CHEN v Minister for Immigration - [2006] FMCA 304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION

[2006] FMCA 304

MIGRATION – Judicial Review – failure to grant student visa – whether estoppel arising from previous grant of visa – whether denial of procedural fairness arising from reference to unavailability of other visa sub–classes – no jurisdictional error.

Migration Act 1958 (Cth), s.483A, Pt VIII
Judiciary Act 1903 (Cth)

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Ethnic Affairs v Polat 1995) 57 FCR 98

Applicant:

PENG CHEN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

ADG25 of 2005

Judgment of:

Lindsay FM

Hearing date:

22 June 2005

Date of Last Submission:

8 July 2005

Delivered at:

Adelaide

Delivered on:

8 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr Yapp

Solicitors for the Applicant:

Yapp Hau Pehn

Counsel for the Respondent:

Mr M Roder

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application filed on 9 February 2005 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 25 of 2005

PENG CHEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 5 January 2005. The Tribunal affirmed a decision made by a delegate of the Minister on 28 April 2004 to refuse to grant the applicant a student (temporary) (Class TU) visa.
In accordance with the decision of SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to the proceedings.
The jurisdiction of this Court under s.483A is the same jurisdiction as the Federal Court in relation to a matter arising under this Act, that jurisdiction being the Federal Court’s judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth), subject to limitations under Pt VIII of the Migration Act. Counsel for both parties in their submissions acknowledged that those limitations, as interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at subsequent cases, have the effect that the applicant must show a jurisdictional error in the decision of the Tribunal before he can obtain the relief he seeks.

Factual background

The applicant arrived in Australia (for a second time) on 6 October 2000 under a student (temporary) visa Subclass 560 granted on 20 September 2000 and valid until 15 March 2003. On 10 March 2003 he applied for a Subclass 572 visa. That was granted on 5 August 2003 and expired on 15 March 2004.
On 11 March 2004 he applied for a second Subclass 572 visa and it was the refusal of the delegate of the Minister to grant that visa which was the subject of the application. Under Regulations 572.223 of the Migration Regulations the applicant could not be granted the visa unless he gave to the Minister evidence of his having attained the assessment level of education to which he was subject. This is the only aspect of the requirement of the Regulations relevant to the determination of the dispute before me.
Regulation 1.42 prescribed the relevant assessment level. The effect of sub-regulation 1 and the Gazette Notice issued pursuant to that sub-regulation had the effect of prescribing assessment level 4 for the applicant given the fact that he held a Chinese passport.
Sub-regulation 2, however, provided that assessment level 2 would apply if certain criteria were met. All but one criteria were met by the applicant and that was the fact that at the time of his application his visa was subject to a condition which permitted him to work and needed to be subject to a condition which prevented him from working. This was a function of the fact that he held a sub-class 572 visa at the time of the application.
So it was that the applicant was required to demonstrate that he had successfully completed second school to the year 12 level or its equivalent. Before the Tribunal the applicant conceded that he did not achieve enough marks to meet the South Australian Certificate of Education requirements. Accordingly the application before the Tribunal was unsuccessful.
Before this Court Mr Yapp for the applicant, confined his submission that the Tribunal fell into jurisdictional error to two matters. Firstly it was contended that para 28 gave rise to jurisdictional error.
I set out paras 27 and 28 of the Tribunal’s reasons for decision:
27.As the review applicant’s SACE certificate shows he has not successfully completed secondary schooling to year 12 level he therefore fails to meet Schedule 5A406(a) for the purposes of subclause 572.223(2). As the review applicant has failed to meet criteria that is essential for the grant of a subclass 572 visa there is no need for the Tribunal to consider the remaining criteria under subclass 572.
28.There is no evidence before the Tribunal that indicates the review applicant could meet the requirements of the other subclasses in Class TU and accordingly, this application for review must fail.
Ultimately Mr Yapp’s contention was that the passage in para 28 amounts to an denial of procedural fairness.
It was not disputed that the proceedings before the delegate and before the Tribunal were confined to a consideration of whether the applicant was entitled to a subclass 572 visa. This class of visa relates to courses of vocational education. The other visas are granted to persons undertaking specifically English courses or school courses respectively.
Doing my best to understand the submission that was put before me the applicant was contending that the passage indicates that the Tribunal in some way regarded as significant the applicant’s inability to obtain the other two visas subclasses and formed that view without giving the applicant the opportunity of adducing evidence as to eligibility for such visas.
It was not contended before me that the applicant would have been entitled to the grant of either of the other classes of visa. Certainly no evidence was adduced by the applicant in relation to them. The application was always for a subclass 572 visa. The applicant would not have been entitled to a subclass 571 visa, for example, because of his age at the time of the application.
It is difficult to see, then, how a lack of opportunity to make submissions about an issue which, had the opportunity been granted, would have been fruitless can amount to an error let alone a jurisdictional error.
But in any event I do not understand this to be an appropriate way of reading para 28. When read in conjunction with the preceding paragraph it is simply an affirmation of the fact that, only the one subclass of visa having been applied for and the applicant having been found to be ineligible for such a visa, the review is brought to an end.
In any event even if para 28 could be interpreted in a way which involved a view that the Tribunal had taken into account an irrelevant consideration, it was not possible for the applicant to demonstrate the way in which regard to the other subclasses of visa would have effected the Tribunal’s determination. That is what is required for a taking into account of an irrelevant consideration to amount to a jurisdictional error (see Minister for Immigration & Multultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [82]).
In short the failure to give the applicant an opportunity to adduce evidence in respect of an application he was not pursuing which application was not the subject of any evidence and was highly likely to be unsuccessful cannot amount to a jurisdictional error in these circumstances.
The only other argument that was pursued before me was the contention that having previously granted a subclass 572 visa to the applicant the Minister was estopped from refusing a subsequent application for the same visa unless there had been some material change in the circumstances of the applicant between the dates of application for each of the visas.
The first answer to that contention is that there had been a significant change in the eligibility of the applicant for the visa between the two dates. At the time of his first application his visa was subject to a condition which did not permit employment. At the time of his second application his subclass 572 visa did permit employment and it was the difference in those two conditions which was the origin of his difficulties in relation to being graded at assessment level 4.
Even if that were not the case there is substantial Federal Court authority in relation to the proposition that estoppel cannot operate so as to override the express provisions of a statute. As the Full Court of the Federal Court in Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 107:
Estoppel will not operate so as to contradict the statute or to extend the authority of a decision-maker beyond that given by the statute…… Even when the power to act is a discretionary one, it has been said that when there is a duty under statute to exercise a free and unhindered discretion, no estoppel can be raised to prevent or hinder the proper exercise of the discretion…… “
It was not contended before me that the Tribunal, by applying the criteria in the Act and Regulations, would have been able to authorise the issue of the visa sought. That being the case the principle of estoppel cannot operate to warrant the Tribunal doing something it was not entitled to do.
These were the only two points pursued in argument before me and they both having been determined adversely to the applicant and on account of neither of them giving rise to jurisdictional error, the application is dismissed.
This is a matter where the Court had intended to deliver reasons shortly after the hearing. The Court took the view then as it does now that the issues raised, in the context of the nature of the powers of the Court on review, were not complex. I have explained to the legal representatives of the parties the circumstances which gave rise to the delay.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate:

Date: