FEDERAL COURT OF AUSTRALIA

Ashraf v Minister for Immigration and Border Protection [2018] FCA 1825

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of, and incidental to, the appeal which are fixed in the sum of $4,363.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a national of Pakistan who came to Australia in 2011 on a Student visa.

2    On 9 December 2015, the appellant applied for a Skilled Provisional (Class VC) Subclass 485 visa. That application was refused by a delegate of the Minister, and that refusal was confirmed on review by the Administrative Appeals Tribunal (the Tribunal). The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court (the FCC). That application was unsuccessful: Ashraf v Minister for Immigration & Anor [2018] FCCA 1762. The appellant now appeals to this Court against the decision of the FCC.

3    It is convenient to indicate the reasons of the Minister’s delegate and of the Tribunal for refusing the appellant’s visa application before turning to the grounds of the appeal.

4    The criteria for the grant of a Subclass 485 visa are set out in reg 485 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria are set out in two alternative streams: the Graduate Work stream and the Post-Study Work stream. It is the former which was applicable in the appellant’s case.

5    I mention that the appellant also sought a Subclass 485 visa for his wife. Regulation 485.2 provides that the primary criteria have to be satisfied by at least one member of a family unit. The appellant sought to satisfy the primary criteria by reference to his own circumstances and not those of his wife.

6    Regulation 485.22 specifies a number of primary criteria for a Subclass 485 visa in the Graduate Work stream. One of those is that an applicant have satisfied the “Australian study requirement in the period of six months immediately before the day the application was made”. The requirements for satisfaction of the “Australian study requirement” are contained in reg 1.15F:

(1)    A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

(a)    that are registered courses; and

(b)    that were completed in a total of at least 16 calendar months; and

(c)    that were completed as a result of a total of at least 2 academic years study; and

(d)    for which all instruction was conducted in English; and

(e)    that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

Note:    Academic year is defined in regulation 1.03.

(2)    In this regulation:

completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note:    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

…

7    The effect of reg 485.221 in the appellant’s case was that he had to have completed a degree, diploma or trade qualification answering the description contained in reg 1.15F in the period of six months before making his visa application on 9 December 2015.

8    Both the delegate and the Tribunal found that the appellant could not satisfy that requirement. He had completed a Bachelor of Business (Accounting) on 27 July 2014, but that was outside the six month period specified in reg 485.221. He had also completed a Bachelor of Business (Marketing) but did not do so until 20 December 2015, 11 days after the day on which he had made his application for the Subclass 485 visa. Hence, the appellant’s application for the visa was refused.

The application to the FCC

9    The appellant represented himself in the FCC (as he had in the making of the application for the visa in the Tribunal, and on the present appeal). The grounds of his application for judicial review in the FCC reflect his lack of legal knowledge and the fact that he did not have legal representation. They were not grounds for an application for judicial review in the conventional sense, but instead amounted to a submission to the FCC judge.

10    The appellant recounted the history of his application, matters indicating that he has been a conscientious student, conversations with an officer within the Department of Immigration and Border Protection, and the injustice which he perceives in the refusal of the visa application. In particular, the appellant says that in making his application for the visa at the time he did, he relied on information given to him by an officer of the Department who had said that he was eligible to make the application at that time. The grounds of the appellant’s application in the FCC concluded with the following:

[14]    According to procedural fairness and natural justice in my case I would please consider those points which AAT cannot consider due to limited rights.

11    The FCC Judge dismissed the application for judicial review, saying:

[18]    The application cannot succeed. There is no jurisdictional error attending the decision of the Tribunal. None was identified in the application itself for judicial review, nor is there any jurisdictional error apparent to the Court in the Tribunal’s decision.

12    The FCC Judge elaborated that conclusion by addressing the question of whether there had been any denial of procedural fairness to the appellant given the statements in [1], [2] and [14] of the application that he was seeking “procedural fairness and natural justice”. The Judge considered that the Tribunal had complied with its obligations under Pt 5 Div 5 of the Migration Act 1958 (Cth) with respect to the procedural fairness and that the appellant had been on notice of the determinative issue on the review, namely, his inability to satisfy the Australian study requirement in reg 485.221 of Sch 2 to the Regulations. That finding was plainly correct as the Minister’s delegate had informed the appellant of the requirement by a letter of 24 February 2016. Further, the delegate’s reasons of 10 March 2016 had indicated clearly the basis for the refusal of the appellant’s visa application.

Appeal to this Court

13    The appellant’s Notice of Appeal to this Court contends that the FCC Judge erred in failing to find that the decision of the Tribunal was affected by jurisdictional error in seven respects:

(i)    Summarily dismissing and discounting the evidence presented by the Applicant;

(ii)    Failing to consider the evidence of the Applicant in totality and cumulatively;

(iii)    Failing to properly and/or adequately investigate and assess the claims of the Applicant;

(iv)    Failing to take into account relevant evidence and/or took into account irrelevant evidence;

(v)    Displaying bias towards the Applicant;

(vi)    Denying the Applicant procedural fairness;

(vii)    Misapplying the relevant test/s relating to cl.485.221 of the Migration Regulations to the Applicant’s circumstances.

Consideration

14    Counsel for the Minister submitted that, with the exception of particular (vi) concerning the alleged denial of procedural fairness, the appellant had not raised in the FCC any of the other complaints in the Notice of Appeal. He submitted that for that reason alone those grounds should be dismissed because the jurisdiction which the Court is presently exercising is appellate, and not original: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804, (2015) 231 FCR 452 at [14]; SXUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18].

15    Counsel also submitted that the appellant required leave to raise on appeal matters which he had not agitated in the FCC and that that leave should be refused because it is plain that the grounds lack merit. This submission requires some consideration of the grounds of appeal. It is convenient to refer first to ground (vi) which contains the complaint that the FCC Judge should have found that the appellant had been denied procedural fairness in the Tribunal.

16    The appellant did not advance a submission in conventional terms that he had been denied procedural fairness. His argument, in substance, is that what had occurred to him is unfair because, in making the application for the visa at the time that he did, he had relied on advice given to him by an officer of the Department. As indicated, this is the same submission which the appellant has made previously in the Tribunal and in the FCC. That argument, even if established as a fact, does not establish procedural fairness of a kind warranting the intervention by the FCC or this Court on an application for judicial review. That is because the Tribunal was required to apply the criteria in the Regulations and did not have a residual discretion which permitted it to waive them or to ignore them.

17    I have also considered whether there is any other basis upon which it could be said that the FCC Judge had erred in failing to find that the Tribunal had denied the appellant procedural fairness. In my view, there is no such basis. It is evident that the Tribunal complied with the requirements of the natural justice hearing rule contained in Div 5 of Pt 5 of the Migration Act. The appellant was invited to attend a hearing before the Tribunal to give evidence and present arguments as required by ss 360 and 360A. The invitation to the appellant asked him to provide all documents on which he relied to establish that he did meet the criteria for the visa and drew his attention to the basis on which the delegate had refused the visa.

18    The appellant did attend before the Tribunal on 9 March 2017 and did give evidence and make submissions, and he was on notice of the determinative issue for the Tribunal. Accordingly, the complaint that the FCC Judge should have found a denial of procedural fairness by the Tribunal cannot succeed.

19    The appellant did not advance submissions at today’s hearing in support of the remaining grounds. However, I did not understand him to be abandoning those grounds and so will address them briefly.

20    Ground (i) complains that the Tribunal decision was affected by jurisdictional error by reason that the Tribunal dismissed the application summarily and without consideration of the appellant’s evidence. The appellant did not identify any evidence which he submitted had not been considered.

21    On the face of the documents, there is an apparent curiosity in the timing of the Tribunal’s decision. While the Tribunal member’s decision record is shown as having been made at 1.38 pm on 9 March 2017, the Tribunal hearing is also shown as not having been completed until 2.01 pm that same day. It appears, however, that the former date and time must be a mistake as the Tribunal member recorded in [9] of the reasons a summary of the evidence which the appellant had given in the hearing. Further, it is apparent that the Tribunal member did not give the decision at the conclusion of the hearing. Instead, the appellant was informed of the outcome by a letter dated 10 March 2017.

22    In these circumstances, I am not satisfied that there was a summary dismissal of the appellant’s application, even though the time between the completion of the hearing and the member’s completion of the reasons must have been short.

23    There is, in any event, no jurisdictional error in a decision being made promptly, including at the conclusion of the hearing before the Tribunal. The more critical question is whether the Tribunal member had, in substance, complied with the requirements for a hearing and had given proper consideration to the matters raised by the appellant at the hearing.

24    In the present case, the issues for determination were quite confined, and it is understandable that the Tribunal member was able to reach his decision without delay. In my opinion, no jurisdictional error is apparent by reason of the shortness of time which it took the Tribunal member to give the decision.

25    Ground (ii) complains that the Tribunal decision was affected by jurisdictional error because the member had not considered the evidence of the appellant “in totality and cumulatively”. This ground does not succeed. As already indicated, the evidence bearing on the determinative issue was quite confined and there is no basis on which to suppose that the Tribunal member did not consider that evidence in totality.

26    Ground (iii) is an unparticularised complaint that the Tribunal member had failed appropriately and/or adequately to investigate and assess the appellant’s claims. The submission of the Minister concerning this ground should be accepted. It was for the appellant to provide the Tribunal with his evidence and submissions in sufficient detail and, if he wished to have further material considered, to draw it to the attention of the Tribunal. This was not a case in which it could be said that the Tribunal was bound to make an inquiry about a critical fact, the existence of which was easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]-[26].

27    In ground (iv), the appellant makes another unparticularised complaint that the Tribunal had failed to take into account relevant evidence and/or had taken into account irrelevant evidence. No basis is apparent on which this ground could be upheld.

28    Ground (v) raises a complaint of bias by the Tribunal member. No particulars are provided. Nor has the appellant provided any evidence to support this ground. As is well-established, an allegation of bias should be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]. The mere fact that the Tribunal’s decision was adverse to the appellant is not by itself indicative of bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at [21]. This ground fails.

29    Ground (vii) alleges in an unparticularised way that the Tribunal member misapplied the tests relating to reg 485.221 in the Regulations. This ground cannot succeed. The requirements of reg 485.221 affecting the appellant are straightforward. The Tribunal member’s reasons do not disclose any misunderstanding about those requirements, nor any error in the application of those requirements to the circumstances of the appellant’s case. This ground fails.

Conclusion

30    The result is that I consider that none of the appellant’s claims can succeed. In fact, I consider that none of them are reasonably arguable.

31    In those circumstances, I uphold the Minister’s submission that the appellant should not be permitted on the appeal to advance grounds which he did not agitate before the FCC. The appellant has not established any error by the FCC in relation to the one ground which he did advance in the FCC, namely the allegation of the denial of procedural fairness. The appellant’s complaint that he had been misled by an officer of the Department is not a matter which could be determined by the FCC on the application for judicial review, nor is it a matter which can be determined by this Court on the appeal. If that circumstance gives rise to a remedy for the appellant, it is a remedy which must lie elsewhere.

32    Accordingly, the appeal is dismissed. The appellant is to pay the Minister’s costs of, and incidental to, the appeal fixed in the sum of $4,363.

Associate:

Dated:    22 November 2018