Rofail v Minister for Immigration

[2015] FCCA 629

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROFAIL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 629

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Residence) (class VB) visa.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.359(1), 476

Migration Regulations 1994, regs.1.15F, 2.26A(6)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28

Applicant: RAMEZ MAGDY HABIB ROFAIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 414 of 2015

Judgment of: Judge Street

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Hughes

Solicitors for the Applicant: D’Ambia Lawyers

Solicitors for the Respondent: Ms Z. Taylor
Clayton Utz

ORDERS

1. The proceeding before this Court, commenced by way of application on 20 February 2015, is summarily dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $1,367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 414 of 2015

RAMEZ MAGDY HABIB ROFAIL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondents

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of which the applicant seeks a Constitutional writ in respect of the decision of the Tribunal affirming the decision of the delegate not to grant the applicant a Skilled (Residence) (class VB) visa on 23 January 2015.

2. The Court notes that on the application it identifies that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct in the proceedings. 

3. The Court raised with counsel for the applicant that this is a case where it appeared that there was no reasonable prospect of success and gave an opportunity to identify whether there was an arguable case.  In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

4. Counsel for the applicant sought to identify that there were arguable issues and sought to file in Court an amended application raising the following grounds:

   1. The second respondent (Tribunal) failed to consider or deal with evidence which was important corroborative material to the applicant's claims such that the Tribunal failed to discharge its statutory task.

   Particulars

   (a) The applicant provided the Tribunal with Session Training Plans for a Certificate IV in Hospitality which show that the course started on 12 January 2009.

   (b) The applicant provided an Academic Transcript from the Carrick Institute of Education, which, taken together with the Session Training Plans, indicate that he completed the academic requirements for the Certificate IV on 12 June 2009.

   (c) The Tribunal failed to take into account or deal with the evidence referred to in particulars (a) and (b) in forming the requisite state of satisfaction as to whether the applicant had completed the Certificate IV in Hospitality.

   (d) This evidence was important corroborative material of the applicant's claim to have completed a Certificate IV in Hospitality.

   2. The Tribunal failed to consider or deal with evidence which was important corroborative material to the applicant's claims such that the Tribunal failed to discharge its statutory task, or alternatively failed to deal with an integer of the applicant's claims.

   Particulars

   (a) In the General Skilled Migration Applicant Form, the applicant stated that he had earned a Diploma of Business Management from 15 January 2005 to 15 October 2007.

   (b) The Diploma of Business Management was relevant to whether the applicant met the Australian Study Requirement.

   (c) The Diploma of Business Management is not mentioned by the Tribunal in its decision.

   (d) In the premises, the Tribunal failed to take into account a relevant consideration.

5. The applicant applied for Skilled (Residence) (class VB) visa on 21 October 2009. At the time the visa application as lodged, class VB contained three subclasses: 885, 886, and 887. The application form indicates the relevant subclass is subclass 886, the criteria for which is set out in part 886 of schedule 2 of the Migration Regulations 1994, the primary criteria that must be satisfied by at least one applicant.  The delegate refused the application on 1 August 2014 because the applicant did not satisfy cl.886.211(2)(a) of the schedule to the regulations because he had not met the Australian study requirement.  The Tribunal noted that the applicant appeared before the Tribunal on 22 January 2015 to give evidence and present arguments, and that the applicant was assisted with an interpreter and was represented by his registered migration agent.

6. The Tribunal identified that the central in this case was whether the applicant met the Australian study requirement in rule 1.15F.  Relevantly, in paragraph 7 the Tribunal said:

   7. Clause 886.211 requires that at the time of application the applicant meets one of several alternative sub criteria. These depend on which of the alternative requirements in item 1136 of Schedule 1 to the Regulations the applicant satisfied in order to make a valid visa application. In this case, as the applicant met item 1136(4), the only relevant alternative is cl.886.211(2) which requires that the applicant satisfied the Australian study requirement (or for visa applications made before 15 May 2009, the 2 year study requirement) in r.1.15F in the 6 months immediately preceding the visa application date; and that each degree, diploma or trade qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation.

7. It is clear from what is said by the Tribunal in para.7 that the requirement of reg.1.15F is that the applicant must have satisfied the requirement in the six months immediately before the visa application date.  The Tribunal continued to identify the requirements in relation to reg. 1.15F:

   8.  To meet the study requirement in r.1.15F, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.

8. The Tribunal turned to address the evidence that was before the Tribunal in a manner that was not exhaustive, but identified the nature of the material advanced to assert some compliance.  It is clear that the Advanced Diploma of Hospitality Management at Karachi on 19 March 2010 was not obtained within the timeframe required under reg.1.15F.  The Tribunal noted in para.11:

   11. The delegate found that the Certificate III in Hospitality did not meet the definition of degree, diploma or trade qualification, as set out in r.2.26A(6). The Advanced Diploma of Hospitality was not completed in the 6 months immediate before the day the visa application was made.

9. The Tribunal identified the submissions that were advanced on behalf of the applicant were in relation to that diploma. The Tribunal noted that it received an email from the Kaplan College dated 4 August 2014 that states as follows:

   13. …An email from Kaplan College dated 4 August 2014 states, ‘These reason we are unable to provide a Certificate IV to you is because you were never enrolled in that course at Carrick. If you were enrolled in that course and completed it successfully, we would be able to provide the certificate for you.’

10. The Tribunal clearly put to the applicant that it had no direct evidence from the education provider that the applicant completely a Certificate IV.  The Tribunal asked the applicant whether he had a confirmation of enrolment to confirm that he was actually enrolled in the course.  The applicant stated he did not have a confirmation of enrolment.  The applicant was unable to get a separate completion certificate from the college.  The college had closed down and the applicant had been unable to get evidence.

11. The Tribunal turned to consider whether or not the applicant met the study requirements. The Tribunal said it was satisfied that the applicant completed a Certificate III in Hospitality on 28 November 2008, and the Tribunal was satisfied that this meets the definition of a trade qualification in reg.2.26A(6).  At the time of the application, trade qualification included AQF certificate III level courses for skilled occupations in Major Group IV in the ASCO.  ASCO Major Group IV has now been replaced by ANZSCO Major Group III.  Both categories relate to technicians and trade works, and include cooks.  The Tribunal was therefore satisfied that a Certificate III in Hospitality (Commercial Cookery) is for the skilled occupation of cook, which is ASCO Major Group IV as required by reg.2.26A(6). Importantly the Tribunal found:

    17. The Tribunal finds that this course commenced on 14 January 2008 and was completed on 28 November 2008. The Tribunal finds this is a period of 46 weeks. As this is less than 92 weeks (as required by IMMI 09/040), it is less than 2 years’ academic study, and the applicant does not meet r.1.15F(c) on the basis of this course.

12. The Tribunal turned then to the Advanced Diploma of Hospitality Management course:

    18. The Tribunal is satisfied that the applicant completed an Advanced Diploma of Hospitality Management on 19 March 2010. The visa application was made on 21 October 2009. The Tribunal finds that the Advanced Diploma of Hospitality Management was completed after the date of the visa application on 21 October 2009. Therefore, it was not completed in the 6 months immediately before the day the application was made, as required by cl.886.211(2)(a), and cannot be counted towards meeting the Australian study requirement.

13. The Tribunal then turned to the question as to whether the applicant had completed the Certificate IV in Hospitality Management at Karachi, and he claimed to have started the course on 12 January 2009 and completed it on 12 June 2009.  The Tribunal turned to the meaning of completed and the Tribunal made findings:

    22. In this case, there is no evidence that the educational institution has finalised the results and decided that the applicant had met the academic requirements for the Certificate IV course. The only evidence the applicant has provided is only his own assertion that he met all the requirements for the Certificate IV course. However, he has also acknowledged that Carrick had always advised him that he could not be issued a separate certificate for the Certificate IV course. Therefore, the Tribunal cannot be satisfied that the applicant has completed a Certificate IV in Hospitality Management course and this cannot be counted towards meeting the Australian study requirement.

    23. In any case, even if the Tribunal accepted that the applicant had completed the Certificate IV in Hospitality Management, the claimed duration of the course would not be sufficient to satisfy the Australian study requirements. The applicant claimed he started this course on 12 January 2009 and completed it on 12 June 2009. This is a period of 22 weeks. If combined with the Certificate III course of 46 weeks, this is a total of 68 weeks of academic study. As stated above, the regulations require at least 2 years of academic study, which is defined in IMMMI 09/040 as 92 weeks. The total period of 68 weeks of academic study is less than the required 92 weeks. Therefore, the applicant would not satisfy the Australian study requirement on the basis of the claimed Certificate IV course, even if the Tribunal was satisfied that he had completed it.

14. In conclusion the Tribunal made a finding that the requirements of cl.886.211(2)(a) were not met by the applicant, and the applicant did not meet cl.886.211 as a whole. Those findings of facts were central to the determination of the review and were clearly open to the Tribunal. It was a matter for the Tribunal to identify and address the essential claim advanced by the applicant. It is not necessary for the Tribunal to set out and identify matter which is merely relevant but not central and to make findings on that non-central matter in its reasons to the extent that the applicant raises an argument under s.359(1). That argument is, in my opinion, completely without substance.

15. The proposed records now raised by the applicant would not in any way address the central factual issue that was before the Tribunal in terms of compliance. Those records do not provide a ground for coming to different view in respect of the said central findings of fact. There was no necessity in my opinion for the Tribunal to make findings of fact or to address each of the documents to which it had regard. If that was the correct principle, the Tribunal would have to recite at the length every piece of paper that was before it. That is not what s.359 of the Migration Act requires and I am satisfied in this case that the proposed records now raised by the applicant were peripheral in relation to the essential claim advanced by the applicant and the central issues of fact. For these reasons, ground 3 has no substance.

16. In relation to grounds 1 and 2, they are clearly a challenge advanced in respect of the findings of fact that were made by the Tribunal and are an impermissible attack on the findings of fact. The findings were open and I am satisfied the findings do not lack an evident and intelligible justification. To the extent it was suggested from affidavit material advanced before the Court that there was evidence that supported there was some compliance with the requirements of cl.866.21(2)(a) it is without substance. None of the material in the affidavit to which I was taken establishes, within the six month period, the requirements as specified by cl.886.211(2)(a). In those circumstances, it was not necessary for the Tribunal to expressly refer to that material. I am satisfied the Tribunal had regard to all the material that was before it and it is unnecessary for the Tribunal to address peripheral material. There is no proper basis for any adverse inference and I am satisfied the Tribunal complied with the statutory scheme.

17. I am satisfied that there is no substance in grounds 1 and 2.  I am satisfied the proceedings are clearly doomed to failure. I note that I have above taken into account the grounds in the amended application, but as it has no reasonable prospects of success, I have not allowed the amended application to be filed. I can see no utility in granting an adjournment in circumstances where the proceedings are doomed to failure as it will only add to the cost of the parties and utilise valuable Court time.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The application is summarily dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 March 2015