Roy v Minister for Immigration
[2010] FMCA 781
•31 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 781 |
| MIGRATION – Review of Migration Review Tribunal’s decision to affirm delegate’s decision to refuse Skilled – Australian-Sponsored Overseas Student (Residence) (Class DE) Visa, Subclass 882 – designated sponsor withdrew – decision made by delegate to refuse visa – no sponsor at the time of decision – Tribunal’s decision affirmed – application for review dismissed. |
| Migration Act 1958 (Cth), s.65 Migration Regulations 1994, Schedule Cl. 1128BA (3)(k); Schedule 2 Cl.881.221 &Cl. 882.22 Privacy Act1988, s.14 |
| Applicant: | BENJAMIN NOEL ROY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 292 of 2010 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 31 August 2010 |
| Date of Last Submission: | 31 August 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2010 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr D. Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 26 February 2010 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,874.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 292 of 2010
| BENJAMIN NOEL ROY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review the decision of the Migration Review Tribunal (the Tribunal) made on 27 January 2010, which decision affirmed the first respondent’s delegate’s decision not to grant the applicant a Skilled – Australian-Sponsored Overseas Student (Residence) (Class DE) Visa, Subclass 882.
By way of background, the applicant is a 49 year old Indian who applied for the visa on 29 April 2003. Thereafter followed extensive correspondence between the Department and the applicant in relation to the applicant’s family relationship to the named sponsor.
It is to be noted that at the time the application was made, and until just prior to the delegate’s refusal, there was a designated sponsor. However, on 8 October 2008 the sponsor withdrew his sponsorship and on 9 October 2008 the delegate made a determination to refuse the visa on the basis that there was no longer a sponsor. On review of that decision to the Tribunal, the Tribunal affirmed the delegate’s decision on the basis that the applicant did not satisfy a necessary criterion for the granting of the visa; namely, he did not have a sponsor.
The Tribunal found that, because there was no longer a sponsor, the requirements of clause 882.221 of Schedule 2 of the Migration Regulations 1994 were not met; nor, indeed, those of clause 881.221.
In his application, the applicant has set out two grounds for review; namely, the Tribunal’s decision was made without jurisdiction or is affected by an error of jurisdiction.
In the particulars, in support of the grounds, the applicant asserts that it took five years, five months and 10 days to make a decision and that had it been made within a normal timeframe, the applicant would have qualified and would have been entitled to the grant of the visa as his sponsorship would still be in force. It was contended by the applicant that the Tribunal should have taken that factor into account.
In addition, the applicant contends the Tribunal should have sought access to documents that the Department had claimed should be excluded under the Privacy Act 1988. On coming here today, the applicant did not progress that second part of his grounds, and it would appear that he was not fully informed as to how that ground was to be argued as the ground was articulated by a former migration agent who helped draft the grounds for him. In any event, for reasons shortly to be addressed, I find that part of his application to have been misconceived.
In relation to all of the matters raised by the applicant, I adopt the first respondent’s contentions of fact and law as being the correct expression of the law applicable to the facts of this case. For fullness, I am going to quote from those contentions of fact and law, beginning at paragraph 15:
15. The Minister or his delegate is required, pursuant to section 65 of the Migration Act 1958 (Cth), when considering a valid application for a visa, to be satisfied that(s65(1)(a)(ii)) the other criteria for it prescribed by this Act or the Regulations have been satisfied, and if not so satisfied, is to refuse to grant the visa (s 65(1)(b)).
16. Schedule 2 of the Regulations prescribes the criteria that have to be met before a grant of a visa can be made. The criteria prescribed by the Regulations in relation to Skilled Designated Area Sponsored Overseas Student Class DE, Subclass 882 visa class applications are detailed in clause 882 of Schedule 2. These include criteria to be satisfied at the time of decision -
and I emphasise that expression, “at the time of decision” -
and subclause 882.221 is one such criterion that must be satisfied at the time of a decision on a visa application being made, and it reads,
‘The sponsorship given with the applicant’s application under paragraph 1128BA(3)(k) of Schedule 1 has been approved by the Minister and is still in force’.
17. The criteria prescribed by the Regulations in relation to Skilled Australian-Sponsored Overseas Student (Class DE), (Subclass 88)1 visa class applications are prescribed at clause 881 in Schedule 2 of the Regulations. These include “criteria to be satisfied at the time of decision”, and subclause 881.221 is identical to subclause 882.22,1 as reproduced in the above paragraph.
18. Schedule 1 of the Regulations prescribe how non-citizens are required to apply for a visa. Paragraph 1128BA(3)(k) of Schedule 1 provides that a visa application:
‘(i) made using form 47SK must be accompanied by a sponsorship form 40 completed by a person who is the sponsor of the applicant; or
(ii) made using form 47SK (Internet) must be accompanied by a sponsorship form 40 (Internet) completed by a person who is the sponsor of the applicant.’
19. Subclauses 881.221 and 882.221 of Schedule 2 of the Regulations therefore prescribe that the sponsorship given by the applicant’s visa application as required by paragraph 1128BA(3)(k) of Schedule 1 of the regulations must still be in force at the time that a decision on a visa application is made.
20. The applicant has acknowledged that the sponsorship of his visa application was withdrawn on 8 October 2008. This meant that he could not meet the criteria prescribed by clauses 881.221 or 882.221 of Schedule 2 of the regulations as having to be met at the time a decision on the visa application was made. The Tribunal, therefore, had no option but to affirm the decision under review.
21. As to the issue of delay, the Tribunal noted that it had discussed with the applicant and his agent their submission that there was a long delay in making a decision and their contention that this was unfair. The Tribunal found that the question before it was whether the applicant had sponsorship for his visa application still in force at the time the decision on the visa application was made, and concluded that he did not. This was a finding of fact that was open to the Tribunal.
22. In relation to the second matter raised by the applicant, the Tribunal had advised the applicant that certain requested documents were fully excluded from disclosure under section 14 of the Privacy Act 1988, Information Principle 11 because they contained information of a personal nature about a third party, and the Tribunal was not reasonably satisfied that the third party would have been aware that his or her personal information would be disclosed to the applicant, and the third party had not provided consent to the information being disclosed.
23. The Tribunal had these documents before it when making its decision, and the applicant’s second ground that the Tribunal should have sought access to the documents in order to establish their relevance to the applicant’s case is therefore misconceived.
As I said before, I find that the summation of the law, as applied in this particular case by the first respondent, to be a correct summation and that, as a consequence, despite the frustration experienced and incredulity of the applicant as to how his predicament arose, I am left with no alternative but to dismiss the application for review.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Date: 31 August 2010
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