Patchareewan Imphoka v Minister for Immigration & Multicultural Affairs [1998] FCA 1679 (23 December 1998)

Last Updated: 30 December 1998

FEDERAL COURT OF AUSTRALIA

MIGRATION - Student visa - procedures to be observed in connection with the making of a decision - whether delegate failed to have regard to information provided as part of application - whether no evidence or other material to justify making the decision.

Migration Act 1958 (Cth), ss 54, 475(1)(c), 476(1)(a), 476(1)(g), 476(4)

Migration Regulations, regs 2.04, 560.224(1), Schedule 8

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, considered

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, considered

Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414, considered

Tho Xuan Doan v Minister for Immigration, Local Government and Ethnic Affairs (Olney J, 9 April 1997, unreported), considered

Minister for Immigration and Ethnic Affairs v Baker (1993) 73 FCR 187, considered

Curragh Queensland Mining Ltd v Daniel [1992] FCA 44; (1992) 34 FCR 212, applied

PATCHAREEWAN IMPHOKA V MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

SG 65 OF 1998

MANSFIELD J

ADELAIDE

23 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 65 of 1998

BETWEEN:	PATCHAREEWAN IMPHOKA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MANSFIELD J
DATE OF ORDER:	23 DECEMBER 1998
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application for review is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 65 of 1998

BETWEEN:	patchareewan imphoka Applicant
AND:	The minister for immigration and multicultural affairs Respondent

JUDGE:	MANSFIELD J
DATE:	23 december 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

This is an application to review a decision of the delegate of the Minister ("the delegate") made on 4 May 1998 that the applicant had not met the requirements for the grant of a Student (Temporary) Class 2U: Subclass 560 Student Visa ("the visa"), and refusing her application for the visa. The application is reviewable by the Court under s 475(1)(c) of the Migration Act 1958 ("the Act").

Regulation 560.224(1) of the Migration Regulations ("the Regulations") specifies certain criteria required to be satisfied at the time of the decision in respect of the visa, if that visa is to be granted. It relevantly provides:

"(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;

......

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

Subclauses (4) and (5) are not relevant for present purposes. Section 41 of the Act and Reg 2.05 of the Regulations enable conditions to be specified in relation to a particular visa. The relevant conditions for present purposes are Items 8105 and 8202 within Schedule 8 of the Regulations. They relevantly provide:

"8105 The holder must not engage in work in Australia (other than in relation to the holder's course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session."

......

"8202 The holder must satisfy course requirements."

The delegate identified the need to be satisfied that the applicant is a genuine applicant for entry and stay as a student, and concluded that she did not meet that criterion. She said in her letter to the applicant of 4 May 1998:

"After taking into consideration all the information before me including your financial circumstance, I had strong doubts as to whether you would be able to comply with the conditions of the student visa, namely the condition relating to work and the condition relating to the completion of course requirements. Details pertaining to this decision are provided in the attached decision record."

It is accepted that the conditions referred to are those in Items 8105 and 8202 of Sch 8, and that they were properly to be considered by the delegate. It is also not contended, that in making her decision, the delegate of the Minister did not have regard to the factors to which reg 560.224(1) directed her.

The background

The applicant is a national of Thailand, born on 12 April 1968.

On 29 May 1995 she was granted a student visa to enter Australia and to stay until 8 October 1995. She was granted further visas to stay until 2 April 1996 and then until 15 March 1998. She completed an English language course at Holmes College ("Holmes") after her arrival, and then enrolled for an Associate Diploma of Business (Office Administration) at the Swinburne University of Technology ("Swinburne") commencing in February 1996. Her level of achievement and attendance during 1996 was poor, and although enrolled she did not attend classes at all during 1997. She returned to Thailand on 28 June 1997. During her period in Australia, she apparently returned home on several occasions.

On 6 October 1997, the applicant made another application for a student visa. She then proposed to undertake a short term intensive English course, and then to re-enrol in her Diploma Course at Swinburne. That application was rejected, apparently on the basis that she was not a genuine applicant for entry and stay as a student.

The present review proceeding concerns her third student visa application, made on 26 February 1998. She proposed in her application to undertake a nine week general English course at Holmes, and then a Foundation Year (Business) Course at Swinburne commencing in July 1998 running for twelve months. That application was accompanied by a letter from her Migration Agent Mr Peter Matthews ("Mr Matthews") of 26 February 1998 which addresses in turn each of the reasons identified for the adverse view formed in respect of the second visa application.

The material before the Court includes the material on the delegate's file. That material includes the application and supporting letter of 26 February 1998 and its enclosures. The delegate made notes of inquiries prompted by her examination of the applicant and supporting material, and of the progress of her inquiries. She undertook quite extensive correspondence with Mr Matthews, including relating to his request for a prompt decision so that the proposed short English course at Holmes could be undertaken before the Swinburne course, which was to commence in July 1998. The delegate also made inquiries directly of Swinburne, of those who had offered to provide financial support to the applicant in Australia, and of the applicant herself at interview on 24 March 1998. The delegate kept a running record of the information progressively assembled through her inquiries.

The grounds of review

There are two grounds upon which the application for review is brought.

The first is under s 476(1)(a), namely that procedures required by the Act to be observed in connection with the making of the decision were not observed. It is contended that s 54 of the Act obliges the respondent through the delegate to "have regard to all of the information in the application", and that the delegate failed to have regard to information provided as part of the application, namely that provided in the letter Mr Matthews dated 26 February 1998 concerning the applicant's capacity to undertake her proposed course, which is said to have been confirmed by an enclosure comprising a letter from a Mr Purdey to Mr Matthews concerning her enrolment at the Swinburne University of Technology.

The second ground of review is based upon s 476(1)(g) of the Act. It is submitted there was no evidence or other material to justify the making of the decision. It is contended that there was no evidence or other material that the applicant would breach the condition that work be undertaken for a total of only twenty hours per week when classes were operating, either because there was no evidence that the applicant had or would contravene that work condition, so as to attract s 476(4)(a), or because that conclusion was based upon the existence of a particular fact, namely that the applicant was obliged to repay a large sum of money while she was studying in Australia, which fact did not exist, so as to attract s 476(4)(b).

For the purposes of the application, the respondent was prepared to accept that s 54(1) prescribes a procedure required by the Act to be observed in connection with the making of the decision, namely the obligation to have regard to all of the information in the application. It was also accepted that the information in Mr Matthew's letter was information in the application itself: s 54(2).

The reasons of the delegate

There are two principal matters, relevant to the present application, dealt with in the delegate's reasons.

She referred to the detail of the applicant's prior academic history in Australia, including her absences from classes and her post academic achievement. The applicant did not attend any classes in 1997, although she was enrolled in the course and remained in Australia until June 1997. If she is readmitted to Swinburne, she would be required to sign a contract of attendance to ensure a satisfactory level of course attendance.

Those facts prompted the delegate to observe:

"This information raises serious doubt as to whether Ms Imphoka would be able to complete any future course requirements and draws attention to the likelihood of her breaching condition 8202 (which requires the holder of a student visa to satisfy course requirements) should she be granted a student visa."

The other issue addressed concerned the applicant's financial position. During her previous stay in Australia, the applicant had done some part time work. A group of supporters in Australia have established a trust fund for the applicant, holding $22,342. The delegate noted that the applicant had told her, at her interview, that she proposed to repay that money with interest and that a contract for repayment of the "loan" would be written up on her arrival in Australia. That prospect caused the delegate to be concerned that the applicant would work for more than twenty hours per week.

She then referred to the applicant's intention, according to her application, of undertaking the Foundation Year course at Swinburne, and that, according to her interview, the applicant desired to complete her Diploma of Business (Office Administration).

She concluded:

"...I am not satisfied that Ms Imphoka is a genuine applicant for entry and stay in Australia as a student.

...

I assessed that, given the applicant's extra-ordinary financial situation, there is a strong likelihood that she would contravene the condition of the visa relating to work and I assessed that this, in turn, would adversely impact on her ability to satisfy the condition of the visa relating to the completion of course requirements."

The first ground

The applicant seeks to establish that the delegate did not comply with s 54 by not having regard to information submitted with her application for the visa.

With her application was the letter from Mr Matthews. It referred to various matters including her previous academic history, observations as to why her academic performance in 1996 and 1997 was unsatisfactory, her rejected 1997 application for a visa, and comments upon the reasons for that rejection (dealing with her poor attendance record, inconsistent explanations, confusing information about her trips home to Thailand, difficulties in obtaining additional information, and lack of letter of support from Swinburne University). Under the heading "Current Application" it sought to respond those matters, including in the following terms:

"Before making this current application, extensive inquiries were made with Swinburne University on behalf of the student, to clarify her previous problems and to ensure that any future studies would be appropriate to her long term aspirations and in accordance with her academic ability.

In this regard, the personal advice of Mr Damien Sullivan, Head of Department (Marketing Studies) Swinbourne, was sought who examined her previous history, and confirmed that the student's lack of English comprehension skills appeared to have been a significant issue in the past. He also believes that the business studies course previously commenced was not particularly suited to her, both in terms of academic ability and her career path.

Rather than proceed along the lines outlined in the student's last application, he has recommended (as more appropriate) that she initially undertake a Foundation Studies Business Course for twelve months. This would give the student a solid basis for further study, and provide credit transfers into a Diploma Course in International Trade and Marketing, which Mr Sullivan believes would be much more suitable in the long term."

There was, accompanying that letter, a document from the Co-ordinator of the Unilink/Foundation Studies (Business) program at Swinburne to Mr Matthews, which included the comment that the Head of Department (Marketing Studies) had suggested that the Foundation Studies (Business) was an appropriate course for the applicant as it provides credit transfers into Diploma Courses in International Trade and Marketing.

It is that quoted information, with the accompanying document, which the applicant contends that the delegate did not take into account.

I am not persuaded that the delegate failed to consider the information referred to.

In her "running" notes of her inquiries, the delegate has started her consideration by reference to the application. She specifically notes Mr Matthews explaining past student visa history. She records having examined the application and supporting documents. That examination prompted points about which she proposed to seek further clarification. Her subsequent inquiries included interviewing the applicant and officers of Swinburne, and communications with Mr Matthews as to his desire to have the application decided quickly due to the enrolment timetable at Swinburne. She also made inquiries of those involved in providing financial assistance to the applicant. She clearly understood the course proposed by the applicant to be undertaken at Swinburne.

That material indicates, as the delegate informed the applicant in her letter of 4 May 1998, that the application was carefully considered based on the information provided in "the documentation lodged as part of" the application. The delegate also asserts in that letter that she had taken into account all the information provided.

In my judgment, it is apparent that the delegate has considered the information about which complaint is made that she did not do so. The fact that the delegate has considered that information not to carry the particular significance for which the applicant (through Mr Matthews) contended does not support the contention that she failed to consider it. There was other material from Swinburne which gave the delegate a foundation for the concerns which led to her decision, even though the restructured academic program was put forward as one to which the applicant was more suited, and which would provide a basis for later returning to further tertiary studies.

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ said at 272:

"These propositions ...recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

Kirby J at 291-293 commented to much the same effect.

In my judgment, it would be to construe the delegate's finding with "an eye keenly attuned to the perception of error" (Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287) to conclude that this ground of review has been made out. Indeed, in my judgment, the material before the Court indicates rather that the delegate did have regard to the contents of Mr Matthews' letter of 26 February 1998 and its attachments in considering the application.

The second ground

This ground of review is based on s 476(1)(g), informed by s 476(4)(a) and (b).

It is contended, in terms of s 476(4)(a), that the delegate was required to reach the decision only if it was established that the applicant is not a genuine applicant for entry to Australia as a student, and in turn that she would contravene a condition of the proposed visa relating to work conditions imposed under Item 8105 of Sch 8 to the Regulations. It was then contended that there was no evidence or other material from which the delegate could reasonably be satisfied that the applicant would breach that condition that work be undertaken for a total of no more then twenty hours per week during term.

The task of making out the ground of review under ss 476(1)(g) and (4)(a) is a difficult one: see Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 at 429 on the equivalent provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth); Tho Xuan Doan v Minister for Immigration, Local Government and Ethnic Affairs (Olney J, 9 April 1997, unreported). It can apply only where the establishment of a particular fact is a precondition in law to the decision: Wilcox J, in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR 511, or at least where there is a clear legislative intent that the making of the decision depends upon the establishment of a particular matter: Western Television, per Pincus J at 429.

I assume that the decision to refuse the application required the delegate, by reason of reg 560.224(1), only to do so if it were established that the applicant was not a genuine applicant for entry and stay as a student, so that s 476(1)(g) and 4(a) may apply. However, in my judgment, it is not shown that there was not evidence or other material from which the delegate could reasonably be satisfied that she was not a genuine applicant. To convert the proposition into an affirmative one, I consider that there was evidence or other material from which the delegate could reasonably be satisfied that the applicant was not a genuine applicant. That material includes the applicant's past academic history whilst in Australia, the record of her attendances at Swinburne during 1996 and of her non attendance at Swinburne in the first half of 1997, the delegate's concerns about the applicant's financial independence and the prospect of her working to repay the proposed loan, and information provided by the applicant at interview.

The applicant also contended that the finding that the applicant would contravene the work limitation condition prescribed under Item 8105 of Sch 8 was itself a matter which was required by the Act to be established before the decision could be reached to refuse the visa. I do not accept that, as a matter of law, that finding was a necessary legal precondition to the making of the decision. Whether the applicant intends to comply with that prescribed condition is but one of the factors to which the delegate was directed to have regard under reg 560.224(1) in reaching a conclusion as to whether the applicant is a genuine applicant for entry and stay as a student. The other matters to which the delegate was to address herself were set out in that regulation.

In law, the delegate could have concluded that the applicant was a genuine applicant after considering all those matters, even if she concluded that the applicant did not intend to comply with the proposed work limitation condition. She could also have done so, without having reached a conclusion as to whether the applicant intended to comply with that condition. The obligation to "have regard to" the specified considerations does not oblige the delegate to reach a particular decision on the application because she forms a view adverse to, or favourable to, the applicant on one or more of those factors: see the discussion in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194-195 per Burchett, Branson and Tamberlin JJ, and the cases there referred to. There may indeed be occasions when some balancing of the relevant factors is necessary, where the delegate's assessment is that some support a conclusion as to genuineness, and some point the other way.

In any event, for reasons which are set out below with respect to the alternative approach to the second argument invoking s 476(1)(g) and (4)(b), I do not consider that the submission would succeed on the particular material before the delegate.

That alternative argument relates to the delegate's decision that the applicant is likely to contravene the condition to undertake no more than twenty hours work per week while classes are operating. The delegate reviewed the evidence that there was, available to the applicant, through a group of supporters in Australia, a trust fund of $22,342. She considered, as a result of her inquiries but clearly in large measure because of information provided by the applicant herself, that that money was to be treated as a loan repayable by the applicant and (implicitly) so repayable whilst the applicant was studying in Australia. She then concluded that that repayment obligation would lead the applicant to work more than the permitted weekly hours, and thus adversely impact upon her ability to fulfil her academic studies satisfactorily.

The delegate said as to her previous stay in Australia during which the applicant had worked part-time:

"There is no evidence to show whether she had or had not complied with the condition that work be undertaken for a total of only 20 hours per week while classes were running. However, the fact that Ms Imphoka's attendance level was not high and that during 1997 when she did not attend the enrolled course at all raise doubts as to whether she would have worked for only 20 hours per week, particularly since she had also experienced financial difficulties, as cited in the statement of Ms Imphoka's agent (accompanying her application) and by Ms Imphoka herself at interview."

Then she referred to the evidence from contributors to the fund, who she called the applicant's "support group', and finally to the applicant's own evidence at interview that she would repay that money with interest and that upon her arrival in Australia a contract was to be written up for repayment of that loan. The delegate observed that the proposed repayment "raises serious concern that she would undertake work for more than 20 hours per week". She therefore assessed as "high" the likelihood of the applicant breaching the work condition, and as a consequence, the condition obliging meeting of course requirements.

The applicant contends, in terms of s 476(4)(b), that the delegate based her decision on the existence of the fact that the applicant would be obliged to repay the money available to her during her studying in Australia, and that that fact did not exist. That is, the applicant contends that she was not obliged to repay that money either whilst she was studying in Australia, or at all. It is contended that the applicant's conclusion as to that fact is not more than supposition, made without evidence.

In Curragh Queensland Mining Ltd v Daniel [1992] FCA 44; (1992) 34 FCR 212 Black CJ (with whom Spender and Gummow JJ agreed) said at 220-221

"...If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" [my emphasis]. See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

Section 5(3)(b) does not required the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion."

Those observations relate to the provisions in the Administrative Decision (Judicial Review) Act 1977 (Cth) parallel to ss 476(1)(g) and (4)(b) of the Act. In this instance, the applicant has not sought to establish the non-existence of the particular fact identified by reference to evidence which was not before the delegate. It is sought to show the non-existence of the particular fact only by reference to the material before the delegate (see the remarks of Black CJ on this aspect in Curragh at 223-224). As I noted above, all the material before the decision maker is now before the Court on this application.

The finding of the delegate that the fund available to her was by way of repayable loan, rather than by way of gift, falls within the description of a fact which was "critical" to the making of the decision. That finding led to the delegate's conclusion that the applicant would be under pressure whilst in Australia to repay that fund, and so to work beyond the permitted hours, and so to put at risk her ability to meet course requirements.

However, it is not in my judgment established that there was no evidence that that fund would be repayable by the applicant. The applicant said as much in her interview. Although the timing for repayment was not implicitly discussed, a clearly available inference to the delegate was that the obligation to repay would exist during the applicant's proposed time in Australia. The delegate did not conclude, adversely to the applicant, that she had worked more than the permitted hours during her earlier stay in Australia, particularly during 1997 when she did not attend courses at all. The delegate's observation that there was no evidence to show that that had occurred suggests that the delegate was conscious of her obligation only to make findings on evidence and material properly before her.

It is true that there is evidence from which the delegate might have concluded that the fund available to her was not a repayable loan. The prime instigator of the fund described it as a loan, but with no obligation to pay interest nor any time limits on its repayment. Although the delegate did not explicitly refer to that material in her reasons, it is apparent that she did not accept it. She also made inquiries of some of those who had contributed to the fund as to the arrangements in respect of it. It is clear that she did not simply overlook that material.

Accordingly, I am not satisfied that this ground of review has been made out. It was open to the delegate to conclude on the material that the applicant was not a genuine applicant for entry and stay in Australia as a student, and there was evidence from which she could have concluded (as she did) that the applicant was likely to be under financial pressure because of an obligation to repay the proposed loan, and so in turn to conclude that the applicant was likely to work beyond the permitted hours proposed by the condition and to fail to meet course requirements.

The application for review is dismissed.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield

Associate:

Dated: 23 December 1998

Counsel for the Applicant:	Mr A Collett
Solicitor for the Applicant:	Jane McGrath & Associates
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 November 1998
Date of Judgment:	23 December 1998