FEDERAL COURT OF AUSTRALIA Han v Minister for Immigration & Citizenship [2011] FCA 1437 Citation: Han v Minister for Immigration & Citizenship [2011] FCA 1437 Appeal from: Han v Minister for Immigration & Citizenship [2011] FMCA 495 Parties: QING HAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: WAD 303 of 2011 Judge: GILMOUR J Date of judgment: 15 December 2011 Catchwords: MIGRATION – appeal from the Federal Magistrates Court affirming the decision of the Migration Review Tribunal not to grant a Skilled (Provisional) (Class VC) visa – jurisdictional error whether the mandatory requirements under cl 485.213(a) of the regulations were met – whether there was actual or reasonably apprehended bias on behalf of the decision-makers Legislation: Migration Act 1958 (Cth), ss 31, 65 Migration Regulations 1994 (Cth) cls 485.213, 1229, 845.21, Regs 1.15, 2.01, 2.02, 2.03 Amendment Regulations 2009 (No 4) regs 2 and 4 Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Date of hearing: 23 November 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr R L Hooker Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 303 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: QING HAN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE OF ORDER: 15 DECEMBER 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 303 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: QING HAN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE: 15 DECEMBER 2011 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an appeal from the orders of Lucev FM made on 4 July 2011 when the appellant's application for judicial review of a decision by the Migration Review Tribunal (the Tribunal) of 8 February 2011 was dismissed. Background 2 The appellant applied for general skilled migration to Australia on 28 October 2008. The appellant advised in that application that he had completed a Master of Information at Charles Sturt University in February 2007. He stated in his application that he was applying for a Skilled-Graduate (Subclass 485) visa. 3 The appellant enrolled in a Doctor of Philosophy (Engineering) at the University of Western Australia in 2007 and a Graduate Diploma of Computer and Network Security at Edith Cowan University in 2008. However both of those enrolments were cancelled. 4 The first respondent's delegate assessed the application against the legislative requirements for all visa subclasses contained in the Skilled (Provisional) (Class VC) visa. In relation to a subclass 485 (Skilled - Graduate) visa, the delegate found that the appellant did not meet the requirements of cl 485.213 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). 5 The delegate also found that the appellant did not meet the legislative requirements for a subclass 487 (Skilled - Regional Sponsored) visa and refused to grant a Skilled (Provisional) (Class VC) visa to the appellant. 6 The appellant applied to the Tribunal for review of the delegate's decision to refuse to grant him a subclass 485 visa in the visa class VC. 7 As noted by the Tribunal, the sole issue before the Tribunal was whether the appellant met the requirements of cl 485.213(a) of the Regulations. 8 The Tribunal found that on the available evidence and the admissions of the appellant that he did not satisfy the 2 year study requirement in the 6 months ending immediately before the day on which the visa application was made. The Tribunal found that the appellant did not meet the requirements of cl 485.213(a) and affirmed the decision not to grant the appellant a Skilled (Provisional) (Class VC) visa. 9 On 12 August 2009 the appellant applied for merits review of the delegate's decision to the Tribunal. He attended a hearing of that merits review application on 8 February 2011. 10 The Tribunal on 8 February 2011, affirmed the delegate's decision to refuse to grant a Skilled (Provisional) (Class VC) visa to the appellant. Statutory Scheme 11 Section 65 of the Migration Act 1958 (Cth) (the Act) deals with the power of the Minister to grant or refuse applications for visas. It provides, inter alia, that if the Minister is not satisfied that criteria for the grant of the visa prescribed by the Act or the Regulations have been satisfied, then he or she is to refuse to grant the visa. 12 Section 31(1)-(3) of the Act provides that there are to be prescribed classes of visas and that the Regulations may prescribe criteria for a visa or visas of a specified class. Part 2 of the Regulations deals with visas. Regulation 2.01 provides, inter alia that for the purposes of s 31 of the Act the prescribed classes of visas are such classes (other than those created by the Act) as are set out in the respective items in Sch 1. Regulation 2.02 provides that Sch 2 is divided into Parts, each identified by reference to a subclass of visa. By reg 2.03 the prescribed criteria for the grant to a person of a particular class are the primary criteria set out in the relevant Part of Sch 2 or, if a relevant Part of Sch 2 sets out secondary criteria, those secondary criteria. 13 Part 2 of Sch 1 to the Regulations sets out the various temporary visas prescribed by the Regulations (other than bridging visas). Clause 1229 of that Part prescribes the Skilled (Provisional) (Class VC) visa. The subclasses in Sch 2 which are relevant to that visa are identified in cl 1229(10) as subclasses 485 (Skilled - Graduate) and 487 (Skilled - Regional Sponsored). 14 The provisions of Sch 2 relating to a subclass 485 (Skilled - Graduate) visa set out, in cl 845.21, criteria which are to be satisfied at the time of application for the visa. These include the criteria set out in cl 485.213 which, at the time of the appellant's visa application relevantly required that: (a) the applicant satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made; and (b) each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant's nominated skilled occupation. 15 The two year study requirement is defined in reg 1.15F of the Regulations. 16 At the time of the decision of the Tribunal, cl 485.213 had been amended by the Migration Amendment Regulations 2009 (No 4) (the Amendment Regulations). Pursuant to regs 2 and 4 of the Amendment Regulations, those amendments, however, only apply to visa applications made on or after 15 May 2009. Tribunal Decision 17 The Tribunal noted at para [15] of its decision that the appellant admitted that he had completed only one degree relevant to his skilled occupation, a Masters degree in Information Technology at Charles Sturt University. He completed that degree in November 2006 and was awarded the degree in February 2007. The Tribunal also noted at para [16] that the appellant admitted that he applied for the subclass 485 visa on 28 October 2008 and "after an extraordinary display of evasiveness" admitted that more than 6 months had elapsed between the completion of his degree and lodgement of visa application. 18 The Tribunal found that on the available evidence and the admissions of the applicant that he did not satisfy the 2 year study requirement in the 6 months ending immediately before the day on which the visa application was made. The Tribunal thus concluded that, on the "sole issue" in the case before it, the appellant did not meet the requirements of cl 485.213(a) of Sch 2 to the Regulations and that the application therefore failed. Application for Judicial Review 19 On 4 March 2011 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision.. 20 On 9 May 2011, the applicant filed an amended application, and on 17 May 2011, the appellant filed a re-amended application, both of which expressed grounds of judicial review as follows: 1. Jurisdictional errors 2. Did not consider my intention 3. Anything else described in my summery (sic). 21 The summary alluded to in the third ground was a "Comprehensive Summery (sic) of Qing Han, Appeal to the Federal Magistrates Court 30th May 2011." 22 Lucev FM delivered reasons for judgment dated 4 July 2011 following which he ordered that the application for judicial review be dismissed. His Honour held that: (a) The Tribunal's approach to the assessment of the evidence before it was one that it was fairly entitled to undertake: [25]; (b) Given the evidence before it and the specific admissions made by the appellant, the decision reached by the Tribunal, namely that the appellant did not satisfy the relevant criteria for a Skilled Provisional Visa, was the only one available to it: [26]; (c) Nothing before the Federal Magistrates Court indicated that the Tribunal failed to accord the appellant procedural fairness or to carry out a (merits) review in accordance with the relevant provisions of the Act: [27]; (d) Once satisfied that the appellant did not satisfy an essential criterion for the visa sought, the Tribunal's task was complete. It did not have any discretion to consider other matters: [26]; and (e) The Federal Magistrate's Court's jurisdiction was limited to conducting a judicial review of the Tribunal's decision. It did not extend to university enrolment issues: [28]. The Appeal 23 By Notice of Appeal dated 20 July 2011, the appellant appeals to this Court from the whole of the judgment of Lucev FM given on 4 July 2011. The Notice is a confusing mixture as to certain circumstances relating to the appellant's visa application and its rejection, certain purported "grounds against" the Tribunal and in turn the Federal Magistrates Court, and some written submissions. I have set out below, without correction, only those grounds relating to the judgment below. Grounds against Federal Magistrate Court (FMC) 1. According to the Judgment letter, Paragraph 26, "the only one available", ignore the fact as I was cheated/misled by Department officers. 2. Paragraph 27 "Never made to Delegate". I did apply to MRT for review of Cancellation, and Department officers "helped" me to cancel my student visa. 3. Paragraph 21 "on hearing, the similar way", is NOT TRUE. 4. The Lucev FM did not listen to anything and did not take into account any of the issues or point I raised with him in Court. 5. According to the Judgement letter, Paragraph 28 "Visa application only", is as narrowed scope. 6. According to Paragraph 27, on this point, Lucev FM had the same description with MRT's decision letter. Actually there is no such saying/statement in Migration ACT. 7. FMC ordered me to pay a very cost within time limitation. 24 The Tribunal correctly identified that the sole issue before it was whether the appellant satisfied cl 485.213(a) of Sch 2 of the Regulations. It was also correct in concluding that the requirements of that clause were not met. Indeed, as the Tribunal found, the appellant completed only one degree relevant to his skilled occupation, namely a Masters degree in Information Technology at Charles Sturt University to which I earlier referred. This degree was completed in November 2006 and conferred in February 2007 but the appellant did not apply for the subclass 485 visa until 28 October 2008, a period of nearly two years from the completion of the degree. Lucev FM correctly also concluded that this necessary criterion had not been met. 25 The criterion referred to in cl 485.213(a) was a mandatory requirement, to be met at the time of the visa application that the Appellant satisfied the 2 year study requirement in the 6 months ending immediately before the day on which the visa application was made. The appellant admitted to the Tribunal that he had not satisfied the 2 year study requirement in the 6 months ending immediately before the day on which his visa application was made. He acknowledged to the same effect to this Court. Accordingly the decision of the Tribunal was correct and, pursuant to s 65 of the Act, the Tribunal had no alternative but to affirm the delegate's decision not to grant the appellant a Skilled (Provisional) (Class VC) visa. Lucev FM, for this reason alone, was correct in dismissing the appellant's application for judicial review from the Tribunal's decision. 26 The Notice of Appeal also asserts that Lucev FM "never really listened" to the appellant and "made a pre-judgment." These claims amount to, in effect, allegations of actual, or reasonably apprehended, bias. It is also possible to interpret the Notice of Appeal as alleging at least reasonably apprehended, if not actual, bias on the part of the Tribunal and thus that Lucev FM erred in failing to find jurisdictional error on that basis. 27 An allegation of actual bias is not to be made lightly and will not be upheld without distinct proof: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127]. This Court, before it could find actual bias would have to be satisfied that the Tribunal was so committed to a preconceived conclusion that its mind was incapable of alteration, no matter what evidence or arguments were presented to it: Jia at [72]. There is no evidence to support any contention of actual bias. 28 The test for whether an administrative decision maker has acted with reasonably apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the decision: see e.g. Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[28]; Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [68]. The test is in practical terms the same with respect to judicial decision-making: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345. 29 I reject the submission that Lucev FM erred in failing to conclude that there was a reasonable apprehension of bias on the part of the Tribunal or that there was a reasonably apprehended bias on the part of Lucev FM himself. 30 Lucev FM was correct to conclude that the Tribunal did not commit jurisdictional error. This appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 15 December 2011