Jahangir v Minister for Immigration & Border Protection

[2013] FCCA 1990

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAHANGIR & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1990

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision was affected by jurisdictional error – whether the applicant met the criteria for a Subclass 885 visa set out in clause 885.211 of the Migration Regulations 1994 (Cth) where he was capable of satisfying that criterion ten days after lodging his visa application – whether the Migration Review Tribunal erred in its interpretation of the “Criteria to be Satisfied at the Time of Application” for the grant of a visa – whether the Migration Review Tribunal failed to consider that the date of the lodging of the application could have been taken to have been ten days later – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), ss.39B, 351
Migration Act 1958 (Cth), s.474; Pt. 8 div.2
Migration Regulations 1994 (Cth) reg.1.15F; cls.885.211, 885.222; Sch.1, Sch.2

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

First Applicant: SHOEB MUHAMMED JAHANGIR

Second Applicant: ZAKIA KHANAM JOLLY

Third Applicant: AURIL NOOR AKHAND

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 796 of 2013

Judgment of: Judge Emmett

Hearing date: 4 November 2013

Date of Last Submission: 4 November 2013

Delivered at: Sydney

Delivered on: 27 November 2013

REPRESENTATION

Solicitor for the Applicant: Mr Michael Jones
(Parish Patience Immigration Lawyers)

Counsel for the Respondents: Mr Martin Smith

Solicitor for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 796 of 2013

SHOEB MUHAMMED JAHANGIR

First Applicant

ZAKIA KHANAM JOLLY

Second Applicant

AURIL NOOR AKHAND

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 Migration Review Tribunal dated 20 March 2013 and handed down on 21 March 2013 (“the MRT”).

2. The first applicant is the primary applicant (“the Applicant”). The second applicant is the spouse of the Applicant, and the third applicant is the child of the Applicant and second applicant. All applicants claim to be citizens of Bangladesh. The second and third applicants’ applications are dependent on the outcome of the Applicant and they have not made any other applications in their own right. Accordingly, these Reasons refer only to the Applicant.

3. The issues in this case are: whether the applicant met the criteria for a Subclass 885 visa set out in clause 885.211 of the Migration Regulations 1994 (Cth) (“the Regulations”) in circumstances where he was capable of satisfying that criterion ten days after lodging his visa application; whether the MRT erred in its interpretation of the “Criteria to be Satisfied at the Time of Application” for the grant of the Subclass 885 visa; and whether the MRT failed to consider that the date of the lodging of the application could have been taken to have been ten days later. These issues are considered below in the context of considering whether the MRT’s decision is affected by jurisdictional error.

4. 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 applicant’s claims in support of a protection visa, and a summary of the decision of a delegate of the first respondent (“the Delegate”)  and a summary of the MRT’s review and decision.

Background

1. On 24 April 2009, the Applicant lodged an application for a Skilled (Residence) (Class VB) Subclass 885 (Skilled-Independent) visa with the Department of Immigration and Citizenship (“the Department”).

2. On 4 May 2009, the applicant was granted a Subclass 485 visa valid for 18 months.

3. On 23 July 2012, the Delegate refused the Applicant’s application for a visa. The refusal was more than 18 months after the applicant was granted a Subclass 485 visa with the consequence that he was no longer the holder of a Subclass 485 visa at the time of the Delegate’s decision.

4. On 3 August 2012, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

5. On 20 March 2013, the MRT affirmed the decision of the Delegate not to grant a visa.

6. On 16 April 2013, the Applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. The criteria for Skilled-Independent visas are set out in Part 885 of Schedule 2 to the Regulations. Clause 885.211 relevantly states the following:

   “(1) The applicant meets the requirements of subclause (2), (3) or (4).

   (2) The applicant met the requirement of sub item 1136(4) of Schedule 1, and:

   (a) the applicant  satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the application  was made; and

   (b) Each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant’s nominated skilled occupation.

   (3) The applicant met the requirements of sub item 1136(5) of Schedule 1, and:

   (a) if the applicant holds a Subclass 476 (Skilled – Recognised Graduate) visa, the qualification used to obtain that visa is closely related to the applicant’s nominated skilled occupation; or

   (b) if the applicant  holds a Subclass 485 (Skilled-Graduate) visa, each degree, diploma or trade qualification used to satisfy the 2 year study requirement to obtain that visa is closely related to the applicant’s nominated skilled occupation.

   (4) The applicant met the requirement of sub item 1136(6) of Schedule 1, and:

   (a) the applicant  must have completed the apprenticeship for which the Subclass 471 (Trade Skills Training) visa was granted; and

   (b) the apprenticeship is closely related to the applicant’s nominated skilled occupation.”

2. With respect to the ‘2 year study requirement’, reg.1.15F of the Regulations relevantly states the following:

   “(1) A person satisfies the 2 year 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 instructions was conducted in English; and

   (e) that the applicant  undertook while in Australia as the holder of a visa authorising the applicant   to study.

3. Sub item 1136 of Schedule 1 to the Regulations relevantly provides:

   “(4)   The following requirements must be met:

   (a)    one of the following subparagraphs must be satisfied by the applicant:

   (i)    the applicant must be the holder of an eligible student visa;

   (ii)    the applicant must be the holder of a Bridging A (Class WA) visa or Bridging B (Class WB) visa that was granted on the basis of a valid application for a visa other than 1 of the following visas:

   (A)     a Subclass 570 (Independent ELICOS Sector) visa;

   (B)     a Subclass 571 (Schools Sector) visa;

   (C)     a Subclass 572 (Vocational Education and Training Sector) visa, a Subclass 573 (Higher Education Sector) visa, or a Subclass 574 (Postgraduate Research Sector) visa, that was applied for on the basis that the applicant seeking to satisfy the primary criteria for the grant of that visa intends to undertake a course of study paid for, wholly or in part, by:

   (I)     the Commonwealth or the government of a State or Territory; or

   (II)     the government of a foreign country; or

   (III)     a multilateral agency;

   and for which a condition of payment by that body for the course is that the student will leave Australia on the completion of the course;

   (D)     a Subclass 572 (Vocational Education and Training Sector) visa, a Subclass 573 (Higher Education Sector) visa, or a Subclass 574 (Postgraduate Research Sector) visa that was applied for on the basis that the applicant seeking to satisfy the primary criteria for the grant of that visa intends to undertake 

   
   

   a course of study or training under a scholarship scheme or training program approved by:

   (I)     the AusAID Minister; or

   (II)     the Defence Minister;

   and for which a condition of that scheme or program is that the student will leave Australia on completion of the course;

   (E)     a Subclass 575 (Non‑Award Sector) visa;

   (F)     a Subclass 576 (AusAID or Defence Sector) visa;

   and must also have held an eligible student visa at any time during the period of 6 months ending immediately before the day on which the application is made;

   (iii)    the applicant must:

   (A)     be the holder of a substantive visa other than a visa mentioned in sub‑subparagraphs (ii) (A) to (F); and

   (B)     have held an eligible student visa at any time during the period of 6 months ending immediately before the day on which the application for the Skilled (Residence) (Class VB) visa is made;

   (iv) the applicant must have been taken, under sections 368C, 368D and 379C of the Act to have been notified that the Migration Review Tribunal has set aside and substituted the Minister’s decision not to revoke the cancellation of the applicant’s eligible student visa not more than 28 days before the day on which the application is made;

   (b)    the applicant seeking to satisfy the primary criteria for the grant of the visa:

   (i)    must be less than 50; and

   (ii)    must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this subparagraph.

   (5)   The following requirements must be met:

   (a)    the applicant must be:

   (i)    the holder of a Subclass 476 (Skilled — Recognised Graduate) visa; or

   (ii)    the holder of a Subclass 485 (Skilled — Graduate) visa;

   (b)    the applicant seeking to satisfy the primary criteria for the grant of the visa must:

   (i)    have been granted the visa mentioned in paragraph (a) on the basis of satisfying the primary criteria for the grant of that visa; and

   (ii)    nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this subparagraph.

   (6)   The following requirements must be met:

   (a)    each applicant must be the holder of a Subclass 471 (Trade Skills Training) visa;

   (b)    the applicant seeking to satisfy the primary criteria for the grant of the visa:

   (i)    must have been the holder, for a total of at least 2 years before the day on which the application was made, of the Subclass 471 (Trade Skills Training) visa mentioned in paragraph (a) that was granted on the basis of satisfying the primary criteria for the grant of that visa; and

   (ii)    must be less than 50; and

   (iii)   must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this subparagraph.”

   (emphasis added)

The Delegate’s decision

1. On 23 July 2012, the Delegate refused the Applicant’s application for a Skilled Independent visa on the basis that the Applicant had not met the requirements for the grant of such a visa as detailed in clause 885.211 of the Regulations.

The MRT’s review and decision

1. On 3 August 2012, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

2. On 20 February 2013, the MRT wrote to the Applicant informing him that the MRT 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 20 March 2013 to give oral evidence and present arguments.

3. On 20 March 2013, the Applicant attended the MRT hearing and gave evidence. The applicant was assisted at the hearing by his representative, who also made submissions.

4. The primary issue for determination before the MRT was whether the Applicant met the requirements of clause 885.211 of the Regulations.

5. In considering this issue, the MRT first determined whether the Applicant satisfied the “2 year study requirement” in the 6 months before the visa application was made and that the Applicant’s degree, diploma, or trade qualification was “closely related” to the Applicant’s nominated skilled occupation.

6. The MRT found that the Applicant applied for the visa in April 2009. The visa application included the Applicant’s spouse and his child. The Applicant stated on his application that he completed a Diploma of Hospitality Management at the Sydney International College between March 2006 and November 2007 and received his qualification in January 2008. The MRT found there was no evidence before it that the Applicant had completed any other study after that date. The MRT found that the Applicant had met the “2 year study requirement” in November 2007.

7. However, as the applicant’s application was made in April 2009, the MRT concluded that that the Applicant had not satisfied the “2 year study requirement” in the period of six months ending immediately before the day on which the application was made. The MRT noted the Applicant’s representative’s submission that the Applicant conceded that he did not meet the six month requirement.

8. The Applicant’s representative further submitted that the Applicant was granted the Subclass 485 visa ten days after he made the application and if he had lodged the application after he was granted the Subclass 485 visa, he would have met the requirements of clause 885.211 of the Regulations.

9. The Applicant’s representative submitted that if the reasoning of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (“Berenguel”) applied, the Applicant would meet clause 885.211 of the Regulations because he was granted the Subclass 485 visa only ten days after making the application. The MRT did not consider that Berenguel applied and found that the Applicant did not have the Subclass 485 visa at the time of application, which was one of the requirements of the legislation. The MRT was therefore not satisfied that the Applicant met the requirements of sub item 1136(5)(a) and sub item 1136(6)(a) of the Regulations.

10. Clause 885.211(3) of the Regulations required the Applicant to meet the requirements, relevantly, of sub item 1136(5) of Schedule 1 of the Regulations and hold a Subclass 485 (Skilled Graduate) visa at the time the Applicant lodged his Subclass 885 visa application.

11. Accordingly the MRT found the Applicant failed to meet clause 885.211 of the Regulations.

12. The MRT also considered the Applicant’s submission that he had made a mistake and had relied on his migration agent. However, the MRT found that it had no power to waive the statutory requirement.

13. The MRT further considered the Applicant’s request that the MRT refer the case to the Department for consideration by Minister pursuant to s.351 of the Act. The MRT considered the Applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in the Department Immigration and Citizenship’s Procedures Advice Manual No.3 ‘Minister’s Guidelines on Ministerial Power (ss.345, 351, 391, 417, 454, and 501J)’ and decided not to refer the matter. The MRT noted that it was open to the Applicant to make a request directly to the Minister.

14. The MRT concluded that none of the applicants met the criteria for the Subclass 885 visa. Further, the MRT noted there was no evidence before it to enable the MRT to be satisfied that the applicants met the criteria for the remaining Subclasses of the Skilled (Residence) (Class VB) visa.

15. Accordingly, the MRT affirmed the decision of the Minister.

The proceeding before this Court

1. The Applicant was represented before this Court by Mr Michael Jones, solicitor of Parish Patience Immigration Lawyers.

2. On 14 June 2013, the Applicant was 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 MRT hearing, as well as submissions in support.

3. At the commencement of the hearing, Mr Jones confirmed that the Applicant relied on the grounds contained in his application filed on 16 April 2013, as follows:

   “1. The Tribunal fell into jurisdictional error in its interpretation of the “time of application” criteria for the grant of the visa.

   Particulars

   The First Applicant lodged an application form for a class VB visa and paid the prescribed fee on 24 April 2009. On that date he held a Subclass 573 student visa and had completed his studies more than six months earlier. On 4 May 2009, he was granted a Subclass 485 visa. The Tribunal found that he did not satisfy criterion 885.211 at the time of application because he had completed his studies more than six months before that date and did not hold a Subclass 485 visa on that date. On a correct reading of the criteria, applying the reasoning of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, it was not necessary for the Applicant to satisfy that criterion on 24 April 2009.

   2. The Tribunal failed to consider that the date of the application could have been taken to be 4 May 2009 instead of 24 April 2009.

   Particulars

   The Applicant satisfied the requirements for a valid application on 24 April 2009 (Sch 1 Item 1136(4)) and again on 4 May 2009 (Sch 1 Item 1136(5)). Either date could have been considered by the Tribunal as the date of application for the purposes of the “time of application” criteria in Sch 2 clause 885.211.”

4. In grounds 1 and 2, Mr Jones contended that the MRT erred in finding that the applicant did not satisfy clause 885.211 of the Regulations.

5. It was common ground that the only criteria of clause 885.211 of the Regulations that the applicant could meet was that identified in subclause (3) of Schedule 1. Subclause (3) relevantly provided that the applicant was required to meet the requirements of sub item 1136(5) of Schedule 1 and that the applicant holds a Subclass 485 visa. Sub item 1136(5) of Schedule 1 also requires, relevantly, the applicant be the holder of a Subclass 485 visa. While the applicant held a Subclass 471 at the time he lodged an application for a Subclass 885 visa, sub item 1136(6) also had requirements that the applicant was unable to meet.

6. It was also common ground that the applicant did not meet the two year study requirement in the six-months before the applicant applied for the Subclass 885 visa.

7. The relevant subclauses and sub items are bolded above in the “Legislative framework” in these Reasons.

8. Mr Jones contended that in holding a Subclass 485 visa as at 4 May 2009, the applicant satisfied clause 885.211(3)(b) at the time he applied for a Skilled Residence (Class VB) (Subclass 885) visa on 24 April 2009.

9. Mr Jones submitted that, although the criteria in clause 885 of the Regulations is headed “Criteria to be Satisfied at Time of Application”, the Applicant satisfied the requirements of sub item 1136(5) of Schedule 1 to the Regulations in that the applicant held a Subclass 485 visa as at 4 May 2009, being only ten days after he lodged his visa application.

10. In support of that proposition, Mr Jones referred the Court to Berenguel, which held that the heading “Criteria to be Satisfied at the Time of Application” did not connect grammatically to its terms and that the text of clause 885 of the Regulations does not support any general conclusion that the criteria in clause 885 of the Regulations speak exclusively to satisfaction at the time of application.

11. The MRT found as follows:

    “There is no evidence before the Tribunal to indicate at the time of the application, the applicant was the holder of a Subclass 476 (Skilled – Recognised Graduate) visa, a Subclass 485 (Skilled – Graduate) visa or a Subclass 471 (Trade Skills Training). While the applicant argues that he was granted that visa only ten days later and, on the reasoning of Berenguel, that should be sufficient to meet the requirements of clause 885.211, the Tribunal does not accept that the reasoning in Berenguel applies in these circumstances. The Tribunal notes that this requirement is contained in Schedule 1 (which affects the validity of the application) and is also an express part of the requirements in clause 885.211. The Tribunal finds that the time when the applicant made the application, he did not have the Subclass 485 visa or the visa prescribed in this clause. Accordingly, the Tribunal is not satisfied that he met the requirement of Item 1136(5)(a) and Item 1136(6)(a). The Tribunal is not satisfied that the applicant meets clause 885.211(3) and (4).”

1. Berenguel concerned an applicant who was required under clause 885.213 of the Regulations to satisfy, relevantly, that he had competent English. The High Court of Australia referred to the contrast in clause 885.214 and clause 885.215 of the Regulations that required the application to be accompanied by particular evidence, and held that there is no such requirement in respect of proof of compliance with the vocational English or competent English criterion. The High Court held that the evident purpose of the alternate criteria in clause 885.213 of the Regulations is to ensure that when the decision maker decided upon the application for visa, an applicant will have demonstrated recent competency in the English language. The Court held that it did not follow that such a criterion could only be satisfied by evidence provided to the Minister at the time of submitting the application.

2. However, Berenguel is not authority for the proposition that all the criteria in clause 885.211 of the Regulations are not required to be satisfied at the time of application. In particular, clause 885.211(3)(b) of the Regulations.

3. I accept the submission of Mr Smith, counsel for the first respondent, that the difficulty in the Applicant’s contention is that the Applicant’s visa application for a Subclass 885 visa, made on 24 April 2009, was a valid application because the applicant held at that time a Subclass 471 visa. The Subclass 471 visa was capable of satisfying clause 885.211(4) of the Regulations provided sub item 1136(6) of Schedule 1 was also met. However, as stated above, sub item 1136(6) of Schedule 1 was not met by the applicant at the time of the lodgement of the applicant’s Subclass 885 visa.

4. The Applicant did not hold a Subclass 485 visa until ten days later.

5. In the circumstances, at the time the Applicant lodged his visa application, he did not meet the mandatory criteria of clause 885.211 of the Regulations. Had the Applicant waited until 4 May 2009 to lodge his visa application, he would have met the criteria, as by that date he held a Subclass 485 visa.

6. In the circumstances, despite the fact that the Applicant held a valid visa as at 24 April 2009, that was not sufficient to meet the mandatory criteria required by clause 885.211 of the Regulations for the grant of the Subclass 885 visa.

7. I do not accept that Berenguel is authority for the proposition that the RRT can ignore the mandatory requirements of the Regulations for the grant of a visa. It is clear that the applicant was required, relevantly, inter alia, to hold a Subclass 485 visa at the time he lodged his visa application.

8. In Berenguel, the High Court found that the language related to whether the applicant has vocational English and such requirement was capable of being certified at a later date.

9. No such construction is open to the Applicant in relation to the requirement in clause 885.211 of the Regulations.

10. I do not accept Mr Jones’ submission that it was sufficient to satisfy clause 885.211 of the Regulations that the applicant held a Subclass 485 visa ten days after he lodged his application for a Subclass 885 visa.

11. In the circumstances, it was not open to the MRT to consider that the date of the lodgement of the applicant’s visa application was a different and later date simply because on that later date the applicant could have satisfied the visa criteria.

12. Accordingly, the grounds of the application are not made out.

13. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

14. The MRT’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 jurisdiction to interfere.

15. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  27 November 2013