Patel v Minister for Immigration - [2010] FMCA 279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 279

MIGRATION – Migration Review Tribunal – contradictory departmental information does not amount to jurisdictional error – no denial of procedural fairness – no failure to provide adequate time – applicant on notice that Tribunal would proceed to decision – Tribunal’s action not retrospectively unreasonable – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.351, 353, 357A, 359, 359A, 359B, 379, 424A
Migration Regulations 1994 (Cth), 2.26A, 4.17, Schedule 2 cl.880.22, Schedule 6A

Applicant:

DARSHAN POONAMBHAI PATEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3104 of 2009

Judgment of:

Nicholls FM

Hearing date:

6 April 2010

Date of Last Submission:

6 April 2010

Delivered at:

Sydney

Delivered on:

29 April 2010

REPRESENTATION

The Applicant:

In Person

Appearing for the Respondents:

Mr R White

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application, made on 21 December 2009, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3104 of 2009

DARSHAN POONAMBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 21 December 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 2 December 2009, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a Skilled – Independent Overseas Student (Class DD, Subclass 880) visa.

Background

The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following is relevant as background. I note also the background as set out in the first respondent’s written submissions of 29 March 2010 ([2] to [6]).
The applicant, who is a national of India, applied on 30 August 2007 for a Skilled Independent Overseas Student (Residence) visa. (See CB 1 to 11 and CB 18 to CB 69 with annexures.)
Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) reveals that the class of visa applied for contains one subclass of visa. The subclass 880 visa is available for applicants in Australia who are eligible overseas students, who have been studying in Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 279
Decision Date: 29 April 2010

CaseChat Overview and Summary

The case of Patel v Minister for Immigration involved the applicant challenging the refusal of their visa application by a delegate under clause 880.222 of Schedule 2 of the Migration Regulations 1994. This clause requires that an applicant achieve a qualifying score in order to meet the criteria at the time of the decision on the application. The application for a Skilled – Independent Overseas Student (Class DD, Subclass 880) visa was refused due to the applicant's failure to meet the required points threshold. The delegate determined that the applicant had only 110 points, falling short of the required pass mark of 120 points. The applicant sought a review by the Tribunal, but despite being invited to provide additional information or evidence to meet the required pass mark, the applicant did not respond.

The legal issues before the court involved the interpretation and application of clause 880.222 of the Regulations. The central issue was whether the Tribunal had the authority to request additional information or evidence from the applicant after the application for review had been made, and if the Tribunal could proceed to make a decision in the absence of such information. The court was also required to consider whether the Tribunal had acted lawfully and reasonably in managing the applicant’s failure to provide the requested information.

The court found that the Tribunal had the authority under the Migration Act to request additional information or evidence from the applicant. The court further held that the Tribunal was entitled to proceed to make a decision without further seeking to obtain the information, as the applicant had not provided the requested information by the specified deadline. The court determined that the Tribunal had not acted unlawfully or unreasonably in managing the applicant’s failure to provide the requested information, and thus the decision of the Tribunal was upheld. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

The application, made on 21 December 2009, is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,200.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At all relevant times, clause 880.222 read:“880.22 Criteria to be satisfied at time of decision…880.222 The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.Note. That Subdivision of the Act provides in sections 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. The prescribed points and the manner of their allocation are provided for in Division 2.2 (see regulation 2.26A), and Schedule 6A, of these Regulations. Pool marks and pass marks are set from time to time by the Minister by notice in the Gazette (Act, section 96).” Under clause 880.222 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), an applicant for the relevant visa must achieve a “qualifying score” in order to meet the criteria which need to be satisfied at the time of the making of the decision on the application. The “points” system is set out in subdivision B of Division 3 of Part 2 of the Act. That is, ss.92 to 96. Points are awarded for particular “qualifications”. The total is then set against “pool” and “pass” marks set from time to time by the Minister. Points are awarded as against certain criteria, the attributes of which are set out in Schedule 6A of the Regulations. For the purposes of the relevant visa category, criteria or “qualifications” 1, 2, 3, 4, 5, 6, 7, 8, and 10 apply (see reg.2.26A). These are skill, age, language skill, employment experience, spouse or de facto partner skill, Australian education, skills targeting, bonus points and additional points for regional Australia and low population growth metropolitan areas. The application for a Skilled – Independent Overseas Student (Class DD, Subclass 880) visa was refused by the delegate on 25 September 2008 (CB 74 to CB 77). The delegate determined that the applicant failed the points assessment. The relevant “pass” mark was 120 points. The applicant was found to have only 110 points. The applicant sought review by the Tribunal on 29 September 2008 (CB 78 to CB 85). On 30 January 2009, the applicant wrote to the Tribunal notifying that he would be overseas between 3 February 2009 and 5 March 2009 (CB 91). The Tribunal wrote to the applicant by letter, dated 24 April 2009, inviting him to provide additional information or evidence, by 2 June 2009, showing that he met the requirements of cl.880.222 (CB 95 to CB 101). That is, information that would go to the issue of his achieving the relevant pass mark of 120 points. The letter indicated that an extension of time could be requested if required. The letter further indicated that if the information was not received within the allowed period the Tribunal may proceed to make a decision without further seeking to obtain the information.

Ratio Decidendi

Legal Principle Established

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