YAN v Minister for Immigration
[2010] FMCA 173
•9 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YAN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 173 |
| MIGRATION – Migration Review Tribunal – whether the Migration Review Tribunal sought additional information from the applicant in accordance with s.359 of the Migration Act 1958 (Cth) – whether the applicant met the mandatory statutory criterion of vocational English in accordance with reg.1.15B of the Migration Regulations 1994 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65(1)(a)(ii); 65(1)(b); 359; 359(2); 359B(2); 359C(1); 360; 361(1); 363A; 379A(5)(a); 379C(5); 379G; 474; pt.8 div.2 Migration Regulations 1994 (Cth), reg. 1.15B; 1.15B(3); 1.15B(4); 4.17(4); sch.2 |
| M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247 |
| Applicant: | KAI YAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2803 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 March 2010 |
| Date of Last Submission: | 9 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2010 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2803 of 2009
| KAI YAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated, 28 October 2009, and handed down on the same day.
The applicant is a citizen of the People’s Republic of China and arrived in Australia on 2 February 2002, on a passport valid to 2 June 2011, and was issued with a student visa on 24 March 2005.
On 30 April 2007, the applicant lodged an application for a skilled independent overseas student residence, class DD, subclass 880, visa with the Department of Immigration and Multicultural Affairs.
On 4 November 2008, a delegate of the first respondent refused the applicant the subclass 880 visa on the basis that the applicant failed to meet the criteria required for that visa in that, he was unable to satisfy the delegate that he had vocational English.
On 25 November 2008, the applicant lodged an application for a review of that decision with the Tribunal. In his application for review the applicant identified a representative who was a registered migration agent. The applicant indicated on his application form that he wished correspondence about his application to be sent to his representative, whom he nominated as his authorised recipient.
On 2 September 2009, the Tribunal wrote to the applicant’s authorised recipient by way of facsimile to the fax number identified on the applicant’s review application form. I note that the fax was transmitted at 2.30pm on 2 September 2009. The letter to the authorised recipient enclosed a letter to the applicant requesting information from the applicant that the applicant has vocational English, as defined in reg.1.15B of the Migration Regulations 1994 (Cth) (“the Regulations”).
The letter informed the applicant that the information should be received by the Tribunal by 30 September 2009. The letter further informed the applicant that, if the applicant could not provide the information by 30 September 2009, he may ask the Tribunal in writing for an extension of time in which to provide the information and, any such request must be received by the Tribunal before 30 September 2009, and must state the reason why the extension of time is required.
The letter informed the applicant that if the Tribunal did not receive the information within the period allowed, or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The letter also, in bold, informed the applicant that, if he failed to respond, he would lose any entitlement he may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 9 September 2009, the applicant’s migration agent wrote to the Tribunal requesting an extension of a further two weeks to enable the applicant to sit for an IELTS test on 26 September 2009, because the test that the applicant had previously sat for did not achieve the required score for vocational English.
On 14 September 2009, the Tribunal wrote to the applicant’s migration agent enclosing, again, a letter to the applicant of the same date, informing the applicant that the Tribunal had agreed to give the applicant an extension of time to 12 October 2009. The letter again informed the applicant that, if the Tribunal did not receive the information by 12 October 2009, the Tribunal may make a decision on the review without taking any further action to obtain the information, and the applicant may also lose any entitlement he may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
No response was received from the applicant or his migration agent by the Tribunal by 12 October 2009. A checklist conducted by the Tribunal on 13 October 2009 disclosed that, as at 13 October 2009, no response had been received from the applicant.
In its decision record the Tribunal referred to the correspondence that it had had with the applicant’s authorised recipient in requesting additional information. It noted that such invitation was made pursuant to s.359(2) of the Act, and that the applicant had failed to provide the information by the specified date. In the circumstances, the Tribunal decided to proceed to make its decision without taking any further action to obtain the additional information. The Tribunal noted that the applicant was, in the circumstances, not entitled to appear before the Tribunal pursuant to s.360 of the Act.
The Tribunal then considered the statutory and regulatory requirements for the visa applied for by the applicant. The Tribunal found that the applicant did not have vocational English as defined in reg.1.15B(3), because the applicant had not achieved a score of at least five for each of the four test components of speaking, reading, writing and listening, in a test conducted not more than 12 months before the day on which the visa application was lodged, or during the processing of the application.
The Tribunal also noted that because the applicant had provided an IELTS test score in a test conducted during the processing of the application, the Tribunal had no residual discretion to consider the application further, by reason of reg.1.15B(4) of the Regulations.
Accordingly, the Tribunal was not satisfied that the applicant had vocational English and, therefore, found that the applicant failed to meet that statutory mandatory criterion in cl.880.223 of Schedule 2 of the Regulations.
The applicant filed an application seeking judicial review of the Tribunal’s decision on 16 November 2009, in which he identified the following ground:
“I don’t agree with the decision made by MRT not to grant me a skilled, independent, overseas student (residence) (class DD) visa.”
The applicant appeared before me at a directions hearing on 11 December 2009, on which occasion I explained to the applicant that the ground of his application did not disclose an error capable of review by this Court. For that reason, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 18 January 2010. The applicant was also directed to file and serve any evidence by way of affidavit by 18 January 2010, and to file written submissions in support of his application 14 days before the hearing. The applicant was also provided with two documents both headed in his own language. The first being the contact details of legal services providers and the second being the contact details of interpreting and translation services.
At the commencement of the hearing this morning, the applicant confirmed that he had not filed any documents in accordance with the directions made by the Court, or otherwise.
The grounds of the application were interpreted for the applicant who was invited to say whatever he wished in support. The applicant responded that he had not been invited by the Tribunal to attend a hearing. He said that was a mistake on the part of the Tribunal because in 2006 he had been invited to a hearing before the Tribunal.
RECORDED : NOT TRANSCRIBED
However, on 2 September 2009, the Tribunal wrote to the applicant in terms of s.359 of the Act inviting the applicant to provide additional information. That letter identified the information for the applicant and, invited the applicant to comment or respond in writing within the specified period by 30 September 2009. Section 359B(2) requires that the specified period be the prescribed period. Regulation 4.17(4) of the Regulations stipulates that an invitation to give additional information must provide for the prescribed period for the giving of that information or 28 days from receipt by the applicant of that invitation. In the circumstances, the 28 day period expired no later than 30 September 2009.
Section 379A(5)(a) provides that the Tribunal may give a s.359 notice by fax and s.379C(5) deems that a document sent by fax is received by the end of the day on which it was sent. In the circumstances, I find that the fax sent by the Tribunal on 2 September 2009 at 2.30 pm was deemed to have been received by the applicant by the end of that day. The fax was sent to the applicant’s authorised recipient in accordance with s.379G of the Act. I am satisfied that the fax sent by the Tribunal, dated 2 September 2009, was a request for additional information and was sent in accordance with s.359 of the Act.
Section 359C(1) of the Act provides that if a person is invited in writing under s.359 to give information and does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information. Whilst s.361(1) of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, sub-section (1) does not apply if, relevantly, s.359C(1) of the Act applies.
The applicant was granted an extension on 14 September 2009 at the request of the applicant’s migration agent. The applicant told the Court this morning that he had a family loss during that period of time. However, there was no further communication received by the Tribunal from the applicant or his migration agent seeking any further extension of time to provide information for any reason, or otherwise to provide the information.
In the circumstances, pursuant to s.360 of the Act, the Tribunal was entitled, as it did, to proceed to make its decision on the review without taking any further action to enable the applicant to give that information or to invite the applicant to appear before it.
The decision of the Tribunal, in affirming the decision under review, was based on the failure of the applicant to satisfy the Tribunal that he satisfied the mandatory criterion required for his visa of having vocational English. Clause.880.22 of Schedule 2 of the Regulations makes clear the criteria to be satisfied at the time of decision. As stated above, cl.880.223 requires that the applicant have vocational English.
Regulation 1.15B of the Regulations defines vocational English. Relevantly, the applicant was required to satisfy the Minister that he had achieved an IELTS test score of at least five for each of the four test components of speaking, reading, writing and listening, in a test conducted not more than 12 months from the day on which the application was lodged or during the process of the application. The Tribunal had before it the test results of a test undertaken by the applicant on 1 December 2007 in which he achieved 4.5 for listening, 4.5 for reading, 4.0 for writing and illegible for speaking. That was the only evidence before the Tribunal of IELTS test results in respect of the applicant.
As stated above in these reasons, the Tribunal had granted the applicant an extension of time beyond the prescribed period of the Regulations to enable the applicant to undertake a further IELTS test. However, as stated above, the Tribunal received no further correspondence from the applicant or his authorised recipient. In the circumstances, the only evidence before the Tribunal was the IELTS test results, dated 1 December 2007. The Tribunal found that those results did not satisfy reg.1.15B(3) of the Act. That finding was open to the Tribunal on the evidence material before it and for the reasons it gave.
The Tribunal further noted that, as the applicant had an IELTS test score in a test conducted during the processing of the application, the exercise of discretion provided for in reg.1.15B(4) could not be considered. The Tribunal correctly construed the consequences of reg.1.15B(4) in deciding that it did not have a residual discretion pursuant to that section.
In the circumstances, the Tribunal was not satisfied that the applicant has vocational English, as is required by cl.880.223, being a mandatory criterion for his visa. The Tribunal’s findings and conclusions were open to it on the evidence material before it, and for the reasons it gave.
Section 65(1)(a)(ii) of the Act provides that, after considering a valid application for a visa, the Minister must be satisfied that the criteria prescribed by the Act or Regulations has been satisfied. Section 65(1)(b) of the Act states that if the Minister is not so satisfied, then the Minister is to refuse to grant the visa.
In the circumstances, the Tribunal complied with the statutory requirements in the conduct of its review, including in its seeking of additional information from the applicant, resulting in the applicant ceasing to have an entitlement to appear before the Tribunal. I note that s.363A of the Act operates to remove any residual discretion that the Tribunal may have had to permit the applicant to appear, notwithstanding his loss of an entitlement to do so, and I refer to M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247 at [46].
As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it. The Tribunal reached conclusions based on findings made by it and to which it applied the correct law. In the circumstances, the Tribunal complied with its obligations as stated by the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this Court, in the circumstances, should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 12 March 2010
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