Ahamed v Minister for Immigration - [2010] FMCA 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AHAMED v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 566

MIGRATION – MRT decision – skilled independent overseas residence visa – application of ‘points’ test – award of ‘bonus’ points for community language used for overseas degree – whether degree equivalent to an Australian ‘degree’ – Tribunal discussion of length of study for an Australian ‘associate degree’ and a ‘degree’ – whether irrelevant – whether error of law in reference to a definition of ‘degree’ – applicant also failed to gain sufficient English language skill points – any error by Tribunal concerning bonus points was not material to its decision – application dismissed.

Migration Act 1958 (Cth), ss. 92‑96, 349(1), 474, 476

Migration Regulations 1994 (Cth), regs.2.26A, 2.26A(1), 2.26A(2) 2.26A(3) 2.26A(6), Sch.2 cl.880.222, Sch.6A, Pt.8 item 6A81(c)

Bramwell v Repatriation Commission (1998) 28 AAR 342
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409
Re Queensland Mines Ltd & Export Development Grants Board (1985) 3 AAR 30
SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791

Applicant:

KHURSHED AHAMED

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG619 of 2010

Judgment of:

Smith FM

Hearing date:

28 July 2010

Delivered at:

Sydney

Delivered on:

28 July 2010

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr R White

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG619 of 2010

KHURSHED AHAMED

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Ahamed came to Australia in February 2004 after studying in his country of nationality, Bangladesh. He had obtained a Bachelor of Arts and a Diploma in Information Technology at universities in Bangladesh, and in Australia he obtained further qualifications, in particular a Bachelor of Information Systems at the Australian Catholic University in Sydney between July 2005 and August 2007. During that period Mr Ahamed married, and a son was born in Australia.
On 28 August 2007 a migration agent lodged an internet application on behalf of the family, seeking Skilled Independent Overseas Student (Class DD subclass 880) permanent residence visas. Mr Ahamed was presented as the principal visa applicant, and his wife and son were secondary applicants.
One significant criterion which had to be met at the time of decision was the achievement of the qualifying score under a ‘points’ system provided under ss.92 to 96 of the Migration Act 1958 (Cth), which was found in Sch.6A to the Migration Regulations 1994 (Cth). This identified 10 matters upon which points could be awarded according to various criteria. The schedule of points and their criteria were given effect, and in some respects explained, in reg.2.26A.
In the visa application, Mr Ahamed’s migration agent suggested that he would achieve the necessary qualifying score of 120 points…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 566
Decision Date: 28 July 2010

CaseChat Overview and Summary

In the case of Ahamed v Minister for Immigration, the applicant, Mr Ahamed, sought to overturn a decision by the Migration Review Tribunal (MRT) that had denied him a Subclass 880 visa. The Tribunal had determined that Mr Ahamed had scored 110 points under the points test, which fell short of the required 120 points to pass the test. The primary legal issue was whether the Tribunal had made a jurisdictional error by not awarding bonus points that had been previously granted by the Department of Immigration and Citizenship (DIAC). Mr Ahamed argued that the Tribunal should have adhered to the DIAC’s decision and awarded him these bonus points, which he believed would have allowed him to pass the points test.

The Federal Court held that the Tribunal was not bound by the DIAC’s previous assessment and was required to make its own independent assessment of the evidence. The Court found that the Tribunal was within its jurisdiction to re-evaluate the evidence and determine the points to be awarded. The Court emphasised that upon an application for review, the Tribunal assumes the role of the Minister and is not constrained by prior administrative decisions. This approach was supported by various authorities, including Drake v Minister for Immigration & Ethnic Affairs and SAAZ v Minister for Immigration & Multicultural Affairs. Consequently, the Court concluded that the Tribunal did not commit a jurisdictional error in its assessment.

The Court dismissed Mr Ahamed’s application for judicial review, holding that the Tribunal’s decision was not affected by jurisdictional error. The Court further ordered that Mr Ahamed pay the Minister’s costs in the sum of $4,200. This decision underscores the principle that the Tribunal must make its own assessment of the evidence and is not bound by prior administrative decisions when reviewing a visa application.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $4,200.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For that reason therefore, it awarded no points in relation to Part 8 and arrived at a total score of 110 points. The Tribunal said: 72.At the time of primary assessment the pool mark was 120 points, and the pass mark was 120 points (GN 15 of 14 April 2004). The first named applicant has therefore not achieved the pool mark and has not achieved the qualifying score to pass the points test. The Tribunal must also consider the Regulations in force at the time of the Tribunal’s assessment. The Tribunal finds that the pool and the pass marks remain the same at the time of the Tribunal’s assessment. The Tribunal finds that the points that can be awarded to the first named applicant at the time of the Tribunal’s assessment remain the same as those that the Tribunal finds are awarded at the time of the primary assessment. The Tribunal thus finds that the points assessment remains unchanged. CONCLUSIONS 73.For the reasons above, the Tribunal finds that the first named applicant is entitled to a total of 110 points under the points test as it applied under the Regulations as at the date of the primary assessment and at the time of its decision. At those dates the pass mark was 120 points and the pool mark was 120 points. Accordingly the first named applicant has failed to achieve the qualifying score required to pass the points test or to be placed into the pool. Therefore the first named applicant does not meet cl.880.222 which is a prescribed criterion for the grant of a Subclass 880 visa. Mr Ahamed has now applied to the Court to set aside the Tribunal’s decision. His application names himself as the only applicant, and does not refer to the other two members of his family. The Minister’s submissions appear to assume that the other two members are parties. If it were necessary, I would join them to the application, but this does not appear to be necessary since I have decided that the application must be dismissed. Under ss.474 and 476 of the Migration Act, the Court has power to give Mr Ahamed a remedy only if the Tribunal’s decision was affected by jurisdictional error. The Court does not have power itself to decide issues of fact arising under the ‘points test’, nor to decide whether Mr Ahamed and his family should be given permission to reside in Australia. The sole ground of error contended in the application is: 1.The tribunal failed to give me any points for the bonus points factor which already given by DIAC. This contention has been explained to me in oral submissions today by Mr Ahamed. He suggests that it was at least unfair for the Tribunal to have departed from the advice previously given by the processing officer in the Department of Immigration, and which was then adopted in the delegate’s decision. However, he has presented no argument showing me that the Tribunal was bound in law not to disturb that assessment of the delegate. On general principles of administrative law, upon the bringing of an application for review in relation to the decision of the delegate of the Minister refusing to grant the visa, the Tribunal “stood in the shoes” of the Minister in relation to all components of that decision, and was required to make its own assessment of the evidence before it when applying the relevant regulations, unfettered by previous administrative decisions made at first instance (note s.349(1), and the jurisprudence on the similar power of the AAT, commencing with Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 429‑430 and 419, and compare Re Queensland Mines Ltd & Export Development Grants Board (1985) 3 AAR 30 at 35, and Bramwell v Repatriation Commission (1998) 28 AAR 342 at 350‑351, and SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791 at [20]‑[24]).

Ratio Decidendi

Legal Principle Established

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