MA v Minister for Immigration

[2009] FMCA 161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MA v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 161

MIGRATION – Review of Migration Review Tribunal decision – subclass 880 visa – nature of Tribunal review – Tribunal does not exercise a form of supervisory jurisdiction over the primary decision maker – Tribunal only empowered to conduct a review of the merits of the visa application.

Migration Act 1958, ss.94, 95, 95A, 349, 350, 474, 476
Migration Regulations 1994, reg.2.26A, cls.880.222 and 880.230 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBEL v Minister for Immigration, Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant: JINGJING MA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3108 of 2008

Judgment of: Cameron FM

Hearing date: 27 February 2009

Date of Last Submission: 27 February 2009

Delivered at: Sydney

Delivered on: 6 March 2009

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3108 of 2008

JINGJING MA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 31 July 2006 the applicant applied for a Skilled – Independent Overseas Student (Residence) (Class DD) subclass 880 visa. A delegate of the Minister refused the application on 16 August 2007 on the basis that the applicant did not satisfy cl.880.222 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant Law

1. The Tribunal described the subclass 880 visa as an onshore permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification.

2. The criteria for the grant of a subclass 880 visa are set out in Part 880 of sch.2 to the Regulations. Relevantly in this case, a primary criterion to be satisfied at the time of decision is cl.880.222 which requires that an applicant have a “qualifying score” when assessed under subdiv.B of div.3 of Part 2 of the Migration Act 1958 (“Act”) (i.e. ss.92-96). That subdivision provides for the application of a points system under which applicants for relevant visas are given a score based on particular attributes set out in the Regulations, in this case sch.6A (which provides details of the qualifications and range of points available) and reg.2.26A (which stipulates which parts of sch.6A are relevant to subclass 880 visas).

3. An applicant whose assessed score is more than or equal to the applicable pass mark is taken to have received the qualifying score: s.94. If an assessed score is less than the pass mark, but greater than or equal to the pool mark, the applicant remains in a pool for up to 24 months, waiting for a lower pass mark to be prescribed: ss.95, 95A.

4. Section 350 of the Act requires the Tribunal to consider the Regulations and the pool and pass marks in force at the time of the delegate’s assessment and as in force at the time of the Tribunal assessment and apply whichever are more favourable to the applicant.

Background facts

1. As already noted, the applicant applied for a subclass 880 visa on 31 July 2006.

2. In considering her application, the Minister’s delegate awarded her the following points for each category:

Skill	50
Age	30
English language ability	15
Specific work experience	0
Occupation in demand/job offer	0
Australian qualification	5
Bonus points	0
Regional Australia	0
TOTAL	100

1. The requisite pass mark at the time of the delegate’s decision was 120 points. As the applicant failed to achieve the qualifying score, the delegate refused to grant her the visa.

2. The applicant sought review of that decision with the Tribunal and appeared at a hearing on 17 October 2008 to give evidence and present arguments.

3. The Tribunal reassessed the applicant’s points score according to the Regulations in force at the time of the delegate’s decision and found that she was entitled to a total of 110 points as follows:

   a)Skills qualifications

   The applicant’s nominated skilled occupation of Information Technology Officer – Computing Professional entitled her to 60 points.

   b)Age qualifications

   Her age entitled her to 30 points.

   c)Language skill qualification

   The applicant achieved an IELTS test score of at least 5 for each component of listening, reading, writing and speaking and this entitled her to 15 points.

   d)Employment experience qualifications

   She provided no evidence and made no claim about being employed in her nominated skilled occupation or a closely related skilled occupation for a period of, or periods totalling, at least 36 months in the 48 months immediately before the day on which her visa application was made and was therefore entitled to no points for this category.

   e)Spouse skill qualification

   She did not have a spouse and therefore no points could be awarded for this category.

   f)Australian educational qualification

   She received a Bachelor of Multimedia Studies from Central Queensland University which entitled her to 5 points.

   g)Skills targeting qualifications

   The applicant’s nominated skilled occupation was not a specified occupation in demand and she did not have one of a number of listed specialisations in the computing professional field that would otherwise allow for points to be awarded in this category.

   h)Bonus points qualification

   There was no evidence to suggest that the applicant was entitled to any bonus points. 

   i)Additional points qualification for regional Australia and low-population metropolitan areas

   The applicant studied at the Sydney campus of Central Queensland University and was entitled to no points for this category.

4. The Tribunal also considered the Regulations in force at the time of its decision but concluded that the pool mark and the pass mark at the date of primary assessment and at the time of the Tribunal’s decision remained unchanged at 120 points. It therefore concluded that the applicant failed to achieve the score required to pass the points test or to be placed into the pool. That being so, she failed to satisfy cl.880.222 of the Regulations and the Tribunal accordingly affirmed the decision of the delegate not to grant her a subclass 880 visa.

5. In reaching this conclusion, the Tribunal noted that the applicant had requested time to sit a further IELTS test but concluded that this would be futile because, even if she were awarded the maximum 20 points for English language ability, she would still fail to achieve the required pass mark.

6. Further, and in any event, even if the applicant did achieve the requisite score, her application would be likely to fail as she did not provide a positive skills assessment in accordance with cl.880.230 of the Regulations. However, as the applicant failed to achieve the qualifying score, the Tribunal chose not to make any findings in this respect.

Proceedings in this Court

1. The grounds of the application commencing these proceedings were pleaded as follows:

   (1)The Tribunal committed jurisdictional error by failing to [consider] the fact that the [delegate] of the Minister failed to deal with my visa application fairly efficiently and quickly in accordance with Division 3AB of the Migration Act 1958.

2. The provisions of the Act to which the applicant refers in her application are those found in subdiv.AB of div.3 of Pt.2 of the Act which is entitled “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. That is to say, the subdivision provides the procedural structure within which the Minister’s consideration of visa applications is to be undertaken.

3. The applicant’s allegation manifests a fundamental misunderstanding of the role of the Tribunal. It appears that she perceives the Tribunal as sitting in review on the delegate’s actions and decision, much as this Court exercises a supervisory jurisdiction over the Tribunal. This is mistaken. The Court’s role is to declare and enforce the law which governs the Tribunal’s operation, it is not to conduct a further review of the facts or the merits of the visa application. Consequently, if the Tribunal errs in such a way as to commit a jurisdictional error, its decision is liable to be set aside. But if it merely reaches a factual conclusion with which the Court might disagree, that is of no significance and does not amount to a basis upon which the Court might set the Tribunal’s decision aside.

4. By contrast, the Tribunal’s function is to conduct a further review of the merits of the application and to make its own findings of fact as part of that review process, although it need not, in every case, consider afresh all possible issues presented by an applicant’s claim: SZBEL v Minister for Immigration, Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 164 [40]. The powers of the Tribunal are set out in s.349 of the Act which provides:

   349   Powers of Migration Review Tribunal

   (1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

   (2)     The Tribunal may:

   (a) affirm the decision; or

   (b) vary the decision; or

   (c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

   (d) set the decision aside and substitute a new decision.

   (3)     If the Tribunal:

   (a)     varies the decision; or

   (b) sets aside the decision and substitutes a new decision;

   the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. …

   These powers are circumscribed to an extent by s.350 which has been referred to above at [7].

5. The Tribunal only has such powers as are provided to it by the statute. Section 349 provides that it is empowered to review the merits of visa applications. That is to say, its review is a further consideration of the visa application in light of the delegate’s decision, as if the Tribunal were standing in the Minister’s shoes. It is not analogous to judicial review or the exercise of a supervisory jurisdiction such as this Court has in migration matters. The Tribunal has been provided with no power to supervise the Minister or his delegates in the exercise of their functions. Thus, even were the Minister’s delegate to have failed to observe all the requirements of subdiv.3AB, that is of no significance because the Tribunal was not empowered to consider such matters.

6. To the extent that the applicant might suggest that the Court has such a power in respect of the Minister’s delegate, s.476(2)(a) provides that the Court has no jurisdiction in relation to primary decisions. The delegate’s decision was a primary decision as defined by s.476(4)(a).

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  6 March 2009