Gamege v Minister for Immigration

[2016] FCCA 1973

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMEGE & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1973

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 347(3)

Migration Regulations 1994 reg.1.15D, Sch.6C

First Applicant: DISNA HANNAGALA GAMEGE

Second Applicant: DAYAWANTHA KONARA LEKAMLAGE

Third Applicant: BINUKA KONARA LEKAMLAGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1009 of 2014

Judgment of: Judge Riethmuller

Hearing date: 13 July 2016

Date of Last Submission: 13 July 2016

Delivered at: Melbourne

Delivered on: 13 July 2016

REPRESENTATION

The Applicants appeared In Person

Counsel for the First Respondent: Mr Mosley

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. The Application filed 29 May 2014 be dismissed.

3. The Applicant pay the First Respondent costs fixed in the sum of $7206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1009 of 2014

DISNA HANNAGALA GAMEGE

First Applicant

DAYAWANTHA KONARA LEKAMLAGE

Second Applicant

BINUKA KONARA LEKAMLAGE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore & Revised)

1. This is an application for judicial review of a decision by the Migration Review Tribunal (as it was then described) (“the Tribunal”) with respect to an application by the applicant to judicially review a decision of a delegate declining to grant a Skilled (Provisional) (Class VC) visa.

2. In order to obtain the visa, the applicant had to establish that she could obtain 65 points under the various categories provided for in Schedule 6C of the Migration Regulations 1994 (“the Regulations”). The delegate concluded that the applicant had 50 points, not the required 65.

3. The applicant had claimed that she could establish 65 points in her application on the basis of a table set out in that application which appears at Court Book p.133. The figures in that table were all adopted by the delegate save for two categories: ‘English language ability’ and ‘Credentialed community language’. With respect to English language ability, the points available are zero points for only competent English language ability (although I assume some English language capacity  is an essential criteria for the grant of the visa), 10 points if English language ability is proficient; and 20 points if it is superior.

4. The certification as to English language level must be by way of a test conducted in the three years immediately before the day on which the application for the visa was made: see reg.1.15D of the Regulations. Thus, at least with respect to the English language points, the applicant could not improve upon her point score even if she had a more recent English language test that showed proficient or superior English. The applicant did not have a test result to justify any points on this basis.

5. With respect to the credentialed community language points she would require certification via an accredited authority, in this case NAATI, in order to achieve the five points claimed. It is not clear to me whether this can be obtained after the delegate’s decision and relied upon in the Tribunal or whether it would be required prior to the application, as is the case with English language testing.

6. Whilst it appears that on face value the applicant’s application is doomed to fail as a result of the lack of points for English language ability, it remains a theoretical possibility that she may be able to improve her point score in some other area of the points test to achieve the required 65 points for the visa, although there is nothing in the material to indicate how she might possibly achieve this.

7. The overwhelming difficulty in her case, however, is that the application she made to the Tribunal for a review of the delegate’s decision was made at a time when she was no longer in Australia but had returned with her child to Sri Lanka.

8. The applicant engaged a migration agent to prepare the review application. The agent did prepare the application, and have her sign it whilst she was overseas and fax the application back for lodgement in Australia. The signing page appears at p.80 of the Court Book. It appears that the agent was either unaware of, or overlooked, the fact that s.347(3) of the Migration Act 1958 provides that an applicant for this type of review must be present in Australia when the review application is made.

9. When one has regard to s.347(3) it refers to a number of provisions of s.338 all of which set out different types of decisions that are reviewable by the Tribunal. Section 338 has 11 subsections numbered 1 through 9 (two of the subsections have capital letters after their number). Whilst this appears to be a complex thicket of provisions, reading them indicates that the effect of the provisions is that if the visa could be granted while the non-citizen is in the migration zone the review application to the Tribunal must be made from within the migration zone, that is, the person must be in the migration zone to make the review application. If the visa could be granted while the non-citizen is not in the migration zone, then, the review application can be made outside of the migration zone.

10. As a result, the application to the Tribunal is not a valid application and therefore the Tribunal is correct in refusing to hear and determine the matter. 

11. The applicant’s lawyers who drafted her application for judicial review attempt to overcome this difficulty by arguing that the Notice of the decision of the delegate was not given in the way prescribed by s.66 of the Act. In particular, they refer to s.66(2)(d) which provides as follows:

    (2)Notification of a decision to refuse an application for a visa must:

    (d)if the applicant has a right to have the decision reviewed under Part 5 or 7 orsection 500--state:

    (i)that the decision can be reviewed; and

    (ii)the time in which the application for review may be made; and

    (iii)who can apply for the review; and

    (iv)where the application for review can be made; and

12. In this case, there is no question that the Notice provided set out that the decision could be reviewed, thus satisfying subsection (i). The Notice also sets out the time within which the decision can be reviewed satisfying subsection (ii). The place at which the application for review can be made is set out in the letter satisfying subsection (iv). The issue being argued in the review application is whether or not there should be effectively notice that the review application must be within the migration zone to apply. This appears to turn on s.66(2)(d)(iii).

13. There is no doubt that the identity of those who can apply for the review is set out in the letter of notice as it provides specifically that not only the applicant but her husband and child could seek a review of the decision. On its face, this Notice fulfils the requirements of section 66(2)(d)(iii).

14. The argument developed in the applicant’s application is that it is implicit that the Minister, in the Notice, must also notify that the persons must be present in Australia at the time of making the application. The applicant also argues that this would be an appropriate interpretation as the Minster would, constructively at least, be aware of whether or not a person was present in the jurisdiction at the time that the Notice was given to them simply as a result of the records of departures and arrivals from border control. 

15. At the time of giving the Notice, a document was attached which is a standard form which includes a passage that warns people that they may in some cases be required to be within the migration zone in order to make a valid application to the Tribunal. That document does not purport to list (in a tabulated way) whether or not the applicant for any particular category of visa must be within the migration zone at the time of seeking a review. Indeed, if it did so it would become an unwieldy document given that there are hundreds of different visa categories.

16. The provisions of s.66 appear clear on their face and have been, in my view, complied with by the Notice. I do not see that there is a proper basis for reading into s.66 an enlarged obligation on the Minister to advise potential applicants for review whether they must apply from within the migration zone or not. In these circumstances, I am not persuaded that s.66 has not been complied with, and therefore I am not satisfied that the Notice was an invalid Notice.

17. There being a valid Notice, the application by the applicant for review to the Tribunal was an invalid application as it was not made when she was within the migration zone and therefore the decision of the Tribunal is correct. Further, there is no basis for me to issue writs of certiorari of mandamus with respect to the Notice as I have found that it is a proper Notice that complies with the provisions of the legislation. In these circumstances I must therefore dismiss the applicant’s application for judicial review. 

18. It appears to me that this is the type of case that may well be more appropriately litigated against the agent (or their insurer) with respect to whether or not there is a claim arising out of the incorrect advice the applicant says that she was given by the migration agent. This is obviously outside of the ambit of matters that I should determine in this matter, particularly in light of the fact that the agent has not participated in these proceedings nor been joined.

19. I therefore say no more about that topic. I therefore formally dismiss the application.

20. In this matter, the applicant has been entirely unsuccessful. It is appropriate that costs follow the event.  The scale fee is now $7,206.00 which appears reasonable in this matter.

I certify that the preceding eighteen (20) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 1 August 2016