Hanouni v Minister for Immigration - [2017] FCCA 2281

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANOUNI v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2281

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the applicant’s visa application was a valid application – whether the Administrative Appeals Tribunal erred in exercising its discretion to refuse the applicant a further adjournment – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.46, 47, 349
Migration Regulations 1994 (Cth), reg.2.07, cl.866.211, cl.1136

Cases Cited:
Minister for Immigration and Border Protection v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Kaur v Ministerfor Immigration and Border Protection [2016] FCA 132
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
Minister for Immigration and Citizenship v Mon Tat Chan [2008] FCAFC 155
Amodi v Minister for Immigration [2013] FMCA 70

Applicant:

OMAR HANOUNI

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2767 of 2015

Judgment of:

Judge Emmett

Hearing date:

14 September 2017

Date of Last Submission:

14 September 2017

Delivered at:

Sydney

Delivered on:

14 September 2017

REPRESENTATION

Applicant appeared in person

Counsel for the Respondents:

Tim Reilly

Solicitors for the Respondents:

Mills Oakley

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2767 of 2015

OMAR HANOUNI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 15 September 2015 (“the Tribunal”).
The issue is whether the applicant’s application for a skilled migrant visa was a valid application.
The applicant was unrepresented before the Court this morning. The applicant confirmed that he attended a directions hearing before a registrar of this Court on 19 November 2015. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence by way of affidavit and submissions in support of his application. The applicant was also provided with the contact details of legal services providers and interpreting and translation services.
The applicant confirmed that he had not filed any documents either in accordance with those directions or otherwise and had no further documents to provide to the Court this morning in support of his application.
The application confirmed that he continued to rely on the grounds identified by him in his initiating application on 12 October 2015 as follows:
“1. The Department of Immigration never invalidated the application. In fact, the visa application was accepted by the Department and a bridging visa was issued based on the application being valid.
2. If the Department of Immigration had invalidated the application as of the 3^rd of July 2015, I would have made changes in the order of my future study plans. I would have most likely started studying for Masters of Taxation before planning to study CPA first and I would have been on a student visa. After my Masters of Taxation, I would have most likely become a permanent resident and I could have done my CPA study then without having to worry about visa. I understand that the scenario described above is not guaranteed as other factors come into play, but what I’m trying to convey is that if the Department had invalidated the application within proper time frame, I would have acted accordingly in regards to my visa, studies and career plans. I believe I have followed the law in every possible way, from hiring a registered migration agent, applying to all relevant visa to sticking to all visa conditions. I feel like after 8 years of being in Australia )the 8 most important years of my life in which my character fully matured), it feels wrong to go back overseas and wait for the outcome of visa 189 from there, as Australia has become my home where most of my friends and close families are.
3. Because the Department considered the application valid, the Tribunal is required to consider all the information, regardless of when it’s provided to determine if the requirements were met. Being a valid application, sections …”
(Errors in original)
I explained to the applicant that the role of this Court was very different to that of the Tribunal and that the only issue before this Court was whether or not the decision of the Tribunal was made according to law and was correct.
An application for a visa is valid if, and only if, under s.46(1) of the Act, relevantly, it is for a visa of a class specified in the application; it satisfies the prescribed criteria and requirements; and, relevant fees are paid. Section 46(3) of the Act provides that the Regulations may prescribe the criteria to be satisfied for an application for a specified visa class.
Section 47(1) of the Act provides that the Minister is to consider a valid application for a visa. If the validity requirements are met, the Minister is to consider the application. However, pursuant to s.47(3) of the Act to avoid any doubt, the Minister is not to consider an application that is not a valid application.
Section 47(4) of the Act provides that, to any avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant a visa.
On 19 August 2011, the applicant lodged an application for a Skilled (Residence) class VB visa. At that time, one of the criteria that the applicant was required to meet was that he had a relevant assessment from a relevant assessing authority assessing he was suitable for his nominated skilled occupation. The applicant agreed that he did not have a relevant assessment at that time.
On 3 July 2012, the applicant did obtain the relevant assessment.
It was a further mandatory criterion that the applicant was required to meet for the visa for which he had applied, that the applicant be the holder of an eligible student visa, as required by cl.1136(4)(a)(i) of the Regulations at the time of application. The applicant also agreed that he did not hold such a visa as at 3 July 2012. Consequently, when the applicant obtained that relevant assessment (which may have had the effect of rendering his initiating visa application valid) he was no longer the holder of an eligible student visa.
In those circumstances, the applicant’s application was invalid on 19 August 2011 and remained invalid on 3 July 2012.
Sections 46 and 47 of the Act together with r.2.07 of the Regulations provide the legislative basis for determining whether a visa application is valid or invalid.
The applicant was invited to say whatever he wished in support of his application. The applicant made various complaints about his migration agents and the fact that the Department of Immigration and Border Protection had accepted his application as valid on 19 August 2011. The applicant otherwise said in the grounds of his application what he would have done if he had appreciated the criteria that he was required to meet, and that he relied on his migration agent to advise him as to those requirements.
The Tribunal considered requests made by the applicant’s representative to delay making a decision until the applicant’s offshore skilled visa had been granted. However, as the applicant’s offshore skilled visa application would not alter the outcome of the Tribunal’s review, the Tribunal did not consider it appropriate to delay making its decision. The Tribunal stated that it had been quite accommodating in agreeing to postpone the applicant’s first hearing which was scheduled on 19 January 2015 and had held two hearings on 12 March 2015 and 21 May 2015 to discuss the issues of validity. Thus the Tribunal noted that it had agreed to provide additional time on a number of occasions for the applicant’s representative to make submissions.
The Tribunal also had regard to the representative’s submissions that the applicant was seeking medical assistance for depression and that submissions would be made after proper instructions were obtained from the applicant. However, the Tribunal was not satisfied that any further submissions made by the representative would change the outcome of the case and, for that reason, decided not to delay making its decision on the case.
In exercising its discretion in respect of the applicant’s requests, the Tribunal was obliged to do so according to law (see Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 at [105] per Gaegler J; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Ministerfor Immigration and Border Protection [2016] FCA 132 at [17] per Perry J; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38]).
There is nothing in the Tribunal’s reasons in exercising its discretion in respect of the applicant’s requests to suggest that its decisions were made other than in accordance with law. The Tribunal’s decision to request to delay the hearing further was based on rational reasons that it identified and were open to it for the reasons it gave. The reasons for exercising its discretion as it did were not arbitrary, capricious or unreasonable (see Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38] per Griffiths, Kerr and Farrell JJ).
The Tribunal also noted that pursuant to s.349(1) of the Act, the Tribunal must consider a valid application for a visa, but was not to consider an application that was not a valid application. The Tribunal then concluded that the applicant had not made a valid application for the visa, in circumstances where he had failed to meet relevant mandatory criteria.
The Tribunal then decided to set aside the Delegate’s decision and substitute a new decision pursuant to s.349(2)(d) of the Act that the application was not valid and could not now be considered. The Tribunal’s decision record makes clear that it considered in some detail all submissions put to it by both the applicant and the applicant’s migration agent, both oral and written.
In circumstances, where the Tribunal concluded that the visa application was invalid, pursuant to s.47(3) of the Act, the Tribunal could not make a decision on the merits of the visa application.
The Tribunal also referred to Minister for Immigration and Citizenship v Mon Tat Chan [2008] FCAFC 155 and Amodi v Minister for Immigration [2013] FMCA 70, those being authorities for the proposition that an application cannot become valid prior to the applicant complying with the provisions of the Act and the regulations that make the application valid.
The Tribunal’s decision record makes clear that it had regard to all relevant background information including that the applicant’s migration agent had acted fraudulently. That migration agent was not the same representative that assisted the applicant before the Tribunal.
The applicant has not identified any error or put to the Court any argument that would suggest any error in the Tribunal’s decision either in his written grounds or in oral submissions today.
The Tribunal’s decision record makes clear that it identified and referred to the relevant law in considering the issue as to whether the applicant had made a valid application for the Skilled Residence Class VB visa. The Tribunal’s decision to set aside the decision not to grant the applicant a visa and to substitute a new decision that the visa application was invalid and could not now be considered was not affected by jurisdictional error.
Accordingly, the proceeding before this Court commenced by way of application filed on 12 October 2015 should be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 11 October 2017