Perkit v Minister for Immigration
[2009] FMCA 483
•29 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERKIT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 483 |
| MIGRATION – Applicant required to deposit money in a designated security – must have deposited the funds – not sufficient that willing and able to deposit the funds – Tribunal not empowered to remit the matter to the delegate for reconsideration. |
| Migration Act 1958 (Cth), ss.92, 93, 94, 95, 96, 349, 351, 352, 353, 357, 420, 474 Migration Regulations 1994, reg.4.15, sch.2 cl.880.22, div.2.2 sch.6A, pts.1-10 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Balineni v Minister for Immigration and Citizenship and Anor [2008] FMCA 888 Perera v Minister for Immigration and Citizenship and Anor [2008] FMCA 1526 VBAP v Minister for Immigration and Multicultural Affairs [2005] FCA 965 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 67 SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1 VAT v Minister for Immigration and Indigenous Affairs [2004] FCAFC 255 WADK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 48 Poudyal v Minister for Immigration [2005] FMCA 265 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 212 NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 SZCIJ v Minister for Immigration and Multicultural Affairs[2006] FCAFC 62 SZHOA v Minister for Immigration and Multicultural Affairs [2007] FCA 501 |
Applicant: | MALLESH PERKIT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1349 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 16 April 2009 |
| Date of Last Submission: | 16 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 29 May 2009 |
REPRESENTATION
| The Applicant: | appeared on his own behalf |
| Counsel for the First Respondent: | Mr. Donahue |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1349 of 2009
| MALLESH PERKIT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Migration Review Tribunal (the “MRT”) signed on 8 October 2008 (CB 84) that affirmed the decision by a Delegate of the Minister on 17 July 2007 (CB 28) refusing to grant the applicant a (Class DD), subclass 880 skilled – Independent Overseas Student (Residence) Visa.
By application filed on 3 November 2008 the applicant applied to the Court for judicial review of the decision of the MRT on the following grounds:
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
PARTICULARS
a. The Tribunal should have requested the Applicant to provide evidence that he still intended to deposit an amount of not less than AUD 100,000 and inquired whether he had the means at his disposal to do so. The Applicant in his application for the said visa ticked the box for depositing AUD 100,000 in capital investment to gain 5 bonus points.
Subsequently, the onus was on the Department of Immigration (DIAC) to provide the Applicant with the relevant form, namely a Form 1134. This was never provided by the Department and this fact was submitted to the Tribunal. This factor was not taken into account by the Tribunal when making its decision.
b. The Tribunal has breached section 353(2) of the Act.
The section provides that the Tribunal is not bound by technicalities and is required to make decisions accordingly to the substantive merits of the case.
An authorised officer from DIAC had not requested that funds be deposited in a designated security, although the Applicant had consistently maintained that he was ready, willing and able to lodge a deposit of AUD 100,000. Therefore not all of the necessary requirements had been met for the Tribunal to find that clause 880.222 had been satisfied. However, given that the Tribunal acknowledged the difficulties the visa Applicant faced in attempting to lodge a deposit of AUD 100,000 in a designated security, the Tribunal should have applied s. 353(2) of the Act. That is, for ease of administration and timeliness for all parties concerned, the Tribunal should have remitted the application on the grounds that specific items in Schedule 6A were satisfied, while recommending that the Department request the required funds to be deposited in a designated security. If the required funds were then deposited in a designated security, then the visa Applicant would be entitled to the bonus under Part 8.
That at the time of the review assessment the visa Applicant’s score in the points test in Schedule 6A, taking into account the points awarded against Parts 1 to 7 (inclusive) and Parts 9 and 10 of Schedule 6A, was 115 points. The Tribunal should have been satisfied that the visa Applicant was entitled to 5 bonus points under item 6A81(a) if the required funds were deposited in a designated security. If that was the case then the visa Applicant would then achieve the qualifying score of 120 to pass the points test, and would satisfy clause 880.222.”
The applicant filed an amended application on 23 January 2009 with the following amended grounds of application.
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
2. There was a denial of procedural fairness
PARTICULARS
a. The Tribunal should have requested the Applicant to provide evidence that he still intended to deposit an amount of not less than AUD 100,000 and inquired whether he had the means at his disposal to do so. The Applicant in his application for the said visa ticked the box for depositing AUD 100,000 in capital investment to gain 5 bonus points.
Subsequently, the onus was on the Department of Immigration (DIAC) to provide the Applicant with the relevant form, namely a Form 1134. This was never provided by the Department and this fact was submitted to the Tribunal. This factor was not taken into account by the Tribunal when making its decision.
b. The Tribunal has breached section 353(2) of the Act.
The section provides that the Tribunal is not bound by technicalities and is required to make decisions accordingly to the substantive merits of the case.
An authorised officer from DIAC had not requested that funds be deposited in a designated security, although the Applicant had consistently maintained that he was ready, willing and able to lodge a deposit of AUD 100,000. Therefore not all of the necessary requirements had been met for the Tribunal to find that clause 880.222 had been satisfied. However, given that the Tribunal acknowledged the difficulties the visa Applicant faced in attempting to lodge a deposit of AUD 100,000 in a designated security, the Tribunal should have applied s. 353(2) of the Act. That is, for ease of administration and timeliness for all parties concerned, the Tribunal should have remitted the application on the grounds that specific items in Schedule 6A were satisfied, while recommending that the Department request the required funds to be deposited in a designated security. If the required funds were then deposited in a designated security, then the visa Applicant would be entitled to the bonus under Part 8.
That at the time of the review assessment the visa Applicant’s score in the points test in Schedule 6A, taking into account the points awarded against Parts 1 to 7 (inclusive) and Parts 9 and 10 of Schedule 6A, was 115 points. The Tribunal should have been satisfied that the visa Applicant was entitled to 5 bonus points under item 6A81(a) if the required funds were deposited in a designated security. If that was the case then the visa Applicant would then achieve the qualifying score of 120 to pass the points test, and would satisfy clause 880.222.”
Clause 880.222 of the Migration Regulations 1994 (the “Regulations”) provides a criteria to be satisfied at time of decision, that “the applicant has the qualifying score when assessed in relation to the visa under subdivision B of Division 3 of Part 3 of the Act”.
Sections 92 to 96 of the Migration Act 1958 (the “Act”) provide 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 their manner of allocation are provided for in Division 2.2 and Schedule 6A of the Regulations. Pool marks and pass marks are set from time to time by the Minister by notice in the Gazette (s.96) (Note to Clause 880.222).
Schedule 6A to the Regulations specifies the General Points Test –Qualifications and Points.
Part 1: “Skill Qualifications” provides for a maximum of 60 points. The applicant was assessed at 60 points (CB 28).
Part 2: “Age Qualifications” provides for a maximum of 30 points.
The applicant was assessed at 30 points (CB 28).
Part 3: “Language Skill Qualifications” provides for a maximum of 20 points. The applicant was assessed at 15 points (CB 28).
Part 4: “Supplement Experience Qualifications” provides for a maximum of 10 points. The applicants’ specific work experience was assessed at nil.
Part 6: “Australian Educational Qualification” provides for a maximum of 15 points. The applicant was assessed at 5 points for an Australian qualification (CB 28).
Part 7: “Skills Targeting Qualification” provides for a maximum of 20 points. The applicant was assessed at nil for Occupation in Demand/Job Offer.
Part 8: “Bonus Points Qualification” Item 6A81 of Part 3 of Schedule 6A of the Regulations provides as follows:
“The applicant:
a) has deposited at least AUD 100 000 in a designated security for a term of not less than 12 months; or
b) has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a visa authorising him or her to work; or
c) is the holder of a qualification (that is of an equivalent standard to a degree awarded by an Australian tertiary educational institution) the tuition for which was conducted in a designated language; or
d) is accredited as a professional interpreter or translator (level 3) in a designated language by the National Accreditation Authority for Translators and Interpreters.”
Sub part (a) is the provision in issue. The applicant had not deposited at least AUD 100,000 in a designated security for a term of not less than 12 months, and did not otherwise qualify under Item 6A81.
He was assessed at nil points under this item (CB 28).
Parts 9 and 9A:“Sponsorship Qualification” are of no relevance.
Part 10: “Additional Points for Regional Australia and Low Population Growth Metropolitan Areas” provides for a maximum of 5 points.
He was assessed at nil points under this part (CB 28).
The only assessment that the applicant takes issue with is the nil assessment for bonus points under Part 8 item 6A81.
Under the points test in force at the time of the Delegate’s decision the pass mark to enable further consideration of the application was 120 points. The applicant had 110 points. The delegate stated that “the applicant chose to invest AUD 100,000 in a designated security as an option to gain 5 bonus points. As the required 20 points was not met in the language component, the applicant was not given the chance to deposit the money.” (CB29.9) .
An Applicant will be assessed for points under Part 3 “Language Skills Qualifications” if:
“6A31. The applicant provides evidence of having achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:
No more than 12 months before the day on which the application was made; or
During the processing of the application; or
20 points6A32. The applicant provides evidence of having passed the Occupational English Test:
No more than 12 months before the day on which the application was lodged; or
During the processing of the application; or
20 points6A33 The applicant provides evidence of having achieved an IELTS test score of 5 on each of the four components of speaking, reading, writing and listening in a test conducted
not before 12 months before the day on which the application was made or
during the processing of the application.”
15 points
The application was lodged on 28 February 2006 (CB 13.4) and was refused on 17 July 2007 (CB 30).
The Tribunal stated (at CB 86 para [9]):
“On 3 August 2006 the Department requested the visa applicant to sit for an International English Language Testing System (IELTS) test to determine his proficiency in the English language. The visa applicant was advised that a response was required by 9 September 2006 failing which the Department would decide his application on the basis of available information.
On 20 January 2007 the visa applicant sat an IELTS test but failed to achieve at least 6 in each of the 4 components of Listening, Reading, Writing and Speaking (CB 86 para [10]).
On 31 March 2007 the visa applicant sat an IELTS test but failed to achieve at least 6 in each of the 4 components of Listening, Reading, Writing and Speaking (CB 86 para [11]).
On 2 June 2007 the visa applicant sat an IELTS test but failed to achieve at least 6 in each of the 4 components of Listening, Reading, Writing and Speaking (CB 86 para [12]).
On 21 May 2008 the visa applicant’s agent lodged a certificate that certified that the visa applicant had sat an IELTS test on 11 August 2007 and achieved at least 6 in each of the 4 components of Listening, Reading, Writing and Speaking”. (CB 86 para [15]).
Pursuant to items 6A31 to 6A33 of Part 3 of Schedule 6A of the Regulations the result must be achieved “no more than 12 months before the day on which the application was made” (being 28 February 2006) or during the processing of the application. The application was refused on 17 July 2007, yet notwithstanding that, the Delegate required a response by September 2006 (CB 86). On the material presented to the Delegate the applicant did not achieve 6 in each of the four components until 11 August 2007 (CB 86) which was after the Delegate handed down the decision.
The Tribunal calculated the points earned by the applicant as:
Skill 60
Age 30
Language skill 20
Total 110 (CB 87.4)The MRT appears to have overlooked the 5 points for an Australian Qualification (CB28.9). The applicant had not qualified for an award of 20 points for language skill open when the Delegate made the assessment. There was no error of law in assessing only 15 points (CB 29.5).
The MRT decided that as the applicant had not actually deposited the AUD 100,000 he was not entitled to the 5 bonus points (CB 87.2). That accords with the decisions in Balineni v Minister for Immigration and Citizenship and Anor [2008] FMCA 888 at [71]; and Perera v Minister for Immigration and Citizenship and Anor [2008] FMCA 1526 at [31] post.
The MRT sent a letter to the applicant on 5 September 2008 setting out its observations on the material before it and inviting the applicant to respond (CB 87).
The MRT noted in the letter that the applicant gave evidence that he was in a position to make the deposit but had been advised by the Adelaide Skilled Processing Centre that the organisations that deal in designated securities have withdrawn the facility (CB 87.7).
Item 6A81 of Part 8 of Schedule 6A to the Regulations requires that the applicant “has deposited” at least AUD 100,000 in a designated security. The MRT made no error in law in deciding that the applicant was not entitled to the 5 bonus points.
The MRT then referred in the letter of 5 September 2008 to the powers given to it by s.349 of the Act as follows:
“(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.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations. “
The MRT then referred to reg. 4.15 which provides:
“ (1) For paragraph 349 (2) (c) of the Act (which deals with the Tribunal's power to remit):
(a) an application for a visa or entry permit made on or after 19 December 1989 is a prescribed matter; and
(b) subject to subregulation (4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit.
(2) For paragraph 349 (2) (c) of the Act, the requiring of a security that is mentioned in paragraph 4.02 (4) (f) is a prescribed matter.
(3) If the MRT remits a prescribed matter that is mentioned in subregulation (2) to the primary decision‑maker, the MRT may direct the primary decision‑maker:
(a) to indicate to the applicant that a condition specified by the MRT will be imposed on the visa if it is granted; and
(b) to require a security for compliance with the condition (whether or not a security has already been required).
Note 1 Prescribed matter : in this case, a matter that the Tribunal may remit for reconsideration.
Note 2 See s 390 of the Act, which modifies the Administrative Appeals Tribunal Act 1975 for the purposes of review by the Administrative Appeals Tribunal of migration decisions. Under s 43 (1A) (c), taken to be inserted in the Administrative Appeals Tribunal Act for those purposes, the matters set out in regulation 4.15 apply also to review by the Administrative Appeals Tribunal.
(4) If, under subregulation 2.08E (2B), the MRT remits a prescribed matter mentioned in paragraph (1) (a) to the Minister for reconsideration, the MRT must not make a direction in relation to that matter other than the direction mentioned in subregulation 2.08E (2B).”
The MRT then concluded directly that the Tribunal “may only remit the application to the (Department) if it is satisfied that an applicant has satisfied a criterion, in your case, clause 880.222. On the evidence before it the Tribunal is not satisfied that you have satisfied clause 820.222 as you have not established that you are entitled to a score of 120 pursuant to Schedule 6A. It is not open to the Tribunal to find that you are entitled to 5 bonus points on the basis that you are ready willing and able to lodge a deposit of AUD 100,000 in a designated security” (CB 88.10).
The Tribunal then stated correctly that s.353(2) of the Act requires it “to make decisions according to the substantive merits of the case, [and] does not empower it to waive mandatory criteria” (CB 89.3).
Section 353(2) provides:
“ (2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case. “
No errors of law by the MRT have been shown.
The applicant’s agent responded by letter dated 25 September 2008 (CB 89.5), and a further letter dated 8 October 2008 (CB 90).
The MRT found that under Schedule 6A Item 6A31 to be entitled to 20 points the applicant must provide evidence of having achieved an IELTS score:
“of at least 6 for each of the 4 test components … in a test conducted
a) Not more than 12 months before the day on which the application was made or
b) During the processing of the application” (CB 90.8).
On 21 May 2008 the applicant’s agent lodged a certificate that certified that the applicant had sat an IELTS test on 11 August 2007 (CB 90.9). That was after the processing and refusal of the application on 17 July 2007 (CB 30).
The Tribunal then calculated the points score of the applicant at 115 (CB 91):
“To engage in fact finding about the merits of the appellant’s case is not part of the jurisdiction of the Court … in dealing with an application for relief under s39B of the Judiciary Act. As Stone J said, Plaintiff s157 establishes that it is necessary for the applicant to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.” (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
The Court makes no finding as to whether the finding of 115 points is correct. That finding of fact stands and is not open to review.
The Court does not take the applicant to be alleging that the calculation is incorrect, rather the claim is that 5 bonus points should be added.
Gazette Notice 15 of 14 April 2004 specifies the relevant pool mark and pass mark in relation to applications for that subclass of visa made after 1 April 2005 is 120 points (CB 91.4).
The applicant’s application was received by the Department on
28 February 2006(CB 28.4). The prescribed pool mark and pass mark was 120 points.
The MRT found that as the applicant had not attained a score of 120 points he had not reached the qualifying score under clause 880.222 and therefore does not satisfy clause 880.222 (CB91.5). An error of law has not been shown.
The MRT then found that “…it is not empowered to make a finding that the visa applicant is entitled to 5 bonus points on the basis that he has lodged a deposit of $100,000 in a designated security where no such deposit has in fact been made” (CB 91.6). This error of law has not been shown.
The Tribunal then referred to the decision of a differently constituted Tribunal that took a different view of the requirement to lodge a deposit of AUD 100,000, and declined to follow that decision.
The MRT was not required to follow that decision in circumstances where its findings as to the law differed. The earlier decision was referred to in the letter to the MRT on 8 October 2008 (CB 90.2).
Item 6A81 of schedule 6A to the Regulations requires that:
“The applicant:
a) has deposited at least AUD 100,000 in a designated security…”
By contrast Item 6A82 of Schedule 6A requires that:
“the applicant:
“a) has indicated in his application that the applicant is able and willing to deposit at least AUD 100,000 in a designated security.” (Bold added by the Court)
It is therefore apparent that the legislature turned its mind to the distinction it made. It intended to make the distinction. The law is clear, under item 6A81 the applicant must show that he has deposited at least AUD100,000 in a designated security Perera v Minister for Immigration and Citizenship and Anor [2008] FMCA 1526 per Riley FM [31] and Balineni v Minister for Immigration and Citizenship and Anor per Scarlett FM at [71] supra. (Bold added by the Court).
Findings as to the Grounds in the Application
Ground 1 particular (a) asserts that the Tribunal should have requested the applicant to provide evidence that he intended to deposit… not less than AUD 100,000, and therefore the Department should have provided a Form 1134. As “intention” is not the requisite test under Item 6A81 of schedule 6A (Balineni at [14] supra), that intention has no relevance. The applicant has not established that a form 1134 should have been provided to him. The Court was advised by the first respondent, and it was not contested by the applicant, that at the stage when the matter was before the Delegate the applicant had not qualified for 20 points for his English language abilities (CB28 and 29.5). The applicant did not gain 20 points for his Language Skill Qualification until he sat the test on 11 August 2007 (CB 90.9) which was after the processing and refusal of the application on 17 July 2007 (CB 30). The respondent continued that as a consequence “there was no point in the delegate providing him with forms needed to deposit the AUD 100,000 because even if he had obtained the (5) bonus points he still wouldn’t have been entitled to the visa that he sought” (Transcript P3 L35). The Court accepts that submission. The failure to achieve a score of 115 points under the other parts is a separate unimpeachable ground for the Delegate rejecting the application. Where there is an independent basis for the decision it is appropriate not to remit the matter because of an error elsewhere VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 per North J at [33]. Even if the Department should have provided the form and the money had been deposited, the applicant would still not have achieved the 120 points required. Applying VBAP the Court would not remit the matter even if the alleged error occurred. Ground 1 particular (a) is rejected.
Ground 1 particular (b) alleges that s.353(2) of the Act was breached because the Tribunal is not bound by technicalities and is required to make decisions according to the substantive merits of the case.
The requirement to comply with item 6A81 of schedule 6A is not a technicality. The case was decided on the law and substantive merits of the case. The Court accepts the submissions for the first respondent that even if that s.353(2) was breached that would not be a jurisdictional error. The Court refers to the decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 67 at [47] that there is “no basis for concluding that the latter section operates to mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision. It follows that the Tribunal’s decision is not reviewable, whether in this Court or in the Federal Court on the ground that the Tribunal failed to observe the procedures required by s.420 of the Act.”
Gauldron and Kirby JJ stated that “there is basis for concluding that [s420] … operates to mandate specific procedures to be observed by the Tribunal or the method by which it is to make its decision.
It follows that the Tribunal’s decision is not reviewable whether in this Court or in the Federal Court, on the ground that the Tribunal failed to observe procedures required by s.420 of the Act.” (Ibid [at 77]).Section 420 is in terms identical to s.353. The Court therefore applies the decision, in Eshetu to s.353. No error, or reviewable error occurred in relation to s.353. The decision in Eshetu has been followed in SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1 [20]; VAT v Minister for Immigration and Indigenous Affairs [2004] FCAFC 255 [25]; WADK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 48 [4], [27].
The above decisions apply with equal force to s.353. No error has been shown.
It is then claimed that an officer had not requested that the funds be lodged. It is not necessary for an officer to do so. Item 6A81 requires that the funds be deposited. To apply a different test would be a jurisdictional error Balineni v Minister for Immigration and Citizenship and Anor per Scarlett FM at [74]. That claim is rejected. (Bold added by the Court).
It is then claimed that the Tribunal should have remitted the application on the grounds that specific items in Schedule 6A were satisfied, while recommending that the Department request the required funds to be deposited …
As decided above, the Tribunal could not remit this matter to the Delegate for reconsideration. The basis for the Tribunal concluding that it had no power to remit the matter, is set out in the Tribunal’s letter of 5 September 2008 (CB87-89). The Tribunal quoted s.349 and then reg.4.15. Regulation 4.15(1)(b) provides that a permissible direction is that the applicant must be taken to have satisfied a specific criterion for the visa or the entry permit. The Tribunal was not satisfied that the applicant was entitled to 5 bonus points under Item 6A81 as the applicant had not deposited the funds. The Tribunal concluded correctly that it could not make a permissible direction because it could not direct that the applicant satisfied a specific criterion. As decided in Poudyal v Minister for Immigration [2005] FMCA 265 per Scarlett FM. “s.349(2)(c) limits directions to those permitted by the Regulations.” A direction that the application met the criterion was not permissible. That claim is rejected.
It is then claimed that if the Tribunal remitted the matter and the required funds were then deposited…the visa applicant would be entitled to the bonus points under Part 8. The required funds were not deposited and could not be deposited. The applicant therefore did not comply with item 6A81(a). That claim is rejected.
It is then claimed that the Tribunal should have been satisfied that the applicant was entitled to 5 bonus points under item 6A81(a). As a matter of law, the applicant was not entitled to the 5 bonus points.
That claim is dismissed.
All grounds in the application are rejected.
Findings as to the grounds in the amended application
Ground 1 alleges that the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction. That has not been established. That claim is rejected.
Ground 2, particular (a) alleges a denial of procedural fairness because the Tribunal should have requested the applicant to provide evidence that he still intended to deposit…not less than AUD 100,000, and enquired whether he had the means at his disposal to do so? That was not a relevant matter for the Tribunal as the applicant was required to have deposited AUD 100,000 (Bold added by the Court). It would have been a jurisdictional error to rely on the answer to such a question (Balineni supra at [74]). Further, s.357 provides:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
s.357A is relevantly identical to s422B which was held in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, 225-226 [60] – [70] to exclude the common law natural justice hearing rule. The Court accepts the submission for the first respondent that:
“68. Lay Lat has been followed by subsequent Full Federal Courts. Thus, in NBKT v Minister for Immigration and Multicultural Affairs, Young J (with Gyles and Stone JJ in agreement) said that:
[T}here is no scope for the operation of general requirements of procedural fairness outside the specific provisions of Division 4 of Part 7 of the Act: see s 422B(1); Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 212 at 225 [66]; and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8].
69. The judgements of the Full Federal Court concerning the meaning of s.357A and s.422B have settled the operation of those sections, unless or until the High Court says otherwise (SZHOA v Minister for Immigration and Multicultural Affairs [2007] FCA 501 at [17] per Alsop J). Accordingly, the applicant’s contention that the Tribunal erred by denying him procedural fairness cannot succeed, because the rules of procedural fairness do not apply to decisions of the Tribunal.
70. In any event, even if the rules of procedural fairness did apply, there is no basis for the suggestion that the Tribunal did not comply with those rules. The Tribunal’s letter to the applicant dated 5 September 2008 could not have been clearer in explaining the Tribunal’s provisional views to the applicant, and in giving him an opportunity to persuade the Tribunal that he satisfied the statutory criteria.”
An error has not been shown. That claim is rejected.
The applicant then repeats his claim that he should have been provided with a Form 1134. The claim has been rejected above.
Next, the applicant repeats his claim of a breach of s.353(2).
That claim has been rejected above.
Next the applicant repeats his claim that an officer had not requested that the funds be lodged. That claim has been rejected above.
Next it is claimed that the Tribunal should have remitted the application on the grounds that specific items in Schedule 6A were satisfied while recommending that the Department request the required funds to be deposited. That claim has been rejected above.
Next it is claimed that if the required funds were then deposited the applicant would be entitled to the bonus points under Part 8.
That claim has been rejected above.
Next it is claimed that the delegate should have been satisfied that the applicant was entitled to 5 bonus points under item 6A81(a).
That claim has been rejected above.
All grounds in the amended application are rejected.
The Court notes that under s.349 of the Act, the MRT can remit a matter for reconsideration in accordance with such direction or recommendation of the Tribunal as are permitted by the Regulations. As stated earlier it cannot remit this matter to the Delegate for reconsideration.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error and in such circumstances, and pursuant to s.474 of the Act, there is no jurisdictional error for this Court to interfere.
The application and amended applications are dismissed.
The applicant appears to have been prevented from depositing
AUD100,000 in a designated security through no fault of the Delegate, the Tribunal or of his own. The MRT noted the difficulties the applicant faced (CB 91.5). It appears as though the applicant had the AUD 100,000 but there was no “designated security” at the time into which he could deposit the funds. In circumstances where the applicant could not earn the 5 bonus points because of events outside his control the Court notes the provisions of s.351 of the Act.
“(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.”
The applicant may wish to pursue that avenue.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Turner FM
Deputy Associate: Eyal D’vier
Date: 29 May 2009
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