition of the visa relating to work. Consideration of this criterion is reasonably based upon the economic and other circumstances of the applicant, their spouse (if married) and parents. From the information and documentation that you have provided it is understood that friends, relatives or business associates living outside of China have undertaken to finance your proposed education and stay in Australia. In considering your application it is not appropriate to give any weight to such undertakings. Having considered the circumstances of you, your spouse (if married) and parents it has been concluded that an insufficient level of financial ability exists to undertake the proposed course of study in Australia. Migration Regulation 560.224(1)(a) is assessed as not being met. ť Migration Regulation 560.224(1)(b) requires the applicant to have adequate English comprehension for the intended course. Under Australian government policy contained in the Procedures Advice Manual III PRC citizens should be assessed as satisfying this criterion only where they demonstrate a minimum proficiency of TOEFL 570 (or equivalent). You have not made any claim nor presented any documentation that would lead to the conclusion that you possess this level of proficiency in English. Although the requirement for a TOEFL score of 570 (or equivalent) is a policy requirement rather than legislative, I can find no reason to set aside policy in this instance. Migration Regulation 560.224(1)(b) is assessed as not being met. ť Migration Regulation 560.224(1)(b) requires the applicant to have adequate English comprehension for the intended course. Applicants seeking to undertake or requiring English language tuition of a duration of more than 26 weeks class time prior to the commencement of their principal course are assessed as not meeting this criterion. As you have sought to undertake a period of English language tuition of more than 26 weeks Migration Regulation 560.224(1)(b) is assessed as not being met. ť Implicit with any incentive to return to their home country or otherwise not to return is also the ability of the applicant to reintegrate into education, employment and other systems in the home country. This can be considered particularly relevant with applicants who have not achieved literacy in their own language. For this reason in assessing applications for secondary school education in Australia, one of the factors considered is the age and the education level of the applicant. In order for reintegration to take place with minimum disruption and difficulty, it is reasonable to expect a substantial degree of literacy in the applicant's language prior to departing China. This is generally achieved after a person has completed the equivalent of junior secondary school or year 09. It is accepted that students seeking entry to Australia for the purposes of study at or below this educational level would encounter substantial difficulty on returning to China to the point that Regulation 560.224(1)(d) could not be met. As you are seeking entry at a point below the commencement of year 10 or equivalent Migration Regulation 560.224(1)(d) is assessed as not being met. ť 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. ť I cannot be satisfied that the documentation that you have presented in support of your application is genuine. It has been determined that this documentation has been prepared for the specific purpose of enhancing your prospects of obtaining a Student visa for Australia. Given this finding it has been assessed that you are not a genuine student. Migration Regulation 560.224(1)(d) is assessed as not being met. 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 decision is not one that is reviewable by the Migration Review Tribunal in Australia. If your circumstances change and you wish to apply in the future that application will be considered on its merits. However, you are urged to consider your situation carefully before applying again because a fresh visa application charge is payable." 4 Attached to the document was the following: "ATTACHMENT A The requirements which applications for Student (Temporary) visas must satisfy are summarised as follows: ("all" applies to all applicants, "student" applies only to applicants who are students, "family member" applies only to applicants who are the family members of students.) (a) show evidence of enrolment to undertake a full-time registered course of study; (student) [Clauses 560.222; 562.222] (b) meet public interest, including health, requirements; (all) [Clauses 560.225; 560.322; 562.225; 563.226] (c) be a genuine applicant for entry as a student or as a member of the student's family; (all) [Clauses 560.224; 560.324; 562.224; 563.223 (a)] The factors which are considered include the following; . education background; . employment history; . the relevance of the proposed study or employment; . any previous travel; . any previous application for entry to Australia and the consistency of the information; . intention to comply with visa conditions and leave Australia at the end of the authorised period of stay; and . links with Australia. (d) demonstrate adequate financial means while in Australia; (all) [Causes (sic) 560.224(1)(a); 560.324(1)(b); 562.224(1)(a); 563.223(b)] (e) show evidence of adequate arrangements for health insurance while in Australia; (all) [Causes (sic) 560.226; 560.325; 562.226; 563.225] (f) show evidence of adequate arrangements for the education of school- age family members; (family members aged between 5-18) [Clauses 560.326; 563.224] (g) if an AusAID student or the family member of an AusAID student, AusAID supports the grant of the visa; (all) [Clauses 560.233; 560.323; 562.223; 563.222] (h) is a family member of a person who holds a Student visa as a student; (family member) [Clauses 560.321; 563.211] (i) if application is made separately from the student, nomination by the student is approved; (family member) [Clauses 560.328; 563.228] (j) if a family member of a student from a non-gazetted country who is not government sponsored, the student has been granted a visa for a course of package of 12 months or more or has been lawfully in Australia for at least one year. (family member). [Clause 560.327]". 5 There was a tick in the second last of the boxes, indicating that the decision-maker had chosen to adopt what was in the paragraph adjacent to the ticked box, and not what was in the paragraphs adjacent to the boxes left blank. The decision evidenced by this document is not reviewable by the Migration Review Tribunal pursuant to s 338 of the Migration Act. It is a decision reviewable by this Court pursuant to s 475 of the Migration Act. 6 By his application for review, filed in this Court on 29 August 2000, the applicant invoked three grounds. These were: first, failure to observe the procedures required by s 353 of the Migration Act; second, that the decision was an improper exercise of the power conferred by the Migration Act and the Migration Regulations in that it involved the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; and third, that there was no evidence or other material to justify the decision. Pursuant to leave obtained by consent, the applicant filed an amended application for review on 18 December 2000. This reduced the grounds relied on to two: failure to observe the procedures required by the Migration Act; and the absence of evidence or other material to justify the making of the decision. On 25 June 2001, the applicant filed a further amended application for review. This abandoned previous grounds and substituted the following ground: "The Decision maker of the DIMA involves an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. Particulars (a) The Decision maker construed par 560.224(1)(d) as imposing a criterion that the proposed course of study be relevant or appropriate to the applicant's current educational level when par (d) did not impose a criterion at all; and (b) the decision maker construed 560.224 as imposing an English language requirement that could be avoided by enrolling in Year 11 and misunderstood the relationship between English language proficiency and whether the applicant is a genuine applicant for entry and stay as a student." There being no objection on behalf of the respondent, at the hearing I granted leave to the applicant to amend his application in accordance with this further amended application for review. The case was argued on the ground specified in this further amended application. 7 It was not disputed that the delegate of the Minister was obliged to refuse to grant the visa sought by the applicant if the delegate was not satisfied that the applicant met all of the criteria laid down by the Migration Act and the Migration Regulations. See s 65(2) of the Migration Act and Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [119] per Gummow J and Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19 (2000) 201 CLR 293 at [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 8 Further, the decision-maker was obliged by s 66(1) of the Migration Act to notify the applicant of the decision in the prescribed way. Section 66(2)(a) required that the notification specify the criterion that the applicant did not satisfy. The combination of s 66(2)(c) and s 66(3) in the particular case gave rise to the conclusion that the notification was not required to give written reasons why the criterion was not satisfied. 9 Despite the absence of an obligation to give reasons, it is clear that, where reasons are given, it is appropriate for the Court to look at them for the purpose of determining whether any of the grounds of review made available by s 476 of the Migration Act has been made out. In doing so, it is necessary to bear in mind the following caution expressed by Kenny J in Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15 at [27]: "Finally, the nature of the notification is to be again considered. There was, as already noted, no requirement for written reasons. If (as the authorities establish) it would be wrong to scrutinise overzealously the language of a statement of reasons given by a decision-maker pursuant to some statutory provision like s 420 of the Act, then it would also be wrong so to scrutinise a notification given under s 66(2)(a) of the Act: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J." 10 With this in mind, I turn to the applicant's first submission. This was that the decision-maker had made an error of law by treating subpar (d) of subcl (1) of item 560.224 in Sch 2 to the Migration Regulations as a criterion to be satisfied. 11 Subclause (1) of item 560.224 lays down a clear criterion which must be satisfied if a visa is to be granted. That criterion is that the applicant is a genuine applicant for entry and stay as a student. In determining whether that criterion is satisfied, a decision-maker is required to have regard to the matters referred to in pars (a) to (d) of the subclause. The first relates to financial ability to undertake the course without contravening any condition of the visa relating to work. The second relates to the visa applicant's comprehension of English for the purposes of the course. The decision-maker is empowered by subcl (2) to require the visa applicant to undertake an English language test. If such a requirement is imposed and the visa applicant does not undertake the test, or does not pass it, the visa is not to be granted. By this means, if (and only if) a test is imposed, comprehension of English is elevated to the status of a criterion which, if the visa applicant does not meet it, must lead to the refusal of the visa. If a test is not imposed, comprehension of English remains only one of the factors to be taken into account. The third factor is the intention of the visa applicant to comply with any conditions subject to which the visa is granted. 12 The fourth condition, in par (d), refers to "any other relevant matter". Plainly, this does not set up any criterion which a visa applicant must satisfy in order to obtain the visa. What it does is to permit a decision-maker to "determine if there were other matters relevant to whether the applicant was a genuine applicant for entry and stay as a student." See Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1391 at [18]. As attachment A to the notification sent to the applicant in the present case indicates, some consideration has been given to what might be considered to be relevant matters. The list cannot be exhaustive of such matters. It is always possible that there will be matters relevant to an individual case that are peculiar to that case. 13 It is plain that a decision-maker, in applying the criterion in item 560.224(1), is obliged to engage in a balancing exercise. The information available concerning financial ability, comprehension of English and intention to comply with conditions might suggest that a visa applicant's case may vary in strength as between the three factors. A consideration of other relevant matters might further complicate the position. The decision-maker might consider that there are factors weighing against the grant of the visa sought, but might nevertheless decide to grant it because the negative factors are outweighed by the strength of the positive factors. Even if there is a single negative factor which is considered to outweigh all others, the conclusion will be reached by means of a balancing exercise, and not by regarding the question as concluded simply because there is a weighty negative factor. 14 In the present case, the decision-maker made use of what was obviously a standard form notification. It had been prepared so that decision-makers could tick the box or boxes appropriate to a particular decision. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266, Brennan CJ, Toohey, McHugh and Gummow JJ said: "A statement of reasons for a decision reviewable under the AD(JR) Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision-maker." 15 The document used by the decision-maker in the present case contains a formula for advice that the decision-maker is not satisfied that the visa applicant is a genuine applicant for entry and stay as a student, with the consequential advice that the visa applicant fails to satisfy reg 560.224 and the application is refused. This formula is found in the first paragraph following the paragraphs with boxes that can be ticked. It is designed to satisfy the requirement in s 66(1) and (2)(a) to notify the visa applicant of a refusal to grant a visa and to specify the criterion that the visa applicant did not satisfy. Earlier, the document advises the recipient "that you have been refused a visa for the following reason(s):". It is plain that the seven paragraphs with the boxes to be ticked, immediately following this advice, are intended to constitute the reasons for the decision. In the selection of one or more of these reasons, by the ticking of one or more boxes, the decision-maker must be taken to be advising of the reason for non-satisfaction of the criterion. 16 The opening sentences of each of the first two paragraphs beside the boxes states that, in consideration of the provision of the regulations relating to the genuineness of an applicant, the decision-maker is required to consider whether the applicant has sufficient financial ability to undertake the proposed course without contravening any condition of the visa relating to work. These sentences reflect adequately the structure of item 560.224(1) in Sch 2 to the Migration Regulations. The opening sentences of the third and fourth paragraphs suggest that subcl (1)(b) requires the applicant to have adequate English comprehension for the intended course. These sentences misstate the effect of that provision, which, as I have said, requires the decision-maker only to have regard to a visa applicant's comprehension of English for the purposes of the course, unless a test is imposed. It is plain that an applicant with inadequate English may nonetheless be a genuine applicant. Before the decision-maker can rely solely on the lack of English comprehension to rule out a visa applicant, there must be the imposition of a test followed by a failure to undertake it or a failure to pass it. The remaining three paragraphs with boxes to be ticked relate to matters that might be considered to be relevant for the purposes of subcl (1)(d). They are only some of the matters that might be potentially relevant to a particular case. Again, I make the point that they are only matters to which the decision-maker is required to have regard in reaching a conclusion as to the genuineness of a visa applicant. 17 The most important part of the document is the final sentence of each of the paragraphs beside a box to be ticked. Each sentence refers to a paragraph of item 560.224(1) of Sch 2 to the Migration Regulations and is followed by the words "is assessed as not being met." In particular, the box ticked in the present case advises the applicant that par (d) is assessed as not being met. The final sentence of each of the paragraphs indicates that the document has been prepared on the basis of a misunderstanding of the process required by item 560.224(1). As I have said, that subclause contains a single criterion, the genuineness of the visa applicant for entry and stay as a student. The matters referred to in its four paragraphs are matters to which a decision-maker is required to have regard, using a balancing process, in reaching a conclusion on that single criterion. With the exception of comprehension of English in circumstances where a test has been required and not undertaken or failed, none of the matters in those paragraphs can be fatal to a visa applicant's case without a consideration of the other factors. 18 Taking the notification document at its face value, it appears that the decision-maker misunderstood the nature of his or her function in dealing with par (d). The decision-maker obviously took the view that the existence of a negative relevant factor was sufficient to ensure that a visa applicant would fail to satisfy the criterion of genuineness. In my view, the document must be taken at its face value. It has no doubt been prepared to assist decision-makers in dealing with applications such as the one the subject of the present case. There is a real danger that a decision-maker will rely on such a document as expressing the law accurately and see his or her function as being to act in accordance with the document. There is no indication that the present applicant did anything other than that. 19 Counsel for the Minister relied on Yong, to which I have referred already. The facts of that case were very similar to the facts of the present case. They involved a refusal of the same kind of visa by a decision-maker who apparently used a document containing reasons in the same, or a similar, form as the document in the present case. The decision-maker in that case ticked the very same box as the decision-maker in the present case. The submissions made to Goldberg J in Yong were that the decision-maker had not considered the particular case but had applied a rigid rule of policy and that the decision-maker had considered an irrelevant matter in taking into account whether or not a proposed course of study was relevant and appropriate. Goldberg J rejected both of these submissions. It was not put to his Honour that the decision-maker in that case had made an error of law. 20 I am of the view that the decision-maker in the present case did make an error of law. The decision-maker asked herself a wrong question. The question she asked and answered was whether the applicant had satisfied a single relevant factor. The question that should have been asked was whether the decision-maker's assessment of that factor, balanced against her assessment of all of the other factors, led to the conclusion that the applicant did not satisfy the criterion of genuineness for entry and stay as a student. In my view, the asking of such a wrong question affected the exercise of the decision-maker's power and thereby revealed that she had made an error in her understanding of the applicable law and had failed to apply that law correctly to the facts she found. The ground in s 476(1)(e) of the Migration Act is therefore made out. See Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR at [84] per McHugh, Gummow and Hayne JJ. 21 The second ground raised on behalf of the applicant depended upon other evidence as to the reasons of the decision-maker. Included in the book of documents placed before the Court by the Australian Government Solicitor on behalf of the Minister was a print-out of a computer record, containing case notes said to be those of the decision-maker. In Velmir v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Emmett J, 9 July 1998, unreported), the Court admitted a similar case note and relied on it as evidence of the reasoning of a decision-maker. In Yong, Goldberg J also looked at case notes, which were placed before him by consent. 22 In the present case, as the Minister's contentions of fact and law filed on 15 January 2001 show, the Minister was desirous of using the case notes to demonstrate that the applicant's case was considered on its merits and not in the inflexible application of a policy without regard to the circumstances of the particular case. When that ground was abandoned, however, counsel for the Minister objected to my using the case notes to ascertain what were the decision-maker's reasons. In my view, the Minister cannot have it both ways. Having placed the evidence before me in the Court Book, the Minister cannot object to the notes being received in evidence. They are in any event admissible pursuant to s 69 of the Evidence Act 1995 (Cth). 23 The case notes read: "pa is 18, just finished senior high proposes entry to year 11 at the knox school inappropriate drop in academic levels - clear attempt to avoid english language requirements refused pursuant to reg 560.224(1)(d)" The case notes confirm what the notifying document suggested, namely that the decision-maker was viewing the separate paragraphs of item 560.224 subcl (1) as if they were separate criteria. The words "clear attempt to avoid English language requirements" show clearly that the decision-maker took the view that there was a "requirement" of a certain standard of English. As I have said, there was no such requirement. In the absence of an uncompleted or failed test, comprehension of English was only one factor to be taken into account in considering the criterion of genuineness. Similarly, the words "refused pursuant to reg 560.224(1)(d)" demonstrate that the decision-maker was not regarding relevant factors under par (d) as factors to be balanced in considering whether the criterion of genuineness was satisfied, but was regarding one such factor as determinative of the question. 24 An examination of the case notes therefore confirms the error of law which I have found that the decision-maker made. 25 The consequence of this error of law is that the decision under review should be set aside pursuant to s 481(1)(a) of the Migration Act and an order should be made pursuant to s 481(1)(b) referring the matter to which the decision relates to the person who made the decision for further consideration, in accordance with these reasons for judgment. The Minister should be ordered to pay the applicant's costs of the proceeding.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Solicitor for the Respondent: Australian Government Solicitor