Hawlader v Minister for Immigration

[2019] FCCA 1993

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAWLADER & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1993

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

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Sch.2, cl.485.231(3), reg.1.15F(2)

First Applicant: MD MAFIZUL HASAN HAWLADER

Second Applicant: REZWANA REZA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2326 of 2017

Judgment of: Judge Riethmuller

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Melbourne

Delivered on: 11 February 2019

REPRESENTATION

The First Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2326 of 2017

MD MAFIZUL HASAN HAWLADER

First Applicant

REZWANA REZA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application, filed on 27 October 2017, whereby the applicant seeks a judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made in October 2017.  The Tribunal affirmed a decision of the delegate to refuse the applicant a Skilled (provisional) (Class VC) visa.  

2. The matter came on for a show-cause hearing and was adjourned over to today for reasons that will become apparent.  I am now considering whether or not the application should be dismissed in a show-cause hearing.  The first respondent submits that the applicant does not disclose any arguable case and that the application should be refused. 

3. The applicant in this case is a citizen of Bangladesh.  He applied for the visa on 31 August 2016.  The other applicant is a member of his family unit and, therefore, whether or not they receive a visa rises or falls on whether or not the applicant obtains a visa.

4. The visa application was refused by the delegate because the date of the application for the visa was more than six months after the date that the applicant finished his course, a Master of Business Administration. As a result, the applicant did not satisfy cl.485.231(3) of Sch.2 of the Migration Regulations 1994.  The applicant applied to the Tribunal for a review of the delegate’s decision and the Tribunal affirmed the decision of the delegate.

5. The problem in this case was that under the Regulations, the completion of the degree is defined as the time when the applicant has done all of the things necessary to become eligible to have the degree conferred upon him; not the date of the conferral ceremony of the degree, which ordinarily (at least at Australian universities), is some months after the date that students commonly finish the requirements or complete the requirements to become eligible for conferral of the degree.

6. In this case, the applicant did not apply within six months of the date that he finished his course in December 2015, but rather some months after the conferral of the degree in May 2016.  Whilst this may appear to be quite a technical point, which has caught a number of students in Australia seeking to apply for visas by way of completion of their degrees, it is not a matter with respect to which either the delegate, the Tribunal or the court has any discretion.  The law is clear on the point.  The applicant is therefore not eligible for the visa for which he applied.

Grounds of Judicial Review

1. The applicant’s grounds for judicial review are set out in his application.

Ground One

1. Ground one is as follows:

   1. The Second Respondent made jurisdictional error by failing to consider integral parts of the Applicant’s claims:

   Particulars

   (a) The Second Respondent noted at [12] and [13] that the Applicant had lodged the visa application himself and had misunderstood the information on immigration website.

   (b) At [14] the Second Respondent acknowledged that applicant had made a mistake when he applied for the visa, believing it was 6 months from when his degree certificate was awarded.

   (c) At [14] the Second Respondent notes that the completion letter states that the applicant is eligible to attend the Graduate Ceremony on 19 May 2016 and accepted that the applicant was of the belief that this was the relevant date from which he need to apply for the visa.

   (d) The Second Respondent failed to comprehend and differentiate “completion date” and “graduation date” while determining 6 months period.

2. The first ground, although carefully drawn, seeks to have the court look behind the statute and adopt an interpretation of it that does not correspond with the clear words of the Regulations. Regulation 1.15F(2) defines completion in the following terms:

   (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.

3. As counsel for the Minister points out, effectively the applicant seeks a merits review, in substance, on some form of overriding general justice and fairness basis, even though the statute is against him. 

4. In these circumstances, the applicant cannot succeed on judicial review, as he is not able to establish any form of arguable or prima facie case.

Ground Two

1. The second ground is in the following terms:

   2. The approach adopted to the assessment of the Applicant’s application was not undertaken in fair manner pursuant to the notion of substantial justice as required by the Act.

   Particulars

   (a) The Respondents failed to consider that as a laymen it is difficult to understand complex legal definitions and to misconstrue them.

   (b) The applicant was not given an opportunity to justify the issues that the Second Respondent had considered adverse.

2. This ground challenges the way in which the Tribunal conducted the process. It seems to me that in a case where the applicant cannot succeed in any event, the process was that was followed matters little. However, in this case it does not seem to me that the process adopted by the Tribunal was outside the usual range of processes to be adopted in cases such as this. It was not open to the Tribunal to act contrary to the statute, and therefore the complaint that they did not give him sufficient opportunity to try and persuade them to do something contrary to law cannot be sustained.

3. This ground is not an arguable or prima facie ground for review.  As a result, I found that the applicant has no arguable prima facie case.

Other matters

1. The matter was originally adjourned because the applicant has a class 190 visa application pending.  The court was advised of this on the last occasion. The matter was adjourned over, in the expectation that that visa application would be determined by this date. If that visa was granted, it would have resolved the applicant’s difficulties. On this occasion, I was told a little more information (although far from detailed information) about the other visa application. 

2. It appears that the delegate actually refused the other visa application in May 2018 and that what is being waited for is a review application to the Tribunal.  Counsel for the Minister says that that visa was refused in reliance upon PIC.4020, which means that there is likely a finding that there was some form of bogus document or misleading conduct by the applicant.  Neither the Minister nor the applicant provided a copy of the delegate’s decision. 

3. The applicant is concerned that if this current application is dismissed, he would not be entitled to a bridging visa, unless he applied for a bridging visa offshore, and that he may not receive a bridging visa on that other visa application. 

4. It seems to me that whilst on the first occasion some residual discretion was available to adjourn this matter over in the hope that the resolution of the other visa application might resolve the disputes between the parties generally, it is now a situation where there is not material before me to show a proper basis for further delaying this application.

5. Indeed, both parties have chosen not to put detailed information before me as to the state of the other visa application, in order to in some way justify adjourning this application to another date. 

6. In the circumstances, I proceeded to determine the application today. 

7. I therefore dismiss the application of the applicant.

Costs

1. In this matter, the Minister seeks costs in the sum of $3,737.  Having regard to the scale and the nature of the matter, it appears to me that the costs sought are reasonable.  The applicant seeks time to pay.  My experience has been that that is commonly negotiated between the applicant and the solicitors for the Minister.  Should those negotiations break down, it remains open to the applicant to bring an interlocutory application, seeking time to pay.  I note, however, that in 15 years I have never seen such an application and, therefore, have considerable confidence that the applicant will be able to negotiate a reasonable time to pay with the lawyers for the Minister. 

2. I therefore make orders accordingly. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  23 July 2019