Khalil v Minister for Immigration
[2008] FMCA 785
•12 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHALIL v MINISTER FOR IMMIGRATION | [2008] FMCA 785 |
| MIGRATION – Visa – Independent (Migrant) (Class BN) (Subclass 136 – skilled Independent) visa – where delegate refused to grant the application because the material provided by the applicant did not establish that the applicant had been employed in the skilled occupation of accountant for at least 20 hours per week for at least 12 months out of the 18 months of the relevant time period – no reviewable error. |
| Migration Regulations 1994, Schedule 2, Part 136, regulation 136.213 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 Minister for Immigration & Ethnic Affairs & Wu Shan Liang (1996) HCA 6 |
| Applicant: | SELIM ABDELTAWAB ABDELSAMIE MOUSTAFA KHALIL |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 349 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 June 2008 |
| Date of Last Submission: | 12 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2008 |
REPRESENTATION
| Applicant: | Applicant appeared in person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent's costs in the sum of $4,600.00.
I allow six (6) months to pay.
The Applicant is to pay to the Court Registry within fourteen (14) days the Setting-down Fee of $419.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 349 of 2008
| SELIM ABDELTAWAB ABDELSAMIE MOUSTAFA KHALIL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant in this case asks the Court to review a decision made by a delegate of the Minister for Immigration & Citizenship, the Respondent. The delegate found that the Applicant did not meet the requirements of either Subclass 136 or 137 and refused to grant the Applicant a Skilled - Independent (Migrant) (Class BN) visa.
The Applicant seeks a review of that decision and in particular he seeks orders:
a)To declare the decision void; and
b)To issue an order in the nature of Mandamus compelling the Minister's delegate to make a decision according to law.
The Applicant claims that the decision maker misapplied the law.
Background
The background to this matter is that the Applicant is a citizen of Egypt. He applied for a Subclass 136 Skilled - Independent visa on the basis of being an accountant. He submitted various documents to the Department of Immigration & Citizenship which were documents upon which he sought to rely in support of his claim. They included a refund notice from the Australian Taxation Office[1]; a PAYG payment summary, being a form prepared by the Australian Taxation Office for the year ending 30 June 2006[2] and a reference from his employer, Eagle Tyres, dated 18th June 2007. That document certified that the Applicant is an employee at Eagle Tyres as an accountant in the accounting period and was employed from the period 1 July 2005 until the current period as a part time employee (20 hours a week)[3].
[1] See Court Book at page 52.
[2] See Court Book at page 53.
[3] A copy of the letter has been set out in full at page 54 of the Court Book.
The Applicant provided other documentation which is not relevant to the decision under review by this Court.
The Delegate’s Decision
The delegate of the Minister wrote to the Applicant in a letter dated 10th January 2008 advising that the application for a Class BN 136 Skilled - Independent visa had been refused and the letter pointed out that there is no right of review in respect of a decision to refuse an application for a Class BN Subclass 136 Skilled - Independent visa. Accordingly, the Applicant was not able to apply to the Migration Review Tribunal for a merits review of this decision.
A copy of the delegate's decision record can be found at pages 60 through to 63 of the Court book. The delegate noted that applicants must satisfy the requirements relating to their particular class of visa as set out in the Migration Act and Regulations and told the Applicant that his application had been assessed against the criteria set out in the Migration Regulations for a Skilled - Independent (Migrant) Class BN visa, that Class BN consists of two subclasses:
i)136 skilled independent,
ii)137 skilled State Territory nominated independent.
The Applicant had applied in respect of a subclass 136 visa.
The delegate noted at page 60 of the Court book that Part 136 of Schedule 2 to the Migration Regulations sets out in part the criteria to be met at the time of the application for the grant of a subclass 136 visa.
The delegate set out at page 61 of the decision the wording of regulation 136.213. The delegate noted that the Applicant had made no claims to have completed any study that satisfied the requirement of sub-clause 136.213(2) and found that the requirements of that sub-clause has not been met and so the Applicant was not eligible for a waiver of the recent work experience requirement.
The delegate then considered the Applicant's claim for recent work experience, noting that the Policy advice provided that officers of the department must assess whether the Applicant has been employed at a skilled level, and referred to the Schedule 2 criterion (136.213 or equivalent) that required the Applicant to have been recently employed in a skilled occupation for a specified period.
The delegate noted that the Applicant had lodged his application on 26th September 2006 and so the relevant time frame for meeting the requirement of sub-clause136.213(1) for his occupation of account was 29th March 2005 to 29th September 2006.
The delegate noted the Applicant's claim to have been employed with Eagle Tyres at Granville, New South Wales, from July 2005 onward, and noted his employment reference dated 18th June 2007 in support of his claim. The delegate also noted the Applicant having provided a copy of his Australian Taxation Office Refund Notice for the year ending 30 June 2006.
The Delegate’s Findings and Reasons
The delegate made this finding:
"Your ATO Refund Notice states your taxable income for the financial year ending 30 June 2006 as $4321. This annual income represents an average weekly income of approximately $87 per week. I find that this income earned over the 12 months ending 30 June 2006 is substantially insufficient to establish your claim to have been employed during that period for at least 20 hours per week in the skilled occupation of Accountant (ASCO 2211-11).
On the basis of the above findings, I have determined that you are not employed, as defined by regulation 136.111 in the skilled occupation of Accountant (ASCO Code 2211-11) for at least 12 months out of the 18 months of the relevant time period. Nor am I satisfied that you have been employed in any other skilled occupation on SOL during the relevant time period.”[4]
[4] See Court Book at page 62
As the delegate was not satisfied that the Applicant met the requirements of sub-clause 136.213(1) or sub-clause 136.213(2) the delegate determined that his application did not satisfy sub-clause 136.213 and went on to note that the Applicant had not provided any information which would indicate that he applied for a sub-clause 137 visa, which is one where the requirement is that the Applicant had been nominated by a state or territory government agency and that nomination had been accepted by the Minister.
The delegate decided that as the Applicant did not meet the requirements of either subclass 136 or 137 that the delegate decided to refuse to grant the Applicant a Skilled - Independent (Migrant)(Class BN) visa.
Application to this Court
The Applicant claims that the delegate fell into error by misapplying the law. The grounds of the application are stated simply:
"The decision maker misapplied the law."
Applicant’s Submissions
No particulars are provided in the application and the Applicant did not file a written outline of submissions. However, he has attended Court today and has made an oral submission in support of his claim. I note that the Applicant was provided with an interpreter in the Arabic language, but indicated that he was comfortable using English and would only rely on the interpreter where necessary.
The Applicant claimed that the delegate had fallen into error and misapplied the law because no minimum amount of pay was set out in the Migration Regulations. He told the Court that the delegate should have considered whether the Applicant had sufficient experience or not. He told the Court that his taxable income was $4,321.00. He said the delegate fell into error because the delegate should have considered the total income rather than his taxable income.
The Applicant reiterated his claim that the law does not prescribe any minimum amount of money to be earned. The Applicant told the Court that he had consulted a migration agent who had said that the delegate had misunderstood the law on this point because there is no minimum amount of earnings prescribed by the law. The Applicant also submitted that the delegate had confused his total earnings with his net or taxable income.
The Respondent’s Submissions
Counsel for the Minister, Ms Sirtes, submitted that the Applicant's claim was in fact a challenge to the merits of the delegate's decision. She agreed that there was no minimum prescribed wage, but indicated that that of itself did not represent an error of law. She submitted that the delegate needed to be satisfied that the Applicant had shown that he had worked 20 hours per week at least for 12 months out of the 18 month period. True it was that there was an assertion by the employer that the Applicant worked 20 hours per week, but there was no other corroborating material, for instance Ms Sirtes submitted that there were no payslips provided. Had there been payslips provided they would have set out the amount of hours worked over each week or during the relevant pay period. The Applicant needed to provide evidence of at least 20 hours of work per week having been worked during that period of time.
Applicant’s Submissions in Reply
In reply, the applicant told the Court that he had provided the appropriate documentation and that the delegate had fallen into error.
Conclusion
The fact of this case is that the Minister's delegate was not satisfied on the material provided that the Applicant satisfied the requirement of Regulation 136.213. That requirement needed to be satisfied in order that the delegate could be satisfied that the Applicant was entitled to a visa.
The delegate's conclusion that the Refund Notice, which was one of the documents upon which the Applicant relied, did not provide satisfactory evidence that the Applicant satisfied the Regulation was a conclusion that was open to be made on the evidence provided.
The Applicant's submission that the Tribunal misapplied the law has not been made out. What the Applicant has submitted is that the delegate fell into error in assessing the material that he provided which he submitted should have been sufficient. This material was essentially the Refund Notice from the Australian Taxation Office and the letter from his employer which contained an assertion of 20 hours per week of work.
This is, in effect, a challenge to the delegate's factual findings. I am referred by counsel for the Minister to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 that:
“As s.65 and Wu Shan Liang made clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction.”[5]
[5] [2005] FCAFC 73 at [17]
The decision in Wu Shan Liang is also important in that the decision makes it clear that a Court conducting judicial review of an administrative decision must be aware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision. (See Minister for Immigration & Ethnic Affairs & Wu Shan Liang[6]).
[6] (1996) HCA 6; 185 CLR 259 of 272
It is not for the Court in conducting judicial review of the decision of an administrative decision maker to substitute its own view of the evidence for that of the decision maker, provided that the evidence allows a finding to be made there is no scope for a Court conducting a judicial review to interfere.
In my view, it was open to the delegate on the basis of the material provided by the Applicant to form the view that the delegate did, that the evidence was insufficient to enable the delegate to be satisfied that over the relevant period that the Applicant had been employed as an Accountant for 20 hours per week.
The delegate also considered, having decided the Applicant was not eligible for a Subclass 136 visa whether the Applicant would be eligible for a Subclass 137 visa. That visa, of course, required nomination by a government agency of a state or territory, and that, of course, was not a matter, which the Applicant claimed. He was only applying for a Subclass 136 visa.
It was open therefore for the delegate to find that the Applicant did not meet the requirements for a Subclass 136 or 137 visa and it was open therefore for the delegate to dismiss the application.
I am satisfied that no jurisdictional error has been made out and accordingly the delegate's decision is a privative clause decision and as such it is not subject to orders in the nature of certiorari or mandamus and it follows that the application will be dismissed.
Costs
There is an application for costs on behalf of the Respondent, the Minister for Immigration and Citizenship. The amount sought, including counsel's fees, is $4,600.00. The Applicant has been unsuccessful in this claim and this is an appropriate matter for a costs order. The amount of $4,600.00 has been calculated taking into account the First Court Date before a Registrar of the Court on 28th February 2008, an appearance on 28th April 2008 when the matter was adjourned and the hearing today. The sum of $4,600.00 is well within the scale provided by the Federal Magistrates Court Rules and in my view it is an appropriate figure.
The Applicant, however, has told the Court that he is not in a position to pay that amount, and indeed, on the material he provided to the Minister's delegate, unless his income has increased substantially, it would seem clear that his assertion of incapacity to pay is correct.
Whilst that is not a reason for not making an order for costs, it is a matter to be taken into account when assessing whether or not time should be allowed to pay. To my mind, this is a matter where I should allow time to pay and I allow a period of six month to pay.
I note that the Applicant has not paid the Setting-down Fee to the Court Registry, which should have been paid 14 days before the hearing. I will make an order that that should be paid, but I will allow 14 days for that to be paid.
The application will be removed from the list of cases awaiting finalisation.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 13 June 2008
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