JOSEPH v Minister for Immigration

[2018] FCCA 1478

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSEPH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1478

Catchwords:
MIGRATION – Skilled (Provisional) (Class VC) visa application – application for review of decision of the Administrative Appeals Tribunal – statutory construction of cl.485.231(3) of Migration Regulations – whether Applicant satisfied study requirement for Australian visa if visa application lodged before completion of studies – consideration of whether state of mind of applicant should have been considered by Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.476, div. 5 pt 5, 359, 360

Migration Regulations 1994 (Cth), cl.485.231, 885.214, reg.885.231

Cases cited:

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Berenguel v Minister for Immigration and Citizenship [2010] 264 ALR 417

Applicant: JOMON JOSEPH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2245 of 2016

Judgment of: Judge Kirton

Hearing date: 25 May 2018

Date of Last Submission: 25 May 2018

Delivered at: Melbourne

Delivered on: 25 May 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Applicant None

Counsel for the First Respondent

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: The Second Respondent filed a submitting notice save as to costs.

ORDERS

1. The Application is dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $3410.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2245 of 2016

JOMON JOSEPH

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

and

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. This is an application filed on 14 October 2016 (“Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Act”) seeking review of a decision of the Administrative Appeals Tribunal (“AAT”) dated 22 September 2016 (“AAT Decision”). The AAT Decision affirmed the decision of the delegate of the First Respondent (“Delegate”) not to grant the applicant a Skilled (Provisional) (Class VC) Visa (“Visa”).

2. The Application is supported by an affidavit filed and affirmed by the applicant on 14 October 2016 (“Affidavit”).  The Affidavit annexes a copy of the AAT Decision as Annexure A.  The applicant today has also submitted written submissions.[1]

   [1] Exhibit A.

Background

1. The applicant is a national of India.  On 25 June 2015, the applicant applied for a Skilled (Provisional) (Class VC) visa (“Skilled Visa Application”).[2]

   [2] Court Book (“CB”) 1-13.

2. A criterion for the Visa applied for included cl.485.231(3) from the Migration Regulations1994 (Cth). Clause 485.231(3) required that:

   The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

3. In the applicant’s Skilled Visa Application, the applicant declared that his most recently completed qualification was a Master of Engineering at Deakin University, undertaken from 25 February 2013 to 15 March 2015.[3]

   [3]CB 11.

4. On 21 July 2015, an officer of the First Respondent’s department sent a letter by email to the applicant requesting more information and documents.[4] A letter confirming the completion date of the applicant’s Australian qualification was requested as part of this correspondence.[5]

   [4]CB 19-26.

   [5]CB 23.

5. The applicant provided the documents as requested on 7 August 2015.[6]  On 10 August 2015, the documents were assessed by a case officer for the First Respondent’s department.  It was noted that the letter confirming the completion date of the applicant’s Australian qualification (“Completion Letter”) advised that the applicant completed his studies on 9 July 2015.[7] An academic transcript also confirmed that the applicant completed the course requirements on 9 July 2015.[8]

   [6]CB 27-28.

   [7]CB 40. 

   [8]CB 39.

6. These documents showed that when the applicant had lodged his Skilled Visa Application on 25 June 2015, he had done so before he had completed his master’s degree.  As this qualification was not completed within a six month period ending the day before the Skilled Visa Application was lodged, it could not be used to meet the Australian study requirement for a skilled visa.  The Delegate therefore found that the applicant was unable to meet the requirements of cl. 485.231(3).

7. On 2 September 2015 the Delegate refused the grant of a Skilled (Provisional) (Class VC) Visa (“Delegate’s Decision”).[9]

   [9]CB 30-35.

The Administrative Appeals Tribunal

1. On 21 September 2015 the applicant applied to the AAT for a review of the Delegate’s Decision.[10]

   [10]CB 36-49.

2. On 1 September 2016, the AAT sent an email to the applicant inviting him to attend the hearing of his application on 22 September 2016.[11] There was a hearing on 22 September 2016 and the applicant appeared and gave evidence at the hearing.[12] On that day, the AAT affirmed the Delegate’s Decision in the AAT Decision.[13]

   [11]CB 55-59. 

   [12]CB 62-65.

   [13]CB 76-77.

3. In paragraph [12] of the AAT Decision, the AAT found that on the evidence before it the applicant completed his master’s degree at Deakin University on 9 July 2015.[14]  In paragraph [13] of the AAT Decision, it was satisfied on the basis of the departmental records and the oral evidence of the applicant at the hearing, that the applicant had lodged his Skilled Visa Application on 25 June 2015. 

   [14]CB 78.

4. Accordingly, the AAT found in paragraph [13] of the AAT Decision that the applicant did not satisfy the Australian study requirement in the six months ending immediately before the day on which the Skilled Visa Application was made. Therefore the AAT found that the applicant did not meet the requirements of cl.485.231(3) and affirmed the decision of the Delegate not to grant the applicant a Skilled (Provisional) (Class VC) Visa (“Skilled Visa”).

Federal Circuit Court

1. On 14 October 2016 the applicant filed the Application in this Court seeking a review of the AAT Decision.  In the Application the applicant specified three grounds for the review of the AAT decision.  They are as follows:

   1.That the member of the Administrative Appeals Tribunal, defined as the AAT, erred in law and therefore fell into jurisdictional error when he misapplied evidence before him to part 485 of schedule 2 to the Migration Regulations as a whole (“Ground One”).

   2.That the member in the AAT erred in law and therefore fell into jurisdictional error in not properly assessing the extrinsic evidence put forth by the applicant insofar as:

   i)Summarily dismissing and discontinuing the evidence presented by the applicant as a whole.

   ii)Failing to properly and/or adequately investigate and assess the claims of the applicant.

   iii)Failing to take into account relevant evidence and/or took into account irrelevant evidence, and

   iv)Failing to take into account the evidence of the applicant in totality and cumulatively (“Ground Two”).

   3.That the member erred in law and/or in fact and thereby fell into jurisdictional error when he failed to consider that the applicant had not attempted to act dishonestly when making his application for a Skilled (Provisional) (class VC) visa marginally early (“Ground Three”).

2. The applicant seeks orders that:

   The decision of the AAT be quashed, and

   A writ of mandamus directed to the AAT requiring them to determine the applicant’s application according to law.

3. The response of the First Respondent filed on 1 November 2016 states in paragraph two:

   The grounds of the application all take issue with the AATs treatment of the evidence. The AAT refused the application on the basis that the applicant did not satisfy clause 485.231(3) of the Migration Regulations 1994 (Cth) because he had not completed the study requirements prior to lodging his application. On the face of the decision record, it appears the AAT considered all of the relevant evidence and the grounds are an attempt at impermissible merits review.

4. And paragraph three:

   The first respondent accordingly opposes all orders sought by the application on the basis that no arguable case for relief sought is raised.

5. By orders of this Court made on 12 April 2017, the applicant was to file and serve the following documents by 17 May 2017: 

   a)Any amended application with proper particulars of the grounds of the application; 

   b)a supplementary court book, if any; 

   c)written submissions. 

6. Written submissions, as I have indicated earlier these reasons, were handed up today in court.  As at the date of this hearing, no other documents have been filed by the applicant.

Consideration

1. Turning to Grounds One and Two: the First Respondent in his outline of submissions filed 6 June 2017 submits that Ground One and Two take issue with the AAT’s treatment of the evidence. 

2. In written submissions, the First Respondent submits that the decision of the AAT in this case is a privative clause decision as defined by s.474(2) of the Act. Section 474 operates to prevent the judicial review of all decisions under the Act, except those vitiated by jurisdictional error. The First Respondent relies on a decision of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

3. The First Respondent submits that the AAT noted it had regard to the Delegate’s Decision, the applicant’s oral evidence given at the hearing, departmental records, the Completion Letter and the academic transcript. It is further submitted by the solicitor for the First Respondent that on the face of the decision record, the AAT considered all of the relevant evidence.  It is submitted that Grounds One and Two should therefore be seen as an impermissible merits review.

4. The First Respondent further submits in relation to Grounds One and Two that if the applicant is, in effect, arguing that as a matter of statutory construction, the master’s degree should have been accepted as satisfying cl.485.231(3), even though it was completed two weeks after the date of the Skilled Visa Application, the decided case law does not support this construction.

5. In support of this submission, the First Respondent relies on Berenguel v Minister for Immigration and Citizenship [2010] 264 ALR 417 (French CJ, Gummow and Crennan JJ). In that case the plaintiff submitted his English language competency test result to the Department of Immigration and Citizenship after lodging his application for a Skilled (Residence) (Class VB) visa. The relevant reg.885.231 of the Migration Regulations required that the requisite English language competency test be conducted “not more than two years before the date on which the application was lodged.” The Delegate refused the plaintiff’s application on the basis that the English language competency test had not been conducted before the application for the Visa was made.

6. The High Court found that the relevant criteria did not apply at the time of the application, as there was nothing connecting the criterion to the time of the application, except for the heading.  The purpose of the provision was not advanced by requiring it to be met only at the time of the application.

7. The First Respondent submits, however, that in the present case the requirement of cl.485.231(3) for the qualification to be satisfied is explicitly tied to the time of the application and specifically the six month period leading up to that time.

8. The First Respondent submits that in obiter comments in Berenguel v Minister for Immigration and Citizenship, the High Court recognised that a similarly worded provision to cl.485.231(3), being cl.885.214, which set out a specific time frame for when an application for an Australia Federal Police check had to be made, was distinguishable from the conclusion it reached in relation to cl.885.213 in the English language test result clause. The High Court said at para.17 of the judgment that cl.885.214 needed to be satisfied at the time of the application of the visa.

9. The First Respondent submits that the High Court’s reasoning in relation to cl.885.214 is also applicable to the statutory construction of cl.485.231(3) in the present case.

10. The First Respondent submits that for the foregoing reasons, Grounds One and Two should be dismissed. 

Ground Three

1. In relation to Ground Three, the applicant alleges the AAT erred by failing to consider that the applicant did not act honestly when making his Skilled Visa Application.

2. The First Respondent submits that there is no provision which identifies that the AAT was required to consider the applicant’s intention or state of mind when determining whether the Skilled Visa AAT was made prior to the applicant completing the master’s degree.  It is submitted that this ground therefore cannot be made out.

3. The First Respondent further submits that the AAT complied with its statutory procedural fairness obligations in div.5 pt.5 of the Migration Act. 

4. In particular, it is submitted that there was no information relied up by the AAT which enlivened its obligations under s.359A of the Migration Act.  The information regarding the applicant’s study history was provided to the AAT by the applicant[15] and by his oral evidence. Therefore this information falls within the exception in s.359A(4)(ba) which provides s.359A does not apply to information:

   [15] CB 36-48.

   …that the applicant gave during the process that led to the decision that is under review.

5. It is also submitted by the First Respondent that the applicant attended a hearing as required under s.360 of the Migration Act.  It is submitted that the applicant was clearly on notice of the issues in the review from the Delegate’s Decision and from the AAT member’s discussion with him at the hearing.  It is also submitted that during the hearing it is obvious that the AAT member had sympathy for the position of the applicant, particularly the AAT member’s comments in paragraph [9] of the decision where the member said:

   The Tribunal explained to the applicant that it had no other choice but to affirm the decision under review.  The Tribunal further indicated to the applicant that he may want to discuss with his advisor the possibility of applying for an exercise of ministerial discretion.

Decision

1. I agree with the First Respondent’s submissions in relation to Grounds One and Two.  In my opinion, Grounds One and Two are an impermissible merits review.

2. Further, I accept the First Respondent’s submissions that cl.485.231(3) as a matter of statutory construction requires that the Australian study requirements be satisfied:

   …in the period of six months ending immediately before the day the application was made.

3. In accepting the First Respondent’s submission, I have had regard to the obiter of the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 [17]. Accordingly, I dismiss Ground One and Two. In relation to Ground Three, I am satisfied that the AAT complied with its procedural fairness obligations in div.5 of pt.5 of the Migration Act.  Further, I accept the First Respondent’s submission that there was no provision that identifies that the AAT was required to consider the applicant’s intention or state or mind when determining whether the Skilled Visa Application was made prior to the applicant finishing that master’s degree.

4. Accordingly, I dismiss Ground Three.

5. Therefore I dismiss the Application and order the Applicant pay the First Respondent’s costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date:     12 June 2018