Patel v Minister for Immigration - [2010] FMCA 848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 848

MIGRATION – Application for review of Migration Review Tribunal decision – whether applicant required to have nomination by State or Territory government agency at time of application or whether it could be provided later – consideration of decision of High Court in Berenguel.

Migration Regulations 1994

Berenguel v Minister for Immigration and Citizenship [2010] 264 ALR 417

Applicant:

JAYKUMAR RAMESHBHAI PATEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 680 of 2010

Judgment of:

Burchardt FM

Hearing date:

1 October 2010

Date of Last Submission:

1 October 2010

Delivered at:

Melbourne

Delivered on:

10 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr C. Fairfield

Solicitors for the Applicant:

Lily Ong Solicitors

Counsel for the Respondents:

Mr R. Knowles

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 680 of 2010

JAYKUMAR RAMESHBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 13 April 2010. The only point raised is the construction of regulation 487.213 of schedule 2 of the Migration Regulations 1994 (“the Regulations”).
Regulation 487.213 relevantly reads:
“The applicant has indicated that the applicant is nominated by a State or Territory government agency.”
The applicant applied for a skilled provisional class VC visa on

14 December 2007 and the delegate refused this application on

5 August 2008.
On 11 August 2008, the applicant applied to the Tribunal for review of the delegate’s decision.
On 29 September 2008, Barbara Hull, the executive officer of the Murray Regional Development Board Inc, wrote to the applicant advising that the appropriate sponsorship form had been completed (CB 71) and the sponsor’s declaration is at CB 72.
This was clearly an indication that the applicant was nominated by a State or Territory government agency.
At paragraph 14 of the Tribunal’s Reasons for Decision (CB 128), the following is stated:
“The applicant stated that at the time that the application was lodged, there was no regional sponsorship available for an accountant. As soon as the option to be sponsored by the Murray Regional Development Board became available he had applied for it. He could not remember exactly when he had applied, but it was about a month prior to the nomination being approved on 29 September 2008. The applicant submitted that he should be taken to have been nominated by a State government agency at the time of application, because the option was not available at that time.”
The Tribunal’s ultimate findings about this matter (most of the Reasons for Decision were taken up with the alternative application under subclass 485) were as follows at paragraph 32 (CB 131):
“In relation to a subclass 487 visa, the applicant submitted that he should be taken to have indicated that he was nominated by a State or Territory government agency at the time of application because the nomination was not available at the time that the application was lodged. However, at the hearing, the applicant acknowledged that he did not have the nomination at the time of application and there is no indication in the application form that the applicant was nominated by a State or Territory government agency or sponsored by an Australian relative at the time that the application was lodged. Consequently the Tribunal finds that the applicant did not indicate that he was nominated by a State or Territory government agency at the time of application. The Tribunal also finds that the applicant did not indicate that he was sponsored by an Australian relative at the time of application. He therefore does not meet clause 487.213 and he does not satisfy the criteria for a subclass 487 visa.”
The entire case therefore turns on this short point. Was it necessary for the applicant to have actually had his nomination and for it to have accompanied the application or could he be deemed to have satisfied the criterion given the facts as they obtained?
It was conceded by counsel for the first respondent that if the applicant’s analysis of sub-regulation 487.213 was correct, then he was entitled to the relief he sought.
Both sides took the Court to the decision of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] 264 ALR 417 and sought to gain assistance from it.
That case was concerned with a different regulation, although it has some facets in common with that with which the Court is concerned here. It was a case in which, relevantly, an applicant was required, as what was described as a time of application criterion, to demonstrate that they had recent competency in the English language. The High Court found “It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application” (see Berenguel at [24]).
At paragraph [24] the High Court drew attention to the contrast between subparts of clauses 885.213, 885.214 and 885.215. Some of those sub-regulations required the application to be accompanied by evidence in contrast to subclauses where that requirement was not specified.
Likewise, the Court pointed to the fact that in at least one case, a criterion at the time of application (clause 885.212) referred to the Minister’s satisfaction in the present tense. Clearly, the Minister could not be satisfied as at the time of application because the Minister could not read the application contemporaneously with its being lodged (see Berenguel at [26]).
Furthermore, the High Court in that case gained assistance from the explanatory statement accompanying the amendment which introduced the regulation in its then form and concluded at [21] that:
“The passage supports the inference that the purpose of requiring an applicant to undergo a language test is to establish that the applicant currently has an appropriate standard of English competency.”
In the context of the particular clauses with which the Court was concerned and their purpose and phrasing, the Court concluded that the heading Criteria to be Satisfied at the Time of Application “does not connect grammatically to its terms” (Berenguel at [26]).
The Court went on to say in the same paragraph:
“Moreover, in this case, the construction for which the minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the minister to have regard to such information.”
Here it must be said that the arguments are finely balanced. The clauses under subclass 487, skilled regional subclass, have some measure of similarity with those in Berenguel but are not identical. Clause 487.214 repeats the phrase “the Minister is satisfied,” to which reference was made in Berenguel.
Clause 487.216 and clause 487.217 require an application to be “accompanied by evidence” of various matters.
In this case, the explanatory statement accompanying the amendment that introduced the regulation in its current form relevantly said

(see respondent’s submissions, paragraph 5.9):
“In addition, at the time of application applicants must indicate that they have been nominated by a State or Territory government agency, or sponsored by a specified Australian relative living in a designated area of Australia.”
Unlike Berenguel where the explanatory statement contemplated recent proficiency in English (a matter that, as it were, ran contrary to the effect of the heading and the contentions of the Minister) in this case there is no such tension.
I also note that the matters which are required to be satisfied by evidence in subrules 487.216 and 217, for example, all refer to matters where what is contemplated is ultimately in the future. In the case of 487.216, it is a prospective Australian Federal Police Check, and in 417, it is a medical examination.
In effect, a kind of built-in extension of time is provided for in respect of those matters.
There is no such indication in rule 487.213.
Unlike the position in Berenguel, the requirement that there be an indication of nomination by a State or Territory government agency at the time of application is not contrary to at least one possible view of what the purpose of the sub-regulation is. As counsel for the Minister submitted, it gives rise to a measure of administrative efficiency.
In the ultimate and looking at the sub-regulation as it stands, it seems to me clear that the applicant has to have indicated a nomination by a State or Territory government agency at the time of application. The phrase, “The applicant has indicated that the applicant is nominated by a State or Territory government agency,” is clearly in my view to this effect.
Accordingly, it seems to me that the Minister’s submission is correct.
It therefore follows that the application must be dismissed with costs.
I should not leave this matter, however, without recording that I find this result intuitively very unattractive. As counsel for the applicant rightly submitted, the scheme of the visa class with which we are concerned is designed to ensure that regional Australia gets people that it wants and needs.
Here the Murray Valley Authority wants the applicant and he is happy to go. It seems an absurdity in these circumstances that he is not able to do so.
In the ultimate, however, it is well established that Parliament may pass laws that have inappropriate outcomes.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 10 November 2010

ADDENDUM

On 5 November 2010, the Court received a short note from the solicitor for the Applicant referring to the withdrawal of an appeal in the matter Habib by the Minister. On 8 November 2010 a response was received from the solicitors for the First Respondent.
Although the decision in Habib was annotated in the parties’ written submissions no oral submissions were made about it.
In the circumstances of this case and in view of the Reasons for Judgment already prepared it is neither necessary nor appropriate to deal further with the matters raised by the solicitors for the parties.