Rashid v Minister for Immigration

[2007] FMCA 1942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RASHID v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1942

MIGRATION – Independent Overseas Student (Residence) (Class DD) visa – error of law as to applicant’s qualifications – review by Tribunal of delegate’s decision is a hearing de novo – Tribunal may admit evidence of further IELTS scores.

Migration Act 1958 (Cth), ss.92, 93, 96
Migration Regulations 1994 (Cth), reg.2.26A, sch.6A, sch.2

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791
NAPY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 286

Applicant: M.M. MAMUN-OR-RASHID

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 1576 of 2007

Judgment of: Turner FM

Hearing date: 22 October 2007

Date of last submission: 22 October 2007

Delivered at: Sydney

Delivered on: 6 December 2007

REPRESENTATION

Solicitors for the Applicant: Mr R. Turner of Parish Patience

Counsel for the Respondents: Ms V. McWilliam

Solicitors for the Respondents: Mr B. O’Brien of DLA Phillips Fox

ORDERS

1. A writ of certiorari issue quashing the decision of the Migration Review Tribunal signed on 29 March 2007 in MRT Case Number 060535739.

2. A writ of mandamus issue requiring the Migration Review Tribunal to determine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1576 of 2007

M.M. MAMUN-OR-RASHID

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 29 March 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Skilled – Independent Overseas Student (Residence) (Class DD) visa.

Background

1. On 29 March 2004 the applicant applied to the Department of Immigration and Multicultural Affairs for a Skilled – Independent Overseas Student (Residence) (Class DD) visa. In this application the applicant claimed bonus points on the basis of his Bachelor and Masters degrees.

2. On 9 June 2006 a delegate of the first respondent refused the application because the applicant failed to meet the minimum points test of 115 (the applicant’s score being 105) (CB 143). By decision signed on 29 March 2007, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa (CB 178). The matter is now before this Court pursuant to an application for judicial review filed on 18 May 2007.

Issues for determination

1. The issues before the Court are as follows:

   ·Whether the failure of the Tribunal to award bonus points for qualifications was an error of law;

   ·Whether the International English Language Testing System (“IELTS”) scores obtained after the Tribunal’s decision and before the referral back were obtained “during the processing of the application”;

   ·Whether constitutional writs should be issued as a matter of discretion.

The application

1. In his application, the applicant set out one ground as follows:

   The Tribunal failed to give me any points for the bonus points factor under item 6A81 of schedule 6A of the Migration Regulations, when I was entitled to be allocated 5 points under 6A81(c) because I completed a Master of Management in the Bengali medium, which is a designated community language. I had given evidence of this to DIAC which the Tribunal failed to consider.

Findings of the Court in relation to the grounds in the application

1. A primary criterion to be met at the time of the decision of the Tribunal is set out in clause 880.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) as follows:

   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).

   Regulation 2.26A(2) provides:

   (3)For subsection 93 (1) of the Act (which deals with determination of an applicant’s points score):

   (a)each qualification specified in column 2 of an item in Part 1, 2, 3, 4, 5, 6, 7, 8 or 10 of Schedule 6A is prescribed as a qualification in relation to the grant, to the applicant, of:

   (i)      a Subclass 136 (Skilled – Independent) visa; or

   (ii)    a Subclass 137 (Skilled – State/ Territory ‑nominated Independent) visa; or

   (iii)   a Subclass 861 (Skilled – Onshore Independent New Zealand Citizen) visa; or

   (iv)    a Subclass 880 (Skilled – Independent Overseas Student) visa; and

   (v)     [repealed]

2. Part 8 of Schedule 6A to the Regulations provides a maximum of 5 points for ‘Bonus points qualification’ if the applicant

   (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

   Both the pool mark and pass mark (for the purposes of Item 880.222) were 115 at the time of the primary assessment on 9 June 2006 (see Gazette Notice: GN 15 of 14 April 2004) and at the time of the Tribunal’s decision (CB 184.2). The number of points awarded to the applicant by the delegate was 105 (CB 184.3).

3. The Court finds that although there was evidence on the files of the applicant that the applicant holds qualification that could be relevant to Item 6A81(c) in Schedule 6A to the Regulations, if the Tribunal had accepted that evidence it could only have entitled the applicant to a maximum bonus points qualification of 5 points (Item 6A81). Without those points the applicant had 105 points (CB 104). With 5 bonus points the applicant would have had 110 points, whereas the applicant required 115 points to be successful (CB 187.8). Therefore even if the error as to the applicant’s qualification amounted to a jurisdictional error, the outcome of the case could not have been different: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

4. It is argued for the applicant that if the matter is referred back to the Tribunal, the Tribunal would be obliged to accept new evidence of further IELTS (International English Language Testing System) scores, as Schedule 6A Part 3 Item 6A31(b) means that test scores achieved “during processing of the application” must be considered by the Tribunal, and that those scores may result in him gaining 20 points for “Language skill qualifications”; that score, when considered with his current points of 105 (less 15 language skill qualification points), plus 5 bonus points for his qualifications would give him 115 points.

5. The question for the Court is whether the Tribunal made an error of law or an error of fact that amounts to a jurisdictional error on the material before it. The Court finds an error of law as the Tribunal did not include 5 bonus points. They would have taken the applicant’s points to 110, which is below the 115 required. The granting of constitutional writs is discretionary; had the Tribunal not erred the applicant would have had 110 points. It is not futile to refer the matter back to the Tribunal as argued by the first Respondent. The Tribunal may admit further evidence of IELTS scores if it considers that they were obtained “during processing of the application”.

6. The matter is to be referred back to the Tribunal to be determined according to law. That hearing will occur “during processing of the application” as the hearing before the Tribunal when reviewing the decision of the delegate is a hearing de novo: SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791; NAPY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 286 at [13].

Conclusion

1. The Court finds that the Tribunal’s decision was infected with jurisdictional error. Accordingly, the application is granted.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate:  M Giang

Date:  6 December 2007