Llanos and Anor v Minister for Immigration and Anor - [2018] FCCA 2148

FEDERAL CIRCUIT COURT OF AUSTRALIA

LLANOS & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2148

Catchwords:
MIGRATION – Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Cases cited:

Venkatesan v Minister for Immigration & Anor [2008] FMCA 409

Sapkota v Minister for Immigration and Citizenship [2012] FCA 981

First Applicant:

JOHN BYRON GARCIA LLANOS

Second Applicant:

VIVIANA MARIA VALENZUELA PALACIO

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 1122 of 2017

Judgment of:

Judge Vasta

Hearing date:

30 July 2018

Date of Last Submission:

30 July 2018

Delivered at:

Brisbane

Delivered on:

30 July 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicants

Solicitors for the First Respondent:

Minter Ellison Lawyers

ORDERS

The Application filed on 16 November 2017 be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1122 of 2017

JOHN BYRON GARCIA LLANOS

First Applicant

VIVIANA MARIA VALENZUELA PALACIO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 16 November 2017, the Applicant and his wife applied to this Court for a review of a decision of the Administrative Appeals Tribunal (“the AAT”) that affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the Applicant a 485 visa.
In short compass, the situation is that the Applicant had come to this country on a valid student visa. He has studied at QUT and has now been given a degree of Master of Project Management. He had decided to apply for a subclass 485 visa.
To do so, there are three criteria that were needed to be satisfied. The first is that the Applicant holds a qualification or qualifications of a kind specified by the Minister. The second is that each qualification must have been conferred or awarded by an educational institution specified by the Minister. And thirdly, the Applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of six months immediately before the day the visa application was made.
There is no doubt that the qualifications that the Applicant had were of the type as foreshadowed by the clause. There is also no doubt that QUT is a registered university and also satisfies the criteria. The aspect that there is real problems with is whether the Applicant met the Australian study requirement in the six months before the visa application was made.
Regulations 1.15F(1) is set out as follows:
(1) A person satisfies the Australian 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 instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
The first question was when it was that the degree was completed. There is no doubt that the Applicant had completed all of his requirements and, from a course perspective, the final results and unit results from the course were all submitted on or before 27 June.
However according to the way in which matters are looked at by QUT, that was only “step one” in the process. Once those results had been approved by the academic board, they are transferred to QUT student information system and formally ratified and released. That is “step two”.
The ratification of results on 6 July 2016, which is a number of days after the results had been received and put into the system, means that as far as QUT was concerned, 6 July 2016 was the date in which the Applicant completed his course.
The Tribunal looked at a number of authorities as to when it is that the law would have that the Applicant completed his course. It seems that the faculty academic board met on 4 July 2016. It was at that time that the results were ratified, but it took another two days before that was posted on the student information website.
So that notwithstanding the fact that, as far as QUT is concerned, the degree was conferred on 6 July 2016, such a stance is inconsistent with the observations of my brother, Burchardt J, in Venkatesan v Minister for Immigration & Anor [2008] FMCA 409 and also the observations of Cowdroy J in Sapkota v Minister for Immigration and Citizenship [2012] FCA 981. The way in which the Court should interpret the timing of the degree is that the degree was completed on 4 July 2016.
That completion of the degree, on 4 July 2016, occurred four days after the Applicant applied for his visa. That is, the Applicant applied for the visa on 30 June 2016. According to the way in which the clause is composed, the degree had to be completed some time between 1 January 2016 and 30 June 2016 for the application to be valid. As the course was completed on 4 July 2016, it was not completed within that six month period, and so was outside of the time.
There is another problem with the matter even if one were able to somehow look the other way with regard to the timing; and that is that the course had to be completed as a result of a total of at least two years academic study. That means the course had to be completed as a result of a course of 92 weeks of study. The investigations showed that this course was completed within 78 weeks. Therefore, it failed the test that it had satisfied the Australian study requirement.
So the problem with the application is that it did not satisfy the Australian study requirement and it had not been lodged at the proper time.
Whist these matters may seem rather technical, there is no room for discretion. The application either complies with the legislation or it does not. In this case, the application simply does not comply with the legislation and it cannot comply with the legislation.
I should note the AAT also adjourned the matter in a last ditch attempt for the Applicant to make some other arrangements to regularise his visa status in Australia. Whilst there was no obligation on the Tribunal to do so, it simply did. At paragraph 43 it noted that:
43. During the course of the hearing, Mr Garcia Llanos told the Tribunal that he was aware that he had a of visa options after completion of his studies at QUT in Brisbane but, largely based on advice from Departmental officers with whom he spoke, as well as the Department’s website, he opted to pursue the subclass 485 visa pathway. He had spoken with a couple of friends. However, he did not seek professional advice.
His representative at the Tribunal hearing told the Tribunal that, in the event the Tribunal affirms the decision, the Applicant would need to leave Australia within a month to lodge a visa application offshore and then await the outcome of that application or take the Tribunal’s decision to the Federal Circuit Court.
The Tribunal noted that because of the legislative requirements it really had no option but to affirm the decision.
At paragraph 47 it said:
47. With this in mind and having regard to the Tribunal’s power to adjourn a review, the Tribunal posited a 3 week timeframe for providing evidence of lodgement with the Department of a fully-documented decision-ready nomination application by Mr Garcia Llanos’ employer to justify an adjournment to the review. After brief consultation with Mr Garcia Llanos, his representative agreed that such evidence could be lodged with the Tribunal on or before Friday, 6 October 2017. The Tribunal indicated that, provided it received evidence of fully-documented decision-ready nomination having been lodged with the Department on or before 6 October 2017, it would favourably consider a request to delay making a decision for 3-4 months thereby allowing sufficient time for the Department to process the nomination application such that Mr Garcia Llanos would only need to leave Australia for a short period of time to allow lodgement offshore of a possible Subclass 457 visa. Both Mr Garcia Llanos and his representative indicated their agreement to this time frame.
However, nothing was received by the Tribunal. The Tribunal contacted the representative on 10 October – four days after the deadline – to see what, if any, information was to be forthcoming, but no documentation had been given to the Tribunal. Given that it had afforded the Applicant an opportunity to demonstrate that his employer would sponsor him for the visa, the Tribunal didn’t consider it reasonable to adjourn the case any longer and so therefore affirmed the decision.
The Applicant had three grounds of application:
1. The Tribunal erred in interpreting the meaning of Australian study requirement for the purpose of Reg 485.231(3) of the Migration Act 1958 (the Act).
Particulars
The Applicant satisfied the ‘Australian study requirement for the purpose of 485 visa. The ‘academic requirements’ for the award of the degree were satisfied at the time of visa application lodgement. The results of all subjects included in the course were made available on the Uni online portal. An email by the Education provided [sic] to the student also confirms the course requirements were met was before the application date. The ‘date of notification that all academic course requirements were met’ was before the application was lodged. The ‘critical date’ was 27th June 2016. The applicant’s final exams or notice of completion of the course were made available to the applicant on 27th June 2016, whereas the application was lodged on 30th June 2016.
The Tribunal erred in concluding the applicant did not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made as required by the cl.485.231(3) of Schedule 2 to the Regulations.
That ground simply has no merit. It is clear that the course is not completed until the education provider says that it is completed. All of the matters that the Applicant has to do, have been done and there is nothing more that he can do. The Applicant hypothetically would say that the academic board looking at those matters was simply performing a function.
It seems to me that the interpretation given by the Tribunal is the correct interpretation and is in keeping with the two authorities upon which the Tribunal relied.
But the Applicant did not at all look at the aspect of the course being 78 weeks and not the 92 weeks that was required. So even if there was some merit in the Applicant’s argument that the degree was given on 27 June, it did not mean that the Australian study requirement had been met; and so, whilst that is really something to just note, I cannot say that the Tribunal erred in interpreting the meaning of Australian study requirement.
The second ground:
2. The Tribunal erred by not considering the advice given to the Applicant by the Departmental officer in choosing to pursue the Post-Study Work stream for a Subclass 485 visa.
This ground really revolves around evidence given by the Applicant that he did what he did because he rang the Department and a Departmental officer told him that this is what he should do. There is no independent evidence of this and one would think that what the Departmental officer told the Applicant, if that is what was told to him, was patently wrong. But simply put, it doesn’t matter who told the Applicant.
One may feel a degree of sympathy for his plight if it were that he were given wrong information – and one does not know whether he was given wrong information – but even if he had been, it really matters not. The legislation is either complied with or it is not complied with. Whether that is because someone told him something that was wrong, is really not to the point. That ground does not disclose any jurisdictional error.
Ground three is:
3. The Tribunal failed to afford procedural fairness and natural justice.
Particulars:
Particulars of grounds 1 and 2
It seems to me that there has been nothing that has been shown that in any way derogates from the Tribunal’s application of the codification of the natural justice principals that are in the Migration Act 1958 (Cth) (“the Act”) and it seems a bit rich to say that the Tribunal failed to afford procedural fairness when it did what it is that I said that it had done in allowing an adjournment, of sorts, for the Applicant to get his house in order.
For all of those reasons, I do not find that there is any jurisdictional error that has been shown.
This matter first came to Court on 24 January 2018. Registrar Buckingham adjourned the matter for hearing today at 2.15pm and made the orders.
On Friday, my associate received the following email, which I will read into the record. It was addressed to someone called Denisha:
Good morning
Dear Denisha
I am writing this email as I have requested an extension of time for the Court hearing that is due next 30^th of July. At the moment I am not in Australia due to some family circumstances. Please read below my email to the Court. Please I would like you to agree with my request to postpone the hearing. Looking forward to hearing from you with a positive result.
Kind regards
The applicant
The email below read this:
I am writing this email as I need to ask for an extension of time for the Court hearing date. At the moment I am not in Australia as an urgent matter requested my attention overseas. I am accompanying my sister who is unwell in Europe, whilst my mum and dad can’t come and stay with her. I left Australia on the 7^th of July with the intention to return in time for the hearing 28^th of July but at the moment I have to delay my travel plans as my parents cannot come until mid-August to help my sister. Subsequently, I will not be able to attend the hearing. Kindly consider rescheduling my hearing to another date after 30 September 2018. Upon my return I can provide necessary evidence of my trip and circumstances. Please let me know what sort of documentation you will require. I am very happy to collect it whilst I am here.
Kind regards
I was not in Brisbane on Friday and I was given a message by my Associate. I said that there would be no adjournment simply because all of the information needed was already here and there was nothing that needed to be further said.
Instead, there was another email sent to my Associate this morning that attached some form of medical certificate about a Frau Stephanie Garcia Llanos. I do not know who this person is. I assume that is it the sister of the Applicant. The letter is in German and English and talks about that there was insufficient gastrointestinal iron resorption suspected, ferritin levels should be checked regularly to see whether oral iron therapy, which has been taken now, is able to maintain ferritin within normal range.
The letter though was dated 11 January 2018. That letter was dated before Registrar Buckingham set the matter down for today’s date. I do not see that this matter, given what I have now found as to the merits of the matter, should be adjourned and I therefore I have proceeded under r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
I have looked at the matter, looked at the merits and have decided that there is no jurisdictional error and therefore I have dismissed the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 16 October 2018