Dahal v Minister for Immigration
[2007] FMCA 1436
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAHAL v MINISTER FOR IMMIGRATION | [2007] FMCA 1436 |
| MIGRATION – Skilled independent visa – whether employed in skilled occupation for 12 months – error of fact does not mean error of law or jurisdiction – weight given to investigations by the Department. |
| Migration Regulations 1994 (Cth), Part 136 of Schedule 2 |
| Waterford v Commonwealth (1987) 71 ALR 673 Abebe v Commonwealth of Australia (1999) 197 CLR 510 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | MEGH RAJ DAHAL |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 373 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 16 May 2007 |
| Date of last submission: | 16 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R Young |
| Solicitors for the Applicant: | Mr S. Thapa of Simon Diab & Associates |
| Counsel for the Respondent: | Mr D. Godwin |
| Solicitors for the Respondent: | Ms S. Palaniappen of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 373 of 2007
| MEGH RAJ DAHAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application filed on 6 February 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the delegate for the Minister for Immigration and Multicultural Affairs dated 9 January 2007 refusing to grant the applicant a Class BN subclass 136 Skilled-Independent visa. The applicant filed an amended application with leave of the Court on 16 May 2007.
In December 2004 the applicant lodged an application for a Class BN subclass 136 Skilled-Independent visa with the Department of Immigration and Multicultural Affairs (Court Book “CB” 76). That application was refused by a delegate of the Minister on 22 July 2005 (CB 191).
On 28 September 2005 the applicant filed an application for review with the Federal Magistrates Court, however, the application for review was withdrawn (CB 1) and a fresh visa application was lodged with the Department on 16 May 2006 (CB 6). The applicant’s nominated occupation was listed as ‘chemical engineer.’
This application was refused by a delegate of the first respondent on 9 January 2007 (CB 72-75). In considering the application, the delegate found that the applicant did not satisfy Item 136.213 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicant then filed the application in this Court, seeking judicial review of the delegate’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out two grounds as follows:
Ground 1
The respondent made a jurisdictional error by failing to consider relevant information and evidence submitted by the applicant and considering irrelevant materials on assumption.
Particulars:
(a)The respondent failed to consider all relevant material submitted by the applicant’s representative on 16 May 2006.
(b)The respondent failed to consider the evidence submitted to justify that the applicant complied with the requirements of Class BN subclass 136.213(1) of the Migration Regulation 1994 in that he was employed for a period of at least 12 months from a period of 5 February 2000 to 19 April 2006. Rather the respondent fell into error by only considering part of the applicant’s claim from a period of 16 November 2004 to 16 May 2005.
(c)The respondent gave more or sole weight to information it obtained by its own investigation on 22 March 2005, which was irrelevant as it did not cover the whole of the relevant period from 16 November 2004 to 16 May 2006.
Ground 2
The respondent made a jurisdictional error by misinterpreting and misapplying the subclass 136.213(1) of the Migration Regulation 1994 as to what amounts to “required period of employment.”
Particulars:
(a)The respondent failed to consider a period of employment from 16 May 2005 to 16 May 2006.
(b)The respondent ignored the evidence provided by the applicant in a letter submitted on 12 May 2006 giving evidence on the period of employment from at least 5 February 2000 to 19 April 2006.
(c)The applicant provided evidence of employment for the relevant period of 5 February 2000 to 19 April 2006 and this was ignored with the respondent only considering a period of 16 November 2004 to 16 May 2005.
The amended application
An amended application was filed with leave of the Court on 16 May 2007 with the following grounds and particulars:
Grounds 1 and 2 of the original application are repeated.
Ground 3
The Respondent made jurisdictional error, in that the delegate of the Respondent incorrectly considered the Applicant’s claim to be that he was employed until 16 May 2005 only and thereby did not consider evidence or make findings in relation to the Applicant’s claim that he was employed until and beyond 16 May 2006.
Ground 4
The Respondent made jurisdictional error in that the delegate considered only part of the documents in relation to an application lodged on 16 December 2004 and in particular the delegate failed to consider the document submitted by the applicant titled “Staff Salary and Site Allowance Statement” at CB 186.
Ground 5
The decision of the delegate of the respondent gave rise to jurisdictional error by way of a reasonable apprehension of bias in that the delegate considered documents adverse to the applicant’s case obtained in relation to a previous application but did not consider documents provided by the applicant in response to those adverse findings.
Ground 6
The Respondent made jurisdictional error in that it had accepted that the Applicant was employed by Com-Tech Pvt Ltd (sic Con-Tech) as he claimed but was not satisfied that he was employed as a chemical engineer with Com-Tech Pvt Ltd (sic Con-Tech Pvt Ltd). The Delegate of the Respondent stated that she relied upon the refusal letter of 22 July 2005, of the previous decision made, in which the decision maker did not accept that the Applicant had been employed by Com-Tech Pvt Ltd. In the circumstances:
(a)The delegate of the Respondent wrongly took into account the reasons of the previous delegate; and/or
(b)The delegate failed to differentiate between the findings, which it made and those findings made or not made in the previous decision of 22 July 2005.
The respondent conceded the application to show cause and the hearing of the matter took place on 16 May 2007 on the basis that it was for the applicant to demonstrate that there is a jurisdictional error.
Findings of the court
The applicant lodged his application for a Skilled Independent (Migrant) Class BN Subclass 136 Category visa on 16 May 2006 (CB 6). Part 136 of Schedule 2 of the Migration Regulations states relevantly as follows.
(1)Subject to subclause (2), the applicant has been employed in a skilled occupation:
(a) if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application – for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made.
As the application was made on 16 May 2006, the 18 month period immediately before that date, began on 16 November 2004. To comply, the applicant had to show the required employment for at least 12 months in the period 16 November 2004 to 16 May 2006.
The decision of the delegate states that the applicant claimed that his employment during the period 16 November 2004 to 16 May 2006 was “16 November 2004 to 16 May 2005”. In doing so the delegate erred, but this was not a jurisdictional error.
“There is no error of law simply in making a wrong finding of fact”: Waterford v Commonwealth (1987) 71 ALR 673 at 689.
“There is no error in law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact”: Abebe v Commonwealth ofAustralia (1999) 197 CLR 510.
It is stated for the applicant as to the date of “16 May 2005”, that “the decision does not appear to turn on any issue relating to how long the applicant was employed for” (Transcript 9, line 46) and “I don’t put to the Court that…he has suffered any prejudice as a result of that particular matter.” (Transcript 10, line 5)
As can been seen from the application for visa filed on 16 May 2006, the date claimed for employment as a Project Officer (chemical engineer) is “02/2000 till date” that is, from February 2000 until 16 May 2006. The applicant produced a letter dated 19 April 2006, on Con-Tech Pvt Ltd letterhead stating that he had been employed as a chemical engineer since 5 February 2000 till date (CB66).
On 22 March 2005 two of the respondent’s staff conducted a site visit to Con-Tech’s premises in Nepal and concluded that the applicant was not genuinely employed by Con-Tech Pvt Ltd (CB 69-70). The delegate considered all the documents provided by the applicant (CB 74-7) and the findings of the Department’s investigations into the employment of the applicant by Con-Tech, and decided to
give little consideration to the most recent work references submitted and for reasons as stated in the referral letter of 23 July 2005, to give greatest consideration to the result of our investigations. That is, I am not satisfied that you were employed at Con-Tech. Accordingly, I am not satisfied that you meet the threshold work experience requirement for visa subclass 136 [CB74-8].
The finding that “I am not satisfied that you were employed as a Chemical Engineer with Con-Tech” was not confined to a finding as to certain dates. The finding is that “I am not satisfied that you were employed [at all] as a Chemical Engineer with Con-Tech.” Therefore the mistaken entry of the date of May 2005 in the decision is of no relevance to the decision of the delegate; it does not show jurisdictional error. The Court notes that it was submitted for the applicant that “obviously if you find that he was not employed by Comtech (sic), then there is no need to go any further” (Transcript 3, line 16); “that it was open to the decision maker to act on that, to consider the findings of those officers for the purpose of the application” (Transcript 5, line 45).
The statement in the decision at CB 74-5 “and your employer at the time was Con-Tech Pty Ltd, the same company for whom you are currently employed” must be read in context. It appears at the end of a paragraph that set out details about what was in the previous application that had been lodged. Read in context, the last sentence of the paragraph sets out what was claimed by the applicant. Authorities support the contention that the reasons of an administrative decision maker should not be read too strictly. The Court rejects the contention that the delegate came to the opposite conclusion from the site inspection report that concluded that “the applicant was not employed by Con-Tech Pvt Ltd”; the delegate accepted that finding.
In Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27], Justice French stated that “the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all circumstances.”
The Court finds that principle applies also to the functions of the delegate. The delegate considered all documents provided by the applicant and decided to give the most recent work references little consideration, and gave “greatest consideration to the results of our investigation.” Those findings as to the evidence and weight were properly open to the delegate on the material before her. It was properly open to her to decide that “I am not satisfied that you were employed as a chemical engineer with Con-Tech.” That finding was properly open to the delegate on the material before her. That finding means that the delegate’s statement in the decision that “the claimed period of employment ended on 16 May 2005”, was of no importance in reaching the decision.
Findings as to the grounds in the application
Ground one is repeated in the amended application and will be considered under that heading.
Ground two is repeated in the amended application and will be considered under that heading.
Findings as to the grounds in the amended application
Ground one alleges that the respondent failed to consider the evidence of employment up to 19 April 2006. The decision of the delegate shows this assertion is incorrect (CB 74-7). The material was considered and rejected. Ground one is rejected.
Ground two alleges that the delegate erred in interpreting “what amounts to the required period of employment for purposes of the subclass 136-213 (1) of the Migration Regulations 1994.” The date 16 May 2005 was not of relevance to the decision of the Tribunal that the applicant was not employed by Con-Tech. No relevant error has been established. This ground is rejected.
Ground three alleges jurisdictional error in that the delegate incorrectly considered the applicant’s claim as being employed until 16 May 2005 only, and thereby did not consider evidence that he was employed until and beyond May 2006. This claim is not made out; the delegate considered all the applicant’s documents but decided to rely on the investigations conducted by the department to conclude that the applicant had not been employed by Con-Tech as a chemical engineer. The date of 16 May 2005 was not of relevance to the decision of the Tribunal. No jurisdictional error occurred. Ground three is rejected.
Ground four alleges that the Tribunal failed to consider the document “Staff Salary and Site Allowance Statement” (CB-186). The allegation was not pressed at the hearing (Transcript 12, line 27) as it was submitted that the delegate stated that she considered all the documents the applicant provided.
Ground five alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”:SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”:SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
The Court holds that the above findings apply equally to the delegate. This ground is rejected.
In any event, ground five was not pressed at the hearing (Transcript 1, line 47) and it was conceded that “once ground 4 goes, then ground five is entirely dependent on that” (Transcript 12, line 36)
Ground six alleges jurisdictional error, in that the respondent accepted that the applicant was employed by Con-Tech but was not satisfied that the applicant was employed as a chemical engineer with Con-Tech. It is alleged that the delegate wrongly took into account the reason of the previous delegate set out in the refusal letter dated 22 July 2005 (CB 191) who did not accept that the applicant had been employed by Con-Tech (CB 193.9). It was open to the delegate to consider the earlier decision by another delegate. The present delegate considered the findings of the Department’s investigations and for the reason set out in the decision of the other delegate (CB 193) gave “greatest consideration to the results of our investigation.” The delegate was not satisfied that the applicant was employed by Con tech. That finding of fact was properly open to the delegate on the material before her and is not open to review. No error of law has been established.
All grounds in the application and amended application are rejected.
Accordingly, the application and amended applications are dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 20 August 2007
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