Balineni v Minister for Immigration & Anor
[2008] FMCA 888
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALINENI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 888 |
| MIGRATION – VISA – Student visa – application for review of decision of the Migration Review Tribunal affirming decision not to grant the applicant a Skilled–Independent Overseas Student (Residence) (Class DD) visa – whether Tribunal misconstrued Item 6A81 in the General Points Test under Schedule 6A of the Migration Regulations 1994 (Cth) – whether Tribunal erred in the exercise of its discretion under Migration Act 1958 (Cth) s.349 – whether Tribunal failed to comply with its obligation under Migration Act 1958 s.360 to invite the applicant to appear at a hearing – where Tribunal applied the wrong test under Item 6A81 – jurisdictional error – whether Tribunal applied the wrong test – decision made without affording opportunity to appear – whether jurisdictional error – written information to comment on information – comments not made within specified time period – consequential disentitlement to right to appear – whether wrongful denial of right to appear – certiorari – mandamus. |
| Migration Act 1958 (Cth) ss.349, 359A, 359C, 360, 363A Migration Regulations 1994 (Cth) Regulations 1.03, 2.26C, Sch 1, clause 1128CA, Sch 2, clause 880.222, Sch 6A |
| House v The King (1936) 55 CLR 499 cited Re Chan [2005] MTRA 232 cited. Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218 cited. Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498 [2005] FCAFC 201 followed. M v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 155 FCR 333; 91 ALD 629 followed. Khergamwala v Minister for Immigration [2007] FMCA 690 cited Lee v Minister for Immigration & Anor [2007] FMCA 1802 followed Vishnumolakala v Minister for Immigration [2006] FMCA 1209 cited Alam v Minister for Immigration [2005] FMCA 1343 cited. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited. |
| Applicant: | VIJAY CHOWDARY BALINENI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3450 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 April 2008 |
| Date of Last Submission: | 1 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Poynder |
| Solicitors for the Applicant: | Peter Bollard & Associates |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the second respondent signed on 4 October 2007 and handed down on 15 October 2007 affirming a decision not to grant the applicant a Skilled–Independent Overseas Student (Residence) (Class DD) visa.
That there be an order in the nature of mandamus remitting the applicant’s application for a Skilled–Independent Overseas Student (Residence) (Class DD) visa to the second respondent for determination according to law.
That the First Respondent pay the applicant’s costs fixed in the sum of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3450 of 2007
| VIJAY CHOWDARY BALINENI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is seeking judicial review of a decision of the Migration Review Tribunal that was handed down on 15th October 2007, affirming a decision not to grant him a Skilled–Independent Overseas Student (Residence) (Class DD) visa. In his amended application, filed on 2nd April 2008, he asks the Court for:
(a)A writ of certiorari quashing the Tribunal decision.
(b)A writ of mandamus compelling the second respondent, the Tribunal, to redetermine the application according to law; and
(c)A declaration that the decision of the Tribunal was made in excess of jurisdiction and is null and void.
The applicant relies on the following grounds:
(1)The second respondent misconstrued Item 6A81 in the General Points Test under Schedule 6A of the Migration Regulations 1994.
(1A)In the alternative to Ground 1, if the second respondent did not misconstrue Item 6A81, it erred in the exercise of its discretion under s 349 of the Migration Act.
(2)The second respondent failed to comply with its obligation under s 360 of the Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Background
The applicant, a citizen of India, applied for a Skilled–Independent Overseas Student (Residence) (Class DD) visa on 23rd August 2006. A visa of this type enables overseas students who have completed a course of study in Australia within six months to apply in Australia for a permanent visa based on their skilled occupation. The applicant claimed to be a computer professional.
Student visas are defined by Clause 1128CA of Schedule 1 to the Migration Regulations. Under clause 880.222 of Schedule 2 to the Regulations, an applicant for this visa must attain a qualifying score assessed against the “points test” provided by ss.92 and 93 of the Migration Act and Schedule 6A to the Regulations.
The applicant needed to attain 120 points to qualify for the visa. In his application for a visa, the applicant claimed a total of 115 points:
Skill 60
Age 30
English language ability 20
Australian qualifications 5[1]
[1] See Court Book at page 71
To make up the required 120 points, the applicant claimed bonus points for Capital investment in Australia. Bonus points qualifications are provided for in item 6A81 in part 8 of Schedule 6A to the Regulations, where an applicant is allowed 5 bonus points for having deposited at least $100,000 in a designated security for a term of not less than 12 months.
A Delegate of the Minister wrote to the applicant on 12th February 2007, refusing his application for a visa Class DD, subclass 880, Skilled–Independent Overseas Student (Residence)[2].
[2] Court Book pages 67-68
In the Decision Record the Delegate awarded the applicant 110 points. The difference between the Delegate’s assessment and the applicant’s self assessment was brought about by the fact that the Delegate only awarded the applicant 15 points for English language ability, rather than the 20 points the applicant claimed[3]. The Delegate gave these reasons:
[3] Court Book 70
LANGUAGE
15 points awarded – You provided an IELTS test, dated 14/10/2006. You achieved for each component of the test, Listening – 6.0, Reading – 5.0, Writing – 6, Speaking – 6 with an overall band score of 6. This enables you to be awarded points for Vocational English[4]
[4] Ibid.
The Delegate did not award the applicant any bonus points, saying:
BONUS POINTS AWARDED
0 points awarded – You indicated in your application that you would lodge Capital investment for bonus points. I have assessed evidence provided against this criterion but have not awarded points as you would not meet the pass mark with the 5 bonus points[5].
[5] Court Book 71
The Delegate refused to grant the visa.
The applicant then applied to the Migration Review Tribunal on 22nd February 2007, seeking a review of the Delegate’s decision.
Application to the Migration Review Tribunal
The applicant’s migration consultant wrote to the Tribunal on 15th June 2007, enclosing certified copies of IELTS Test results from 26th April 2007, and asking that the Tribunal consider the applicant’s English language ability at competent level[6]. The test results gave the applicant an Overall band Score of 6.5.
[6] Court Book 87.
The Tribunal wrote to the applicant on 19th July 2007, in a letter headed “Invitation to Comment on Information in Writing”. The letter invited the applicant to comment on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The letter was intended to comply with the requirements of s 359A of the Migration Act.
On the subject of Language Skill Qualifications, the letter said:
You provided evidence of having undertaken two IELTS tests. In a test conducted in April 2007 you scored at least 6 on each test component of listening, reading, writing and speaking. On the basis of that information you would be entitled to 20 points for this Part in accordance with Item 6A33 of Schedule 6A to the Regulations[7].
[7] Court Book 89
The Tribunal’s letter then turned to the matter of bonus points, saying:
When applying for the visa, you claimed 5 bonus points on the basis that you would lodge Capital Investment in Australia. You have not provided evidence that you have deposited at least $100,000.00 in a designated security for at least 12 months…This information is relevant as it indicates that you are not entitled to any bonus points under Item 6A81(a),(b),(c) or (d)[8].
[8] Court Book 90
The Tribunal’s letter invited the applicant to provide written comments by 16 August 2007.
The applicant’s migration consultant then faxed a letter to the Tribunal which appears to have been received on 21st August 2007. The letter said:
· Mr Balineni applied for Visa class DD, Subclass 880 Skilled-Independent Overseas Student (residence) on 23/08/2006.
· With his initial application for subclass 880 he requested and claimed 5 bonus points for lodging Capital Investment in Australia to meet the required Pass mark of 120.
· Treasury department, authority which requests 100,000$ investment for this purpose does not accept investment without proper authorized letter from DIAC officer and without relevant form stamped by DIAC.
· Hence before Mr Balineni receiving request to deposit $100,000 Capital Investment to meet the required pass mark for his subclass 880 visa application.
· Applicant has already made inquiries about investments[9].
[9] Court Book 94
The applicant telephoned the Tribunal on 17th September 2007. The Tribunal’s file note of that date says:
The applicant rang to make enquiries about the progress of his case. I advised that his response to provide comments was brought to the Members attention and that the file was currently with the Member. The applicant advised that he was anxious for a response from the Tribunal and wanted to stress that since he was awarded 20 points for his IELTS results, he was happy to make up the extra 5 points required. I asked the applicant if he had advised the Tribunal of this in writing. The applicant confirmed that he had. I advised the applicant that the Tribunal would contact him in writing once we had received instructions from the Member in regards to what the next course of action would be[10].
[10] Court Book 96
The applicant telephoned the Tribunal again on 20th September 2007 and the Tribunal’s file note says:
AR inquired about the progress of the case. I said we had received the response to the 359A request and at this stage we don’t know how long the Member will take to make a decision. If anything further was required we will put the request in writing[11].
[11] Court Book at 97
The Tribunal signed its decision on 4th October 2007 and handed the decision down on 15th October 2007. There was no hearing. The Tribunal affirmed the decision not to grant the applicant a visa.
The Migration Review Tribunal Decision
In its decision, the Tribunal recited the applicant’s claims and evidence and then set out the reasons why it did not invite the applicant to a hearing. The Tribunal noted that it had written to the applicant on 19th July 2007, inviting comments on the information in that letter by 16th August 2007. The Tribunal also noted that the reply from the applicant’s representative was received on 21st August 2007.
The Tribunal then stated:
The Tribunal is satisfied that the letter sent to the review applicant on 19 July 2007 was issued pursuant to s.359A of the Act. The Tribunal is satisfied that the applicant’s response was received outside of the prescribed time period within which he had to provide comments. Therefore, the Tribunal, pursuant to s. 360 has made a decision on the review without inviting the applicant to appear before it. The Tribunal finds that s.359C(2) applies and therefore ss.360(2)(c) is relevant. The Tribunal finds that it is unable to allow the applicant to appear before it (MIMIA v Sun [2005] FCAFC[12] and M v MIMIA [2006] FCAFC 1247). Pursuant to ss.360 and 363A of the Act, the Tribunal has proceeded to make a decision on the review without holding a hearing[13].
[12] sic
[13] Court Book 108 - 109
As to the applicant’s claims, the Tribunal proceeded to reassess the applicant’s total points score under the regulations. The Tribunal accepted that the applicant was entitled to be credited with 115 points. However, it did not accept that he was entitled to be credited with 5 bonus points on the basis that he would lodge Capital Investment in Australia.
The Tribunal found:
He provided no evidence to show that he had deposited at least $100,000 in a designated security for at least 12 months…It is clear that the applicant has not deposited at least $100,000 in a designated security for at least 12 months. Nor has he provided any evidence to suggest that he has the relevant funds available to him[14].
[14] Court Book 110
The Tribunal found that the applicant was entitled to a total of 15 points under the points test. As the pass mark was 120 points at that time and the pool mark was also 120 points, the Tribunal found that the applicant had failed to achieve the qualifying score required to pass the points test or to be placed into the pool.
The Tribunal found:
Therefore the applicant does not meet cl. 880.222, which is a prescribed criterion for the grant of a Subclass 880 visa[15].
[15] Court Book 111
The Tribunal affirmed the decision not to grant the applicant a Skilled–Independent Overseas Student (Residence) (Class DD) visa.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and affidavit in support on 6th November 2007. He filed an amended application on 2nd April 2008, relying on three grounds of review.
Ground 1 claims that the second respondent misconstrued Item 6A81 in the General Points Test under Schedule 6A of the Migration Regulations 1994.
Particulars of that ground are:
(a)Item 6A81 relevantly provides that an applicant may be granted 5 bonus points where the applicant has deposited at least $100,000 in a designated security for a term of not less than 12 months.
(b)The Tribunal found that “…the applicant has not deposited at least $100,000 in a designated security for at least 12 months”.
(c)In making the above finding the Tribunal erroneously considered that item 6A81 required the relevant funds to have been placed in a deposit at least 12 months prior to the relevant time. In fact Item 6A81 only requires that, at the relevant time, the relevant funds have been placed in a deposit for a fixed term of at least 12 months.
Ground 1A claims that, in the alternative to ground 1, if the second respondent did not misconstrue Item 6A81, it erred in the exercise of its discretion under s 349 of the Act.
Particulars of that ground are, that having found that the applicant achieved 115 points of the required 120 points to meet the “points test” in Schedule 6a of the regulations, the Tribunal should have exercised its discretion under s 349(2) (c) to remit the matter to the first respondent with a recommendation that the first respondent invite the applicant to deposit $100,000 in a designated security for a term of not less than 12 months.
Ground 2 claims that the second respondent failed to comply with its obligations under s 360 of the Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars of Ground 2 are that the second respondent erred in its interpretation of s 360 and s 363A of the act by finding that, because the applicant had failed to respond within the time limited in a letter sent in accordance with s 359A of the Act, it was unable to allow the applicant to appear before it in a hearing.
Applicant’s Submissions
Counsel for the applicant, Mr Poynder, referred the Court to the Bonus points qualification in Item 6A81, which provides for the allocation of 5 points where:
The applicant:
(a) has deposited at least AUD100, 000 in a designated security for a term of not less than 12 months;
The Term “designated security” is defined in regulation 1.03 as “an investment in a security specified under reg 2.26C”.
Regulation 2.26C provides (inter alia) that the Minister may specify certain securities as designated securities for the purposes of Part 8 of Schedule 6A. Subregulation 2.26C(2)(a) provides that the Minister must not specify a security unless:
(a) an investment in the security matures in not less than 1 year from its date of issue;…
Mr Poynder submitted that the Tribunal’s finding[16] that the applicant had not deposited at least $100,000 in a designated security for at least 12 months showed that the Tribunal erroneously considered that Item 6A81 requires that, at the time of the decision, the $100,000 deposit must have been in place for at least 12 months. However, Item 6a81 states that the applicant must have deposited that amount in a designated security for a term of not less than 12 months, as reg. 2.26C(2)(a) makes clear.
[16] at page 110 of the Court Book
He went to submit that this also accords with the Minister’s department’s own Procedures Advice Manual entry on Schedule 6A. Mr Poynder conceded that the applicant had not actually made his deposit by the date of the Tribunal’s decision, he had notified the Tribunal that he was ready with the funds to invest once he received notification to do so.
Mr Poynder submitted that the Tribunal was looking for evidence that the applicant had already made a deposit at least 12 months prior to the decision. If the Tribunal had not misconstrued the requirements of Item 6A81 it would have been able to follow the procedure set out in the Procedures Advice Manual and notify the applicant that he could make his deposit in a designated security and thereby gain the necessary 5 bonus points.
In respect of the alternate ground, Ground 1A, which alleges that the Tribunal erred in the exercise of its discretion under s 349(2)(c) of the act, Counsel for the applicant submitted that the Tribunal’s failure to exercise its discretion in this way was an error in the manner identified by the High Court in House v The King[17]. He referred the Court to the decision of the Migration Review Tribunal (differently constituted) in Re Chan[18].
[17] (1936) 55 CLR 499 at 504-505
[18] [2005] MTRA 232
The applicant’s Ground 2 contends that the Tribunal erred in failing to invite the applicant to a hearing. Counsel for the applicant submitted that the Tribunal breached its obligation under s 360 to invite the applicant to a hearing because of the applicant’s failure to respond to the Tribunal’s s 359A letter within the required time. He submitted that ss 359C(2), 360 and 363A do not necessarily preclude the Tribunal from exercising its discretion to allow an applicant to attend a hearing, even where the applicant has failed to provide comments within the time limit given in a s 359A letter.
In support of that submission Mr Poynder referred the Court to the decision of the Full Court of the Federal Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs[19].
[19] (2005) 149 FCR 1; [2005] FCAFC 218
Quite properly, Mr Poynder also referred to the decisions in Minister for Immigration and Multicultural and Indigenous Affairs v Sun[20] and M v Minister for Immigration and Multicultural and Indigenous Affairs[21], both of which are authority to the contrary. He also referred the Court to Khergamwala v Minister for Immigration[22] and Lee v Minister for Immigration[23].
[20] (2005) 146 FCR 498; [2005] FCAFC 201
[21] (2006) 155 FCR 333; 91 ALD 629
[22] [2007] FMCA 690 at [72]-[75]
[23] [2007] FMCA 1802 at [22]
First Respondent’s Submissions
Counsel for the Minister, Mr Cleary, submitted that the applicant’s first ground has no merit. He submitted that the applicant has misconstrued the Tribunal’s reasons for its decision. The Tribunal did not find that that:
(a)the applicant was required to deposit the sum of at least $100,000 at least 12 months prior to the time of the Tribunal’s decision; or
(b)that the deposit must have been in place for at least 12 months.
Rather, he submitted, the Tribunal used the expression “deposited at least $100,000 in a designated security for at least 12 months” which accords with the correct understanding of Item 6A81, namely that the applicant provide evidence that he had deposited at least $100,000 in a designated security for a term of not less than 12 months.
Mr Cleary submitted that the applicant did not claim to have deposited the relevant funds and did not provide any evidence to suggest that he had the funds available. As this finding was open to the Tribunal on the material before it the applicant’s first ground should be dismissed.
As to the applicant’s Ground 1A, Mr Cleary submitted that the Tribunal did not fall into jurisdictional error by failing to exercise its discretion under s 349 of the Act.
The Procedures Advice Manual (PAM) is an administrative guide to departmental officers and delegates and not an Act or a Regulation (Vishnumolakala v Minister for Immigration[24]). It has also been held to be simply a policy guide to the application of legislation (Alam v Minister for Immigration[25], applying Drake v Minister for Immigration and Ethnic Affairs[26]).
[24] [2006] FMCA 1209 at [27]
[25] [2005] FMCA 1343 at [17]
[26] (1979) 24 ALR 577;
If it is submitted that failure to follow a PAM guideline is a jurisdictional error, the applicant must show that there is a statutory requirement to do so.
Mr Cleary further submitted that the exercise of the discretion referred to in House v The King (supra) is a judicial discretion. Failure to exercise a judicial discretion is not a jurisdictional error.
Counsel for the Minister submitted that the decision in Re Chan can be distinguished on its facts.
Turning to Ground 3, the claim that the Tribunal fell into error in proceeding to decide the matter without inviting the applicant to attend a hearing, Mr Cleary submitted that there was no jurisdictional error. He submitted that the Court should follow the decisions of Tracey J in M v Minister for Immigration and Multicultural and Indigenous Affairs (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v Sun (supra) in preference to Uddin v Minister for Minister for Immigration and Multicultural and Indigenous Affairs (supra), on the basis that the decision in Uddin is not relevant to the disposition of this application.
Mr Cleary also submitted that Khergamwala v Minister for Immigration and Citizenship (supra) is wrongly decided.
Conclusions
The applicant claims in Ground 1 that the Tribunal misconstrued Item 6A81 in the General Points Test by erroneously considering that Item 6A81 required the relevant funds to have been placed in a deposit at least 12 months prior to the relevant time.
Item 6A81 requires an applicant to have “deposited at least AUD100,000 in a designated security for a term of not less than 12 months”. It does not require the sum to have been deposited at least 12 months beforehand, or to have been in place for at least 12 months.
It is not apparent, in its Findings and Reasons, that the Tribunal misconstrued the meaning of Item 6A81. What the Tribunal said was:
He provided no evidence too show that he had deposited at least $100,000 in a designated security for at least 12 months…It is clear that the applicant has not deposited at least $100,000 in a designated security for at least 12 months[27].
[27] Court Book 110
In my view, the meaning is clear. The Tribunal was not stating that the applicant had not shown that he had deposited the requisite sum 12 months or more previously. The Tribunal was merely stating that the applicant had not deposited the money for a term of at least 12 months.
This may well be a statement of the obvious, as the PAM makes it clear that applicants should not deposit the money until asked to do so. At paragraph 75.5 the PAM says:
As depositing this money may represent a significant financial step for some applicants, the visa application form tells applicants not to deposit the money until asked to do so by the officers handling their visa application.
The Delegate did not ask the applicant to deposit the money because the applicant had only been awarded a total of 110 points. The Delegate had only awarded the applicant 15 points for his language skill qualifications. Accordingly, the 5 bonus points for Capital Investment were not awarded because the 5 bonus points would still not have been sufficient to enable the applicant to reach the necessary score of 120 points.
However, the situation had changed. The applicant had provided to the Tribunal evidence of his having completed a further IELTS test, on the basis of which the Tribunal acknowledged in its s 359A letter of 19 July 2007 he would be entitled to 20 points[28].
[28] Court Book 89
That decision brought the applicant to the position where he was entitled to 115 points. The 5 bonus points for Capital Investment would therefore bring the applicant to a total of 120 points, which was the pass mark.
However, the Tribunal still dealt with the applicant on the basis that he had not lodged the requisite sum of $100,000 in a designated security for at least 12 months. The applicant had not because he could not. The Department’s own procedure requires the applicant to complete a document entitled Form 1134 – Declaration. General Skilled Migration (Bonus points for capital investment in Australia).
The Form is divided into three parts, A, B and C. The explanatory notes on the form say:
There are 3 parts to this form.
Part A is completed by the Adelaide Skilled Processing Centre (ASPC).
Part B is completed by you.
Part C is completed by the State/Territory agency in which you have made your investment.
Part A – Authorisation
You should complete and sign Part B of this form only if Part A has been completed by the Department of Immigration and Citizenship (the department) office processing your application for General Skilled Migration to Australia.
An officer of the Department of Immigration and Citizenship had not completed Part A of the form, so the applicant could not complete Part B. Thus, he could not make the requisite investment which meant that Part C of the form could not be completed by the appropriate State or Territory Agency.
This situation was brought to the attention of the Tribunal by the applicant’s migration consultant in his letter to the Tribunal which was forwarded to the Tribunal on 21st August 2007. This letter made it clear that the applicant wished to pursue his claim for 5 bonus points for Capital Investment:
·Applicant now wishes to claim the same 5 bonus points for Capital Investment to meet the required pass mark for his subclass 880 visa application.
·Applicant has already made inquiries about Investments[29].
[29] Court Book 94
The Tribunal referred to this letter in its decision, but said:
It is clear that the applicant has not deposited at least $100,000 in a designated security for at least 12 months. Nor has he provided any evidence to suggest that he has the relevant funds available to him[30].
[30] Court Book 110
What the Tribunal has done is to find against the applicant for failing to comply with a requirement with which he could not comply because the Department of Immigration and Citizenship had not complied with a requisite precondition.
The Tribunal also found:
Nor has he provided any evidence to suggest that he has the relevant funds available to him[31].
[31] Court Book 110
That is not the test required by Item 6A81. The qualification prescribed for an application for the visa which the applicant seeks is set out in Column 2:
Application for:
Skilled – Independent Overseas Student (Residence) (Class DD) visa
The applicant:
(a) has deposited at least AUD100,000 in a designated security for a term of not less than 12 months; or…
The test is that the applicant “has deposited”, not that the applicant has shown that he has the relevant funds available to him. The test is a different test from that set out in Item 6A82, for example, which relates to applicants for two other classes of visas. In that case, an applicant must have “indicated in the application that the applicant is able and willing to deposit at least AUD100,000 in a designated security for a term of not less than 12 months”.
However, that is not the test in Item 6A81 and a requirement to provide evidence of possession of requisite funds cannot be read into the item. The requirement is to “have deposited at least AUD100,000”, but that requirement cannot come into force until the Department of Immigration and Citizenship has complied with the necessary precondition, which is to complete Part A of Form 1134.
In this case, the requirement to complete Part A of the form did not come into effect until the Tribunal, in the shoes of the Minister, advised the applicant in its letter of 19 July 2007 that his Language Skill qualifications had been re-assessed at 20 points, thereby giving the applicant a total of 115 points.
In my view, the Tribunal has applied the wrong test and has misconstrued Item 6A81. Thus, it has fallen into jurisdictional error.
Accordingly, it is unnecessary to consider the applicant’s alternate ground, Ground 1A.
The applicant’s Ground 2 claims that the Tribunal failed to comply with its obligation under s 360 of the Act to invite the applicant to a hearing. It is common ground that the Tribunal invited the applicant under s 359A of the Act to comment on certain information within a set period of time and the applicant’s comments were received after that time.
Section 359C(2) of the Act provides:
If the applicant:
(a)is invited under section 359A to comment on or respond to information; and
(b)does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
That is what the Tribunal did in this case. The Tribunal found that subsection 360(2)(c) was relevant. Section 360 is the section that requires the Tribunal to invite the applicant to appear in certain circumstances:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)and (b) (not relevant)
(c) subsection 359C(1) or (2) applies to the applicant.
In this case, subsection 359C(2) applied to the applicant. Thus, subsection 360(3) came into play:
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Thus, the applicant was invited under s 359A to give comments by a certain time. Because he did not provide those comments within the time specified, the Tribunal was entitled to make a decision on the review without inviting the applicant to a hearing (s.359C(2)).
Because subsection 359C(2) applied, the applicant was not entitled to appear before the Tribunal (s 360(3)).
However, the Tribunal found that it was unable to allow the applicant to appear before it. This is because of the operation of s 363A of the Act, which provides:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or be assisted or represented by another person.
The Tribunal relied on Minister of Immigration and Multicultural and Indigenous Affairs v Sun (supra) and M v Minister for Immigration and Multicultural and Indigenous Affairs (supra). In Sun, the Full Court of the Federal Court (Marshall, Mansfield and Siopis JJ) held at [50]:
Section 363A disentitles a visa applicant from appearing before the Tribunal if any of the circumstances in s 360(2) apply, relevantly here if s.359C(2) applies to the first respondent. Consequently, s 363A would appear to disempower the Tribunal from allowing the first respondent to appear before the Tribunal in the present circumstances. But there is no provision disentitling the visa applicant from providing such information to the Tribunal as that visa applicant considers to be pertinent. And notwithstanding that s.359C(2) applies to that visa applicant, such information may include information provided belatedly pertaining to information referred to in an invitation under s 359A.
In my view, with respect, this decision, which is a decision on appeal from the Federal Magistrates Court, is exactly on point and it is binding on this Court.
True it is that the decision in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (supra) is also a decision on appeal from the Federal Magistrates Court and also, therefore, binding on this Court, but in my view there is an important distinction. In Uddin the Full Court held at [61] that:
We accept that the Tribunal was free, had it wished to do so, to accord the appellant an oral hearing. We see no reason to conclude that the Tribunal thought otherwise. The reference in its reasons for decision to the appellant being “no longer entitled” to a hearing suggests a correct understanding of the legal position. Nothing in the reasons for decision of the Tribunal suggest that it proceeded on an assumption that it was not empowered to grant the applicant a hearing. In the circumstances that happened the Tribunal was entitled to decide the matter before it in the way that it did.
Whilst this decision appears to be contrary to the decision in Sun, it was handed down later in the same year as Sun and, from my reading of the decision, their Honours’ attention in Uddin was not drawn to the decision in Sun, nor was there any argument about the operation of s.363A of the Act.
To my mind, with respect, as the decision in Sun appears to me to be exactly on point and it is a binding decision, I consider that I am obliged to follow it. I note that Tracey J also held in M v Minister for Immigration and Multicultural and Indigenous Affairs, applying section 363A, that the Migration Review Tribunal had no power to hold the hearing to which it invited the applicant[32] (see also Lee v Minister for Immigration & Anor[33]
[32] (2006) 155 FCR 333 at [46]
[33] {2007} FMCA 1802 at [22]
The Tribunal did not fall into error when it found that it was unable to allow the applicant to appear before it at a hearing. Ground 2 fails.
However, for the reasons that I have set out above, it appears that the Tribunal fell into jurisdictional error in relation to Item 6A81 and the applicant is entitled to relief.
The application will be granted with costs and orders in the nature of certiorari and mandamus will issue.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. L. Coutman
Date: 30 June 2008
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