HAFEEZ v Minister for Immigration
[2018] FCCA 3603
•6 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAFEEZ v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3603 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in finding that the applicant completed his course requirements after he had lodged his Skilled Provisional Visa application – whether the Administrative Appeals Tribunal erred in finding that the applicant had not met the Australian Study Requirement in cl.485.231(3) of Sch.2 of Migration Regulations 1994 (Cth) – whether the Administrative Appeals Tribunal’s findings were open it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.31, 65, 357A, 359A, 359AA, 360, 474, 476 Migration Regulations 1994 (Cth), regs.1.15F, 201, Sch.2, cl.485.231 |
| Cases cited: Sapkota v Minister for Immigration and Citizenship [2012] FCA 981 |
| Applicant: | IJAZ HAFEEZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1428 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 6 December 2018 |
| Date of Last Submission: | 6 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2018 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Mr Justin McGovern (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1428 of 2017
| IJAZ HAFEEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 April 2017 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 1 June 2016 refusing the applicant a Skilled (Provisional) visa.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.
Background
On 1 March 2016, the applicant lodged an application for a Temporary Graduate Visa with the Department of Immigration and Border Protection (“the Department”).
On 1 June 2016, the Delegate refused the applicant’s application for a Skilled Provisional Visa.
On 16 June 2016, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 April 2017, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Skilled Provisional Visa.
On 10 May 2017, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Skilled Provisional Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Under s.338 of the Act, a decision to refuse to grant a Skilled Provisional Visa is a decision which may be reviewed by the second respondent.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Clause 485.231 of the Schedule 2 to the Regulations sets out criteria that must be satisfied at the time of the Delegate’s decision for the grant of a Skilled Visa, and is as follows:
“485.231
(1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2) Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3) 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.”
(Emphasis added)
Regulation 1.15F sets out the requirements for meeting the Australian Study Requirement, as follows:
“Australian study requirement
(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
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.”
For the purposes of reg.1.15F, “degree”, “diploma”, “trade qualification”, “registered course”, “completed” and “academic year” are all terms that are defined in the Regulations.
Relevantly, “completed” is defined in reg.1.15F(2), as follows:
“(2) In this regulation:
"completed " , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
"degree " has the meaning given in subregulation 2.26AC(6).
"diploma " has the meaning given in subregulation 2.26AC(6).
"trade qualification " has the meaning given in subregulation 2.26AC(6).”
The Delegate’s decision
On 1 June 2016, the Delegate refused the applicant’s application for a Skilled (Provisional) visa because the applicant did not meet the time of decision criteria set out in cl.485.231(3) of sch.2 of the Regulations and accordingly did not meet reg.1.15F of the Regulations (“the Australian Study Requirement”).
The Delegate noted that the applicant lodged his visa application on 1 March 2016 and that in that application, the applicant stated that he had completed his Master of Professional Accounting on 29 February 2016.
On 12 April 2016 the Department wrote to the applicant and requested that he provide, amongst other documents, a completion letter from his Australian education provider showing course commencement date, completion date and study load, as well as an academic transcript.
On 8 May 2016, the applicant provided an academic transcript and letter of completion from the King’s Own Institute in relation to the Master of Professional Accounting.
The Delegate noted that the academic transcript and letter of completion stated the completion date of the applicant’s study as 11 March 2016. The Delegate further noted that that date was after the date the applicant lodged his visa application.
No other documents were received by the Delegate in respect of the applicant’s study by the date of the Delegate’s decision.
Accordingly, the Delegate could not be satisfied that the applicant met cl.485.231 of sch.2 of the Regulations and refused the applicant’s application for a Skilled (Provisional) visa.
The Tribunal’s review and decision
On 16 June 2016, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 9 March 2017, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 26 April 2017 to give oral evidence and present arguments.
On 26 April 2017, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that the Delegate had refused to grant the applicant the Skilled (Provisional) visa because the applicant did not satisfy the Australian Study Requirement as he had not completed his Master of Professional Accounting in the 6 months immediately preceding the day the visa application was made.
The Tribunal noted that reg.1.15F(2) of the Regulations defines “completed”, in relation to a degree, diploma or trade qualification, as having met the academic requirements for its award.
The Tribunal noted that a letter of completion and academic transcript from the King’s Own Institute, supplied by the applicant to the Department, stated that the applicant completed a Master of Professional Accounting on 11 March 2016.
The Tribunal noted that the applicant had provided both written and oral submissions which it had considered.
The Tribunal noted that the applicant submitted, in response to the time requirement set out in cl.485.231(3) of sch.2 of the Regulations, that the date of completion should be taken to be when his results were released. The applicant submitted that before he lodged his visa application, he had been told by telephone that he had passed.
The Tribunal noted that the applicant applied for the visa on 1 March 2016 and that the letter of completion and academic transcript from King’s Own Institute indicated that the institution considered he had completed his course on 11 March 2016.
The Tribunal put to the applicant that case law had established that the relevant date for determining when a student had completed the academic requirements was the date when the educational institution decided that the academic requirements had been met, namely, the date on which the results are finalised by the institution.
The Tribunal, having considered all the information before it, found that the date of completion in the applicant’s case was the date of completion as considered and provided in writing by the academic institution.
The Tribunal consequently found that the applicant did not complete his degree in the 6 months immediately before the application was made.
Accordingly, the Tribunal found that the applicant did not satisfy the Australia Study Requirement in the 6 months immediately preceding the date of the visa application and therefore did not meet cl.485.231 of sch.2 of the Regulations.
The Tribunal affirmed the decision under review not to grant the applicant a Skilled (Provisional) visa.
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of an Urdu interpreter.
On 5 June 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was set down for hearing on 23 August 2018.
On 23 August 2018, the applicant failed to attend the scheduled hearing before me. The matter was stood over for final hearing on 6 December 2018.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The applicant confirmed that he relied on the grounds contained in an the Application, filed on 10 May 2017, as follows:
“GROUND 1
1. The Administrative Appeal Tribunal ("the Tribunal") reached conclusions on the evidence before it that were so unreasonable that no reasonable Tribunal could have reached those conclusions and I was denied Natural Justice.
Particulars
a) The Tribunal's findings of fact in paragraph 14 that, "The tribunal has considered all the information before it considers that the date of completion as considered and provided in writing by the academic institution" was based on no evidence and was so unreasonable that no reasonable Tribunal could have made such findings. I have mentioned that I was informed by telephone that I was passed. However, the tribunal has not considered this information while make its decision.
GROUND2
2. The Tribunal's conclusion in paragraph 15 for rejecting the claim on the basis of letter from institution was entirely speculative.
Particulars
a) The Tribunal speculated that, "The Tribunal finds that the applicant did not complete his degree in the 6 months immediately before the application was made" which were not supported by any evidence, However, I have provided evidence to the tribunal in my submission that I have completed my all subjects and my institution has informed me that I have passed my course, therefore the application which I have lodged after completing my degree.
GROUND 3
3. The Tribunal in paragraph 16 made jurisdictional error for rejecting the claim. The tribunal stated that, "The Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.231. As the applicant has not met the criteria in cl.485.231(3) the Tribunal has not considered the other criteria in cl.485." However, I have met cl.485.231(3) as I have completed my course before lodging my application.
4. I kindly request the Honourable Court to kindly set aside the tribunal’s decision of dated 27 April 2017.”
Ground 1 was interpreted for the applicant. Thereafter, the applicant said that he did not require the assistance of the interpreter and was familiar with each of Ground 2 and Ground 3. The applicant was invited to make submissions in support of each of the grounds and in support of his application generally.
Ground 1
I asked the applicant in what way he had been denied natural justice. The applicant responded that the Tribunal should have made enquiries of the College because he had been told by the College on the telephone that he had passed and that he was therefore ready to lodge his Skilled (Provisional) visa application.
Two of the mandatory requirements that the applicant was required to meet in respect of the lodgement of his Skilled (Provisional) visa application are that in satisfying the Australian Study Requirement, he had done so in the 6 months immediate preceding 11 March 2016, being the date upon which he lodged his visa application; in meeting the Australian study requirement, the applicant’s visa application was required to be lodged after he had completed his course.
The letter of completion and academic transcript from the applicant’s educational College stated that the applicant had completed the requirements for the Master of Professional Accounting on 11 March 2016.
The applicant applied for the Skilled (Provisional) visa on 1 March 2016. The visa application was lodged before he had received from the College the letter identifying the date that the College stated that he had completed the relevant course requirements.
The Tribunal referred to Sapkota v Minister for Minister for Immigration and Citizenship [2012] FCA 981 (“Sapkota”) where the Tribunal stated that Cowdroy J held that the relevant date for determining when a student has completed the academic requirements is the date when the educational institution decides that the academic requirements have been met. As the Tribunal stated, “namely, the date the results are finalised by the institution.”
Accordingly the Tribunal found that the date of completion was the date provided in writing by the College as 11 March 2016.
In the circumstances, the Tribunal further found that the applicant had not completed his degree in the 6 months immediately before the application was made and therefore did not satisfy the mandatory Australian Study Requirement in cl.485.231(3) of sch.2 of the Regulations.
In Sapkota, Cowdroy J stated at [26] stated as follows:
“26.Given that a decision as to whether a student has satisfied the requirements of a course is entirely a matter for the education institution, the point at which the student actually learns of the result, or the date when the education institution informs the student via letter, email or otherwise of the student’s results is not relevant for determining the date when a student has completed the academic requirements. The relevant date is the date when the education institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution.”
Justice Cowdroy made clear at [25] that a student is taken to have completed the degree when the educational institution publishes that the student has completed all of the necessary components for the degree to be awarded.
At the heart of the applicant’s complaint is his submission that before he lodged his visa application on 1 March 2016, he had been told by telephone that he had passed. The applicant submitted today that if that was insufficient for the Tribunal to have satisfied itself that the applicant had completed the academic requirements, then the Tribunal should have made enquiries of the College.
However, there is no general obligation on a Tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Moreover, in light of the letter dated 11 March 2016 from the applicant’s College, the Dean of the College stated that “the student completed the requirement of Masters of professional on 11 March 2016.”
The Tribunal made clear why it found itself bound to find that the applicant had completed his course on 11 March 2016.
In the circumstances, no duty arose on the part of the Tribunal to make further enquiries about the College that the applicant’s assertion that he had been told by telephone that he had passed. It was the publishing of the College’s letter that he had completed his course on 11 March 2016 that identified the date of completion by him of the requirements of the course in which he was enrolled.
Further, the applicant’s assertion in Ground 1 that the Tribunal did not consider the applicant’s evidence that he was informed by telephone that he had passed, is not made out. As stated above, the Tribunal explicitly refers to the applicant’s submission, “that before he lodged his visa application he was told by telephone that he had passed.” The Tribunal noted the applicant’s written and oral submissions that asserted that the 6 month period should have been considered from when his results were released. The reasons above make clear why the Tribunal was correct to reject that submission. As stated above, the applicant was not taken to have completed his course until 11 March 2016 when confirmed in writing by his College.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. The Tribunal’s reasons were based on rational grounds and arrived at after considering those factors that were logically probative of the issue before it, namely, whether the applicant had satisfied the Australian Study requirement in the 6 months immediately preceding the day his Skilled (Provisional) visa application was made. The Tribunal’s finding that the applicant completed his course on 11 March 2016 was not tainted by any failure to afford procedural fairness and was not without a logical or probative basis. It was not a finding that was unreasonable or without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Otherwise, the Tribunal complied with the statutory requirements of natural justice as stated in s.357A the Act and its review was conducted in accordance with div. 5 of part 5 of the Act as it was required to do.
Accordingly Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal’s conclusion for rejecting his Skilled (Provisional) visa application on the basis of the College’s letter, dated 11 March 2016, was speculative.
In support, the applicant said there was an 11 day difference and that the Tribunal should have accepted his visa application and should have told him that his visa application was invalid.
However, the applicant’s visa application was not invalid. It was a valid application but the applicant failed to the meet the requisite criteria for that visa.
Ground 2 misunderstands the mandatory Australian Study Requirement that the Australian Study Requirement must have been met in the 6 months immediately preceding the date on which the visa application was made. In the case before, this Court the applicant did not meet the Australian Study Requirement until 11 March 2016. However, the applicant had made his visa application on 1 March 2016. Therefore, as at 1 March 2016, the applicant had not met the Australian Study Requirement.
In the circumstances, the Tribunal’s finding that the applicant did not complete his degree in the 6 months immediately before the application was made was open on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 again asserts that the applicant had completed his course before lodging his application and cavils with the Tribunal’s finding that the applicant had not satisfied the Australian Study Requirement in the 6 months immediately preceding the date of his visa application. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Ground 3 is otherwise more in the nature of a disagreement with the Tribunal’s findings. Such a complaint invites merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, Ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 6 December 2018
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