Fathi v Minister for Immigration

[2015] FCCA 1780

FEDERAL CIRCUIT COURT OF AUSTRALIA

FATHI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1780

Catchwords:
MIGRATION – Judicial review – application Skilled (Residence) (Class VB) visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.474, 476

Migration Regulations 1994 (Cth), regs.1.15F, 2.26A(6), Schedule 1, Item 1136(4), Schedule 2, cll.885.211, 885.321

Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443
Minister for Immigration & Ethic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510

First Applicant:

Second Applicant:

SHAHAB FATHI

NADEGE HEULIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 193 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 29 June 2015

Date of Last Submission: 29 June 2015

Delivered at: Perth

Delivered on: 29 June 2015

REPRESENTATION

For the Applicants: Both in person

Counsel for the First Respondent: Mr B Dube

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

2. That the applicants pay the first respondent’s costs in the amount of $5,800 by 29 July 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 193 of 2014

SHAHAB FATHI

First Applicant

NADEGE HEULIN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extemporaneously and later edited)

Introduction

1. By application filed on 7 July 2014, the applicants, Mr Shahab Fathi and Ms Nadege Heulin (respectively “Mr Fathi” and “Ms Heulin”, together “the applicants”) apply for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Migration Review Tribunal (“Tribunal”) made on 23 June 2014 (“Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), dated 25 October 2012 to refuse to grant a Skilled (Residence) (Class VB) subclass 885 (Skilled – Independent) visa (“Skilled Residence Visa”) to the applicants.

Delegate’s Decision

1. On 25 October 2012 the Delegate refused the Skilled Residence Visa application on the basis that cl 885.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”) was not satisfied because Mr Fathi did not satisfy the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made: CB 87-96. 

Tribunal proceedings

1. On 31 October 2012 the applicants applied to the Tribunal for review of the Delegate’s Decision: CB 97-110.

2. On 13 March 2014 the applicants were invited to appear before the Tribunal to give evidence and present arguments on 29 May 2014: CB 114-116.

3. On 29 May 2014 a hearing took place before the Tribunal and the applicants appeared, and gave evidence and made submissions to the Tribunal: CB 119-121.

4. On 23 June 2014 the Tribunal Decision affirmed the Delegate’s Decision: CB 138-142.

Tribunal Decision

1. The Tribunal Decision relevantly found that:

   a)clause 885.211 of Schedule 2 to the Migration Regulations required that at the time of application, an applicant must meet one of several alternative sub-criteria. Mr Fathi, who was the primary applicant, met Item 1136(4) of Schedule 1 to the Migration Regulations, and therefore the only relevant alternative sub-criteria was cl.885.211(2) of Schedule 2 to the Migration Regulations. This required that Mr Fathi satisfy the Australian study requirement in reg.1.15F of the Migration Regulations: CB 141 at [13];

   b)to meet the study requirement in reg.1.15F of Schedule 2 to the Migration Regulations, Mr Fathi had to satisfy the Minister that he had:

   i)completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English; and

   ii)undertaken the course or courses in Australia while holding a visa authorising the study, and completed the course or courses in a total of at least 16 calendar months as a result of a total of at least 2 academic years study: CB 141-142 at [14];

   c)the evidence before the Tribunal, including the letter of completion issued by Challenger Institute of Technology (“Letter of Completion”), established that:

   i)Mr Fathi completed a Certificate III in Hospitality (Commercial Cookery) (“Commercial Cookery Course”), which is a trade qualification within the meaning of reg.2.26A(6) of the Migration Regulations, on 12 December 2008: CB 142 at [15].

   ii)the Commercial Cookery Court was full time, registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), and was taught in English: CB 142 at [15];

   iii)the Department’s records indicated that Mr Fathi held a subclass 572 (Vocational Education and Training Sector) student visa authorising him to undertake the Commercial Cookery Course: CB 142 at [15];

   iv)the Letter of Completion indicated that the Commercial Cookery Course completed by Mr Fathi ran from 4 February 2008 to 12 December 2008, and that this was less than 16 calendar months and involved less than 2 academic years of study: CB 76 and 142 at [15]. Mr Fathi did not dispute the fact that the completed Commercial Cookery Course involved only one academic year of study and was only 10 months in duration: CB 140 at [9];

   v)Mr Fathi did not satisfy the two year study requirement in the six months immediately before the Skilled Residence Visa application date, and therefore did not meet the criteria in cl.885.211(2)(a) of Schedule 2 to the Migration Regulations: CB 142 at [17];

   vi)as Mr Fathi had not satisfied the requirement of cl.885.211(2) of Schedule 2 to the Migration Regulations, cl. 885.211 of Schedule 2 to the Migration Regulations was not met: CB 142 at [17]; and

   vii)Ms Heulin, the secondary applicant, did not meet the secondary criteria in cl.885.321 of Schedule 2 to the Migration Regulations to be a member of the family unit of a person who holds a subclass 885 visa, and the fact that she completed the same Commercial Cookery Course as Mr Fathi at the same time meant that she was similarly unable to meet the primary criteria for the grant of a Skilled Residence Visa in her own right: CB 142 at [19].

2. The Tribunal found that the applicants did not satisfy the criteria for the grant of the Skilled Residence Visa: CB 142 at [19]. Accordingly, the Tribunal affirmed the Delegate’s Decision not to grant the applicants a Skilled Residence Visa: CB 142 at [20].

Grounds of review

1. The sole ground of review in the Judicial Review Application is as follows:

   The Tribunal Commited a jurisdictional error in considering irelevent material not giving proper consideration to relevant evidenceces

   (Copied without amendment from the Judicial Review Application.)

Consideration

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. Despite orders made on 20 August 2014 permitting the applicants to file and serve any amended application giving complete particulars of each ground of review relied upon as well as any further affidavit evidence by 17 November 2014, no amended application or further affidavit evidence has been filed and served by the applicants.

3. The applicants have thus not provided written evidence or particulars of what irrelevant material the Tribunal is alleged to have taken into account or how the Tribunal failed to give ‘proper consideration’ to relevant evidence. The Tribunal had regard to the evidence before it, and the submissions of the applicants. The Tribunal made findings of fact that were open to it on the evidence before it. Indeed, having regard to the relevant facts and the relevant criteria it appears to the Court that the Tribunal made the only findings of fact, and the only conclusion, that were open to it on the evidence.

4. At hearing, the applicants were unable to:

   a)articulate any jurisdictional error in the Tribunal Decision;

   b)point to any irrelevant material considered by the Tribunal in making the Tribunal Decision; or

   c)point to any relevant evidence to which the Tribunal did not give proper consideration in arriving at the Tribunal Decision.

   In this regard, relevance is determined by the criteria in cl.885.221(2) of Schedule 2 to the Migration Regulations that the applicant satisfy the Australian Study requirement in reg.1.15F of the Migration Regulations as set out at [7] above.

5. The Court notes the allegations by the applicants concerning the alleged receipt of bad or poor advice from the Department, or some other person, from an unspecified website when the applicants were initially making their Skilled Residence Visa application. Bad, poor or inadvertent, and even negligent, advice is not a basis upon which the Court can find jurisdictional error, particularly in the circumstances of this case where there is no clear evidence in relation to the allegations, and even if there were, it is doubtful that they would amount to a fraud on the Tribunal sufficient to justify a finding of jurisdictional error: see SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 at [32]-[33] per Tamberlin, Finn and Dowsett JJ.

6. To the extent the ground of review may be intended to seek a further review of the merits, and the Court notes that the submissions today by the applicants all related to the merits of the Skilled Residence Visa application, this is an impermissible plea for merits review on the basis of dissatisfaction with the Tribunal Decision. Such a plea cannot be entertained by the Court: Minister for Immigration & Ethic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1.

7. The applicants’ ground of review consequently reveals no jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. The Court has concluded that the applicants have failed to establish any jurisdictional error in the Tribunal Decision, and it follows that the application must be dismissed. There will be an order accordingly.

2. It also follows that costs must follow the event, and that the applicants must pay the Minister’s costs, in this case, in the amount of $5,800 by 29 July 2015.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  30 June 2015