Hassan v Minister for Immigration

[2020] FCCA 3150

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASSAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3150

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) visa – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.338, 347, 348, 359

Migration Regulations 1994 (Cth), sch.2, pt.485

Federal Circuit Court Rules 2001 (Cth) r.13.03(C)(1)

Cases cited:

Baig v Minister for Immigration and Border Protection [2019] FCA 204

SZFDE v Minister for Immigration (2007) 232 CLR 189

WZAVW Minister for Immigration [2016] FCA 760

Applicant: ZOHAIB HASSAN

First Respondent: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3392 of 2018

Judgment of: Judge Humphreys

Hearing date: 18 November 2020

Date of Last Submission: 18 November 2020

Delivered at: Parramatta

Delivered on: 20 November 2020

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Mr O Sullivan – Australian Government Solicitor

ORDERS

1. The matter is re-instated.

2. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. The application is dismissed.

4. The applicant to pay the first respondent’s costs fixed in the amount of $1200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3392 of 2018

ZOHAIB HASSAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a native of Pakistan. On 29 March 2018, the applicant applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa. The criteria for the grant of a Subclass 485 visa, are set out in pt 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). A delegate of the Minister for Immigration (“the delegate”) refused the visa on 14 May 2018, because the applicant did not accompany his visa application with evidence that he had undertaken a language test specified by the Minister, and that he had achieved within three years prior to the lodgement of his application, the specified score: (see cl 485.212(a) of the Regulations).

2. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). On 31 October 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant his visa. The applicant now seeks judicial review of the Tribunal’s decision.

Reinstatement Application

1. The matter was initially listed for a final hearing on 6 October 2020. The applicant did not appear, and the matter was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The applicant sought a reinstatement of the application.

2. It became apparent that the Notice of Listing from the Court was regrettably sent to a previous email address of the applicant, and that the updated email address of the applicant had not been used. This was acknowledged by the legal representative for the first respondent. In these circumstances no objection was taken to the matter being reinstated by the Court. The Court so ordered.

The Administrative Appeals Tribunal Decision

1. After setting out the relevant background and evidence before it, including the relevant Regulations, the Tribunal noted that there was no evidence before it that the applicant had undertaken a language test as required by the Minister within three years prior to the lodgement of the application and achieved the specified score. Indeed, the Tribunal noted in paragraph 11 of its decision, that a response to a specific question as to whether he had undertaken a language test within the last three years, the applicant confirmed “No” he had not undertaken such a test.

2. In support of the applicant’s English language ability, he provided the Department of Immigration and Border Protection (“the Department”) with evidence that he had booked to take a relevant English academic test on 15 May 2018 that is, 6 weeks after the lodgement of his visa application on 29 March 2018.

3. The Tribunal noted that well prior to the Tribunal hearing, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”), inviting him to provide evidence that his visa application was accompanied by evidence that he had met the English language requirements at the time of his visa application.

4. At the hearing, the applicant told the Tribunal that with the imminent expiry of his Student visa, he had focused on his exams because he had failed one subject. Also, the applicant only had 10 to 12 days after his last exam for his Masters of Business Administration to find a test and sit the exam. Based on the applicant’s past experience with the Department, he thought would be given extra time to provide any outstanding documentation for the visa, like the results of the English test. The applicant explained that he did not know it was necessary that the results of an English language test had be provided with the visa application.

5. The Tribunal explained to the applicant that it had no discretion in this regard and was required to apply the law. The applicant indicated his acceptance of the Tribunal’s decision in this regard.

6. In its decision, the Tribunal observed that it was open to the applicant to make a request to the Minister pursuant to s 351 of the Act for Ministerial Intervention.

Grounds of the Application

1. Nine grounds of judicial review are set out in the application filed with the Court. They are as follows verbatim:

   Ground One

   There is breach of rules on natural justice occurred in connection with the making of decision.

   Ground Two

   That procedures that were required to be observed in connection with the making of the decision were not observed.

   Ground Three

   That the person who purported to make the decision did not have jurisdiction to make the decision.

   Ground Four

   That the decision was not authorised by the enactment in pursuance of which it was purported to be made.

   Ground Five

   That the making of decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

   Ground Six

   That the decision involved an error of law, whether or the error appears on the record of the decision.

   Ground Seven

   That the decision was induced or affected by fraud.

   Ground Eight

   That there was no evidence or other material to justify the making of the decision.

   Ground Nine

   That the decision was otherwise contrary to law.

2. None of the above grounds are supported by any particulars.

The Applicant’s Submissions

1. The applicant appeared before the Court via telephone due to Covid 19 health restrictions. The applicant was not represented. At the applicant’s request, he was assisted by an Interpreter. Despite Court orders, no written submissions or other material was provided to the Court by the applicant to assist his case.

2. Prior to the commencement of the hearing, the Court ensured that the applicant had in his possession a copy of the Court Book and the first respondent’s written submissions. These were interpreted to the applicant prior to the commencement of the hearing.

3. The applicant told the Court that he only had four days in which to submit his application for a visa extension and that he did not have time to complete his English language test prior to submitting his application. The applicant assumed that he would have six weeks to complete the test. The applicant subsequently completed the test and submitted the result to the Department. In discussions with the Court, the applicant acknowledged that this did not comply with the legal requirements for the grant of the visa he sought, and that in these circumstances he understood that the Court would not be able to find in his favour. The applicant confirmed that he has now completed his Masters of Business Administration Course. The applicant had hoped to be granted a two year working visa following his graduation, but has been on bridging visas since, that have conditions attached to them and that has made things difficult for him.

The First Respondent’s Submissions

1. In oral submissions the legal representative for the first respondent noted the concessions made by the applicant that his application for the visa sought, was fundamentally flawed. The legal representative for the first respondent therefore relied upon the written submissions previously filed with the Court, as to the grounds of judicial review relied upon by the applicant.

2. The first respondent initially noted in written submissions, after setting out the history of the matter, that the grounds of review were not supported by particulars, and for that reason alone, were liable for dismissal: (see WZAVW Minister for Immigration [2016] FCA 760 at [35]).

3. Clause 485.212(a) of sch 2 to the Regulations imposes a mandatory requirement for the grant of the visa that the relevant English test was taken in the three years prior to the visa application being made: (see Baig v Minister for Immigration and Border Protection [2019] FCA 204 at [12]).

4. In this case, the applicant’s English test was dated 20 September 2018, approximate six months after the application for the Visa was made. As such, the applicant could not satisfy cl 485.212(a) of sch 2 to the Regulations.

5. The first respondent further notes that cl 485.213 of sch 2 to the Regulations imposes a mandatory requirement that the visa application be accompanied by evidence that the applicant has applied for an Australian Federal Police (“AFP”) check during the 12 months immediately before the day the application was made. As the application was not accompanied by such evidence, it would be futile to remit the matter to the Tribunal even if an error can be established in the Tribunal’s decision.

6. In terms of the substantive grounds of the application, grounds one and two cannot succeed as the Tribunal had, in affirming its decision under review, put the applicant on notice of the issues before it, by giving a letter dated 17 August 2018 and inviting the applicant to attend a hearing to give evidence and present arguments.

7. Grounds three, four and five must be dismissed in circumstances where the delegate’s decision was clearly a Part 5 – Reviewable Decision under s 338(2) of the Act. As the applicant had applied for a review of the delegate’s decision by the Tribunal under s 347 of the Act, the Tribunal must review the decision as required under s 348 of the Act. For completeness, it was submitted that there was no evidence of or any basis pleaded for complaint of an improper exercise of power.

8. Contrary to grounds six and eight, it is evident from the Tribunal’s reasons for its decision that the applicant carefully consider the totality of the evidence before it. For the reasons it gave, the applicant could not satisfy cl 485.212 of sch 2 to the Regulations and the Tribunal had no option other than to affirm the delegate’s decision under review.

9. In relation to ground seven, there was no evidence that the Tribunal’s decision was affected by fraud: (see SZFDE v Minister for Immigration (2007) 232 CLR 189).

10. Ground nine, is a bare assertion without any particulars and as a result should be dismissed.

Consideration

1. Given that the applicant had failed to comply with a mandatory requirement for the grant of the visa sought, the decision of the Tribunal to affirm the delegate’s decision to refuse the applicant his visa is entirely unremarkable. The relevant regulations required the applicant to submit evidence of having passed an English language test, prior to the application being submitted.

2. Indeed the Tribunal notes at paragraph 16 of its decision that the applicant, at the hearing before the Tribunal, accepted the position that he had failed to comply with a mandatory requirement, with the result that the Tribunal had no option other than to affirm the delegate’s decision to refuse in his visa.

3. The applicant also acknowledged this issue before the Court.

4. In terms of the grounds for judicial review, the Court notes the submissions of the first respondent. The Court is satisfied that the Tribunal put the applicant on notice of the issues before it, prior to the hearing and that there was no breach of any rule of natural justice or procedure on the part of the Tribunal in the conduct of the hearing. The Court is satisfied that the Tribunal was authorised to make the decision that it did and that it did not involve any improper exercise of power.

5. There is no evidence before the Court that there is any error of law on the record of the Tribunal’s decision and, that there was evidence to justify making the decision that it did. The allegations of fraud and that the decision is otherwise contrary to law are simply bare assertions and for this reason alone, should be dismissed.

6. None of the grounds pleaded can be sustained. As the applicant is unrepresented, the Court has carefully perused the Tribunal decision record and is satisfied that there is no jurisdictional error which has not been articulated by the applicant.

Conclusion

1. The application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 20 November 2020