Han v Minister for Immigration
[2011] FMCA 495
•4 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 495 |
| MIGRATION – Migration Review Tribunal – Skilled Provisional visa – whether applicant had lodged visa application outside of time required following completion of qualification – whether applicant satisfied period of study requirement. |
| Migration Act 1958 (Cth), s.65, Division 4 Part 7 Migration Regulations 1994 (Cth), reg.1.15F, cl.485.213 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 |
| Applicant: | QING HAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 53 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 May 2011 |
| Date of Last Submission: | 30 May 2011 |
| Delivered at: | Perth |
| Delivered on: | 4 July 2011 |
REPRESENTATION
| For Mr Han: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance, save as to costs. |
ORDERS
That the application be dismissed.
That Mr Han be permitted to uplift and retain the original of Exhibit 2 from the Court file, provided that a Registrar of this Court replaces the original of Exhibit 2 with a certified copy of Exhibit 2 prior to the permitted uplifting.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 53 of 2011
| QING HAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Mr Han, the applicant, applies to this Court for judicial review of a Migration Review Tribunal[1] decision[2] affirming a delegate’s[3] decision[4] to refuse Ms Han’s application for a Skilled (Provisional) (Class VC) visa.[5]
[1] “Tribunal”.
[2] “Tribunal Decision”.
[3] “Delegate”.
[4] “Delegate’s Decision”
[5] “Skilled Provisional Visa”.
Factual and procedural background
Mr Han applied for a Skilled Provisional Visa on 28 October 2008.[6]
[6] Court Book (“CB”) 1-35.
In his application, Mr Han advised that he had completed a Master of Information Technology at Charles Sturt University in February 2007.[7]
[7] CB 14; see also certificate and academic transcript at CB50-51.
Mr Han enrolled in a Doctor of Philosophy (Engineering) at the University of Western Australia in 2007,[8] and a Graduate Diploma of Computer and Network Security at Edith Cowan University in 2008.[9] However, both of these enrolments were subsequently cancelled.[10]
[8] CB 60.
[9] CB 61.
[10] CB 71.
Mr Han’s Skilled Provisional Visa application was refused in the Delegate’s Decision on 28 July 2009, on the basis that Mr Han had lodged the Skilled Provisional Visa application more than six months after completing the Master of Information Technology, and had therefore not completed a required course which was a result of at least two years academic study in the six month period before lodging the Skilled Provisional Visa application.[11]
[11] CB 77-79.
On 12 August 2009 Mr Han sought review of the Delegate’s Decision in the Tribunal.[12]
[12] CB 89-96.
Tribunal Decision
Mr Han attended a hearing before the Tribunal on 8 February 2011.[13]
[13] CB 165
On 8 February 2011 the Tribunal affirmed the Delegate’s Decision to refuse Mr Han a Skilled Provisional Visa.[14]
[14] CB 163-167.
The Tribunal Decision noted that Mr Han admitted having completed only one degree relevant to his skilled occupation, namely, a Master’s degree in Information Technology at Charles Sturt University.[15] Mr Han completed the Master’s degree in November 2006, and it was conferred in February 2007.[16] The Tribunal noted that Mr Han admitted that he had applied for the Skilled Provisional Visa on 28 October 2008, and “after an extraordinary display of evasiveness” admitted that more than six months had elapsed between the completion of his Master’s degree and the lodgement of his Skilled Provisional Visa application.[17]
[15] CB 165-166.
[16] CB 165-166.
[17] CB 166.
The Tribunal found that on:
a)the available evidence; and
b)Mr Han’s admissions,
he did not satisfy the requirements of cl.485.213(a) of the Migration Regulations 1994 (Cth),[18] in that in the six month period immediately before the day on which the Skilled Provisional visa was made, he had not completed a required course which was a result of at least two academic years study. The Tribunal therefore found that Mr Han’s application for a Skilled Provisional Visa must fail.[19]
[18] “Migration Regulations”.
[19] CB 166.
Grounds of Application
On 4 March 2011 Mr Han applied to this Court for judicial review of the Tribunal Decision. On 9 May 2011 Mr Han filed an amended application, and on 17 May 2011 he filed a re-amended application.
The grounds of the original application are as follows:
Because I was forced to cancel my student visa due to the University cancelling my enrolment and incorrect advice from the Department followed.
I had no intention to break [the] law.
Mr Han filed an affidavit with the original application which attaches the Tribunal Decision and includes a statement which:
a)sets out the difficulties he claims he experienced as a student with housemates and with University staff; and
b)claims that an officer of the Department of Immigration and Citizenship[20] gave him incorrect advice in respect of the cancellation of his student visa, his bridging visa, and his entitlement to the Skilled Provisional Visa.
[20] “Department”
The amended application states the following grounds of review:
1. Jurisdictional errors
2. Did not consider my intention
3. Anything else described in my summery (sic)
Grounds of review in essentially the same terms appear in the amended application. Attached to the amended application is a “Comprehensive Summery (sic) of Qing Han, Appeal to the Federal Magistrates Court 30th May 2011”.[21]
[21] “Mr Han’s Summary”.
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[22] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if 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 thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[23]
[22] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[23] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
The statutory scheme
Section 65 of the Migration Act1958 (Cth)[24] requires decision-makers to be satisfied of certain matters before granting a visa. In particular, a decision-maker must be satisfied that the criteria for the visa applied for has been satisfied. If the decision-maker is not so satisfied then the visa must be refused. Section 65 of the Migration Act does not confer discretionary powers on a decision-maker in relation to either the visa applied for, or visas generally, and does not allow a decision-maker to deal generally with any complaint about a person’s visa or visas or a person’s dealings with the Department. Put simply, the sole question for both the Delegate and the Tribunal to consider in this matter was whether or not Mr Han met the criteria for the Skilled Provisional Visa.
[24] “Migration Act”.
The relevant criteria to be satisfied at the time of Mr Han’s application for a Skilled Provisional Visa are set out in the Migration Regulations at cl.485.213, and require that Mr Han satisfy the “Australian study requirement” in the period of six months ending immediately before the day on which the Skilled Provisional Visa application was made.
The “Australian study requirement” is defined in reg.1.15F of the Migration Regulations 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
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result 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.
(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 2.26A(6).
diploma has the meaning given in subregulation 2.26A(6).
trade qualification has the meaning given in subregulation 2.26A(6).
Mr Han’s submissions
Mr Han’s Summary is essentially an outline of submissions with attachments. It raises three primary issues:
a)Edith Cowan University forced the cancellation of his enrolment;
b)an officer of the Department provided him with incorrect advice in respect of applying for further visas and forced him to sign the cancellation of his Student Visa; and
c)the Tribunal Decision relates solely to the refusal of his Skilled Provisional Visa, and did not consider any of the issues related to the cancellation of his Student Visa.
Mr Han made oral submissions at hearing to similar effect.
First respondent’s submissions
The first respondent submits that Mr Han has advanced no real arguable grounds in the application. Essentially, the first respondent says that Mr Han has:
a)taken issue with the purported incorrect advice he received from the Department; and
b)raised issues related to the cancellation of his Student Visa;
c)not addressed the Tribunal Decision at all, save to submit that the Tribunal only addressed the refusal of his Skilled Provisional Visa; and
d)appeared to accept that his application for a Skilled Provisional Visa should not have been granted.
The first respondent says that Mr Han’s Summary is largely an unclear and unhelpful document but he seems to suggest that:
a)he was coerced into agreeing to the cancellation of his student visa in order to apply for the Skilled Provisional Visa when he did not need to; and
b)even though he was not enrolled in a course of study at the time of the cancellation of the Student Visa and application for a Skilled Provisional Visa, he was entitled to enrol in a different course at another university or TAFE college.
The first respondent:
a)denies any allegation of coercion, but in any event submits that it is irrelevant; and
b)says the sole question for the Court in these proceedings is whether or not the Tribunal Decision to refuse the Skilled Provisional Visa application is infected by jurisdictional error.
Consideration
The Tribunal’s approach to the assessment of the evidence before it was one it was fairly entitled to undertake. Critically, in these proceedings, Mr Han:
a)admitted that the only degree, diploma or trade qualification he has completed which would satisfy the Australian study requirement is the Master of Information Technology which was completed in November 2006 and conferred in February 2007; and
b)admitted that more than six months had elapsed between the completion of the Master of Information Technology and the lodgement of his application in October 2008.
Mr Han did not, therefore, satisfy the relevant criteria for the Skilled Provisional Visa. The Tribunal was obliged to consider and apply the criteria for the Skilled Provisional Visa. Once satisfied that Mr Han did not satisfy this criteria, the Tribunal’s task was complete. The Tribunal did not have a discretion to consider other matters. In particular, the Tribunal did not err by failing to consider the issue of the cancellation of Mr Han’s student visa. The only reviewable matter before it was the Delegate’s Decision to refuse Mr Han’s Skilled Provisional visa application. The issue of the cancellation of the student visa was not a decision which was before the Tribunal, as no such application had been made to, or considered by, the Delegate. Given the evidence before it and the specific admissions made by Mr Han, the decision reached by the Tribunal was the only one available to it.
Equally, nothing indicates that the Tribunal failed to accord Mr Han procedural fairness or to carry out a review in accordance with the relevant provisions the Migration Act.
The Court cannot entertain Mr Han’s complaint concerning the cancellation of his enrolment by Edith Cowan University. The Court’s migration jurisdiction is limited to judicial review of Tribunal decisions concerning visa applications, and does not extend to university enrolment issues. For the same reason, the Court has no jurisdiction to deal with any advice that Mr Han might have been given by an officer of the Department.
Exhibit 2
Following the proceedings, Mr Han made a written request, through the Registry, for the return to him of the original of Exhibit 2, which is a character reference for Mr Han from the Mayor of the City of Mandurah. Having regard to the disposition of the matter, Mr Han can be permitted to uplift the original provided that a certified copy of the original exhibit is retained on the Court file. There will be an order accordingly.
Conclusion
The Court concludes that:
a)the Tribunal Decision involves no jurisdictional error;
b)the application will be dismissed; and
c)Exhibit 2 may be uplifted by Mr Han provided a certified copy of it is placed on the Court file.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 4 July 2011