FEDERAL MAGISTRATES COURT OF AUSTRALIA
LAI v MINISTER FOR IMMIGRATION & ANOR	[2009] FMCA 1064	

MIGRATION – Application by non-resident child to live with father in Australia – whether course of study would lead to a trade qualification equivalent to an Australian TAFE Certificate – meaning of “genuine consideration”.	

Migration Act 1958 (Cth), ss.348, 359, 424, 474
Migration Regulations 1994, sch.1, 2	

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Nagalingam v Minister for Immigration and Local Government and Ethnic Affairs (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275
Luu & Anor v Renevier (1989) 91 ALR 39
Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Minister for Aboriginal Affairs and Anor  v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24
Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
SZHQG v Minister for Immigration & Anor [2006] FMCA 1275
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183
Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362
Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108
Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369
Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Martinez v Minister for Immigration and Citizenship [2009] FCA 781
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v Le [2007] FCA 1318
R v Refshauge; Ex parte Thomson (1976) 11 ALR 417
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2006) 204 CLR 82
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140	

Applicant:	Van Quy Lai	

First Respondent:	Minister for Immigration & Citizenship	

Second Respondent:	Migration Review Tribunal	

File Number:	MLG 386 of 2009	

Judgment of:	Turner FM	

Hearing date:	25 September 2009	

Date of Last Submission:	25 September 2009	

Delivered at:	Melbourne	

Delivered on:	12 November 2009	

REPRESENTATION
Counsel for the Applicant:	Mr Gibson	

Solicitors for the Applicant:	Koenig and Simons	

Counsel for the Respondents:	Mr Hill	

Solicitors for the Respondents:	Australian Government Solicitor	

ORDERS
(1)	That the application filed 9 April 2009 and the amended application filed 15 June 2009 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Melbourne	
MLG 386 of 2009
Van Quy Lai	
Applicant

And

Minister for Immigration & Citizenship	
First Respondent
Migration Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This matter involves an application for migration to Australia by a female child (Court Book 1). The applicant was born in Vietnam on 
27 July 1988. She is sponsored in her application by her natural father who is married and lives in Australia (Court Book 5.1, 19 and 28.5). The applicants mother is deceased (Court Book 5.1). The applicant’s step-father agrees to her going to Australia to live with her father
(Court Book 31.5 and 75.3). The natural father has married, and his wife supports him sponsoring the applicant coming to Australia 
(Court Book 63). The applicant’s natural father is an Australian Citizen (Court Book 64).
2.	A delegate of the Minister for Immigration and Citizenship refused the applicant’s application for a Child (Sub-class AH/101) visa by decision dated 27 February 2008 (Court Book 99). 
3.	The applicant then applied to the Migration Review Tribunal 
(the “Tribunal”) to review the decision of the delegate 
(Court Book 105).
4.	The applicant’s sponsor and natural father filed a statement in support of the application for review (Court Book 112). Her father states that the applicant has not been married and is a full time student.
5.	The Tribunal wrote to the applicant’s solicitor on 4 August 2008 
(Court Book 140) advising that it was unable to make a favourable decision on the information before it and inviting the applicant to appear before the Tribunal on 21 October 2008 to give oral evidence and present arguments.
6.	The applicant solicitor sent various documents to the Tribunal in support of the application for review (Court Book 145 and 158).
7.	The tribunal conducted a hearing on 21 October 2008 with the assistance of an interpreter. The applicant appeared to give evidence and present arguments. The applicant’s foster brother and her cousin also gave evidence (Court Book 229.2). The applicant was represented by her migration agent.
8.	At the time the visa application was lodged the Child (Migrant) 
(Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). Item 1108 of Schedule 1 to the Migration Regulations 1994 (the “Regulations”).
9.	The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the regulations. At least one member of a family unit must satisfy the criteria (cl.101.2).
10.	The primary criteria require that at the time of application, the visa applicant must be a dependent child (as defined in r.1.03 and r.1.05A) of an Australian Citizen, the holder of a permanent visa, or an eligible New Zealand citizen, who has not turned 25. [cl.101.211(1)(a) and (b)]. This age requirement does not apply to an applicant who is incapacitated for work due to the total or partial loss of his or her bodily or mental functions [r.1.03 definition of “dependent child” and cl.101.211(2)].
11.	“Dependent Child” is defined in Regulation 1.03 to mean
	“the natural or adopted child or step-child of a person (other than a child who has a spouse or is engaged to be married), being a child who
(a)	has not turned 18; or
(b)	has turned 18 and:
(i)	is dependent on that person; or
(ii)	is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
12.	“Dependent” is defined in Regulation 1.05A as far as is relevant, as
	1.05A(1) Subject to sub-regulation (2), a person (the “first person”) is dependent on another person if”
(a)	at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)	the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic need for food, clothing and shelter; and
(ii)	the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)	the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
13.	The visa applicant must also be the natural child or step child (within the meaning of paragraph (b) of the definition of step-child in r.1.03) of the Australian citizen, permanent visa holder, or the eligible New Zealand citizen; or adopted overseas by a person who at the time of the adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen: 
cl.101.2211(1)(c).
14.	If the visa applicant has turned 18 at the time of application, the Regulations also require that the applicant must not be engaged to be married; must not have or ever have had a spouse; must not be engaged in full time work: and (except in the case of applicants who are incapacitated for work) since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of education at an educational institution leading to the award of a professional, trade or vocational qualification: cl.102.213.
15.	The other primary criteria to be satisfied at the time of application is that the visa applicant is sponsored by the parent who is an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen who had turned 18 or their cohabiting spouse: cl.101.212.
16.	The primary criteria to be satisfied at the time of decision are that:
•	If the visa applicant had not turned 18 at the time of application, he or she continues to satisfy the criterion in cl.101.211 at time of decision, or if he or she does not continue to meet that criterion, it is only because he or she has since turned 18. If the visa applicant had turned 18 at the time of application, he or she must continue to satisfy cl.101.211 or does not do so solely because he or she has turned 25; and continues to satisfy the criterion in cl.101.231: cl.101.221
•	Where requested, an assurance of support has been accepted: cl.101.225
•	The visa applicant and family members satisfy certain public interest criteria and special return criteria: cl.101.223, 101.226, 101.227, 101.228
•	The sponsorship has been approved by the Minister and is still in force: cl.101.222
•	In the case of visa applications made on or after 1 July 2005, the visa applicant satisfies certain passport requirements: cl.101.229
17.	Part 101 of Schedule 2 also contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.
18.	The issue in the present case is whether the visa applicant is a dependent child of the review applicant and a full-time student, and whether the hair dressing course being undertaken by the visa applicant constituted undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification for the purposes of cl.101.213.
19.	The application for judicial review filed on 9 April 2009 contains grounds and particulars.
20.	The amended application filed on 15 June 2009 contains the same grounds and particulars with the addition of particular (vi).
	GROUNDS:
(1)	The decision of the Second Respondent was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the applicant and its powers to conduct a review under s348 of the Migration Act 1958. The Second Respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
	PARTLICULARS
i)	The Second Respondent misconstrued and/or misunderstood the time of application criterion in cl 101.213(c) that since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the Visa Applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
ii)	The Second Respondent misconstrued and/or misunderstood the time of application criterion cl 101.213(c) in purporting to apply the policy intention in PAMS by relying on the opinion of the Applicant as to the equivalence of her hairdressing course in Vietnam with an Australian TAFE Certificate course rather than by an objective assessment of the content of each course and the nature of the on the job training and the skills and skill level acquired in the respective courses.
iii)	The Second Respondent asked the wrong question or identified the wrong issue in purporting to apply the time of application criterion cl 101.213(c) by relying solely on the opinion of the Applicant as to the equivalence of her hairdressing course in Vietnam with an Australian TAFE Certificate course rather than by an objective assessment of the content of each course and the nature of the on the job training and the skills and skill level acquired in the respective courses.
iv)	The Second Respondent in purporting to apply the time of application criterion in cl 101.213(c) took into account an irrelevant consideration or irrelevant material by relying solely on the opinion of the Applicant as to the equivalence of her hairdressing course in Vietnam with an Australian TAFE Certificate course.
v)	The decision of the Second Respondent was so unreasonable than no reasonable person acting within jurisdiction and according to law could have reached it.
vi)	In view of the centrality of the issue of whether the Visa Applicant had been undertaking a full-time course of study at an educational institution leading to an award of a professional, trade or vocational qualification the Tribunal in the circumstances of the case had a duty to make inquiries regarding the nature and content of the relevant Australian TAFE certificate level hairdressing course and the equivalence of her hairdressing certificate with that course which material was readily available and was relevant to critical issues in the review and the Tribunal ought to have known that such inquiry might readily be made. To proceed to a decision without making any attempt to obtain that information was so unreasonable as to vitiate the exercise of the decision-making power and/or was an improper exercise of power and/or a failure to exercise the power of review pursuant to s348.
The Court will therefore address the amended application only.
21.	The applicant filed Contentions of Fact and Law on 15 June 2009.
22.	The applicant contends that the Tribunal misunderstood the criterion in cl.101.213(c) that since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant has been undertaking a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. It is contended that the Tribunal misunderstood the criterion in cl.101.213(c)...by relying on the opinion of the applicant as to the equivalent of her hairdressing course in Vietnam with an Australian TAFE Certificate course rather than by an objective assessment of the content of each course and the nature of the on the job training and the skills and skill level acquired in the respective courses.
23.	Mr Gibson contends for the applicant that the Tribunal misunderstood the requirement of cl.101.213(1)(c) that since turning 18...the applicant had been undertaking a full time course of study leading to the award of a professional, trade or vocational qualification. It is contended that the Tribunal relied on the opinion of the applicant as to the equivalence of her hairdressing course in Vietnam with an Australian TAFE Certificate course, rather than making an objective assessment of the content of each course and the nature of the on-the-job training and the skills and skill level acquired in the respective courses. It is contended that the opinion of the visa applicant is an irrelevant consideration.
24.	It is contended that the Tribunals’ decision is so unreasonable that no reasonable person acting according to the law could have reached it.
Section 359(1) of the Act provides:
(1)	In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
25.	Considering that the visa applicant had attended a course in Vietnam and worked in the industry it cannot be established that her opinion is irrelevant, especially as the Tribunal is empowered to get any information it considers to be relevant, and it must then have regard to it. [s.359(1)]
The review applicant’s representative submitted written submissions to the Tribunal on the issue (Court Book 229.5).
26.	The Tribunal considered the visa applicant’s evidence 
(Court Book 236.2) and found that it was not satisfied on the evidence that her hairdressing certificate can be regarded as the equivalent of an Australian TAFE Certificate Course (Court Book 236.4).
27.	The Tribunal then found that the visa applicant does not meet the requirements of cl.101.213(1)(c) and therefore does not satisfy cl.101.213 (Court Book 236.5).
The criteria in cl.101.213 are cumulative; therefore a failure to meet one means a failure to comply with cl.101.213.
28.	The Court refers to the following authorities:
	“Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.”
As stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”.
The Court applies the following decision in another matter:
	“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”
29.	The finding that the Tribunal was not satisfied on the evidence that the hairdressing certificate can be regarded as the equivalent of an Australian TAFE Certificate course was a finding of fact properly open to the Tribunal and was not so unreasonable that no reasonable person could have reached it.
30.	As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
	“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”  
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41]. The Court does not make that finding about the decision.
As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]: 
	“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
31.	The Tribunal did not rely on irrelevant information or reach an unreasonable decision in terms of the decision in Wednesbury Corporation (Supra). The finding of fact stands. The visa applicant does not meet the criteria in cl.101.213. The application for judicial review must fail on this finding alone.
32.	The Tribunal found also that the visa applicant did not meet the requirements of cl.101.221 as it requires that an applicant who has turned 18 at the time of the application must continue to satisfy the requirements of cl.101.213. The applicant turned 18 on 21 July 2006 (Court Book 2 and 235.6), and the application is dated 2 November 2006 (Court Book 17).
33.	Mr Gibson contended next, that in view of the centrality of the issue as to full time study at a course, the Tribunal in the circumstances had a duty to make enquiries regarding the nature and content of the relevant Australian TAFE Certificate level hairdressing course and the equivalence of the visa applicants hairdressing certificate with that course, which material was readily available and was relevant to critical issues in the review. It is contended that to reach a decision without attempting to obtain the information was so unreasonable as to vitiate the exercise of the decision making power/was a breach of the rules of natural justice/was an improper exercise of power and a failure to exercise the power of review pursuant to s.348.
34.	There is no positive obligation on the Tribunal to obtain further information: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43].  While s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information, it does not have a duty to investigate the applicant’s claims:  SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 at [33].
35.		In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Driver FM stated at [34]:
In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare.  At [25]-[26] his Honour said:
	The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155.  Wilcox J there observed at 169–70:
	... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...
	This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:
	[214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
	The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.
	Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.
The Court finds that the visa applicant was in the best position to provide material to establish the equivalence of her course in Vietnam with a course in Australia. Even if the Tribunal had obtained information of the course content in Australia, it had no detailed information of the course content in Vietnam, and it may not have been readily available.
There was little (if any) scope for a duty on the Tribunal to inquire into facts well known by the visa applicant and within her power to adduce Singh (Supra).
She was in the best position to establish her case, but failed to do so.
The Tribunal had no duty to enquire.
36.	Mr Gibson contends next that a misconstruction or misapplication of prescribed visa criteria will result in jurisdictional error. The Court accepts that and that it has jurisdiction to review a privative clause decision that has been infected with jurisdictional error.
37.	Mr Gibson contends next that a failure to consider an applicant’s claim amounts to jurisdictional error. That is so, with some limitations: For instance if an application fails for some other unimpeachable reason, there is no requirement to deal with the other claims.
38.	Where there is an independent unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision of Justice North in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
39.	The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operations of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellant’s case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [20], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[21].”
“[21] Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2006) 204 CLR 82 at 109 [58].”
40.	Mr Gibson contends next that the Tribunal’s finding that the visa applicant did not satisfy cl.101.213(1)(c) “relied solely on the applicant’s lack of certainty regarding the recognition of her course outside her locality.” That contention is incorrect.
The Tribunal considered the applicant’s evidence. This included affidavits from Liu Thu Chin who claims to be the owner of the hair salon trading as Quyen Kieu (Court Book 217, 221 and 234.3).
The Tribunal did not rely solely on the applicant’s lack of certainty about recognition of the course. It may however have considered that as relevant.
41.	Mr Gibson contends next that the Tribunal had clear information about the course in Vietnam (at Court Book 217, 218 and 221) to enable a comparison with the course in Australia. The material at Court Book 217, 218 and 222 is general information that may not have enabled the Tribunal to make an instructive comparison. It is not to the point for 
Mr Gibson to consider that the material was sufficient. Information on which to compare the courses was therefore not readily available to the Tribunal.
42.	Mr Gibson contends next that the only basis for the Tribunal’s decision that the visa applicant’s course did not meet cl.101.221 was her statement that she was unsure if it would be recognised outside the hamlet. It is contended that “equivalence” was the only issue about which the Tribunal was not satisfied.
First the Tribunal did not state that the visa applicant’s course did not meet cl.101.221: it found that it was “not satisfied on the evidence that her hairdressing course can be regarded as the equivalent of an Australian TAFE Certificate course, and that the applicant was unsure if it would be recognised outside her hamlet” (Court Book 236.3). The Tribunal then found that it was not satisfied on the evidence that her hairdressing certificate can be regarded as the equivalent of an Australian TAFE Certificate level course (Court Book 236.4). Equivalence and the visa applicant’s uncertainty about recognition of the course outside the hamlet are separate issues that the Tribunal considered. It considered also the affidavit by Liu Thu Chin 
(Court Book 236.2) and the content of PAM 3 (Court Book 236.3)
43.	The Court notes that the Tribunal expressed its reason in [55] 
(Court Book 236) for not accepting that the course in Vietnam was equivalent to a course in Australia being that the visa applicant was unsure whether the qualification would be recognised outside the Hamlet whereas, by implication, an Australian qualification would be recognised outside the place it was obtained.
44.	Having found that the applicant failed to meet an essential requirement, it was unnecessary for the Tribunal to compare the contents of the courses. Such a comparison was not an essential issue of relevance.
45.	During the hearing before the Court, Mr Gibson submitted for the applicant that in essence the ground for review is the failure of the Tribunal to conduct an objective assessment of the content of the hairdressing courses in Vietnam and in Australia 
(Transcript page 2 line 10).
46.	That claim has been considered above and is dismissed for the reasons given, as has the claim that the Tribunal should have made enquiries.
47.	Mr Gibson referred to the decision in Martinez v Minister for Immigration and Citizenship [2009] FCA 781 where Goldberg J found at [33] that item 136.213(1)(a) of Schedule 2 required the Tribunal to determine
“(c) the nature of the work or duties undertaken by the applicant during this period…”
In the present case the Court had only a very general description of the work performed by the applicant in Vietnam, and from that could not make a meaningful assessment of the equivalence of the course content in Vietnam and in Australia.
At [25] ibid his Honour stated:
“In my opinion the delegate was obliged to determine the nature of the work the applicant had undertaken.”
In the present case the applicant had not supplied sufficient detail for that to be done. After the request for further information 
(Court Book 206.2 and 214.6) affidavits of Liu Thu Chin was received (Court Book 217 and 221) that relevantly merely stated that “Loan courses of training includes haircutting, washing, blowing, and drying, nail and beauty.” Marks  are included at Court Book 221.
48.	Mr Gibson referred then to the decision of Rares J in SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909 where his Honour observed at [31] that a decision-maker must give proper, genuine and realistic consideration to the merits of the case…which “involves an active intellectual process directed to the subject matter.”
While the decision in this matter was reserved the applicant asked the Court to have regard to the decision in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140, where a decision of the AAT was set aside because it showed no active intellectual engagement as to how a factor was taken into account [49] and the Tribunal did not reach a conclusion on whether the factor was relevant to the case before it [54]. As a result, the Court concluded that the Tribunal did not give real consideration to the factor of general deference as it related to the individual circumstances of the case. The decision was therefore relied on by the applicant to submit that the Tribunal here did not give genuine consideration to the content of the hairdressing courses in Vietnam and in Australia. 
The first respondent submits, and the Court accepts, that in the present case the Tribunal gave active intellectual consideration to “whether the applicants qualification from Vietnam is equivalent to a TAFE certificate level course?”
The Court finds that the Tribunal gave proper, genuine and realistic consideration to the material presented by the applicant, and reached a decision. The relevant facts had to be supplied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts. Prasad (Supra) at 169-170; the failure to provide that information is a valid reason for the application to be rejected. NAST, NAVX and VASF (Supra).
49.	Mr Gibson referred to the decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 where the High Court stated at [26]:
“The first reason (for not exploring the question of whether a failure to make an enquiry gave rise to jurisdictional error) is that there was nothing on the record to indicate that any further enquiry by the Tribunal…, could have yielded a useful result.” 
And
“The second reason is that the response to the Tribunal’s letter indicated the futility of further enquiry.”
Here there was nothing on the record to indicate that any further enquiry could have yielded a useful result, given the lack of detail in the applicants material, including the affidavits of Liu Thu Chin 
(Court Book 217 and 221) provided in response to the Tribunals requests (Court Book 206 and 214). Enquiring as to course details in Australia would not have been useful because there was insufficient detail in the material supplied by the applicant.
The failure to make further enquiries did not amount to jurisdictional error.
50.	Mr Gibson referred then to the decision in Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60-65] and [78 to 79]. That decision deals in part with the question of whether there is a duty on the Tribunal to enquire. Mr Gibson did not refer in detail to the decision. The Court decided at [79] that in that case there was a failure to make a straight forward enquiry that would presumably have yielded at least some relevant information.
As stated above, in the present case the Tribunal sought further information and did not receive anything that could be the basis of a useful comparison. The Tribunal summarised the response in para.47 of its decision. As stated in para.23 of the Tribunals’ decision, it invited the applicant’s representative to make submissions in writing in regard to the matters (of whether the hairdressing course would lead to a trade qualification for the purposes of cl.101.23) and submissions were received (Court Book 198 – 200). Again this information did not contain facts useful for the purpose of a comparison.
51.	Mr Hill appeared for the first respondent. He referred to the decision in R v Refshauge; Ex parte Thomson (1976) 11 ALR 417 at 475.5 that the meaning given to words as to whether a medical practitioner should be recognised as a specialist, depends on the context provided by the statute, and the statement on page 478, to show that a qualification involves acknowledgement by recognised authorities, and that a qualification means an academic qualification.
52.	Mr Hill submits that PAM 3 cl.10.4 shows that courses of a lesser stature that an Australian TAFE Certificate course are not sufficient, and that the exclusions of courses of a lesser nature are examples only.
53.	Mr Hill submits then that a TAFE Qualification is recognised all around Australia. By comparison the applicant was unsure if her course would be recognised outside her hamlet. He submits also that the word “qualification” means an academic qualification as distinct from 
on-the-job-training.
54.	Mr Hill then referred to the decision in Martinez (Supra) and submits, correctly, that nothing in it prevents the decision-maker from considering every relevant aspect of a criterion.
55.	Neither a reviewable error of fact or an error of law has been established.
56.	The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
57.	The application and amended application are dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Erin Firns

Date:  12 November 2009