Kim v Minister for Immigration & Anor
[2008] FMCA 1395
•1 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1395 |
| MIGRATION – VISA – Skilled – Independent Overseas Student (Residence) (Class DD) visa – whether the Tribunal asked itself the wrong question – whether Tribunal took into account an irrelevant consideration – whether Migration Regulations 1994 (Cth) Schedule 2 subclause 880.230(2) is invalid – whether Regulation 4(3) of the Migration Amendment Regulations No. 4 2006 is ultra vires the Migration Act 1958 (Cth). CONSTITUTIONAL LAW – Acquisition of property – application for visa – payment of application fee – criteria for grant to be satisfied at date of decision – expectation at time of application that criterion would be satisfied – change in criteria before date of decision – refusal of application – whether loss of application fee acquisition of property without just terms. DELEGATED LEGISLATION – Visas – power to prescribe criteria for visa or class of visa – application for visa – regulation for visa – regulation made after application and before decision changing criteria applicable at time of decision – validity. |
| Constitution s.51(xxxi) Judiciary Act 1903 (Cth) s.78B Migration Act 1958 (Cth) ss.31, 46, 65, 349, 351, 504 Migration Regulations 1994 (Cth) cl.880.230 Migration Amendment Regulations 2005 (No 3) reg 4(1) Migration Amendment Regulations 2006 (No 4) reg 4(3) |
| Sun & Anor v Minister for Immigration & Anor [2008] FMCA 180 Quarm v Minister for Immigration & Anor [2008] FMCA 287 Quarm v Minister for Immigration & Citizenship [2008] FCA 1156 followed |
| Applicant: | EUN YOUNG KIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 376 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 October 2008 |
| Date of Last Submission: | 1 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2008 |
REPRESENTATION
| Applicant’s Solicitor: | Mr Liu |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| First Respondent’s Solicitor | Mr Markus |
| Solicitors for the Respondents | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $2,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 376 of 2008
| EUN YOUNG KIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant asks the Court to review a decision of the Migration Review Tribunal signed (purportedly) on 11th January 2007[1] and handed down on 23rd January 2008 affirming a decision not to grant her a Skilled – Independent Overseas Student (Residence) (Class DD) visa.
[1] It is apparent from the text of the decision that it was in fact signed on 11th January 2008.
She claims that the Tribunal asked itself the wrong question and took into account an irrelevant consideration in that it considered that subclause 880.230(2) of Schedule 2 of the Migration Regulations 1994 applied to her application for a Skilled – Independent Overseas Student (Residence) (Class DD) visa in circumstances where either or both,
a)subclause 880.230 of Schedule 2 of the Migration Regulations 1994 or
b)Reg 4(3)(a) of the Migration Amendment Regulations No. 4 of 2006, (being part of the transitional provisions applying to subclause 880.230)
are invalid.
Background
The Applicant, who is a national of the Republic of Korea, first arrived in Australia on 6th March 1996. She made several visits to Australia on Tourist visas between 1996 and 1999. On 18th August 1999 she was granted the first of a series of Student visas. She was granted a Subclass 573 (Higher Education Sector) visa on 14th November 2001. Her last student visa, a Subclass 572 (Vocational Education and Training Sector) visa, was granted on 10th May 2005 and ceased on 12th June 2006. She has held a Bridging A visa since then.
The Applicant applied for a Skilled – Independent Overseas Student (Residence) (Class DD) visa on 5th June 2006, nominating her skilled occupation as pastry cook. She submitted evidence that she had achieved a Certificate III in Food Processing (Retail Baking) – Cake and Pastry from City College of Professional Development.
A delegate of the Minister refused the application on 25th January 2007. The delegate found that the City College of Professional Development was not registered on the Commonwealth Register of Institutions and Courses for Overseas Students. Registration is a requirement under the Education Services to Overseas Students Act 2000. Accordingly, the delegate found that the Applicant did not meet the requirements of Regulation 880.230 of Schedule 2, in that she did not have a skills assessment made on the basis of qualifications obtained in Australia as a result of full time study of a registered course.[2]
[2] Court Book 49
The Applicant applied to the Migration Review Tribunal on 20th February 2007, seeking a review of the delegate’s decision. The Tribunal wrote to the Applicant on 24th October 2007, inviting her to comment on or respond to information that the Tribunal considered would, subject to any comments or response that she made, be the reason or a part of the reason, for affirming the decision under review. The information concerned the fact at the time the Applicant’s qualification was awarded, 22nd June 2005, the City College of Professional Development was not registered. Accordingly, the qualifications that were the basis of the assessment by Trades Recognition Australia were therefore not obtained as a result of a full time study of a registered course. The Tribunal invited the Applicant to comment or respond by 21st November 2007.
The Applicant’s migration agent replied on 27th October 2007, saying:
As you may be aware, all applicants who lodged applications for subclass 880 before 1st July 2006 based on non-CRICOS course that they undertook received letters from DIAC in August 2006. In the latter, DIAC suggested that applicants caught by the retroactive regulations undertake the same course at CRICOS education providers and bring the skill assessments’ results to the department to satisfy the new requirement in the Regulations.[3]
[3] Court Book 64
The Tribunal wrote to the Applicant on 7th November 2007, inviting her to attend a hearing on 4th December. The Applicant attended the hearing and gave evidence with the assistance of a Korean interpreter.
The Tribunal handed down its decision on 23rd January 2008, affirming the delegate’s decision.
The Tribunal found that subclause 880.230(2) applied to the Applicant’s case and noted that the Applicant had not applied for a visa until 5th June 2006. It went on to find that, at the time the Applicant obtained her Certificate III in Food Processing (Retail Baking), the City College of Professional Development was not registered within the meaning of regulation 1.03.
The Tribunal also found that the Applicant obtained her qualifications from City College on 22nd June 2005 while she was the holder of a student visa. Thus, the Tribunal found that the Applicants’ qualification of Certificate III Food processing (Retail Baking) was not obtained as a result of full time study of a registered course. The Tribunal found that the Applicant did not satisfy subclause 880.230(2).
The Tribunal made this comment:
The Tribunal accepts that the applicant feels that her situation is unfair, and that she may have been misled by the Department. However, the Tribunal is bound to apply the legislation.[4]
[4] Court Book 83
The Tribunal found that the Applicant did not meet clause 880.230, which was a key criterion for the grant of the visa. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the Applicant a Skilled – Independent Student (Residence) (Class DD) visa.
Application for Judicial Review
The Applicant filed an application and affidavit in support on 18th February 2008, seeking judicial review of the Tribunal’s decision. On 17th March 2008 the application first came before the Court and, at the request of the parties, adjourned the proceedings to 10th June 2008 for further mention. On 28th March 2008, the Applicant filed a Notice of a Constitutional Matter under the provisions of s.78B of the Judiciary Act 1903. The Notice claimed that subclause 880.230(2) of Schedule 2 was invalid as repugnant to s.51 (xxxi) of the Constitution, as the retroactive application of that subclause resulted in the acquisition of property of the Applicant by the Commonwealth of Australia, constructively or actually, without providing just terms for that acquisition, being the visa application charge of $1,935.00 paid by the Applicant and the right set out under s.65 of the Migration Act.
As there were other applications in which the same constitutional issue was being raised (Sun & Anor v Minister for Immigration & Anor[5] and Quarm v Minister for Immigration & Anor[6]), it was agreed between the parties that the matter would be listed for mention on 10th June pending judgment in the other two matters. In due course, the application was listed for hearing on 1st October 2008.
[5] [2008] FMCA 180
[6] [2008] FMCA 287
In her application, the Applicant claims that the Tribunal took into account an irrelevant consideration. The particulars of that claim are that the Tribunal took into account subclause 880.230(2) of the Schedule 2 of the Migration Regulations 1994, when that either or both subclause and Regulation 4(3) (a) were invalid.
Further particulars of that claim were:
i)Subclause 880.230(2), as given effect by Reg 4(3)(a) is uncertain and unreasonable in that subclause 880.230(2) purports to apply from a date prior to the coming into force of subclause 880.230(1), and subclause 880.230(2) can only operate where subclause 880.230(1) is engaged.
ii)Subclause 880.230(2), as given effect by Reg 4(3)(a) is repugnant to Section 51 (xxxi) of the Constitution, in that it is a law with respect to the acquisition of property, being the fee paid by the applicant pursuant to s.46(1)(ba) of the Migration Act, other than on just terms.
iii)Subclause 880.230(2) as given effect by Reg 4(3)(a) is ultra vires the Migration Act, in that,
a) it is not supported by ss.504, 31(3) or any other provision of that Act, and
b) entirely disproportionate to the purpose of that Act.
The Applicant seeks the following orders:
a)A declaration that either or both
i)subclause 880.230 of Schedule 2 of the Migration Regulations 1994,
ii)Reg 4(3)(a) of the Migration Amendment Regulations No 4 2006
are invalid.
b)A declaration that the decision made by the Migration Review Tribunal is void and of no effect.
c)A writ of certiorari directed to the Second Respondent removing into this Court to be quashed the decision made by it on 11 January 2008 and handed down on 23 January 2008 to affirm the decision of a delegate of the First Respondent to refuse to grant the Applicant a subclass 880 visa.
d)A writ of mandamus directed to the Second Respondent to hear and determine the applicant’s application for review according to law.
There is no record of any response being filed.
The decisions in Sun and Quarm were that the application in each case would be dismissed. The application in this matter was adjourned to 1st October 2008 to await the decision in the appeal Quarm v Minister for Immigration and Citizenship and Anor. On 22nd August 2008 Sundberg J gave judgment in that matter, dismissing the appeal.[7]
[7] [2008] FCA 1156
The Applicant has not filed any submissions in this matter. On the date of the hearing, the Applicant’s solicitor conceded that the appeal decision was binding on this Court and was adverse to the Applicant’s case.
Conclusions
The decision in Quarm concerned an application for a Skilled – Independent Overseas Student (Class DD, subclass 880) visa for which the appellant had applied on 26th September 2005. She had paid the required fee of $1,935.00. She had supplied a positive skills assessment to meet the requirement in clause 880.221. However, by the time her application was assessed by the Minister’s delegate, clause 880.230 had been amended by the Migration Amendment Regulations 2005 (No 3). By regulation 4(1), the 2005 transitional provision, the amendment applied to a visa application made on or after 1st July 2005. Clause 880.230 was amended to read that the qualification which led to the positive skills assessment had to have been obtained as a result of full time study of a registered course. A registered course is one provided by an institution, body or person registered under s.9 of the Education Services for Overseas Students Act 2000.
The Migration Amendment Regulations 2006 (No 4) provided that the amendments applied in relation to a visa application:
a)made but not finally determined before 1 July 2006; or
b)made on or after 1 July 2006.
The course upon which the appellant relied for her positive skills assessment was not a “registered course” for the purposes of clause 880.230(2).
The application was refused by the Minister’s delegate on 14th February 2007 and an application for review by the Migration Review Tribunal was dismissed on the ground that clause 880.230(2) applied and was not satisfied.
The appeal in Quarm dealt with the same issues as the Applicant had claimed in this case. It was held that the appellant’s attack on the validity of clause 880.230(2) and the 2006 transition provision failed (at [31]).It was further held that there was no acquisition of property within s.51(xxxi):
She paid the fee voluntarily. There was no compulsory acquisition, expropriation or requisition.[8]
[8] Quarm at [32]
The Court held that:
In order for the voluntarily paid fee to become an expropriated asset, the challenged provisions must have defeated some right that was acquired by the appellant when she entered into the transaction constituted by the visa application accompanied by the fee. What she thereby obtained was the right to have her application considered and determined according to law. That right is enforceable by public law remedies such as mandamus. It is not a right to a particular outcome. The right to have an application determined according to law is always subject to the power of Parliament and its delegates to change the law. Accordingly there is no right to have an application considered against criteria that exist at the time the application is made.[9]
[9] Quarm at [35]
Further, the Court held:
The change that occurred as a result of the impugned provisions, although it affected her chances of success, was not a change which detracted from any rights the appellant obtained on the making of her valid application.[10]
[10] Quarm at [36]
It was held that the Federal Magistrate (Smith FM) correctly rejected the contention that there had been an acquisition of property.
Clearly, the decision in Quarm is directly on point. It is a decision on appeal from the Federal Magistrates Court[11] and is therefore binding.
[11] Even though, sadly, it refers to a body known as the “Magistrates Court”.
It follows that the application must be dismissed with costs. An amount of costs in the sum of $2,800.00 is sought by the First Respondent, which I consider to be appropriate in the circumstances.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 8 October 2008
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