Gambhir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 195
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gambhir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 195
File number(s): MLG 224 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 31 March 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) visa – citizen of India – whether denial of procedural fairness – whether Australian study requirement met – period within which to make application following meeting the Australian study requirement – whether fraud upon the Tribunal – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Div 5, Pt 5, ss 359A, 360, 360A, 474, 476
Migration Regulations 1994 (Cth) reg 1.15F, Sch 2, cl 485.231
Cases cited: Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2206
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
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
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 1 March 2022 Date of hearing: 1 March 2022 Place: Perth The Applicant: Appeared in person Counsel for the First Respondent: Mr A. Cunynghame Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 224 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HIMANSHI GAMBHIR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The originating application filed 30 January 2018 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application filed by the applicant, Ms Himanshi Gambhir, (“Ms Gambhir”), in the Melbourne Registry of the Court on 30 January 2018 under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) (“Judicial Review Application”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 8 January 2018. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant Ms Gambhir a Skilled (Provisional) (Class VC) visa (“Skilled Visa”).
The Judicial Review Application contains eight grounds, however, the Court observes that some are in the form of narrative. The grounds of review are set out below at [13].
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 59 pages;
(b)the affidavit of Ms Gambhir sworn 30 January 2018 annexing the Tribunal Decision (“Gambhir Affidavit”), the substantive content of which is very similar to the eight grounds of review in the Judicial Review Application; and
(c)the Minister’s written submissions filed 21 January 2022 (“Minister’s Submissions”).
JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Judicial Review Application is as follows:
(a)Ms Gambhir is a citizen of India who undertook a Master of Business Administration (International Management) (“MBA”) at Federation University Australia between 24 March 2014 and 8 July 2016: CB 12-14;
(b)on 6 March 2017 Ms Gambhir applied for the Skilled Visa: CB 1-11;
(c)in support of her Skilled Visa application Ms Gambhir relevantly provided the following documents:
(i)a letter from Federation University Australia dated 11 July 2016 confirming that she had successfully completed the MBA on 8 July 2016: CB 12;
(ii)a statement of academic completion dated 11 July 2016 which recorded the completion of all academic requirements for the MBA on 8 July 2016: CB 13; and
(iii)an academic transcript dated 8 July 2016 which recorded the completion of the requirements for the MBA: CB 14;
(d)on 6 March 2017 the Delegate’s Decision was to refuse to grant the Skilled Visa: CB 33-35. The Delegate was not satisfied that Ms Gambhir met the criterion for the Skilled Visa in cl 485.231(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) which relevantly provided as follows (emphasis added):
The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
(e)“Australian study requirement” is defined in reg 1.15F of the Migration Regulations, relevantly as follows:
(1) 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:
(a) that are registered courses; and
…
(2) In this regulation: completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
(f)the Delegate found that Ms Gambhir had declared in the Skilled Visa application form that she had completed the MBA. The letter and statement of academic completion Ms Gambhir provided to the Delegate indicated that she had completed the MBA on 8 July 2016 and the MBA was, therefore, not completed in the time period specified in cl 485.231(3) of Sch 2 to the Migration Regulations, that period being the six months immediately before the Skilled Visa application was lodged: CB 30-35;
(g)on 28 April 2017 Ms Gambhir applied to the Tribunal for review of the Delegate’s Decision: CB 36-37. She was represented by a registered migration agent at the time the Tribunal review application was made: CB 37;
(h)on 17 October 2017 Ms Gambhir was invited to attend a hearing before the Tribunal scheduled for 23 November 2017: CB 48-50, and Ms Gambhir (but not her migration agent) attended that Tribunal hearing: CB 52-53; and
(i)on 8 January 2018 the Tribunal Decision was to affirm the Delegate’s Decision: CB 57-59.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)having regard to the evidence before it, was satisfied that Ms Gambhir completed the MBA on 8 July 2016: CB 59 at [9]. The Tribunal discussed cl 485.231 of Sch 2 to the Migration Regulations with Ms Gambhir, who indicated that she was not aware of the time limitation for lodgement of her Skilled Visa application and acknowledged that she did not meet the legislative requirements: CB 59 at [10]; and
(b)considered it clear that Ms Gambhir completed the MBA on 8 July 2016 and as she did not lodge the Skilled Visa application until 6 March 2017, she did not meet the requirements of cl 485.231(3) of Sch 2 of the Migration Regulations: CB 59 at [11].
Litigation History
The relevant litigation history is as follows:
(a)as stated above at [1], Ms Gambhir filed the Judicial Review Application in the Melbourne Registry of the Court (then the Federal Circuit Court of Australia) on 30 January 2018;
(b)on 14 November 2018 consent orders were made by a Registrar in the Melbourne Registry, which, among other things, provided for the filing of affidavits 28 days before a show cause hearing, and for the listing of the Judicial Review Application for a show cause hearing before Judge Riethmuller on a date to be advised (but which was never advised);
(c)there was no further communication between the Court and the parties until November 2021 when the matter was transferred to the Perth Registry and listed before the Court as presently constituted; and
(d)on 15 November 2021 the matter came before the Court as presently constituted for directions. Orders were made listing the matter for final hearing on 1 March 2022, and permitting Ms Gambhir to file and serve an amended Judicial Review Application, affidavits, supplementary court book and submissions by 4 January 2022. No such documents have been filed by Ms Gambhir.
Jurisdictional Error Required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks a 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 thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [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.
In certain circumstances, a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. An instance where the Tribunal has made findings that are legally illogical, irrational and otherwise unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Ms Gambhir to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or to actually determine Ms Gambhir’s Skilled Visa application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Legislative Scheme
Clause 485.213(3) of Sch 2 to the Migrations Regulations and the definition of “Australian study requirement” in reg 1.15F of the Migration Regulations are set out at [4(d) and (e)] above.
Grounds of Review
The grounds of the Judicial Review Application are as follows:
1.Applicants Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa was refused and a review application was made with the relevant appeals tribunal.
2. The case was appealed at the Administrative Appeals tribunal was also refused.
3. Applicant now wishes to appeal further at the Federal Courts for justice.
4.Applicant believes that justice is denied to her and there is an error in the decision making in the visa application.
5.Applicant is a genuine person and has made a visa application for a subclass 485 visa. However due to not meeting the study requirement and providing incorrect information on the application form the visa was refused. Applicant agrees to this incorrect information [sic] however does also confirm that it was in error and her misjudgement. It was not done on purpose, she did not seek professional advise and was not aware of the 6 month rule. It was a genuine error on her behalf.
6.Now the applicant wishes to have this decision reviewed as she believes that a genuine error was made however furthermore a jurisdictional error was made in deciding the case.
7.The applicant had genuinely completed her studies and applied for the relevant visa however she missed the tiem [sic] period in which it was to be applied which was an honest and genuine error.
8. Applicant wishes for a fair chance and requests the Judicial courts to kindly review the matter and provide her with justice as she has been denied justice.
Submissions
Ms Gambhir’s Submissions
At the hearing Ms Gambhir submitted that:
(a)she felt the Tribunal Decision was unfair, that she has not done anything wrong and that the refusal was not her fault: Transcript, p 2;
(b)she completed her MBA in July 2016: Transcript, p 2;
(c)at some point after completing the MBA her father became unwell and she had to return to India: Transcript, p 2, and she approached a migration agent (who may have been her cousin: Transcript, p 7), for advice on when she could make her Skilled Visa application, and says she was advised she could so when she returned from India. When Ms Gambhir made the Skilled Visa application after returning from India it was refused, and when she asked her migration agent for an explanation he said it was: “[b]ecause we applied late”: Transcript, p 3. She did not know about the requirement to apply for the Skilled Visa within six months of completing the MBA: Transcript, p 2. If she had known about the requirement she would have applied for the Skilled Visa before leaving Australia: Transcript, p 4; and
(d)she was unable to pursue better career opportunities in Australia as a result of being denied the Skilled Visa: Transcript, p 3.
Minister’s Submissions
The Minister made the following submissions:
(a)grounds 1, 2 and 3 outline the procedural history of the matter and do not allege any error on behalf of the Tribunal;
(b)insofar as grounds 4, 6 and 8 could be considered to be an argument that the Tribunal’s decision was vitiated by procedural unfairness, it is apparent that the Tribunal complied with the limited procedural fairness obligations imposed on it by Division 5 of Part 5 of the Migration Act; and
(c)grounds 5 and 7 do not allege any error on the part of the Tribunal, and the Tribunal was correct to find that Ms Gambhir did not meet cl 485.231(3) of Sch 2 to the Migration Regulations.
Consideration – grounds 1, 2 and 3
Grounds 1, 2 and 3 narrate, in a broad sense, the procedural history of the Skilled Visa application. They do not allege any error by the Tribunal, nor do they establish any jurisdictional error in the Tribunal Decision.
Consideration – grounds 4, 6 and 8
Grounds 4, 6 and 8 might be considered to be an argument that the Tribunal Decision was vitiated by procedural unfairness. It is clear, however, that the Tribunal complied with the limited procedural fairness obligations imposed on it by Division 5 of Part 5 of the Migration Act because:
(a)the Tribunal properly invited Ms Gambhir to attend a hearing before the Tribunal in accordance with ss 360 and 360A of the Migration Act, and Ms Gambhir attended the Tribunal hearing;
(b)Ms Gambhir was on notice from the Delegate’s Decision and the Tribunal’s questioning at the Tribunal hearing that cl 485.231(3) of Sch 2 to the Migration Regulations in relation to whether the dispositive issue in the Tribunal review was whether she had satisfied the Australian study requirement in the period of 6 months ending immediately before the day the Skilled Visa application: SZBEL at [37] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; and
(c)the Tribunal’s disclosure obligations under s 359A of the Migration Act were not engaged because the information the Tribunal relied on in the Tribunal Decision fell within the exceptions in s 359A(4)(b)-(ba) of the Migration Act.
The Court, therefore, finds that grounds 4, 6 and 8 are not made out and do not establish jurisdictional error in the Tribunal Decision.
Consideration – grounds 5 and 7
These grounds do not allege any error on the part of the Tribunal.
Clause 485.231(3) of Sch 2 to the Migration Regulations, in prescribing criteria for the Skilled Visa, provides that an applicant must satisfy the “Australian study requirement” in the period of six months ending “immediately before” the day the Skilled Visa application was made. The expression “immediately before” has the effect that the Australian study requirement must be satisfied, at the latest, on the day before the Skilled Visa application was made: Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2206 at [51] per Judge Kendall, cited with approval in Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311 at [10] per McKerracher J.
There is no dispute that Ms Gambhir completed the MBA on 8 July 2016 (see, for example, CB 11-14, 35, 59). This was more than six months immediately prior to applying for the Skilled Visa on 6 March 2017. Ms Gambhir conceded as much during the Tribunal hearing: CB 59 at [10]. She conceded as much again in grounds 5 and 7 of the Judicial Review Application, and in her oral submissions to the Court: Transcript, pp 3, 4 and 7. Accordingly, the Tribunal was correct to find, and the only decision available to it was, that Ms Gambhir did not meet cl 485.231(3) of Sch 2 to the Migration Regulations. This is irrespective of whether Ms Gambhir had made an “honest and genuine error” in applying for the Skilled Visa. These grounds fail to establish any jurisdictional error in the Tribunal Decision.
The Court, therefore, finds that grounds 5 and 7 are not made out and do not establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
Court’s obligations where the litigant is self-represented
As the Federal Court observed in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev) in circumstances where a party is self-represented before the Court, the Court must endeavour to remain alert to the possibility of jurisdictional error being made by the Tribunal. In this regard, it is pertinent to note that Ms Gambhir, unlike many self-represented applicants in migration judicial review proceedings in this Court, is English-speaking, well-educated, and had access to advice from a migration agent.
Fraud upon the Tribunal
The oral submissions made by Ms Gambhir raise the possibility of a fraud upon the Tribunal by a third party: see [14(c)] above, but otherwise, there is nothing in this matter which would appear to indicate that any other jurisdictional error was made by the Tribunal.
Fraud upon the Tribunal which affects its decision-making process may constitute jurisdictional error: 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 (“SZFDE”) at [49]-[51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 (“SZLIX”) at [30]-[33] per Tamberlin, Finn and Dowsett JJ.
Ms Gambhir arguably asserts in her oral submissions: see [14(c)] above, that the Tribunal Decision may have been vitiated by the fraudulent conduct of a third party, namely the migration agent who advised her (a matter about which there is no evidence, Ms Gambhir not having filed any affidavits despite orders of the Court allowing her to do so: see [6(b) and (d)] above). In this instance, even taking Ms Gambhir’s submissions at their highest, the migration agent’s alleged advice or conduct was no more than a failure to properly advise Ms Gambhir of the time limits imposed by the relevant Skilled Visa application criteria. The alleged advice or conduct rises no higher than possible negligence, or incompetence or inadvertence, and does not establish fraud upon the Tribunal by a third party, and therefore does not establish jurisdictional error on the part of the Tribunal: SZFDE at [49]-[51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX at [30]-[33] per Tamberlin, Finn and Dowsett JJ.
CONCLUSION AND ORDERS
The Court has concluded that none of the grounds of the Judicial Review Application, nor the possible ground of fraud upon the Tribunal, have been made out. No other possible jurisdictional error is otherwise apparent in the Tribunal Decision. No jurisdictional error in the Tribunal Decision has therefore been established. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 March 2022
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