Yang v MIAC
[2010] FMCA 890
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YANG v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 890 |
| MIGRATION – Migration Review Tribunal – Business (long stay) visa – IELTS test requirements – refusal of Tribunal to extend time to sit further IELTS test – whether jurisdictional error – discretion to refuse relief. |
| Migration Act 1958 (Cth), ss.65, 359, 359A, 359(2) 359B, 359C, 360, 363A, 424A Migration Regulations 1994 (Cth), regs.1.20H(5), 4.17(4), 4.18A(4), cls.457.223(1), (2), (4) and (4)(eb), (7A), (8), (9), (10), 457.321 |
| Ghori v Minister for Immigration and Citizenship and Anor [2010] FMCA 794 Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Patel v Minister for Immigration and Anor [2010] FMCA 279 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 SZBYR and Anor v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609; [2007] HCA 26 |
| Applicant: | ZILONG YANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 167 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 12 November 2010 |
| Date of Last Submission: | 12 November 2010 |
| Delivered at: | Perth |
| Delivered on: | 17 November 2010 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 167 of 2010
| ZILONG YANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant, Mr Yang, is a citizen of the Peoples Republic of China. Mr Yang was granted a Subclass 457 Business (long stay) visa valid for two years from 24 August 2006 to 24 August 2008.[1]
[1] CB 90.
Mr Yang arrived in Australia on 8 December 2006. He was employed by Unicard Systems Pty Ltd as a welder until 9 July 2008.[2]
[2] CB 13 and 90.
Business (long stay) visa application – July 2008
On 11 July 2008 Mr Yang applied for a further Subclass 457 Business (long stay) visa[3] for a period of four years, from 25 August 2008 to 25 August 2012.[4] Mr Yang was granted a Bridging A visa on 11 July 2008.[5]
[3] “Business Visa Application”.
[4] CB 1-2.
[5] CB 1-2 and 90.
Mr Yang’s sponsoring employer was Factor Holdings Pty Ltd.[6] Factor Holdings operated under the business name of Allcon Steel Construction from premises at 6 Lindsay Road, Wangara, Western Australia. Under the proposed sponsorship arrangements for the Business Visa Application Mr Yang was to be employed as a welder from 25 August 2008 to 25 August 2012.[7]
[6] “Factor Holdings”.
[7] CB 12 and 30-36.
Delegate’s refusal
On 19 December 2008 a delegate of the first respondent[8] refused the Business Visa Application.[9] The delegate considered that Mr Yang did not satisfy the criteria in cls.457.223 and 457.321 of the Migration Regulations 1994 (Cth).[10] Mr Yang did not meet the criteria in cl.457.223(4)(eb) of the Migration Regulations because he did not achieve an English proficiency of an average band score of 4.5 for the four IELTS test components.[11]
[8] “delegate”.
[9] “delegate’s decision”; CB 42-45.
[10] “Migration Regulations”.
[11] CB 36 and 42-45.
Migration Review Tribunal
On 9 January 2009 Mr Yang applied to the Migration Review Tribunal[12] for review of the delegate’s decision.[13] The Tribunal wrote to Mr Yang[14] on 9 January 2009 advising that he should provide any documents or written arguments he wished the Tribunal to consider.[15]
[12] “Tribunal”.
[13] CB 65.
[14] On all occasions on which the Tribunal wrote to Mr Yang it did so care of his authorised representative. Likewise, all communications received by the Tribunal from Mr Yang were via his authorised representative.
[15] CB 72.
Mr Yang sat an IELTS test at the end of May 2009 and achieved a score of 5 for speaking, 4.5 for writing, 3.5 for listening and 3 for reading. His average score was 4.[16] Mr Yang therefore did not meet the criteria in cl.457.223(4)(eb) of the Migration Regulations.
[16] CB 127.
By letter of 3 June 2010 to Mr Yang, the Tribunal advised that:
a)the delegate had found that Mr Yang did not meet the requirements of the then clause 457.223(4)(eb) of the Migration Regulations; and
b)that the Migration Regulations were substantially amended on 14 September 2009 for visa applications not finally determined before that date.[17]
[17] CB 93-94.
The Tribunal set out the new version of clause 457.223(4)(eb) which required an IELTS test score of at least 5 in each of the four test components. The Tribunal also:
a)advised Mr Yang that on the evidence currently available, it did not appear that he had achieved an IELTS test score of at least 5 in each of the four test components; and
b)invited Mr Yang to provide such evidence to be received at the Tribunal by 1 July 2010.[18]
[18] CB 92-94; “s.359 Invitation”.
The s.359 Invitation also advised that if information could not be provided by 1 July 2010, Mr Yang might ask the Tribunal for an extension of time, and that any such request must be received by the Tribunal before 1 July 2010. The Tribunal further advised that if it did not receive the information within the period allowed, or as extended, the Tribunal might make a decision without taking any further action to obtain the information, and that Mr Yang would “also lose any entitlement [he] might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments”.[19]
[19] CB 94.
By facsimile letter sent on 24 June 2010, Mr Yang advised the Tribunal that he had booked an IELTS test on 9 October 2010 “because he ha[d] been very busy with his work and hopes to pass this time by attending the IELTS preparation classes”, and requested that he be given a last opportunity to pass the IELTS test.[20]
[20] CB 95-96.
Mr Yang’s request for an extension of time was formally refused by the Tribunal in a letter dated 1 July 2010 sent to Mr Yang.[21]
[21] CB 125 and 98-99.
By letter dated 6 July 2010 sent to Mr Yang, the Tribunal invited him to appear before it to give evidence and present arguments relating to his Business Visa Application at a hearing on 10 August 2010.[22] Mr Yang attended the Tribunal hearing on 10 August 2010 and gave evidence (with the assistance of a Mandarin interpreter).[23]
[22] CB 101-107; “s.360 Invitation to Appear”.
[23] CB 114-116 and 125-127.
Tribunal Decision
On 26 August 2010 the Tribunal made a decision affirming the decision to refuse Mr Yang’s Business Visa Application. The Tribunal found that Mr Yang did not satisfy:
a)clause 457.223(4)(eb) of the Migration Regulations, and he therefore did not satisfy clause 457.223(4); or
b)any of the other sub criteria in clause 457.223,
and he therefore did not fulfil the requirements of clause 457.223.[24]
[24] CB 121-129 (“Tribunal Decision”).
The Tribunal’s reasoning is set out in the following paragraphs of the Tribunal Decision:
36.The applicant did not submit any evidence to suggest that he had achieved an IELTS English test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening or any other evidence relating to his level of English language proficiency.
37.Based on the evidence before it, the Tribunal is not satisfied that the applicant has a level of English proficiency that is required to achieve an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening. Accordingly, the Tribunal finds that the applicant does not satisfy cl.457.223(4)(eb).
38.As each limb of subclause 457.223(4) must be satisfied, this finding is determinative of the review and it is unnecessary to make findings in relation to the remaining requirements of subclause 457.223(4).
39.No claims have been made in respect of other sub criteria in cl.457.223, however, the Tribunal has considered the other grounds as part of its determination of whether the applicant satisfied cl.457.223. There is no evidence that the applicant would be able to satisfy criteria in those clauses. This is because: there is no evidence of a Labour Agreement for the purposes of cl.457.223(2); the applicant has not made any claims to be conducting a business as a principal, and so does not meet the requirements of cl.457.223(7A); there is no evidence that the applicant is a service seller or a person accorded diplomatic privileges, and thus cannot satisfy cl.457.223(8) or cl.457.223(9) respectively; and there is no IASS agreement so the applicant cannot satisfy cl.457.223(10). As such, the applicant does not meet cl.457.223.[25]
[25] CB 128 [36]-[39].
The criteria to be satisfied
Under sub-clause 457.223(1) of the Migration Regulations the criteria to be satisfied at the time of a decision in relation to a Business Visa Application included:
“457.223(1) The applicant meets the requirements of subclause (2), (4) (7A), (8), (9) or (10).”
Mr Yang made no claim that he satisfied any of subclauses 457.223(2), (7A), (8), (9) or (10). Therefore, Mr Yang could only satisfy clause 457.223(1) if he satisfied clause 457.223(4).
Subclause 457.223(4) of the Migration Regulations relevantly provides that:
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
…
(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant; and
(iii) at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
the applicant has a level of English language proficiency that is required to achieve an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening; and
…
Grounds of application
On 13 September 2010 Mr Yang applied to this Court for judicial review of the Tribunal Decision. The grounds of the application are:
“1.The Migration Review Tribunal refused to give the Applicant time extension to sit a new IELTS test.
2.The Migration Review Tribunal wrongly considered that the Applicant had enough time to prepare IELTS.”
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error.[26] An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected, resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[27]
Relevant cases
[26] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[27] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
Patel’s case
In Patel v Minister for Immigration and Anor,[28] Mr Patel had been on notice, at least since a delegate’s decision on 25 September 2008, of the need to achieve a higher score in an IELTS test so as to obtain more points towards qualification for a skilled overseas student visa.[29] Within the period from July 2007 to August 2009 Mr Patel had sat for twelve IELTS tests.[30] Mr Patel sat a further IELTS test in September 2009. Mr Patel advised the Tribunal at the hearing on 6 October 2009 that the test results would be provided within “the next few days”. Mr Patel failed to provide the IELTS test results despite being contacted twice by the Tribunal after the hearing.[31] On 13 November 2009 Mr Patel wrote to the Tribunal, and said that he would be overseas between 15 November 2009 and 9 February 2010, and that he would notify the Tribunal “shortly” about the IELTS test results. Mr Patel also requested an extension of time.[32] The Tribunal proceeded to make its decision on 2 December 2009, affirming the earlier decision by the delegate.[33]
[28] [2010] FMCA 279 (“Patel”).
[29] Patel at para.8 per Nicholls FM.
[30] Patel at para.17 per Nicholls FM.
[31] Patel at paras.21-22 per Nicholls FM.
[32] Patel at para.23 per Nicholls FM.
[33] Patel at paras.24-27 per Nicholls FM.
Mr Patel sought review of the decision by the Tribunal on grounds including that the Tribunal had failed to:
a)provide adequate time for him to provide his IELTS test result; and
b)accord procedural fairness because of the alleged failure to provide adequate time to provide the IELTS test result.[34]
[34] Patel at para.28 per Nicholls FM.
Mr Patel’s grounds were rejected by the Court, which concluded that:
a)the Tribunal had not failed to provide adequate time for providing the IELTS test results; and
b)there was no failure to apply the relevant procedural code.[35]
[35] Patel at para.75 per Nicholls FM.
The Court also considered that Mr Patel’s letter of 13 November 2009 was not a request for more time to provide the results of the September IELTS test, but a request for more time to enable Mr Patel to sit yet another IELTS test.[36] The Court observed that Mr Patel had:
a)been on notice, at least as at the time of the earlier decision of the delegate, of the need to achieve the requisite scores in an IELTS test;[37] and
b)notice of the importance of the IELTS issue, and had more than a reasonable period to address it.[38]
[36] Patel at para.77 per Nicholls FM.
[37] Patel at para.80 per Nicholls FM.
[38] Patel at paras.81 per Nicholls FM.
The Court concluded that none of Mr Patel’s grounds or complaints revealed jurisdictional error on the part of the Tribunal.[39]
[39] Patel at para.83 per Nicholls FM.
Ghori’s case
In Ghori v Minister for Immigration and Citizenship and Anor,[40] Mr Ghori lodged an application for a subclass 485 visa on 30 May 2008 supported by a number of documents, including an invoice dated 14 May 2008 for an IELTS test to be conducted on 11 October 2008. On 13 February 2009 the Department asked Mr Ghori to provide his IELTS test results, but no results were provided to the Department, and on 1 April 2009 Mr Ghori’s visa application was refused.[41]
[40] [2010] FMCA 794 (“Ghori”).
[41] Ghori at paras.2-3 per Barnes FM.
Mr Ghori sought review by the Tribunal, and on 20 October 2009 the Tribunal invited Mr Ghori to provide evidence as to his English competency. In response to that invitation Mr Ghori’s agent provided a receipt for an IELTS test booked for 6 February 2010.[42]
[42] Ghori at para.9 per Barnes FM.
The Tribunal invited Mr Ghori to a hearing on 23 February 2010, and at that hearing he advised that the results of his 6 February 2010 IELTS test would be issued in late February 2010. The Tribunal advised Mr Ghori that it would wait until 9 March 2010 for him to provide those results. Mr Ghori asked the Tribunal to let him sit a further test he had booked for 27 March 2010, but the Tribunal advised that it would only wait for the results of the 6 February 2010 test and gave him until 9 March 2010 to provide those test results.[43]
[43] Ghori at paras.10-12 per Barnes FM.
The 6 February IELTS test results were provided to the Tribunal on 8 March 2010, and Mr Ghori’s agent requested a further six weeks to allow the processing of an appeal. The Tribunal made a decision on 10 March 2010 affirming the decision refusing to grant Mr Ghori a subclass 485 visa.[44]
[44] Ghori at paras.13-17 per Barnes FM.
Mr Ghori sought review of the decision of the Tribunal. Mr Ghori submitted that the Tribunal was under an obligation to defer making its decision until he had undertaken a further proposed IELTS test on 27 March 2010.[45] The Court held that any obligation to defer making a decision would only apply to the results of the October 2008 IELTS test that had been arranged at the time of the visa application. The Court further held that, beyond this, while the Tribunal had a discretion to allow a further adjournment or to defer making its decision, it was under no obligation to do so, and no jurisdictional error was established on this basis.[46]
[45] Ghori at para.65 per Barnes FM.
[46] Ghori at para.65 per Barnes FM.
The Court also rejected the contention by Mr Ghori that the Tribunal fell into jurisdictional error in ignoring his personal situation when deciding to not exercise its discretion to delay making its decision to enable him to sit for the further IELTS test booked for 27 March 2010, as no error against jurisdiction was apparent in the Tribunal’s exercise of its discretion.[47] The Court found that it had not been established that the Tribunal had failed to have regard to Mr Ghori’s personal circumstances or erred in exercising its discretion as to whether to delay making a decision in a manner constituting jurisdictional error, and there was nothing to indicate that the Tribunal had made such a decision unreasonably.[48]
Consideration – extension of time to sit IELTS test
[47] Ghori at para.66 per Barnes FM.
[48] Ghori at para.69 per Barnes FM.
Refusal of extension of time for provision of additional information to the Tribunal
The Migration Act only permits the Tribunal to extend the period of time for provision of additional information for a further prescribed period of 28 days after the initial prescribed period of 28 days.[49] Therefore, even if the Tribunal’s letter of 1 July 2010[50] had advised Mr Yang that it had extended the time for him to provide the information as to satisfactory IELTS test results, that extension of time could only have been granted for the prescribed period of 28 days after Mr Yang received the Tribunal’s letter. Any extended period would have expired before Mr Yang was to sit a further IELTS test on 9 October 2010. There is no jurisdictional error in refusing to extend time to a time which would not allow the relevant criteria to be met in any event.
[49] Migration Act, s.359B(2) and (4); Migration Regulations, regs.4.17(4) and 4.18A(4).
[50] CB 99.
Consideration of time to sit IELTS test
Mr Yang had known since being advised of the delegate’s decision on 19 December 2008 that he did not meet the English requirements for his Business Visa Application. Mr Yang was aware following the delegate’s decision on 19 December 2008 that his Business Visa Application could not be granted unless he obtained satisfactory IELTS test results. Mr Yang had a reasonable time to address that issue given that the Tribunal Decision was not made until 26 August 2010.
There was no jurisdictional error by reason of the Tribunal not granting an extension of time to Mr Yang to provide information in relation to achieving satisfactory IELTS test results until after he had sat a further IELTS test on 9 October 2010. The Tribunal was under no obligation to defer making its decision until after Mr Yang had sat the further IELTS test booked for 9 October 2010. There is no evidence that the Tribunal did not consider Mr Yang’s personal circumstances as expressed in the letter requesting the extension of time.[51] To the contrary, the Tribunal’s letter to Mr Yang dated 1 July 2010 stated that the Tribunal had “considered the request carefully”, and the Tribunal Decision makes specific reference to Mr Yang’s reasons for booking an IELTS on 9 October 2010.[52]
[51] CB 95.
[52] CB 125 [18].
Therefore, there was no jurisdictional error by the Tribunal in not:
a)delaying its decision until after Mr Yang had sat the IELTS test booked on 9 October 2010; or
b)granting Mr Yang an extension of time to provide evidence that he had achieved a satisfactory IELTS test score for each of the four test components until after he sat a further IELTS test on 9 October 2010.
Consideration – extension of time to sit IELTS test – conclusion
In all the circumstances, it was open to the Tribunal to conclude that it was not satisfied that the relevant criteria for the grant of the Business Visa Application had been met.[53] There was therefore no jurisdictional error in the Tribunal’s Decision.
[53] Migration Act, s.65(1).
Various irrelevant matters
Mr Yang raised various matters at hearing, including;
a)his ongoing endeavours to learn English, including undertaking a TAFE course in which he asserted he was doing well, and a further IELTS test;
b)the “grossly unfair” and “unjust” changing of the IELTS test requirements in September 2009, compounded by earlier statements by Department of Immigration and Citizenship officials indicating that there would be no change in the requirements for a person such as Mr Yang with respect to English language requirements;
c)his work record and ability; and
d)the length of time he has now been in Australia and his desire to remain in Australia.
Mr Yang filed an affidavit in support of the application, attaching the Tribunal Decision, and deposing as follows:
“3.The Tribunal states that I had enough time to sit IELTS and thus refused to give me one more chance to prove my English language ability.
4.It stated wrongly that I had enough time to sit IELTS, because I have been working hard and only used the after work time to learn the IELTS techniques and hoped the Tribunal to give me a time extension to learn the techniques in the classroom environment.
5.The Tribunal refused to give me the time extension that made me lost the opportunity to prove I could meet the criterion for the grant of 457 visa.”[54]
Paragraph 4 of Mr Yang’s Affidavit is information that was provided to the Tribunal in a letter dated 24 June 2010. The Tribunal duly considered this information in the Tribunal Decision and the Court views this as Mr Yang asking the Court to review the merits of the Tribunals Decision. All of these matters are irrelevant as to whether or not the Tribunal Decision was affected by jurisdictional error.
[54] Mr Yang’s Affidavit sworn 13 September 2010, paras.3-5.
It is pertinent to observe, and relevant to any discretion that the Court might have to exercise, that at hearing:
a)Mr Yang’s submissions were translated into English by an interpreter, and the respondents’ submissions and observations by the Court were translated into Mandarin for Mr Yang; and
b)there was no suggestion, let alone evidence, that Mr Yang had achieved the required IELTS test score at any time subsequent to the Tribunal Decision.
Tribunal had no power to invite Mr Yang to a hearing
Mr Yang failed to provide the information requested by the Tribunal in its letter of invitation dated 3 June 2010 by the date specified in that letter, being the prescribed date of 1 July 2010. As no extension of time was granted by the Tribunal to provide that information, s.359C(1) of the Migration Act applied to Mr Yang.[55] In the circumstances, the Tribunal did not have the power to permit Mr Yang to appear at an oral hearing because of the effect of s.363A of the Migration Act.[56]
[55] Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498 at 508-509 per Marshall, Mansfied and Siopis JJ; [2005] FCAFC 201 at para.47 per Marshall, Mansfied and Siopis JJ (“Sun”).
[56] Sun FCR at 509 per Marshall, Mansfied and Siopis JJ; FCAFC at para.50 per Marshall, Mansfied and Siopis JJ; Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at 417-418 per Jacobson, Gilmour and Foster JJ [2010] FCAFC 40 at paras.25-32 per Jacobson, Gilmour and Foster JJ.
Tribunal’s invitation to a hearing did not constitute jurisdictional error
In Yusuf, the Court observed that jurisdictional error embraced a number of different kinds of error “that affects the exercise of power” or “affects the exercise of [the Tribunal’s] powers.”[57]
[57] Yusuf CLR at 351-352 per McHugh, Gummow and Hayne JJ; HCA at paras.82 and 84 per McHugh, Gummow and Hayne JJ.
The Tribunal’s invitation to Mr Yang to attend a hearing on 10 August 2010 had no effect on the exercise of the Tribunal’s powers. That is because whether or not Mr Yang was invited to a hearing did not affect whether or not Mr Yang had the required IELTS test results.[58] Therefore, the Tribunal’s invitation to Mr Yang to attend a hearing on 10 August 2010 had no effect on the exercise of the Tribunal’s powers in making its decision. The Tribunal Decision was not affected by jurisdictional error.
[58] Ghori at para.64 per Barnes FM: “… whether it followed the correct path or not, the Tribunal’s reasoning and conclusion does not involve any error going to jurisdiction.”
Discretion to grant relief
Even if the Court was to conclude that the Tribunal’s invitation to Mr Yang to attend a hearing on 10 August 2010 resulted in jurisdictional error in the Tribunal Decision, the Court has the discretion to refuse to grant relief. This is because, notwithstanding the Tribunal’s invitation to Mr Yang to attend a hearing on 10 August 2010, this invitation had no effect on the exercise of the Tribunal’s powers in making the Tribunal Decision. In SZBYR and Anor v Minister for Immigration and Citizenship and Anor[59] the High Court held that even if the appellant’s arguments about s.424A of the Migration Act were correct, no useful result could ensue from the grant of the relief designed by the appellants as they could not overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus, and their case was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse.”[60]
[59] (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”).
[60] SZBYR ALR at 618-619 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; HCA at para.29 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Likewise in this case, the Tribunal Decision was one that it was bound to make having regard to Mr Yang’s failure to meet the criteria in clause 457.223(4)(eb) of the Migration Regulations. Mr Yang did not meet that criteria prior to the invitation to the Tribunal hearing. The Tribunal’s invitation, and Mr Yang’s attendance and giving of evidence at the Tribunal hearing on 10 August 2010, did not contribute in any way to Mr Yang’s failure to meet that criteria. Thus, even if the invitation to Mr Yang to attend the Tribunal hearing did constitute jurisdictional error, it did not affect the ultimate outcome, and in those circumstances, and in circumstances where there is still no evidence that Mr Yang has achieved the required IELTS test results, the Court would exercise its discretion to refuse relief in any event.
The application must therefore be dismissed, and the Court will order accordingly.
Conclusion
The Court has concluded that:
a)the Tribunal Decision was not affected by jurisdictional error; and
b)even if there was jurisdictional error by reason of the Tribunal’s invitation to Mr Yang to attend the Tribunal hearing, the Court would exercise its discretion to refuse relief.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 17 November 2010
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