Yamashita v Minister for Immigration
[2008] FMCA 1081
•8 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YAMASHITA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1081 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – visa criteria changed between time of application and time of decision – whether Regulations changing the criteria valid considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.4, 31, 65, 359A Migration Amendment Regulations (No 3) 2005 (Cth) Migration Amendment Regulations (No 4) 2006 (Cth) Migration Regulations 1994 |
| Quarm v Minister for Immigration & Anor [2008] FMCA 287 Sun & Anor v Minister for Immigration & Anor [2008] FMCA 180 |
| Applicant: | TOYOMI YAMASHITA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3865 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 30 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3865 of 2007
| TOYOMI YAMASHITA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was handed down on 21 November 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a skilled independent overseas student visa. The following statement of background facts is taken from the applicant’s outline of submissions filed on 28 July 2008.
The applicant, Ms Yamashita, a citizen of Japan, lodged an application for a Skilled Independent Overseas Student visa (Class DD, subclass 880) on 26 September 2005 (court book (“CB”), pages 1-21). She applied on the basis of her “nominated occupation” being a “pastry cook” (ASCO code 4512-13) (CB 18), and to that end had achieved an “AFQ Certificate III” from “City College” (CB 12, 60, 1). She had also paid the application fee of $1,935.00 required of her pursuant to Clause 1128CA(2) of Schedule 1 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) as it then stood.
At the time of lodgement of Ms Yamashita’s visa application subclass 880 contained the following provisions, as relevant to her application:
880.22 Criteria to be satisfied at time of decision
880.221 If regulation 2.27B applies, the applicant provides, for the purposes of the application, the assessment of his or her skills mentioned in subregulation 2.27B(4).
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 2 to 6 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number o 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).
880.222A …
880.223 The applicant has vocational English.
880.224 …
880.225 The applicant satisfies public interest criteria 4001, 4002, 1003, 4004, 4005, 4009 and 4010.
880.226 …
880.227 …
880.228 …
880.229 …
880.230 A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.
Paragraph 880.230 was inserted by Migration Amendment Regulation No. 3 of 2005, Schedule 2 item 38. The relevant transitional provision are in Reg 4, as follows:
(1) The amendments made by Schedule 2 apply in relation to an application for a visa made on or after 1 July 2005.
Ms Yamashita had supplied a positive skills assessment (CB 53) to meet the requirements of Regs Sch 2 paragraph 880.221, had applied for an IELTS test to demonstrate vocational English[1] to meet paragraph 880.223 (CB 43-4). She also supplied police clearance certificates in aid of meeting the character requirements in paragraph 880.225 (CB 54).
[1] For the requirements of “Vocational English” see Reg 1.15B(3)
In her application Ms Yamashita also outlined a plan for establishment of a business of supplying cakes and other confectionary items through electronic order. She had also set up a web site, using IT skills previously gained in Australia. On the face of it she was qualified for her proposed business.
However, by the time that the application had come to be processed by a delegate of the Minister, paragraph 880.230 had been amended to read as follows:
880.230(1) A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular.
(2) If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of full time study of a registered course. (emphasis added)
The term, “registered course” is defined in Regulation 1.03 as follows:
registered course means a course of education or training provided by an institution, body or person that is registered, under section of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
These amendments to paragraph 880.230 (the insertion of sub paragraph (2) and the renumbering of sub paragraph (1)) had been made by the Migration Amendment Regulations No. 4 of 2006, Schedule 2, Part 2, Item 34. The relevant transitional provision is Regulation 4 which states:
(3) The amendments made by Part 2 of Schedule 2 apply in relation to an application for a visa:
(a) made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 1 July 2006; or
(b) made on or after 1 July 2006.
It is conceded that the course which Ms Yamashita undertook, successfully, to obtain her qualification, was not registered. The effects of the insertion of paragraphs 880.230(2), operating on applications made before it was promulgated, was that Ms Yamashita could not obtain the visa for which she had applied. Her fee of $1,935.00 was forfeited.
The application was refused by a delegate of the Minister on 14 February 2007 (CB 83-87). An application to the Tribunal was lodged on 26 February 2007 (CB 105-107), and the Tribunal affirmed the decision under review on 12 November 2007, because, in its opinion, sub paragraph 880.230(2) applied (CB 152).
Ms Yamashita relies upon a show cause application filed on 18 December 2007. The grounds in that application are:
1. The Tribunal took into account an irrelevant consideration
Particulars
i) The Tribunal took into account subclause 880.230(2) of Schedule 2 of the Migration Regulations 1994, when that subclause was invalid because:
1. It is inconsistent with ss.4, 31(3) and 65 of the Migration Act 1958 because those sections do not empower the Minister to make a criterion or to change a criterion that has retrospective effect that results in depriving a visa applicant of the visa application charge paid and refusal of the visa when it would otherwise have been granted.
2. It is so unreasonable or disproportionate in its retrospective application as to be invalid, because it effectively ensnared the applicant, who had paid a significant visa application charge by applying for a visa for which she qualified at the time, and for which she had a legitimate expectation that those qualifying criteria would be applied; the retrospective operation of subclause 880.230 resulting in the visa application being refused and the keeping of the visa application charge by the Commonwealth.
3. It is uncertain in its terms of its retrospective operation, as subclause 880.230(2) purports to apply to any application not decided before 1 July 2006, despite transitional regulation 4 of Migration Amendment Regulations 2005 (No.3) confirming that clause 880.230 is only to be applied to applications made on or after 1 July 2005.
4. It is repugnant to Section 51(xxxi) of the Constitution, constructively or actually acquiring property, without providing just terms for such acquisition that property being the visa application charge and the right set out under s.65 of the Migration Act 1958.
I have before me as evidence the book of relevant documents filed on 6 June 2008.
Submissions
The contentions raised on behalf of the applicant in this matter are the same as those previously raised before me in the case of Sun & Anor v Minister for Immigration & Anor [2008] FMCA 180. I note that those issues were also dealt with by this Court in Quarm v Minister for Immigration & Anor [2008] FMCA 287. Essentially, the applicant’s contentions are:
a)either subparagraph 880.230(2) or regulation 4 of the Migration Amendment Regulations (No 4) 2006 is beyond power;
b)the amendments are unconstitutional as providing for an acquisition of property otherwise on unjust terms; and
c)the amendment of the criterion and the transitional provision were ultra vires the enabling power in the Migration Act 1958 (Cth) (“the Migration Act”).
The Minister submits that the issues sought to be raised in the present proceedings are relevantly identical to those that have been considered and resolved in favour of the Minister in Quarm and Sun. The Minister submits that the present application should likewise be dismissed with costs.
Reasoning
Counsel for the applicant conceded in oral submissions that the submissions in this matter are put essentially to preserve his client’s rights pending the outcome of an appeal against this Court’s decision in Quarm. I understand that the appeal is listed for hearing in the Federal Court on 7 August 2008. Counsel for the applicant submits that both Sun and Quarm were wrongly decided. That issue will no doubt be resolved in the Federal Court appeal in Quarm. In the meantime, I see no reason to depart from my earlier reasoning in Sun. I reaffirm the views I expressed in that case at [18]-[29].
Counsel for the applicant raised an additional argument in this matter. That is that the amended condition is invalid because it is arbitrary and capricious and permits a decision to be made in bad faith to which there would be no remedy. Counsel submitted that the amendment is arbitrary and capricious because a decision maker would have no option but to apply the amended condition where a decision is made on or after 1 July 2006. It is thus a matter of pure chance whether an applicant is burdened by the amendment. Counsel also submits that the amendment, together with the transitional provision, raises a possibility of bad faith to which there would be no remedy because a decision maker could deliberately delay making a decision on a visa application until after the amendment took effect in order to thereby deprive an applicant of eligibility. Counsel submits that neither the Tribunal nor a court could provide an effective remedy for such an act of bad faith, because even if a decision were set aside as invalid, any fresh decision would be made subject to the same amendment.
In the present case, in response to an invitation to comment issued pursuant to s.359A of the Migration Act, the applicant wrote to the Tribunal to complain of unexplained delay in the processing of the visa application by the Minister’s Department and made the following request[2]:
What I would ask the Tribunal to do is to try to determine whether DIAC in fact held back this application in circumstances inconsistent with the duty to act fairly and further whether there may be grounds for the Tribunal to recommend that the matter be the subject of Ministerial Intervention (section 351).
[2] court book, page 129
In relation to that request the presiding member stated in her reasons[3]:
The Tribunal has considered the advisor’s submissions of intentional delay by DIAC in finalising the visa application, but on the basis of the available information, the Tribunal is unable to determine this issue with confidence. The Tribunal however notes that the DIAC file indicates that after the application was lodged, there does not appear to be actioning on the file until 22 August 2006. The Tribunal is of the view that there could be many reasons for this but in any case, the Tribunal is satisfied that this matter is not relevant to the Tribunal’s determination of this review.
[3] court book, page 152
The Tribunal also found that the issue of Ministerial intervention was solely a matter for the Minister[4].
[4] court book, page 153
The concern raised by the applicant’s advisor before the Tribunal fell short of an allegation of bad faith. There was no evidence available to the applicant (or, it would seem, the Tribunal) that the application was intentionally held back by the Minister’s Department until after the amendment took effect. In the absence of a clear allegation of bad faith or evidence clearly pointing to it, there was no obligation on the Tribunal to deal with that issue. In any event, it does not appear that there was material available to the Tribunal which would have enabled it to resolve that issue, if it had been raised. The Tribunal was also correct in finding that the matter of Ministerial intervention was a matter for the Minister. I accept counsel for the applicant’s submission that, even if bad faith had been established, the Tribunal would have been unable to provide an effective remedy short of recommending Ministerial intervention. That is because, even if the delegate’s decision had been invalid by reason of bad faith, both the Tribunal and a fresh delegate would have been bound to apply the same amended condition. That is not to say that an aggrieved applicant in such circumstances may not have had another remedy in a court, for example for the tort of misfeasance in public office.
The inability of the Tribunal, or a court, to compel the consideration of a visa application without regard to the changed visa criterion applicable on or after 1 July 2006 does not render the amended condition, or the transitional provision, invalid. There will always be the risk of unfortunate consequences where a relevant law is changed between the date of application and the date of decision. Nevertheless, it is, in my view, indisputable that the Commonwealth has the power to amend visa criteria to impact upon undetermined applications for visas, after such applications have been made, at least where the relevant criterion must be satisfied at the time of decision rather than at the time of application.
I will order that the application be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 August 2008
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