Aryal v Minister for Immigration - [2012] FMCA 1014

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARYAL v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1014

MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.351, 368A, 477
Migration Regulations 1994 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
VBAP of 2002 v Minister for Immigration [2005] FCA 965
VCAD v Minister for Immigration [2005] FCAFC 1

Applicant:

KANCHAN ARYAL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1774 of 2012

Judgment of:

Driver FM

Hearing date:

2 November 2012

Delivered at:

Sydney

Delivered on:

2 November 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R O'Shannessy
Minter Ellison

INTERLOCUTORY ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application under s.476 of the Migration Act is extended up to and including 16 August 2012.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1774 of 2012

KANCHAN ARYAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (the Tribunal). The decision was dated on 10 July 2012[1]. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Student Temporary (Class TU) visa. The following statement of background facts relating to the visa application and the Tribunal’s decision on it is derived from the Minister’s outline of written submissions filed on 26 October 2012.
[1] The copy apparently sent to Mr Aryal contained no certification for the purposes of s.368A of the Migration Act 1958 (Cth)
The applicant is a citizen of Nepal who arrived in Australia on 8 October 2006 as the holder of a Subclass 572 Vocational Education and Training Sector visa. On 2 June 2010 the applicant was granted a Subclass 485 (Skilled – Graduate) visa, which ceased to be in effect on 2 December 2011.[2]
[2] CB 87
The applicant applied for a Student visa on 17 January 2012.[3] By decision dated 22 February 2012, the delegate refused to grant a Student visa to the applicant.[4] Relevantly, the delegate found that the applicant did not satisfy the criteria for the grant of a Subclass 572 Vocational Education and Training Sector visa, because the applicant did not meet the requirements in clause 572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This finding was based on the fact that the applicant's student visa application was not lodged within 28 days of the cessation of the last substantive visa held by the applicant (being the Subclass 485 visa referred to in [2] above). The delegate also found that the applicant did not satisfy the criteria for the grant of any other student visa.
[3] CB 3-31
[4] CB 36-39
On 13 March 2012 the applicant applied to the Tribunal for review of the delegate's decision.[5] On 26 June 2012 the applicant attended a hearing before the Tribunal.[6] The Tribunal's decision record contains an account of what transpired at the hearing at [15] to [16].[7]
[5] CB 49-61
[6] CB 81-83
[7] CB 88
On 10 July 2012 the Tribunal affirmed the delegate's decision.[8] The Tribunal found that the applicant was not the holder of a substantive visa of the type described in clause 572.211(2), (4) or (6) of Schedule 2 to the Regulations, and was therefore required to satisfy clause 572.211(3) in order to be granted a Subclass 572 visa. The Tribunal found that the applicant did not meet the requirement in clause 572.211(3)(c) of Schedule 2 to the Regulations, because the applicant's student visa application was not made within 28 days after the applicant's last substantive visa ceased to be in effect. The Tribunal also found that the applicant did not meet the requirement in clause 572.211(3)(d) of Schedule 2 to the Regulations, because the applicant did not satisfy the criterion in item 3005 of Schedule 3 to the Regulations. On the basis of these findings, the Tribunal also found that the applicant could not satisfy the criteria for the grant of any other Student visa, with the exception of a Subclass 580 Student Guardian visa; and there was no material before the Tribunal to suggest that the applicant satisfied the prescribed criteria for that subclass.
[8] CB 85-89
These proceedings began with a show cause application filed on 16 August 2012. The applicant required an extension of time for that application pursuant to s.477(2) of the Migration Act 1958 (Cth). I granted that extension by consent.
The grounds in the application are not easy to discern. The application makes six general points:
1. Have not done any unlawful task in Australia.
2. Wish to continue my occupation in Australia.
3. Have completed all the criteria that make me eligible to remain in Australia.
[4]. The mistakes were honestly done, which ceased my ability to remain in Australia.
[5]. I am an honest and hardworking cook.
[6]. I have fulfilled all the criteria to be a commercial cook and to work in Australia.
All of those assertions appear to go to the merits of the visa application. It was with the state of the judicial review application in mind that I ordered on 6 September 2012 that the application be listed for a show cause hearing today. I gave the applicant time to file and serve an amended application, but he has not taken up that invitation.
Plainly, no arguable case for jurisdictional error arises from the application. The applicant filed an affidavit with his application and a second affidavit on 9 October 2012 which I received in part as evidence and in part as submissions. No jurisdictional error arises from that material either.
I also have before me as evidence the court book filed on 28 September 2012.
The Minister’s submissions concede that a properly formulated judicial review application might have directed the Court’s attention to legal issues concerning the Tribunal’s consideration on the review. Relevantly, the Minister submits as follows:
The First Respondent submits that because no arguable jurisdictional error is raised in the application to the Court, it is not necessary for the Court's consideration of whether the application has raised an arguable case for the relief claimed to include consideration of the Second Respondent's decision. Should the Court be minded to include the Second Respondent's decision in its consideration, however, the First Respondent makes the following submissions in respect of that decision.
Clause 572.211(3)(c) of Schedule 2 to the Regulations
The First Respondent notes that cl. 572.211(3)(c) of Schedule 2 to the Regulations requires consideration of 'that last substantive visa;' being the last substantive visa, of a type listed in cl. 572.211(3)(b), held by an applicant. In this case, there was no such visa for the Second Respondent to consider for the purposes of cl. 572.211(3)(c) of Schedule 2 to the Regulations, because the last substantive visa held by the Applicant (a Subclass 485 visa) was not listed in cl. 572.211(3)(b). Notwithstanding this, the Second Respondent found that the Applicant did not meet the requirement in cl. 572.211(3)(c) of Schedule 2 to the Regulations because the Applicant's application for a Student visa was not made within 28 days after the Applicant's Subclass 485 visa ceased to be in effect.
The First Respondent submits that cl. 572.211(3) of Schedule 2 to the Regulations should be read as a whole, and that the Second Respondent was therefore entitled to conclude, as it did,[9] that the Applicant did not satisfy cl. 572.211(3). It is clear, from the conjunctive nature of cll. 572.211(3)(a)-(d) of Schedule 2 to the Regulations, that if an applicant is unable to meet the requirements of one of cll. 572.211(3)(a)-(d) then that applicant will be unable to satisfy the criterion as a whole. The First Respondent submits that the Second Respondent should not be found to have erred by finding that the application for a Student visa was not made within the period specified in cl. 572.211(3)(c) of Schedule 2 to the Regulations, without first considering whether the substantive visa last held by the Applicant was of a type listed in cl. 572.211(3)(b). The reasons for decision of an administrative decision-make are to be read as a whole, and not with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Public Interest Criterion 3005
The Second Respondent set out the effect of item 3005 of Schedule 3 to the Regulations at paragraph [22] of its Decision Record, and went on to find that the Applicant did not satisfy that criterion 'accordingly'.[10] The First Respondent notes that there is no evidence before the Court that the Applicant relied on one of the Schedule 3 criteria in relation to a previous visa.
The First Respondent submits that even if the Tribunal is found to have erred in its consideration of cl. 572.211(3)(d) of Schedule 2 to the Regulations, any such error should not be found to go to the Tribunal's jurisdiction in circumstances where there was an independent basis of the Tribunal's decision: cf VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (unreported, North J, 27 June 2005); VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 (unreported, Gray, Sundberg and North JJ, 26 August 2005).
The First Respondent further submits that the Second Respondent's finding that the Applicant did not satisfy cl. 572.211(3)(c) of Schedule 2 to the Regulations constitutes an independent basis of the Tribunal's decision. The Second Respondent should therefore not be found to have fallen into jurisdictional error in its application of Public Interest Criterion 3005.
[9] CB 89 at [26]
[10] CB 88-89
Discretion
The First Respondent submits that, even if the Tribunal's decision were found to be affected by error, the Court should in any event withhold relief in the circumstances of this case, on the ground that no useful result could ensue (cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). Although the Second Respondent did not make an express finding in relation to cl. 572.211(b) of Schedule 2 to the Regulations, it is clear on the evidence before the Court that the Applicant could not have met that requirement, because his last substantive visa was not a visa of a type listed therein. Were the Applicant to be granted the relief sought, the Applicant would remain unable to satisfy cl. 572.211(3)(b) of Schedule 2 to the Regulations, because he did not hold a relevant substantive visa at the time of his application for a Student visa. The grant of the relief sought by the Applicant would therefore be futile, and in the First Respondent's submission should be withheld by the Court on that basis.
The Minister submits that the applicant has failed to establish an arguable basis for the relief claimed.
While the Minister concedes that the Tribunal’s approach to the consideration of the elements in the visa criteria may not necessarily have been the correct approach, there was no possibility that the applicant could satisfy the criteria for the visa he sought. With that in mind the Minister submits that even if error could be established, the court should exercise its discretion to refuse relief.
In my view, there would be no utility in a final hearing in this matter because it is plain that the applicant could not succeed on a rehearing of the matter by the Tribunal. The Tribunal noted, in effect, that the case was a hard one and that the Minister might properly have regard to the possibility of substituting a more favourable decision, pursuant to s.351 of the Migration Act. At [24]-[25][11] the Tribunal stated:
The Tribunal notes the applicant’s request to ask the Minister to intervene in his case under section 351 of the Act. Having regard to the Minister’s Guidelines on Ministerial Powers, the Tribunal considers this is an appropriate case to refer to the department for referral to the Minister. The facts before the Tribunal indicate that the applicant lodged a visa application just prior to his 485 visa ceasing. The evidence suggests that the applicant did his best to abide by the requirements and did not seem to understand what was happening in relation to the Employer Nomination application.
The Tribunal considers that in this case, there are unique or exceptional circumstances, including circumstances that the legislation does not anticipate and circumstances where the application of relevant legislation leads to unfair or unreasonable results. These factors warrant referring the case to the Minister.
[11] CB 90
I understand from the Minister’s solicitor that, while that process of Ministerial consideration may have begun, it has not been completed. I agree with the Tribunal that there are special circumstances in this matter which the Minister might wish to give his consideration to.
Because the applicant has failed to point to any arguable case of jurisdictional error by the Tribunal and, even if he had done so, there would be no utility in a final hearing, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I will order that there be no order as to costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 5 November 2012