FEDERAL COURT OF AUSTRALIA Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249 MIGRATION – natural justice – jurisdictional error – whether the delegate was required to afford natural justice in its decision making – operation of s 51A – Migration Legislation Amendment (Procedural Fairness) Act 2002 – whether s 51A of the Act excluded natural justice hearing rule entirely – construction of s 51A Migration Act 1958 (Cth) s 31, 31(3), 57, 57(1)(b), 57(2), 57(3), 57(3)(a), 57(3)(b), 66(1), 66(2)(a), 66(2)(b), 66(2)(c), 66(3), 66(3)(a), 66(3)(b), 338(2) Migration Regulations 1994 Schedule 1, Schedule 2 Judiciary Act 1903 (Cth) s 39B Freedom of Information Act (Cth) Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) s 51A, 51A(1), 97A, 118A, 127A, 357A, 422B Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 considered WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 discussed NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 discussed Abebe v Commonwealth of Australia (1999) 197 CLR 510 applied Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424 referred to NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 discussed NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 cited XUDONG WU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 839 OF 2003 HELY J 13 NOVEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 839 OF 2003 BETWEEN: XUDONG WU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 13 NOVEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 839 OF 2003 BETWEEN: XUDONG WU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE: 13 NOVEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Section 31 of the Migration Act 1958 (Cth) ('the Act') provides that there are to be prescribed classes of visas. The regulations may prescribe criteria for visas of a specified class: s 31(3). The prescribed classes of visas are as set forth in Schedule 1 to the Migration Regulations 1994 ('the Regulations'). Subclasses are as set forth in Schedule 2 to the Regulations (Reg 2.01, 2.02). One of the classes of visas listed in Schedule 1 is 'Student (Temporary) (Class TU): (Item 1222)'. One of the subclasses of that visa is 'Subclass 571 – Schools Sector: Schedule 1 Item 1222(4); Schedule 2'. 2 One of the criteria for the grant of a class TU, subclass 571 visa is that specified in Item 571.223 of Schedule 2: '571.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2). (2) An applicant meets the requirements of this subclause if: (a) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 571 and the assessment level to which the applicant is subject, in relation to: (i) the applicant's English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and (ii) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and (iii) other requirements under Schedule 5A; and (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and (ii) any other relevant matter.' 3 One of the requirements mentioned in Schedule 5A is 5A306. It provides, relevantly: '5A306 If the applicant is not an exchange student, the applicant: (a) must give evidence that: (i) either: (A) the principal course will be of at least 16 months duration; or (B) he or she has undertaken, outside Australia, a secondary course of at least 2 years duration with an Australian curriculum and conducted in English by an Australian provider and is recognised by the relevant State or Territory education authority as meeting the requirements for successful completion of those years; and (ii) he or she has successfully completed secondary schooling to at least the Year 9 level (or its equivalent); and (iii) at the time of making the application, he or she was less than 18 years old; or (b) …' 4 The applicant is a student, and a citizen of the People's Republic of China. On 11 April 2002 the applicant applied for a Class TU, subclass 571 visa ('the first application'). The first application was refused on 3 June 2003. 5 On 6 November 2002 the applicant again applied for a Class TU, subclass 571 visa ('the second application'). The second application gave the following details of the education, study and training undertaken by the applicant outside Australia: 'Qualification Senior High School Name of education provider Guicheng High School, or training body Nanhai, Guangdong Province Address of education No 1 Nanxin Road 3, Guicheng Provider or training body District, Nanhai City Guangdong Province Commencement date 8/2001 Finish date 6/2004 Documentation attached? Yes Qualification Junior High School Name of education provider Dali High School of Nanhai or training body Guangdong Address of education provider Education Rd Dali County or training body Nanhai City Commencement date 8/1998 Finish date 6/2001 X' Documentation attached? No Yes 6 Documentation attached to the application included: (a) a document purporting to be a Compulsory Education Certificate issued by Dali High School of Nanhai City, Guangdong Province in July 2001 under the seals of the Nanhai Education Bureau, the Dali High School and the principal to the effect that the applicant had successfully completed the nine-year compulsory education in July 2001 as required by the provincial government. A translation of the document and a notarial certificate as to the translation and as to the fact that the seals affixed to the certificate 'are found to be true' was attached; (b) a document purporting to be a statement issued under the seal of Guicheng High School on 5 November 2002 certifying that the applicant commenced his studies at Guicheng High School, Nanhai City in August 2001 and is currently enrolled in the Senior Grade Two (9) class. He is expected to graduate in July 2004. A translation of the document was certified as true and correct by an accredited Chinese into English Translator; (c) another document purporting to be a statement issued by the Guicheng High School on 12 November 2002, under the seal of the School and the signature of its principal. A translation of the document was certified as true and correct by the same accredited translator. The translation is as follows: 'Statement To: The Australian Embassy Dear Visa Officer On behalf of Guicheng High School, I hereby testify that the student, Wu Xudong was admitted to our school in August 2001 and is now enrolled in Senior Grade Two (Class 9). He is expected to graduate in July 2004. Wu Xudong's parents reported that upon receiving a telephone enquiry from the Embassy, one of our staff stated that there was no such person as Wu Xudong enrolled at the school. This may have been an administrative error. I sincerely regret this incident. If you require any further information regarding the question of Wu Xudong's enrolment status, you are welcome to telephone the school's administration office on 0757-6323462. Alternatively, you may call me directly on 0757-6238835. Thank you for your concern regarding this matter. Guicheng High School Nanhai City, Guangdong Province (Seal Affixed) Principal: Mao Yushan (Signature) 12 November 2002' (d) a document purporting to be an academic record issued on 5 November 2002 by the Guicheng High School of the applicant's results. A similar document issued on 15 January 2002 was included in the first application. The marks shown on the two documents are different. The transcript lodged in connection with the second application records that the applicant has passed examinations in Physical Education and Computer Science. Neither of those subjects is referred to in the document lodged in connection with the first application; (e) a statement from the applicant's father's company as to the father's earnings. The statement bears two seals, one with a star and one without. There is evidence before me that the wording on the stamp with the star is 'Nanhai City Sonbo Electrical Appliances Group Co Ltd', and the wording on the second stamp without the star is 'Nanhai City Sonbo Electrical Appliances Group Co Ltd, special seal for finances'. Apparently a similar document was included in the first application bearing two seals with the same wording, although there may be room for a view that the rim of the seals applied to the document included in the first application is blurred, a feature absent from the seals applied to the document included in the second application. So far as I can see, the version of the first application included in the relevant documents does not include the document described above as the 'similar document', but there is evidence that it was so included, and Annexure C to the affidavit of Sam Shum sworn on 21 October 2003, is a copy of it. 7 The second application was refused, and the refusal notified to the applicant in a letter dated 29 March 2003. Section 66(1) and s 66(2)(a), (b) and (c) of the Act provide as follows: '66 Notification of decision (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. (2) Notification of a decision to refuse an application for a visa must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa – specify that criterion; and (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa – specify that provision; and (c) unless subsection (3) applies to the application – give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and …' 8 Section 66(3) of the Act provides as follows: '(3) This subsection applies to an application for a visa if: (a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and (b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.' It is common ground that s 66(3) applies to the application (as to s 66(3)(a) – see Schedule 2, cl 571.411; as to s 66(3)(b) – see s 338(2)), hence s 66(2)(c) had no relevant application. 9 The letter of 29 March 2003 is a proforma letter which set out the criteria specified in Item 571.223 and which listed criteria for the grant of the visa which may not have been satisfied. Those which were not satisfied were indicated by . In the present case they were: ' You have not provided acceptable evidence that you have successfully completed secondary schooling to the year 9 level or its equivalent (middle school). (Schedule 5A, Clause 5A306). … I am not satisfied that documentation you have provided in support of your visa application is genuine.' 10 The letter concluded: 'As I am not satisfied that you meet the requirements for grant of a Student (Temporary) (Class TU) visa, your application must be refused under section 65 of the Migration Act. Please note that this decision is final and not subject to merits review. There is no refund of the visa application charge. If your circumstances change and you wish to apply again in the future, you may do so. Any such application will be considered on its merits and in the light of the legislative and policy requirements applying at that time. You should be aware that a new application charge will apply and that the charge is not refundable. Thank you for your interest in studying in Australia.' 11 The amended application invokes s 39B of the Judiciary Act 1903 (Cth). It seeks a declaration that the second decision (wrongly described as having been made on 29 May 2003) is null and void on the ground that the respondent denied to the applicant procedural fairness, and upon the ground that the respondent failed, or constructively failed to exercise or to attain jurisdiction. For a time, the applicant also relied upon an alleged failure to comply with s 57 of the Act, but Counsel for the applicant ultimately accepted that s 57 of the Act had no relevant application, by reason of the provisions of s 57(3). 12 Case notes of the decision-maker were obtained by the applicant's advisers pursuant to an application under the Freedom of Information Act (Cth). Those notes appear to record the result of a telephone enquiry to the Nanhai Dali Middle School on 18 March 2003. The teacher in charge confirmed that the applicant finished Year 9 from this school in 2001, and then enrolled in the Guicheng Senior School. The case notes appear to record that on about 26 March 2003 a comparison was undertaken of documents included in the file for the first application, and documents included in the file for the second application. 'Many inconsistencies' were found: - the applicant's senior high school (Gui Cheng Middle School) stamp is different; - the applicant's Year 11 transcript is different; and - the applicant's father's company stamp is different. Refusal of the visa application based on these 'serious inconsistencies' was suggested, and this is what appears to have occurred. Natural justice 13 In refusing the second application, the Minister's delegate had regard to documents submitted in connection with the first application to make a comparison with documents submitted in connection with the second application, and to draw a conclusion adverse to the applicant on the basis of that comparison. The delegate did not tell the applicant that he proposed to proceed in that way, nor did he afford the applicant the opportunity to comment on the results of that comparison. 14 In the applicant's submission, the delegate failed to accord the applicant natural justice by not informing the applicant that he proposed to undertake this comparison, and in not affording the applicant the opportunity to comment on the results of that comparison. The applicant points to simple explanations which could have been given for the apparent inconsistencies had the delegate sought that information. In Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, a majority of the High Court rejected the Minister's contention that subdivision AB provided a 'code' of procedure and that Parliament intended to limit the requirements of natural justice to what is provided in the subdivision. The majority held that the Act as it was at the relevant time did not exclude the application of the common law rules of natural justice to the process of decision-making by the Minister or the Minister's delegate as to whether to grant a protection visa. 15 The letter refusing the first application (unlike the letter refusing the second) made no reference to a lack of acceptable evidence of successful completion of secondary schooling to the Year 9 level or its equivalent. However, the applicant was aware from the terms of the letter refusing the first application that the delegate was not satisfied that the documentation supplied in support of that application was genuine. It may be that the document referred to in [6(c)] above was included in the second application to overcome what the applicant perceived to be the problem in this respect. 16 However, it seems to me that it was fundamentally unfair for the delegate to reject the application based upon the comparative exercise to which I have referred without giving the applicant the opportunity of answering the case against him in this respect. What occurred here went beyond a mere assessment of materials which the applicant had provided in support of his application, and which the applicant must have known the delegate would undertake. 17 Accordingly, if the hearing rule applied to the delegate's assessment of the second application, the delegate failed to comply with the requirements of that rule. 18 The Act has changed since the decision of the High Court in Ex parte Miah (supra). Act No 60, 2002, the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), inserted s 51A into Subdivision AB. Subdivision AB is headed: 'Code of procedure for dealing fairly, efficiently and quickly with visa applications'. Section 51A(1) provides: '(1) This Subdivision is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.' Sections 97A, 118A, 127A, 357A and 422B which are in similar terms, were inserted into other Divisions and Subdivisions of the Act at the same time. Act No 60, 2002 commenced to operate on 4 July 2002. 19 The Explanatory Memorandum and the Second Reading Speech show that the purpose or object of Act No 60, 2002 was to overcome the decision in Ex parte Miah. Paragraph 4 of the Explanatory Memorandum provides: '4. The purpose of this Bill is to provide a clear legislative statement that the 'codes of procedure' identified in the Bill are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The amendments in the Bill apply to the 'codes of procedure' in the Act relating to: · visa applications; · visa cancellations under sections 109, 116 or 128 of the Act; · the revocation of certain visa cancellations; and · the review of decisions by the Migration Review Tribunal ("the MRT') and the Refugee Review Tribunal ("the RRT").' 20 The operation of s 51A depends upon the reach of the expression 'in relation to the matters (Subdivision AB) deal with'. Section 57 of the Act (which forms part of Subdivision AB) obliges the Minister to provide certain types of information which could ground a refusal of a visa to the applicant, with an invitation to comment on it. Section 424A imposes a similar obligation on the RRT to provide certain types of information to an applicant if that information could provide a reason for affirming the decision under review. Section 422B is in similar terms to s 51A. In WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220, French J held that when read with s 422B, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant's right to comment on adverse material which is known to and is to be relied upon by the Tribunal. 21 Similarly, in the context of s 357A, in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781, Lindgren J held that its effect was to displace the requirements of procedural fairness in favour of the protections found in the Division there under consideration and to make the latter an exhaustive statement of those requirements in relation to reviews by the Migration Review Tribunal ('the MRT'). 22 Section 57 of the Act is also an exhaustive statement of the circumstances in which a visa applicant is entitled to be informed of, and to have an opportunity of commenting on, information known to the Minister or his delegate which might be adverse to the visa application. Section 57 replaces what would otherwise have been the requirement of the common law hearing rule in this respect. Section 57 did not oblige the Minister to acquaint the applicant with the comparative exercise undertaken by the Minister's delegate as neither s 57(3)(a) or (b) was satisfied, hence s 57(2) had no relevant application. 23 The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2). The legislature cannot have intended that the common law hearing rule would continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)), or information in relation to a visa which can only be granted whilst the applicant is offshore (s 57(3)): see NAQF (supra) at [59] – [60]. 24 Accordingly, the common law hearing rule is excluded by s 51A, and the first ground on which the application is brought fails. Failure to exercise or attain jurisdiction 25 The applicant submits in relation to the supposed 'inconsistencies' referred to in the case notes: - no difference in the stamps for 'Gui Cheng Middle School is "relevantly manifest"'; - as to the difference in the record or results in the transcripts – the one transcript was generated in January 2002, the other was generated in November 2002. A simple explanation for the difference is that one records interim results, the other final results; and - as to the differences in the father's company stamps – there is no difference in the content of those stamps, they may simply have been different stamps (ie produced at different times by different manufacturers, perhaps different materials) or they might have been applied by different persons (with different angles of approach to the paper), or applied by the same person differentially. 26 In any case, the applicant submits that the decision to refuse a visa by reason of these inconsistencies lacks logic, or material to support it, and is reviewable for jurisdictional error. 27 The 'case notes' to which I have referred may provide some insight into why the delegate reached the decision which he did, but they are not a statement by the delegate of his reasons for coming to that decision. The case notes do not reveal why the delegate concluded that the applicant had not provided acceptable evidence of successful completion of secondary schooling to the Year 9 level or its equivalent. It may be thought that this is a surprising conclusion having regard to the documents referred to in [6(a)] above, and the results of the telephone enquiry made to the teacher of the school on 18 March 2003. It may be that the delegate's decision in this respect was related to his lack of satisfaction that the documentation provided in support of the visa application was valid. The supposed 'inconsistencies' referred to in the case notes, if they exist, may provide the foundation for a lack of satisfaction that the documentation provided in support of the application (including that referred to in [6(a)] above) is genuine. Whether those inconsistencies exist is a factual question, and the delegate's assessment of the genuineness of the documentation supplied by the applicant is also a factual matter. 28 The Court cannot engage in a merits review of the delegate's decision, and there is no error of law, let alone a jurisdictional error should the delegate have made wrong findings of fact: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [37]. This is so even if the wrong finding of fact were affected by illogicality: Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424 at [12]; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235. In NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 the Full Court at [27] said in the context of a decision refusing to grant a protection visa: 'For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.' 29 Jurisdictional error on the part of the delegate has not been established. 30 The application should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 13 November 2003 Counsel for the Applicant: Mr R Killalea Solicitor for the Applicant: Diamond Peisah & Co Solicitors Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Solicitors Date of Hearing: 27 October 2003 Date of Judgment: 13 November 2003