Ashraf v Minister for Immigration
[2018] FCCA 1762
•25 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASHRAF v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1762 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 360, 360A Migration Regulations 1994 (Cth), Sch.2 cl.485.221 |
| Cases cited: Gill v the Minister for Immigration and Border Protection (2016) FCAFC 142 SZBEL v The Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZIVK v Minister for Immigration and Citizenship (2008) FCA 334 |
| Applicant: | MUHAMMAD MUBASHAR ASHRAF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 624 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 25 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 June 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Mr Cunynghame |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 624 of 2017
| MUHAMMAD MUBASHAR ASHRAF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed on 28 March 2017, wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 9 March 2017, in which the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a skilled (Provisional) (Class VC) (subclass 485) visa (‘the visa’).
The Applicant’s grounds of application are 14 in number, and I shall not set them out herein, but rather annex them to these reasons (‘Annexure A’). They are in the nature of submissions, largely reciting the procedural history of the matter and include the Applicant’s alleged conversation with an officer in the Department.
The First Respondent seeks dismissal of the application and that costs follow that event. The Court has before it the evidence as contained in the Court Book and an affidavit of the Applicant which was affirmed by him on 27 March 2017 and the contents of which are a replication of the grounds of application as stated.
Background
The Applicant has, throughout, acted as a litigant in person. There was no migration agent assisting the Applicant when he completed his application for the visa, no submissions made by any migration agent on behalf of the Applicant to either the delegate or the Tribunal; and no assistance provided by any migration agent upon the Applicant making application for review of the delegate’s decision to the Tribunal. In the response to hearing invitation, forwarded to the Tribunal by the Applicant, the Applicant indicated that he would take part in the scheduled hearing on 9 March 2017, would represent himself, and did not require an interpreter.
The Applicant applied for the visa on 9 December 2015. Relevantly, the primary criteria as set out in cl.485.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) required that the Applicant satisfy the “Australian study requirement” in the six month period immediately preceding the day on which the visa application was made.
On 9 February 2016, the Department of Immigration and Border Protection (‘the Department’) sent a letter to the Applicant requesting more information, including completion letters from the Applicant’s Australian education provider showing course commencement dates, completion dates, and study load.
On 18 February 2016, the Applicant sent an email to the Department attaching a copy of a completion letter for a Bachelor of Business (Accounting) which stated that the course was completed on 27 July 2014, the commencement date of that course having been 19 November 2012. The Applicant’s studies were undertaken on a full-time basis. The language of instruction for studies at Cambridge International College was English, and it was that education provider from whom the Applicant’s Bachelor of Business (Accounting) was obtained.
On 24 February 2016, the Department sent an email to the Applicant requesting he provide a completion letter for his Bachelor of Business (Marketing) degree.
On 25 February 2016, the Applicant sent an email to the Department attaching a copy of the course completion letter for his Bachelor of Business (Marketing) degree, which stated that the course commencement date was the 18th day of August 2014, and that the course completion date was 20 December 2015. This was a date after the visa application had been lodged by the Applicant on 9 December 2015.
On 10 March 2016, the delegate refused to grant the visa on the basis that the Applicant did not meet cl.485.221 of Schedule 2 to the Regulations. In the delegate’s decision of 10 March 2016, the delegate noted relevantly the following:-
“On the 18 February 2016 you sent an email to the department with a copy of your Bachelor of Business (Accounting) completion letter stating this course was completed on 27 July 2014.
A response was then sent to you on 24 February 2016 requesting you provide a completion letter for your Bachelor of Business (Marketing) degree (your most recent degree). You were also advised that if the Bachelor of Business (Accounting) qualification was to be considered as evidence of meeting the Australian study requirement your application would be refused as you are required to provide evidence of having completed study within 6 months prior to lodging your application.”
On 18 March 2016, the Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant provided a copy of the delegate’s decision with his review application to the Tribunal, along with written submissions and supporting documents.
On 9 March 2017, the Applicant appeared before the Tribunal to give evidence and present arguments relating to the issues in his case.
Tribunal Decision
On 9 March 2017, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
The Tribunal set out under the heading “consideration of claims and evidence”, the following paragraphs 6 and 7:-
“6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream, which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.
…
7. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
·that are registered courses; and
·that were completed in a total of at least 16 calendar months; and
·that were completed as a result of a total of at least 2 academic years study; and
·for which all instruction was conducted in English; and
·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.”
On the basis of the Applicant’s own evidence, the Tribunal found that the Applicant commenced a Bachelor of Business (Marketing), but that he did not complete that course in the six months immediately preceding the day of the visa application.
The Tribunal noted that the Australian study requirement required the completion of courses and that incomplete courses could not contribute to the satisfaction of that requirement. The Tribunal found that the only course the Applicant had completed was a Bachelor of Business (Accounting) on 27 July 2014, and thus:-
“No completion of any course occurred in the six months immediately before the visa application was made on 9 December 2015.”[1]
The Tribunal concluded that the Applicant did not satisfy cl.485.221 of Schedule 2 of the Regulations and thus the Applicant did not satisfy the criteria for the grant of the visa.
[1] Decision Record, paragraph 11.
Consideration
Orders were made by Registrar Caporale on 27 December 2017, which enabled the Applicant to file and serve any amended application, any affidavits, supplementary court book and written submissions by 1 November 2017. The Applicant filed no such documents.
The application cannot succeed. There is no jurisdictional error attending the decision of the Tribunal. None was identified in the application itself for judicial review, nor is there any jurisdictional error apparent to the Court in the Tribunal’s decision.
As to grounds 1, 2 and 14 of the application, and to the extent the Applicant complains of procedural unfairness, those grounds must be dismissed. The Tribunal complied with its obligations under Part 5, Division 5 of the Act. The Applicant attended a hearing before the Tribunal and, in accordance with ss.360 and 360A of the Act, the Applicant was on notice of the determinative issue on the review, namely, whether he met the Australian study requirement in cl.485.221 of Schedule 2 to the Regulations. This was the determinative issue in the delegate’s decision.[2]
[2] SZBEL v The Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 33-35.
The Court accepts the First Respondent’s submission that no obligations under s.359A of the Act arose, as all of the material relied on by the Tribunal was contained within the delegate’s decision provided to the Tribunal by the Applicant; was given orally by the Applicant to the Tribunal; and was provided by the Applicant, in writing, to the delegate. Such information therefore fell within the exceptions under ss.359A(4)(b) and 359A(4)(ba) of the Act.
As to ground 6, wherein the Applicant seeks to complain about the advice provided by his migration agent, it would appear firstly that the Applicant had no migration agent throughout the relevant proceedings, and in any event, these proceedings do not involve a matter in which an agent lodged the visa application on the Applicant’s behalf without his knowledge, consent or authority and in doing so acted fraudulently.[3] The Applicant provided no evidence to substantiate his claim regarding any apparent fraudulent conduct by any person. There is no evidence of any correspondence between the Applicant and the Department going to this matter, and this ground shall be dismissed.
[3] SZIVK v Minister for Immigration and Citizenship (2008) FCA 334, Gill v the Minister for Immigration and Border Protection (2016) FCAFC 142.
As to grounds 8 and 12, to the extent that the Applicant complains about the advice provided to him by officers of the Department, the Applicant has not provided any evidence of this incorrect advice apart from his own written claims and details of a call to the Department. In any event, as submitted by the First Respondent, any misguided advice from an officer of the Department cannot be said to amount to a jurisdictional error committed by the Tribunal.
In respect of each and every of the grounds of the application, and upon a consideration of the Decision Record of the Tribunal having regard to them, it is quite clear that the Tribunal assessed the claims and evidence before it and took into account all relevant matters. The Tribunal found that the Applicant had not completed a course of study in the six months preceding the visa application. The Tribunal was unable to do anything other than to find that the Applicant did not satisfy the Australian study requirement and did not meet cl.485.221 of Schedule 2 to the Regulations. The application is therefore without merit.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 6 July 2018
‘Annexure A’
Your Honour, I would request please according to procedural fairness and natural jusitce review my case.
Your Honour, I would be thankful if my case considered according to procedural fairness and natural justice.
First visa granted in February 2011. As good and responsible student I followed all matters of my study in Australia.
I finished my Bachelor of Business (Accounting) Degree on 27/07/2014.
Soon after that course to enhance my career opportunities I enrolled in Bachelor of Business (Marketing).
My student visa was expiring on 14/12/2015 and I started preparing my documents for TR (Graduate work visa) meanwhile I consulted with some of the migration agents and they advised me I am eligible to apply for this visa but due to some confusion on (in 6 months apply after graduate) point, I preferred call to department of immigration and border protection.
I got full assessment from IPA as Taxation Accountant and I completed my English test for this visa and achieved very good marks and I tried my best and completed all those requirements which are necessary for this Graduate work visa (subclass 485).
So in order to clarify it further, I even phoned twice the Department of Immigration on 7/12/2015 and talked to one officer who specialises in TR visas around 11am. To confirm it I rang again same day and enquired about my eligibility for this visa. They advised me I am eligible for this visa and for future record I request to them can they provide me this call conversation reference number? The officer provided me the call details for future reference as follows (Date7/12/2015, time 5.35pm, officer Name: Sobi).
On 9/12/2015 I lodged my application with great expectation and fully confident about my eligibility. And I stopped my Bachelor of business (Marketing) for get work experience in my field.
On 10/03/2016 I got refusal letter of application for a Temporary Graduate work visa.
Then I applied for review my case in AAT. They invited me for hearing on 9/03/2017. Respected case office reviewed my case and he accepted my eligibility on all requirements excepted on one which I applied after 6 month of graduation.
During my case hearing I notified to respected case office before apply this visa I took all information from authorities especially from Department of Immigration. That is mean those officers misguided me at the time and that time they told me I can apply for this visa because I am eligible, and for further information please you can check out conversation, but Respected officer advised me he does not have authority to check call record because he has limited rights so recommended me apply or appeal with other authorities.
Unfortunately I got refusal from AAT and in refusal respected officer did not consider my point which I told about misguided by officers at the time of apply this visa.
According to Procedural fairness and natural justice in my case I would like please consider those points which AAT cannot consider due to limited rights.
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