LAMA v Minister for Immigration

[2012] FMCA 493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAMA v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 493

MIGRATION – Review of decision by Migration Review Tribunal – consideration of ‘exceptional circumstances’ – date of completion of course requirements – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), rr.1.03, 1.15F, 1.15I, Sch.2

Han v The Minister for Immigration & Anor [2011] FMCA 495
Han v Minister for Immigration & Citizenship [2011] FCA 1437

Applicant: WANGCHEN YOLMO LAMA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2737 of 2011

Judgment of: Nicholls FM

Hearing date: 1 June 2012

Date of Last Submission: 1 June 2012

Delivered at: Sydney

Delivered on: 1 June 2012

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 30 November 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2737 of 2011

WANGCHEN YOLMO LAMA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 30 November 2011, pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 31 October 2011, which affirmed the decision of a delegate of the first respondent to refuse the grant of a Skilled (Provisional) visa (“the visa”) to the applicant.

Background

1. The relevant background to this matter can be derived from the bundle of relevant documents (Court Book – “CB”) which the Minister has put before the Court in compliance with orders made at the first Court date.

2. The applicant is a citizen of Nepal and, after arrival in Australia, applied for the visa on 2 November 2009 (CB 1 to CB 18). At the time of the making of his application the applicant nominated the relevant occupation for the visa as “accountant” (CB 12) and asserted that he had completed a Master of Professional Accounting at an Australian educational institution between 24 July 2006 and 2 May 2009 (CB 13). In evidence he supplied a copy of his qualification (CB 16), which showed that that qualification was conferred on the applicant on 2 May 2009.

The Regulations

1. The criteria for the relevant visa are found in that part of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”), described as sub-class 485. Relevant to the current case is cl. 485.213. In particular, I note that that clause is under the heading of “Primary criteria”, and the sub-heading of “Criteria to be satisfied at time of application”.

2. Clause 485.213 provides that:

   “ The following requirements are met:

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

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

3. There is no dispute about cl.485.213(b). The issue in the current case turned in relation to cl.485.213(a). In any event, I note for the sake of completeness that the term “skilled occupation”, according to r.1.03 of the Regulations, has the meaning given to it in r.1.15I. Relevantly in the current case, the term “Australian study requirement” has, again because of r.1.03 of the Regulations, the meaning given to it in r.1.15F. That regulation, in particular r.1.15F(2), also defines the word “completed” to mean:

   “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.”

The Delegate

1. The delegate entered into email correspondence with the applicant concerning, amongst other things, the date of completion of the course, as opposed to the date of the conferral of the qualification (CB 40 to CB 55). Ultimately, information from the academic institution which the applicant gave to the delegate certified that the requirements for the applicant’s qualification were completed on 16 March 2009 (CB 41).

2. The delegate refused the application on 24 February 2011 (CB 60 to CB 62). The basis for that refusal was that the delegate was not satisfied that the applicant met the requirements of cl.485.213 (CB 62). In particular, that the Australian study requirement was not satisfied by the applicant in the period of six months immediately before the day on which the application for the visa was made.

The Tribunal

1. The applicant applied for review to the Tribunal on 8 March 2011 (CB 63 to CB 69). He provided to the Tribunal relevant copies of correspondence and documents in relation to his application before the Minister’s department (CB 70 to CB 84).

2. On 18 October 2011 the applicant attended a hearing before the Tribunal (CB 87 and CB 89). The only account of that hearing before the Court is that contained in the Tribunal’s decision record ([20] at CB 96 to [24] at CB 97 ).

3. The Tribunal identified that the issue to be determinative in the review was whether the applicant had met the Australian study requirement. That is, whether the applicant had satisfied this requirement in the six months preceding his application for the visa ([25] at CB 97).

4. The Tribunal found that the applicant had not satisfied the condition in cl.485.213(a) of Sch.2 to the Regulations ([30] at CB 98). The Tribunal held that, pursuant to r.1.15F(2) of the Regulations, the applicant had completed a Masters of Professional Accounting on 16 March 2009 ([26] at CB 97). In coming to this conclusion, the Tribunal had regard to the letter issued by the relevant education provider, which certified that the applicant had completed the course requirements on 16 March 2009.

5. The Tribunal also found that the applicant had not completed any other qualification in the subsequent period ([26] at CB 97). On the basis of these findings, the Tribunal found that the applicant had not completed a qualification in the relevant six month period. This was based on the certification from the education provider, that the qualification requirements had been completed seven and a half months prior to the application being made for the visa.

6. The Tribunal had regard to the definition of “completed” as set out at r.1.15F(2) of the Regulations. If regard is had to the Tribunal’s decision record it is clear that its consideration included the “Note” which appears at the base of that part of the Regulations. That “Note”, of course, draws a distinction between the completion of an academic qualification and its subsequent formal conferral.

7. The Tribunal found it had no discretion in the matter ([28] at CB 97). Despite this, the Tribunal had regard to the applicant’s personal circumstances as put to it by him as explanation for the delay in the making of the visa application from the date of the completion of the requirements for the qualification that he had been awarded ([28] at CB 97 to [29] at CB 98).

Application to the Court

1. The application to the Court is in the following bare terms:

   “Whether the decision breaches applicant’s exceptional circumstances.” 

Before the Court

1. The applicant appeared in person today. Mr R Baird appeared for the first respondent. 

2. I note that at the first Court date in this matter, on 14 December 2011, I urged the applicant, given what was before the Court at that time (the Tribunal’s decision record and the applicant’s sole bare ground), to obtain legal advice. Further, I put him on notice that he faced some significant hurdles in seeking to establish legal error on the part of the Tribunal.

3. In any event, the applicant confirmed today that he had obtained such legal advice but, notwithstanding that legal advice, felt compelled to attend today because he was of the view that once a final hearing date had been set for his matter he should let matters run their course and attend at the final hearing. In other words, the applicant had now, with hindsight, some misunderstanding that he could not have taken some other action in the intervening time.

4. In any event, the best that the applicant was able to put to the Court today was to seek to re-agitate the reasons that he had provided to the Tribunal for the delay in him making a visa application after having competed the requirements of his academic qualification.

5. The relevant education provider stated that the applicant met the relevant requirements for his accounting qualification on 16 March 2009 (CB 41). The applicant acknowledged this before the Tribunal ([21] of CB 96). The Tribunal, with reference to that evidence, applied the definition of “completed”, as it understood it, and as is set out in r.1.15F(2) of the Regulations (and as further explained by the “Note” to the Regulation). It was open to the Tribunal, in my view, to find that that was the date of completion, rather than the date of conferral as initially contended by the applicant.

6. Before the Court today I raised two matters with Mr Baird. One of those matters revolved around the existence of the “Note” that appears immediately below the definition of the word “completed” as it is set out in r.1.15F of the Regulations.

7. I am of the view that the definition itself is not ambiguous or obscure. In those circumstances, I asked Mr Baird why it was that the Regulations had been drafted with a “Note” included. I am not sure that a satisfactory answer occurred to either of us. Nonetheless, the view that I take in relation to this matter is that it was at least open to the Tribunal, in light of the evidence before it, and in light of the unambiguous meaning of the term “completed” as it appears in the Regulations, to find that the applicant had, in fact, completed the academic requirements for the award of his qualification on the date that it did so find. Further, in my view, the wording “academic requirements for its award” in itself distinguishes between the requirements and the actual award. In making this finding the Tribunal did not misunderstand or misapply the relevant regulatory requirements.

8. Once the Tribunal made this finding which was open to it on the material before it, and for which it gave reasons, then it was correct, in my opinion, to also find that, given one of the primary criteria had not been met at the time of application, it had no discretion to find for the applicant.

9. In Han v The Minister for Immigration & Anor [2011] FMCA 495, as relied upon by the Minister, Lucev FM found that the Tribunal was obliged to consider and apply the criteria for the visa. Once satisfied that the applicant did not satisfy the criteria, the Tribunal’s task was complete. The Tribunal did not have any discretion to consider other matters. [I note the Minister’s submission that this matter was undisturbed on appeal (Han v Minister for Immigration & Citizenship [2011] FCA 1437).]

10. The applicant’s ground makes reference to a “breach” by the Tribunal because it did not consider the applicant’s “exceptional circumstances”. In light of the relevant regulatory regime, the Tribunal’s findings as to the non-satisfaction of the relevant criterion and the absence of discretion, the applicant’s complaint cannot succeed. Those matters, in and of themselves, are sufficient to answer the ground as stated in the application. 

11. However, I note the applicant’s claim that the Tribunal should have had regard to his “exceptional circumstances”. If that is implicit in the applicant’s complaint in his application, and it appears to be consistent with what he attempted to put before the Court today, then it must be said that this appears to confuse the requirements of this visa with those parts of the Regulations dealing with the cancellation of visas where the acceptance by the relevant decision maker of “exceptional circumstances”, beyond an applicant’s control, may lead to a visa not being cancelled (or one which has been cancelled being reinstated).

12. The fact is that no such provision exists in relation to the relevant to grant of the visa in the current case. In these circumstances, and as I raised with Mr Baird today, I had some difficulty, initially, in seeing why the Tribunal asked the applicant at the hearing as to the circumstances for the delay in the application for his visa. The critical issue was when the applicant had completed the academic requirements for the award which was subsequently conferred on him, not the delay itself in him applying for the visa, or the attendant circumstances. In one sense, this may be the explanation as to why the applicant has sought to press these circumstances (being his father’s illness and his personal situation at the time) before the Court.

13. I am persuaded by Mr Baird that what the Tribunal was attempting to do at [22] (at CB 97), was to address the material put to it by the applicant, notwithstanding the clear terms of the delegate’s decision and the clear reference to the absence of discretion once the date of completion of the academic requirements had been determined. I accept that the Tribunal was attempting to address the applicant’s submission and, when [22] (at CB 97) is properly read with [21] (at CB 96) and [23] (at CB 97), having dealt with the applicant’s claims before it, the Tribunal then proceeded to deal with the regulatory scheme in the way that I have already alluded to.

14. But whatever the case, and in any event, there is no jurisdictional error in the Tribunals’ decision. Even if the applicant had raised this matter with the Tribunal in some mistaken belief, or for some other reason, the fact is that ultimately, as the applicant himself is reported to have accepted, the certificate from the education provider was unambiguous and clear as to when the education provider said that the applicant had completed the academic requirements for his Master’s qualification. The Tribunal was entitled to rely on that and to reason, and find, in the way that it did. No error in the Tribunal’s exercise of its jurisdiction is revealed.

Conclusion

1. In the absence of any jurisdictional error, the application should be dismissed. As I said to the applicant, if there were any chance of his application succeeding, then either he or the Court would have needed to identify and establish that some jurisdictional error was evident in the Tribunal’s decision. In the absence of any such error, it is appropriate that the application be dismissed. I will make an order in that regard.

Costs

1. It is appropriate that an order for costs be made in this matter. There is nothing that, in my view, argues against the making of such an order in the normal course. As to the amount, the amount the Minister seeks is a significant amount but it is well within the bounds of reasonableness when regard is had to the work that has actually been done by the Minister’s legal representatives. I will make an order in the amount sought.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  14 June 2012