Nguyen v Minister for Immigration
[2006] FMCA 1611
•17 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION | [2006] FMCA 1611 |
| MIGRATION – MRT decision – graduate skilled temporary visa – required application within six months of completion of degree – completion occurred prior to award of degree at graduation ceremony – visa application was invalid – no prospect of success in judicial review application – application to reinstate application refused. |
Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.46, 47, 47(3), 483A
Migration Regulations 1994 (Cth), reg.2.07, Sch.1 items 1212A, 1212A(3)(h), 1212A(5)
Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315
| Applicant: | THI HOANG OANH NGUYEN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG1279 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 17 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms K McNamara |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The applicant’s application under r.16.05(2)(a) to set aside orders made on 7 September 2006 is refused.
The applicant must pay the respondent’s costs in the sum of $700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1279 of 2005
| THI HOANG OANH NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The substantive application in this matter was filed on 18 May 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). It sought orders by way of judicial review of a determination made by a delegate of the Minister on 20 April 2005 that a visa application made by the applicant was not a valid application for the purposes of s.47 of the Migration Act. The consequence of the delegate’s decision was that the Minister was prohibited by s.47(3) from considering the application for the visa further, and no decision was made which could be reviewed on its merits by the Migration Review Tribunal.
Section 47 provides:
47Consideration of valid visa application
(1)The Minister is to consider a valid application for a visa.
(2)The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
Requirements as to validity of a visa application are prescribed by regulations made for the purposes of s.46, which relevantly provided:
46Valid visa application
(1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a)it is for a visa of a class specified in the application; and
(b)it satisfies the criteria and requirements prescribed under this section; and
…
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4)Without limiting subsection (3), the regulations may also prescribe:
(a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b)how an application for a visa of a specified class must be made; and
…
The applicant’s visa application was lodged on 11 March 2005, and applied for a graduate skilled temporary visa. The prescribed conditions on the validity of such an application were found in reg.2.07 and Sch.1 item 1212A of the Migration Regulations 1994 (Cth) (“the Regulations”), and included:
2.07Application for visa – general
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3)An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.
1212A.Graduate – Skilled (Temporary) (Class UQ)
…
(3)Other:
…
(h) Application by an applicant seeking to satisfy the primary criteria must be accompanied by satisfactory evidence that:
(i)the applicant has applied to the relevant assessing authority for an assessment of the suitability of his or her skills for the skilled occupation nominated by the applicant in his or her application; and
(ii)either:
(A)each of the following sub-sub-subparagraphs applies in relation to the applicant:
(I)the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of at least 2 years of full‑time study at that institution while the applicant was present in Australia;
(II)the degree, diploma or trade qualification is relevant to the skilled occupation nominated by the applicant in his or her application;
(III)all instruction for that degree, diploma or trade qualification was conducted in English; or …
(5)In this item:
completed, in relation to a degree, diploma or trade qualification, includes having met the requirements for its award.
degree and diploma have the meanings given in subregulation 2.26A (6).
trade qualification has the meaning given in subregulation 2.26A (6).
Note For relevant assessing authority and skilled occupation, see regulation 1.03.
By reason of these provisions, a pertinent condition on validity was whether the visa application before the delegate was “accompanied by satisfactory evidence” that the applicant had:
… in the 6 months immediately before the day on which the application is made, completed a degree … for award by an Australian educational institution as a result of at least 2 years of full‑time study at that institution while the applicant was present in Australia;
That had to be read with the definition of “completed” which included “having met the requirements for its award”.
The evidence which accompanied the visa application relevant to that condition was as follows.
The form of application indicated:
17Qualification record
List all post‑secondary qualifications with the most recent first. Please include copies of your academic transcripts with your application.
Qualification
Master of Arts
Institution
Macquarie Uni
City
Sydney
Country
Australia
Date of commencement
DAY
MONTH
YEAR
/
7 /
2002
Date of completion
DAY
MONTH
YEAR
/
8 /
2004
…
43Have you completed in the 6 months immediately before the application is made, whilst present in Australia, a degree, diploma or trade qualification for award by an Australian educational institution?
No * } Your application will not be accepted
YesR } Evidence must be submitted with application
The attached records from Macquarie University were a copy of the certificate evidencing that the applicant “was admitted to the degree of Master of Arts on twenty‑third day of September 2004”, signed by the Chancellor and Vice Chancellor, and a transcript of academic record issued in September 2004 which commenced:
DEGREE/DIPLOMA AWARDED
Master of Arts conferred on 23‑Sep‑2004
DEGREE/DIPLOMA QUALIFIED
Master of Arts qualified on 17‑Aug‑2004
The transcript then set out a record of the applicant’s academic record in the subjects she had enrolled in and completed at Macquarie University. This revealed that the applicant had enrolled in two courses between 2002 and 2004: one being “Master of Arts in International Communications (Course Work)”, and the other being “Master of International Business with Master of Arts”. The applicant had completed six components of the first course during 2002 and 2003, and three out of six components of the second course during 2003 and 2004.
No other relevant evidence accompanied the application for visa, which was lodged on 11 March 2005.
The delegate concluded in his decision letter dated 20 April 2005:
The application is invalid because it did not meet the following criteria prescribed in Item 1212A of Schedule 1 of the Migration Regulations:
QThe applicant seeking to satisfy the primary criteria must submit evidence that in the 6 months immediately before the day on which the application was made they completed a degree, diploma (Australian Qualifications Framework level 3) or trade qualification for award by an Australian educational institution as a result of at least 2 years of full‑time study at that institution whilst physically in Australia.
Provided with this application is an academic transcript from Macquarie University which states the applicant completed their qualification 17 August 2004. This means the applicant was required to lodge this application prior to 17 February 2005. This application was lodged 11 March 2005 and therefore does not meet the above Schedule 1 requirement.
Please note that a full assessment of this application has not been undertaken.
The applicant may wish to apply again when he/she is able to meet all requirements (listed below) for lodgement of a valid application. Please note that visa requirements are subject to change and any subsequent application(s) will be assessed against the visa requirements that apply at the time of lodgement.
(emphasis in original)
The substantive application to this Court challenged the delegate’s decision that the six month requirement was not satisfied. It contended that this period should be measured from the date of the graduation ceremony at which the degree was awarded, and not from the 17 August 2004 date shown in the transcript. This contention was elaborated in written submissions filed by the applicant on 15 August 2005 and in further submissions filed on 25 August 2006.
Those submissions were filed in accordance with directions given at a first court date before a Registrar on 1 June 2005, which fixed the matter for hearing before me on 7 September 2006. On that day the applicant did not attend the hearing, and no explanation was given to the Court for her absence. I made orders dismissing the application under r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to her absence from the hearing.
The applicant has now filed an application seeking an order that I should set aside the default order under r.16.05(2)(a). An affidavit in support claims:
On 6/9/2006 until 7/9/2006 I was sick fever, cold and flu.
I could not attend the Court for hearing on 7/9/2006.
The affidavit did not present any medical evidence, and the applicant had none to present today, although she indicated she had a lay witness who would corroborate her illness on that day. I did not think it necessary to hear evidence from that witness. He would not have been able to offer medical opinions as to the applicant’s condition. I was left with some doubt as to the applicant’s explanation for her absence, but would have been inclined to give her the benefit of the doubt, if I were satisfied that she had arguments which gave her substantive application a prospect of success.
In that respect, the applicant relied upon her previous written submissions, and a new submission filed on 11 October 2006 which sought to explain further the academic transcript which accompanied her visa application. This included a letter from Professor Naren Chitty, head of the Macquarie University Department of International Communication and Acting Dean, Division of Society, Culture, Media and Philosophy. The letter said:
September 21, 2006
To Whom It May Concern
This is to confirm that Ms Thi Hoang Oanh Nguyen completed a Master of Arts in International Communication in 2004 at the Macquarie University Centre for International Communication (MUCIC), now the Macquarie University Department of International Communication (MUDIC). MUCIC was a centre and MUDIC is a department under the Division of Society, Culture, Media and Philosophy.
The Academic Senate of Macquarie University, which is the body that approves the list at students for graduation, met on 17 August 2004. It is recorded on her transcript that Ms Nguyen qualified for the Master of Arts in International Communication on 17 August 2004. This terminology deserves clarification. A student is not entitled to claim that s/he has the qualification of Master of Arts in International Communication until after the Chancellor of the University confers the degree on him or her at a graduation ceremony. The Chancellor only does this after the recommendation for graduation has been approved by the Academic Senate. In the case of Ms Nguyen, her degree was conferred on 23 September 2004. A copy of the program of the ceremony on 23 September 2004 at the Division of Society, Culture, Media and Philosophy and the Division of Linguistics and Psychology of Macquarie University, with Ms Nguyen’s name highlighted, is attached.
After the Chancellor formally conferred the Master of Arts in International Communication on Ms Nguyen on 23 September 2004 she was entitled to state that she had the qualification known as the Master of Arts in International Communication.
Ms Nguyen began her studies in an 8 unit MA in International Communication in the second half of 2002. After completing 6 units she decided to transfer to the 12 unit double degree Master of International Business – MA in International Communication – in the second half of 2003, carrying credits from 6 units in the MA in International Communication with her. However, as she found that the Master of International Business was not what she really wanted to do, she transferred back to the MA in International Communication carrying with her 6 completed MA in International Communication units and 2 complete Master of International Business units.
The applicant also suggested that she could obtain further additional evidence from Macquarie University. However, the issue for the delegate to determine was whether there was “satisfactory evidence” which “accompanied” the visa application and showed satisfaction of the time requirement. If the question for me to address is whether the delegate’s determination was open to the delegate as a matter of law, it would be irrelevant to consider the legal or factual correctness of the delegate’s conclusion by reference to fresh evidence which did not accompany the visa application. Further evidence could not, therefore, assist the applicant.
Equally, if the validity of the visa application is a matter for this Court to determine upon its own opinions as to the application of Sch.1 item 1212A(3)(h), I would still need to address only the effect of the evidence which “accompanied” the visa application.
As has been explained in Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315, conditions on the validity of a visa application must set up requirements which are objectively assessable at the time when a visa application is made. The object of the legislative scheme is that a condition on the validity of an application should present issues of fact determinable on the face of the application and its accompanying documents. Sch.1 item 1212A(3)(h) has been drafted to comply with this requirement. I therefore do not consider that the possibility of further elucidation of the applicant’s student record is a matter which should deter me from addressing the substantive merits of the application today. There is no doubt that the whole of the evidence which accompanied the visa application is currently now before the Court.
On the evidence which I have referred to above, in my opinion, it was plainly open to a delegate to arrive at his determination that the application was invalid, based upon the statement in the academic record that the applicant’s degree was awarded on 23 September 2004 and that the applicant had qualified for the degree on 17 August 2004. This is expressly stated in the academic record, and the contents of the record do not, in my opinion, raise any reasonable doubt that the applicant had “completed” the degree on the first of these dates, taking into account the definition of “completed” in item 1212A(5).
The applicant argued before me that, under the rules of the University, she could not have been awarded the degree of Master of Arts based on the six subjects she studied in the Master of Arts in International Communication (Course Work) course, but that she also required a special decision from the appropriate organ of the University to allow recognition of two of her passes in the other Masters course for which she had studied.
I am prepared to assume that this was the effect of the University rules. However, the record which accompanied the visa application gave a date, 17 August 2004, for the applicant being regarded by the University as having qualified for the award of the degree. This implicitly indicated that such a dispensation must have been granted on or before that date. The applicant’s point therefore does not assist her.
The letter which the applicant has now presented from the University also merely confirms that implication from the University record. It is clear from the letter that the applicant did “meet the requirements for the award of the degree” of Macquarie University, upon a decision being made by the University Senate on 17 August 2004. The Professor’s “clarification” that she was not “entitled to claim that [she] had the qualification of Master of Arts in International Communication” does not show any error in the delegate’s decision that the evidence showed “completion” of the degree on 17 August 2004 within the provisions of Sch.1 item 1212A(3) and (5).
In my opinion, the proper construction of these provisions clearly encompasses a decision by the University that the applicant met all requirements for the award of the degree prior to the actual award of the degree at a graduation ceremony. In my opinion, the evidence which was before the delegate, and is now before me, clearly failed to provide “satisfactory evidence” accompanying the visa application to show that the visa application was made within the requisite six month period. The applicant’s substantive application for judicial review therefore has no prospect of success.
The evidence before me does not explain why the applicant failed to make her visa application in time, and I can form no judgment whether any hardship which the applicant has suffered by reason of the late application is a matter which should be addressed by the Minister through discretionary powers. That is a matter upon which the applicant should take her own advice.
For the above reasons, I have concluded that the applicant’s substantive application has no prospect of success. It is appropriate, therefore, for me to refuse the application to set aside my previous default order.
I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 1 November 2006
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