Mamun v Minister for Immigration
[2011] FMCA 620
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAMUN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 620 |
| MIGRATION – Migration Review Tribunal – student visa – secondary applicant – primary applicant having departed Australia – Tribunal assessing secondary applicant as if he were a primary applicant – applicant not meeting criteria. |
| Migration Act 1958, ss.66, 359A, 417 Migration Regulations 1994, sch. 2, cls. 573.223, 573.231, 573.322 and 573.326 |
| SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129 |
| Applicant: | ABDULLAH AL MAMUN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 229 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 22 July 2011 |
| Date of Last Submission: | 22 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 22 February 2011 is dismissed.
That the applicant pay the first respondent’s costs, fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 229 of 2011
| ABDULLAH AL MAMUN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Background
This is an application for review of a decision of the Migration Review Tribunal. The applicant came to Australia in 2003 from Bangladesh as the dependent spouse of his wife. The wife had a subclass 572 vocational education and training sector visa. She did not pursue her studies. However, on 15 November 2004, she applied for a subclass 573 higher education sector visa. The present applicant was a secondary applicant for that visa. On 17 December 2004, a delegate of the Minister refused the application by the applicant’s wife, and, consequently, the present applicant’s secondary application. Notification of the refusal was sent on 17 December 2004.
The wife and the present applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal found that the application was out of time and determined that it could not consider the application. The wife and the present applicant made an application in respect of that determination to this court on 28 February 2005. The application was dismissed on 31 January 2006.
The present applicant and his wife then sought protection visas, which were refused. The present applicant and his wife then sought the exercise of the Minister’s discretion under s. 417 of the Migration Act 1958. That was also refused.
The applicant’s wife departed Australia on 31 July 2008. The applicant did not go with her.
The Department of Immigration and Citizenship on 9 December 2009 found the applicant to be living and working unlawfully in Australia. The applicant at that point described himself as being single and divorced. On 10 February 2010, the Minister sent the applicant a further notice of the decision of 17 December 2004.
On 9 March 2010, the applicant applied to the Tribunal for review of the refusal of the wife’s application for a subclass 573 visa in 2004. The Tribunal sent the applicant a letter pursuant to s.359A of the Act, and conducted a hearing at which the applicant gave oral evidence. The applicant responded to the s.359A letter following the hearing. The Tribunal handed down its decision on 28 January 2011. On 22 February 2011, the applicant applied to this court for judicial review.
Regulations
The relevant criteria for the grant of a subclass 573 student visa are set out in clause 573 of schedule 2 to the Migration Regulations 1994. Clause 573.22 of schedule 2 of Regulations sets out the criteria to be satisfied at the time of decision.
At the time of the Tribunal’s decision, clause 573.223 of schedule 2 of the Regulations provided that:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity; or
(b) for an applicant who is a person designated under regulation 2.07AO - the Minister is satisfied that:
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person's own or provided by a relative; and
(ii) the applicant's proficiency in English is appropriate to the proposed course of study; and
(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter.
At the time of the Tribunal’s decision, clause 573.231 of schedule 2 of the Regulations provided that:
The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:
(a) a principal course; and
(b) of a type that was specified for Subclass 573 visas by the Minister in a Gazette Notice:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
At the time of the Tribunal’s decision, clause 573.322 of schedule 2 of the Regulations provided that:
The applicant is a member of the family unit of a person (the primary person ):
(a) who is the holder of a Subclass 560 or 562 visa and who meets one of the following:
(i) the primary person is a citizen of a gazetted country within the meaning of Part 560 as it read immediately before 1 July 2001;
Note Under former clause 560.111, gazetted country meant a country specified by Gazette Notice for the purpose of Part 560.
(ii) the primary person is undertaking a course of study paid for, wholly or in part, by:
(A) the Commonwealth or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency;
(iii) the primary person:
(A) will be, or has been, granted a visa in relation to a course of study that is, or to courses of study that are together, of a duration of 12 months or more; or
(B) has been lawfully in Australia for 12 months or more; or
(b)who satisfies, or has satisfied, the primary criteria in Subdivisions 573.21 and 573.22 and who meets one of the following:
(i) the primary person is subject to assessment level 1 or 2;
(ii) the primary person is undertaking a course of study paid for, wholly or in part, by:
(A) the Commonwealth or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency;
(iii) the primary person:
(A)will be, or has been, granted a visa in relation to a course of study that is, or to courses of study that are together, of a duration of 12 months or more; or
(B) has been lawfully in Australia for 12 months or more.
At the time of the Tribunal’s decision, clause 573.326 of schedule 2 of the Regulations provided that:
The Minister is satisfied that:
(a) the applicant is a genuine applicant for entry and stay as a member of the family unit of the primary person mentioned in clause 573.322; and
(b) that primary person has adequate means to support himself or herself and the members of his or her family unit during the period of the applicant's intended stay in Australia; and
(c) on the basis of the applicant's stated intention, the applicant intends to comply with any conditions subject to which the visa is granted; and
(d) if the applicant is required to give evidence in accordance with Schedule 5B -- while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.
The Tribunal’s decision
The applicant’s original claim for a subclass 573 visa was dependent on his wife’s claim for such a visa. By the time of the Tribunal’s decision, the parties were no longer married. The Tribunal noted that fact, and proceeded to deal with the matter as if the applicant were himself a primary applicant for a subclass 573 visa.
The Tribunal noted that the visa applicant was unable to meet clause 573.231 as he was not enrolled in, or the subject of a current offer of enrolment in, a course of study of the relevant type. The Tribunal also considered clause 573.223(2)(a)(ii), which requires the Tribunal to be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted and any other relevant matter. The Tribunal was not satisfied that the applicant did have a genuine intention to stay in Australia. The Tribunal noted the review applicant’s and his spouse’s previous conduct in working in contravention of their visa conditions, which required them to work no more than 20 hours per week. The Tribunal considered that the applicant was not a genuine applicant for entry and stay as a student, and concluded that his main purpose was to work and assist his family.
The Tribunal also noted that the applicant’s application for a protection visa suggested that he intended to remain permanently in Australia, rather than temporarily as a student. In the circumstances, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student within the terms of clause 573.223(2)(a)(ii). The Tribunal proceeded to dismiss the application.
Grounds
The single ground in the application filed on 22 February 2011 is:
The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.
Particulars
The applicant does meet the essential requirements of clause 573.223 and evidence was provided on which the tribunal could be satisfied.
That ground is essentially seeking merits review, which, of course, this court is not able to provide. There was no evidence before the Tribunal that the applicant was enrolled in, or the subject of a current offer of enrolment in, a course of study of the relevant type.
The applicant’s written contentions repeat the same point, namely, that evidence was provided on the basis of which the Tribunal could have been satisfied that the applicant would study in Australia if he had the opportunity to do so. However, the assessment of such matters is for the Tribunal alone.
The applicant has also said in his written contentions that the Tribunal placed too much weight on other factors, such as that he and his spouse had worked in excess of 20 hours per week. However, the weight to be given to particular aspects of the evidence is a matter for the Tribunal.
The applicant additionally said in his written contentions that if he were given permission to study, he would have the capacity to do so, and there was no evidence before the Tribunal for it to come to a contrary conclusion. However, again, that was a matter of fact for the Tribunal to assess.
The applicant also said that the fact that he had applied for a protection visa was not a relevant factor, and the Tribunal erroneously took it into account. I do not accept that the applicant’s application for a protection visa was irrelevant. It indicated that the applicant wished to remain permanently in Australia rather than temporarily on a student visa.
I am not satisfied that any of the contentions put forward by the applicant indicate that there has been a jurisdictional error on the part of the Tribunal.
Additional issues
The first respondent quite properly has drawn the court’s attention to another issue, which may be indicative of jurisdictional error. That issue is that the notification of the delegate’s decision on two occasions, in 2004 and in 2010, failed to mention the particular criterion that the applicant and his spouse did not meet. That appears to be contrary to s.66 of the Act, which requires the criterion to be specified.
However, the Minister referred to the Full Federal Court’s decision in SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129 at [28] to [30] and [64] to [67], which state as follows:
28 The only requirement of s 66(2)(d)(iv) is that a notification must state where an application can be made. That requirement was satisfied in the present case. The applicant had given the Minister an address in Harris Park where she resides. There was no suggestion that the applicant would not receive a letter sent by registered mail to that address. In those circumstances, there was nothing unfair or inconvenient in telling the applicant that she could lodge an application for review in Sydney or Melbourne. There has been no suggestion that the applicant suffered any injustice by reason of the failure on the part of the Minister to state that an application for a review of the Delegate’s Decision could have been made at a registry of the Administrative Appeals Tribunal in Perth, Brisbane or Adelaide.
29 In the present case, the Minister notified the applicant of the Delegate’s Decision in a manner that was calculated to inform her fully of everything she needed to know in order to make a decision as to whether to apply to the Tribunal for review of the Delegate’s Decision. She decided to do so and made an application that complied with s 412(1). It was made in the approved form and it was given to the Tribunal within the period of 28 days after the applicant was taken to have been notified of the Delegate’s Decision.
30 In any event, even if the provision were to be properly construed as requiring a statement of every place where an application for review could be made, the same reasoning leads to the conclusion that any failure, in the present case, to comply strictly with the procedural requirements of the Act and the Regulations was not of a nature that would render the application lodged by the Applicant on 2 June 2009 a nullity. It is not possible to glean, from the language of the provisions in question, an intention on the part of the Parliament to invalidate a process simply because an applicant was not told that an application for review could be lodged at a place which was of no relevance or significance, so far as that particular applicant was concerned. While the Parliament may be taken to have intended that compliance with the requirements of s 66(2) would discharge the Minister’s obligation with respect to the giving of timely and effective notice of a decision, it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure (see Minister for Immigration and Citizenship v SZIZO(2009) 238 CLR 627 at [35]). (emphasis added)
…
64 We find ourselves in disagreement with North J in Hasan insofar as his Honour stated a general rule about the requirements of s 66(2)(d)(iv). The present case is an example of the necessity to test the question whether jurisdictional error has resulted from an alleged failure to comply with a statutory requirement by reference to the particular circumstances of the case in question. It is not necessary to decide in the present case whether the failure to draw to the attention of a potential applicant for review the facility of lodging an application at a registry of the AAT in Brisbane, Adelaide or Perth would constitute a jurisdictional error in some circumstances. It does not do so in the present case. (emphasis added)
65 There is no doubt in the present case that there was a notification of the decision made by the delegate which was, in every practical sense, effective to put the applicant on notice of her rights of review as contemplated by s 66 of the Act. As a result of the notification, the applicant applied to the RRT in Sydney, at the address provided in the letter to her. Sydney is where she lived. Any failure to notify the applicant of the possibility that she might file an application for review at the AAT in Brisbane, Adelaide or Perth (as well as at the RRT in Sydney or Melbourne) had no adverse consequences for the applicant. The applicant’s argument can only succeed if the procedural direction in s 66(2)(d)(iv) is first interpreted as requiring notification of all possible places of lodgement (whether with the RRT directly or through the AAT) to all potential applicants for review regardless of where they reside. Furthermore, the argument can only succeed if such a requirement is seen as fundamental to the exercise of any jurisdiction by the RRT even if a potential applicant is effectively notified of a decision and, in response, files an application for review in the required manner and within the required time. Neither premise should be accepted. The reasons why neither premise should be accepted are interconnected.
66 In the case of an administrative tribunal, it is frequently necessary to consider the consequences of a departure from a statutory (or other) requirement before concluding that jurisdictional error has been committed (Craig v The State of South Australia(1995) 184 CLR 163 at 179-180; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [35-36] (SZIZO)). The exercise of jurisdiction by the tribunal must be, in some way, "affected" by the error or failure alleged. Counsel for the applicant submitted that the principle had no application in the present case because the failure of which the applicant complained did not arise during the process set in train by her application to the RRT but, rather, prevented that process from being commenced. The failure to specify all places at which her application might be made was said to be fatal to any application by her even though there were no adverse consequences, procedural or otherwise, from the alleged failure. (emphasis added)
67 However, in our view there cannot be an adequate assessment of whether the requirements of s 66 of the Act have been breached, or of whether the jurisdiction of the RRT was not engaged, without some examination of the consequences of the alleged non-compliance. The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act. It is no longer possible, if it ever was, to speak of "imperative obligations" under the Act without specific attention to the purposes they are intended to serve. If the asserted failure to comply with s 66 is tested in that manner then the proposition that in all cases potential applicants for review must be advised of all places at which an application might be lodged, or to which it might be sent, cannot be sustained. The consequences of an alleged lack of information need to be assessed in a particular case. (emphasis added)
The gist of the decision in SZOFE is that it is necessary, in relation to the two notifications that were sent to the applicants, to have regard to the consequences of any failure to specify the visa criterion not met by them. That is, the failure to specify the criterion that was not met is not necessarily fatal to the Tribunal’s decision, but may be fatal depending on the consequences and nature of the failure.
In the present circumstances, it seems that the applicants were able to pursue their rights to seek review in the Tribunal. The applicant’s spouse filed an application with the Tribunal, albeit one day late. There is no reason to suppose that the lateness was the consequence of the relevant criterion not being specified. The applicant then made his own application to the Tribunal after the second notification was provided. In all the circumstances of this case, it does not appear to me that the failure to specify the criterion pursuant to which the original application was rejected had any consequence for the applicant’s ability to seek review in the Tribunal. Therefore, I do not consider that the omission of the relevant criterion in the notices amounted to jurisdictional error.
Counsel for the Minister argued that even if there were a jurisdictional error resulting from the failure to specify the relevant criterion in the refusal notices, the court should exercise its discretion to refuse relief because the ultimate decision could not be different in any event. The unavoidable conclusion in this case is that the applicant simply did not comply with a relevant criterion, particularly 573.231, which requires the applicant to be enrolled in or to be the subject of a current offer of enrolment in a relevant course of study. Consequently, the Tribunal’s decision could not have been different. There is therefore no utility in remitting the matter to the Tribunal for further consideration.
I also raised with counsel for the Minister the question of how the essential nature of the application changed from one where the applicant was a secondary visa applicant to one where he was assessed as a primary visa applicant by the Tribunal. Clearly, if the Tribunal had assessed the applicant as a secondary visa applicant, he could not have succeeded because he was no longer the spouse of his wife, who was the primary visa applicant. Counsel for the Minister assured me that such transformations are possible and the Tribunal was correct in proceeding as it did. However, for the reasons that I have stated, the applicant as a primary visa applicant was unable to succeed. Consequently, the application to this court must be dismissed.
In relation to the question of costs an increase in the costs on the scale of this court seems to have come into effect on 11 July 2011. There do not appear to be any transitional provisions indicating that the previously applicable scale of costs would apply in whole or part to a proceeding commenced before 11 July 2011. As I read it, the new rule simply applies in its own terms and, subject to the court’s discretion, the standard costs of $6,240 would apply to any matter decided after 11 July 2011. There is no reason in this case to depart from the usual arrangements. It seems to me to be appropriate for there to be a costs order in the sum of $6,240.
While settling these reasons for decision, which were given orally on the day of the hearing, I noticed that the Tribunal appears to have considered the version of clause 573.223 which was in force in 2004. Clause 573.223 is a time of decision criteria. Accordingly, the Tribunal should have applied the version of clause 573.223 that was in force at the time of its decision on 27 January 2011. However, the two versions of clause 573.223 appear to be materially identical. Consequently, the decision would not have been different if the correct version of clause 573.223 had been applied.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riley FM
Date:
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