XUE FAN v Minister for Immigration
[2010] FMCA 490
•9 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XUE FAN v MINISTER FOR IMMIGRATION | [2010] FMCA 490 |
| MIGRATION – Visa – skilled Independent Visa – whether the decision was a reviewable decision – score decision and pool decision – competency of the application – Procedures Advice Manual “PAM”. |
| Acts Interpretation Act 1901 (Cth) Migration Regulations 1994 (Cth) Migration Act 1958 (Cth) |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Choo Ai Lin v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 291 De Ronde v Minister for immigration and Multicultural and Indigenous Affairs (2004) 188 FLR 266 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 Kumar v Minister for Immigration and Citizenship [2009] FCAFC 55 S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Vishnumolakala v Minister for Immigration [2006] FMCA 1209 |
| Applicant: | XUE FAN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | BRG 141 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 20 May 2009 |
| Date of Last Submission: | 20 May 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 9 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Syme |
| Solicitors for the Applicant: | Robert Casalegno Solicitors |
| Counsel for the Respondent: | Mr McLeod |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed 25 February 2009 be dismissed.
That the Applicant pay the Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 141 of 2009
| XUE FAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 May 2006 the Applicant was informed her Application for a Class BN, Subclass (136), Skilled – Independent Visa had been considered. Broadly she was informed that she had not achieved the award of sufficient points to obtain a score equal to or greater than the applicable pass mark. However her score did meet the applicable pool mark. Accordingly she was advised that her Application would be placed in the pool of Applications where it would sit for two years (the score decision).
Her Application was not refused at that time. The decision letter accompanying the ‘Decision Record’ noted that new pass marks and pool marks are set periodically and that her Application would be assessed against any new marks. As such, if inside two years her marks equalled or exceeded a new pass mark her Application would be removed from the pool and proceed to further assessment. If the marks did not change or the Application remained in the pool at the end of two years without there being a change of the applicable pool mark the Application would be refused. The letter also advised that if her circumstances changed and she believed that the change would entitle her to further points she could lodge another Application bearing in mind the risks of re-assessment associated with a new Application.
By letter dated 28 January 2009 the Applicant was advised that her Application for a Subclass 136 Visa had been refused as the two year period in the pool had lapsed without her having met the qualifying score (the pool decision).
In her Application filed in this Court the Applicant seeks a review of the pool decision which she received notice of on 28 January 2009. She alleged the decision to refuse the visa was affected by jurisdictional error because;
a)The Respondent failed to properly take into account all of the evidence provided by her against Schedule 6A and Column 1, Item 6A51 of the Migration Regulations 1994 (Cth), (the Regulations), that her spouse was in a skilled occupation;
b)The Respondent took into account an irrelevant consideration and applied the law incorrectly in relation to relying on the Australian Standard Classification of Occupations to assess the evidence provided by the Applicant or her spouse being employed in a skilled occupation to equate to that of an a Inquiry Clerk;
c)The Respondent did not interpret the law correctly by failing to assess under Reg.2.26A(7) of the Regulations that her spouse need only to have been ‘employed’ in a skilled occupation of remuneration for 20 hours per week for her to satisfy Schedule 6A Item 6A51 of the Regulations.
The pool decision turned upon the score decision made by the first delegate on 24 May 2006. In reaching the score decision the first delegate was not satisfied that the Applicant’s spouse was a “skilled spouse”. If she had been so satisfied the Applicant would have been entitled to five points under Item 6A51 of Schedule 6 of the Regulations thus giving the Applicant a qualifying score of 115 points. It was the delegate’s determination on this point for which the Applicant particularly seeks review.
One decision nor two separate decisions
It was submitted by the Respondent at the outset that the grounds of the Application plainly relate only to impugning the score decision dated 24 may 2006 and notified about that time. The Application does not address or seek to impugn the pool decision dated and notified 28 January 2009. Accordingly it was contended the Applicant was out of time for the making of her Application for review of the score decision
The Respondent contended that the score decision and the pool decisions constitute two separate and distinct decisions and that discrete review dates applied; Australian Broadcasting Tribunal v Bond[1]. The Applicant contended on the contrary that the score decision was merely a step along the way to making the pool decision but that in fact there was only one decision, being the pool decision, and the relevant time for making Application ran from the day of notification of the pool decision.
[1] (1990) 170 CLR 321.
In Australian Broadcasting Tribunal v Bond at 337 Mason CJ said when discussing the character of conduct constituting a decision:
“If “decision” were to embrace procedural determinations, then there would be little scope for a review of “conduct”, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision maker of an Application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the “conduct” of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of “conduct” than with the notion of “decision under an enactment”.
…
My view is more in accord with the tentative opinion expressed earlier by Ellicott J. in Ross v. Costigan (1982) 59 FLR 184 at 197 when he said that "it may well be that the word 'decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person”.”
In this instance the Respondent submitted the score decision could not be taken to be procedural in nature because it contended that decision stands alone; other matters may flow from it but those matters are independent of it. The Respondent submitted the score issue substantially and finally determined the issue of the applicant’s score. Likewise there can be little doubt that the pool decision resolved a substantive issue concerning whether the applicant’s score surpassed the extant benchmark score at the relevant time and it too had the quality of finality.
As the Respondent submitted, if the score thresholds had been lowered the Migration Act 1958 (Cth) (the Act) made it plain the assessment could not be revisited and the Applicant would have been entitled to a deemed decision in his favour. Likewise the same process must logically apply if the inverse was the case.
Generally the matter of characterisation of particular conduct as a “decision” for the purpose of judicial review or review pursuant to s474 was identified as a difficult one by the Full Court in Kumar v Minister for Immigration and Citizenship [2009] FCAFC55 (21 May 2009). However as Besanko J observed at [77] “an approach which recognises the practical realities is one which characterises action [under 594] as one act having the consequence that [the applicant’s score fell below a pass score] and as falling within s.474(3)(g). That is to say, ‘the doing [of] any other act or thing.’”
As was stated by the Full Court in Kumar the approach that follows must recognise the “practical reality”. Whilst it might be easy to distinguish the basis for His Honour’s observations both on the facts and the expression in the regulation then under consideration, in my view, the fact remains, time in the pool does not bear upon the initial score; that matter is resolved finally once the original decision on that matter is made. The situation that exists at the conclusion of the two year pool period calls for a decision on a new and separate matter, that is, whether the applicant’s score at the end of two years is greater than the applicable score at that time. The fact that the Minister in this instance did not actually have to do anything is not to the point. It is not difficult to envisage as a possibility a situation where a Minister varies the score but fails or refuses to “compare [that assessment] score” with the revised “applicable pass mark and applicable pool mark”[2]. Such an outcome would clearly constitute a final decision unrelated to the original score decision. That later decision, the pool decision would clearly be reviewable.
[2] Migration Act 1958 s95(2)(a).
In this instance the practical realities are such that the score decision was final and conclusive of the matters determined within it. For reasons advanced earlier the pool decision builds upon that decision but does not call for it to be revisited. In reality they are two distinct decisions.
In support of its contentions concerning the score decision the Respondent submitted that as a matter of proper construction regard must be had to Part 2, Division 3, Subdivision B of the Act which deals with the “points” system. In particular sections 93 and 94 of the Act which provide for the determination of an appellant’s score. Relevantly they provide:
“93 Determination of applicant’s score
(1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
(2) …
94 Initial Application of “points” system
…
(3) If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
(a) the Minister must, unless the Application is withdrawn, put the Application aside and deal with it in accordance with section 95; and
(b) if the Minister puts the Application aside—the Minister is taken to have put the Application into a pool.”
The Respondent submitted that by reason of the wording of section 94(3) of the Act the result of the assessment determines the result of the initial Application and it follows that the score assessment is final. Further the Respondent says section 95(2) of the Act makes it plain that once the score assessment is undertaken that assessment is not to be revisited or changed. So much appears consistent with section 95 of the Act. Section 95(2)(a) relevantly provides:
“95 Applications in pool
…
How Applications to be dealt with
(2) If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark:
(a) the Minister must, without re‑assessing that score, compare that score with the applicable pass mark and the applicable pool mark;…”
(emphasis mine)
Section 95 of the Act then proceeds to detail how the assessed score (the product of the score decision) is then considered against any new applicable pass mark. It provides:
“(b) if that score is more than or equal to the applicable pass mark—the Applicant is taken to have received the qualifying score; and
(c) if that score is less than the applicable pool mark—the Applicant is taken not to have received the qualifying score; and
(d) if that score is more than or equal to the applicable pool mark but less than the applicable pass mark—the Application remains in the pool until it is removed from the pool (see subsection (3)).”
Following that assessment process s.95 of the Act continues to finally deal with removal of Applications from the pool following this assessment consideration:
“Removal of Applications from pool
(3) An Application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:
(a) the end of [2 years][3] after the assessment of the applicant’s assessed score;
(b) the earliest time (if any) when the Applicant is taken to have received the qualifying score as the result of the operation of subsection (2);
(c) the earliest time (if any) when the Applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).
[3] S95A provides for an extension applicable to the subject Application from 12 months to 2 years.
Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score
(4) If an Application is removed from the pool because of paragraph (3)(a), the Applicant is taken not to have received the qualifying score.”
Accordingly where an Application has been in the pool for two years without removal it is taken to have been removed: section 95(3) of the Act. This occurred in this case. Section 95(4) of the Act provides that if an Application is removed from the pool because of section 95 the Applicant is taken not to have received the qualifying score. On that basis the Application is not reassessed but is deemed, on the previous assessment, not to have met the relevant qualifying score and upon that basis fails.
The Respondent contended this step constituted a second and distinct decision because it required a later consideration of whether the visa Applicant had fulfilled the score criteria. It contended that exercise entailed a discrete decision and not merely the furtherance of the earlier decision which the Applicant submitted was only a step along the way.
The Respondent submitted that in addition to the migration legislation decision makers under the Act have available to them the Procedures Advice Manual III, (the PAM). It submitted that Part 2.05 of the PAM, as it relates to Schedule 6A of the Migration Regulations 1994 (Cth), supports its contention by stating:
“The effect of giving an assessed score
An assessed score, once given, does not change. Officers cannot “revisit” or “revoke” an assessed score, regardless of whether doing so favours (or disadvantages) the applicant.”
In addition the Respondent relies upon Part 25.1 of the PAM which relevantly provides:
“25. THE POOL MARK
25.1 How it works
Under s95(2)(a) of the Act, Applications already held in the pool are tested against any new pass and pool marks that are gazetted after their entry to the pool, without reassessing the individual applicant’s assessed scores”.
The Respondent conceded that the PAMs do not have the force of legislation in the sense that they create legally binding criteria or rules the failure of which to take into account or follow would of themselves amount to jurisdictional error but nonetheless they ought be considered. However those documents are not binding, they being nothing more than procedural and policy guidance to officers applying the Migration Act and Regulations; see Choo Ai Lin v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 291 at 298 per Tamblin J and El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at 55, para [45] per Grey J; Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [36] and [37]. However it was submitted some guidance could be obtained by reference to that material. That material appears to be material prepared from within the office of the Respondent. It does not fall within the class of extrinsic material to which regard may be had to assist in the ascertainment of the meaning of a provision and accordingly it can be of no assistance in construing the Act: s.15AB Acts Interpretation Act 1901 (Cth); El Ess v Minister for Immigration and Multicultural and Indigenous Affairs supra at [45].
The Respondent contends that as a matter of proper consideration of the Act the second delegate’s task following two years after the score decision was to compare the original assessed score against the qualifying thresholds as they existed as at 24 May 2008 (being the review date for the original assessment and assuming on favourable changes in the interim) and that the result of that process gives rise to a separate decision, the pool decision.
Mr Syme for the Applicant contended that in fact the score decision was not a separate and distinct decision but merely a decision along the way to the pool decision dated 29 January 2009 being the decision to refuse the visa. He contended this was the only operative decision. In support of his submission he contended that specific consideration be given to section 94(3)(a) and in particular its provision that:
“[s94] Initial Application of “points” system
…
(3) If an applicant’s assessed score is more than or equal to the applicable pool mark, and less than the applicable pass mark, at the time when the score is assessed:
(a) the Minister must, unless the Application is withdrawn, put the Application aside and deal with it in accordance with section 95; and
(b) if the Minister puts the Application aside – the Minister is taken to have put the Application into a pool.
(4) Where, in accordance with this section, the Minister puts an Application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.”
(emphasis mine)
It was contended that putting an “Application aside” does not constitute a “decision” as defined in section 474 of the Act. Upon that basis the Applicant submitted there was no decision within the meaning of that term as defined and accordingly the only decision open to review was the pool decision.
While it is strictly correct to note that section 474(3) of the Act does not include within the term “decision” a reference to putting “the Application aside” the measurement of the assessed score against an applicable pool mark constitutes doing “another act” in terms of section 474(3)(g) of the Act or alternatively is conduct preparatory to the making of a decision (being the decision made pursuant to section 95(3)) and by operation of section 474(3) of the Act is a decision.
The Applicant sought to advance its construction by highlighting the apparent difficulties that might arise in differing circumstances by the construction contended for by the Respondent. For instance it was submitted that where the visa Applicant is off shore then a decision under s.93 of the Act to pool the Application is a Migration Review Tribunal (MRT) reviewable decision: s.338(8) Migration Act 1958 (Cth). However if the visa Applicant was on shore at the time of the Application then a decision to pool the application is not one which is MRT reviewable: s338(2) Migration Act 1958 (Cth). In that event it was submitted the applicant would have to await a final decision to refuse the visa until such applicant were able to make the application to the MRT. This contrast was submitted to support the contention that the score decision was one made along the way.
Respectfully I do not agree. It appears clear that the point of distinction surrounding reviews of decisions is the matter of whether the visa Applicant is or is not in the migration zone at the time of the grant. Clearly for a visa Applicant to have to wait up to two years for the review of a score decision whilst outside the migration zone would be unacceptable and possibly explains the policy behind s.338(8) of the Act. That is in contrast to the position of a visa Applicant within the migration zone who is less likely to be prejudiced by waiting up to two years for a refusal by the Minister to grant a visa to thereby enliven rights of review as contemplated by s.338(2) of the Act.
In any event that contention does not assist in the resolution of the question of whether or not the score decision was a final decision in terms of the principle enunciated in Australian Broadcasting Authority v Bond (supra). It would appear that at least for the purposes of s.338(2) of the Act that a review of the score decision would arise in the course of the review of the pool decision. However that is a matter peculiar to the circumstances of review under that provision alone. I accept the better view is that advanced by the Respondent, namely that guidance can be obtained from the approach that may be taken to review of jurisdictional error simpliciter. In that event it is always the case that a decision may be the subject of judicial review; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; De Ronde v Minister for immigration and Multicultural and Indigenous Affairs (2004) 188 FLR 266. Accepting that approach any Applicant would always have available the remedy of judicial review of any decision made that was not otherwise a privative clause decision pursuant to s. 474 of the Act: S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. While judicial review differs from the form of review provided by the Migration Review Tribunal under the Act the form of review alone does not assist in the characterisation of a ‘decision’.
Finally it was submitted that although the score cannot be reassessed by the delegate it is not binding and final in the sense that it determines the ultimate result of the visa Application.
However that submission ignores the fact that once the score is determined it cannot be reassessed and remains final. Only the benchmark can change and the Application outcome can only change if the assessed score measures favourably against a revised benchmark. While that happens automatically and is effected by operation of section 94 of the Act, administrative action is still required. As Mr McLeod for the Minister submitted, if you achieve a certain threshold score then you enjoy the benefit of going into the pool provided for by section 95 of the Act. Then, depending upon whether there is a favourable change to the qualifying score in that two year period you may obtain that benefit, but that matter is automatic. Accordingly, he submitted, unless there is a favourable change in the qualifying score in that two year period it automatically becomes a deemed refusal under section 95 of the Act. He submitted that is what occurred here.
While that may be the process I do not accept the process is simply automatic. Despite the automatic outcome that action still entails the comparison of the score against the then extant benchmark score before a decision may be made by the Minister. So much is apparent from the decision record itself contained in the delegate’s pool decision recorded in the Decision Record. To that end the pool decision may be a deemed decision but it is a distinct decision from the score decision.
Application out of time
Accordingly the Respondent submitted that although the decision the subject of review was noted as the decision of 28 January 2009, the pool decision, it was apparent, particularly when considering the grounds relied upon in the Application, that the operative decision subject to the review was the score decision made by the first delegate and not the later pool decision. As such any challenge to the first delegate’s score decision on the basis of a right for judicial review is now out of time by operation of section 477 (as it stood at 25 February 2009) of the Act. That section relevantly provided:
“Time limits on Applications to the Federal Magistrates Court
477(1) An Application to the Federal Magistrates Court for a remedy to be granted in exercise of the Court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within twenty-eight days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend the twenty-eight day period by up to fifty-six days if:
(a) an Application for that order is made within eighty-four days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing an applicant to make an Application mentioned in subsection (1) outside that twenty-eight day period.”
It follows, upon the Respondent’s submissions that the applicant’s review Application having been lodged on 25 February 2009 it was well outside even the extended limitation available under section 477 of the Act and therefore the Application fails on that threshold point.
Given my view on the preliminary point I do not consider it necessary to proceed to determine the substantive grounds raised in the application.
Orders
Application dismissed.
Costs reserved.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 8 July 2010
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