Abdul v MIBP
[2021] FCCA 349
•5 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABDUL v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 349 |
| Catchwords: ADMINISTRATIVE LAW – Application for judicial review of decision of the Administrative Appeals tribunal – applicant applying for graduate stream sub class 485 Visa – applicant erroneously failing to apply for post-study work stream subclass 485 visa – regulations requiring skills assessment which the applicant did not have – no capacity for Tribunal to consider second stream which applicant did not nominate – no jurisdictional error shown – application dismissed |
| Legislation: Migration Act 1958 (Cth), ss.48, 65, 349, 351, 359, 362, 458 |
| Cases cited: Kioa v West (1985) 159 CLR 550 Minister v Peko-Wallsend (1986) 162 CLR 24 |
| Applicant: | SAMAD ABDUL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1067 of 2017 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 16 February 2021 |
| Date of Last Submission: | 16 February 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 5 March 2021 |
REPRESENTATION
| Advocate for the Applicant: | Mr Harvey |
| Solicitors for the Applicant: | David Harvey Law |
| Advocate for the First Respondent: | Ms Roberts |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1067 of 2017
| SAMAD ABDUL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed on 24 May 2017 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal given on 28 April 2017. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa. Counsel for the applicant confirmed that the grounds pressed before the Court are those in the application filed in 2017 but it will be more convenient to address these submissions by reference to the oral submissions made at Court, which it should be noted are consistent with the written submissions also filed on behalf of the applicant.
Put admittedly somewhat broadly, the applicant complains that the Tribunal failed to grant him procedural fairness for a number of reasons and strongly submits that the simple clerical error made by the applicant has given, and if not overturned will continue to give, a result that is manifestly unjust. The first respondent by way of contrast submits that the Tribunal’s decision was that required by the operation of both the Migration Act 1958 (Cth) (“Act”) and relevant regulations and that the matters raised by the applicant fail properly in effect to engage with the statutory scheme.
Whilst like the Tribunal member who heard the case I have a residual element of sympathy for the applicant it is clear that the first respondent’s submissions are entirely accurate and that the application must be dismissed.
Some Introductory and Non-Contentious Facts
The applicant, who appears to have completed his Master of Practising Accounting degree on 5 July 2016 (CB-9) applied for a Skilled (Provisional) (Class VC) visa under section 65 of the Act on 25 August 2016. It is apparent from the original application (CB-1) that what the applicant applied for was a Temporary Graduate (Class VC, subclass 485) – Graduate Work Stream visa. At court book 1 under the heading Graduate Work Stream Application Requirements the following was set out:
To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must already have taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.
On the same page under the heading Skills Assessment the following question was asked, “Have you applied to a relevant assessing body for an assessment of your skills for your nominated skilled occupation”, and the applicant’s answer was “no”.
At court book 9 under the heading Applicant’s Skills Assessment, which once again had what was described as an important note “You must provide evidence of a suitable skills assessment from the relevant assessing authority, or evidence you have booked to undergo a skills assessment with the relevant assessing authority when you lodged this application”, the applicant nominated his occupation as, “Accountant (General)”, and name of assessing authority as “Certified Practising Accountants of Australia”. But, unsurprisingly given his earlier answer that he had not undertaken a skills assessment, he left the date of the skills assessment and the reference/receipt number blank.
A delegate of the first respondent refused the application because the applicant did not satisfy clause 485.223 of schedule 2 to the regulations which required at the time the application was made that it be accompanied by evidence that the applicant had applied for a skills assessment from the relevant assessing authority for his nominated skilled occupation. The delegate found the applicant answered “no” to the question in the application form and had not produced any evidence that he had applied for a skills assessment before the date of his visa application on 25 August 2017.
By the time the matter came before the Tribunal the applicant had forwarded via his agent a number of documents including a skills assessment issued to the applicant by CPA Australia on 24 February 2017, having been applied for on 20 February 2017. The submissions made by the applicant conceded that the applicant had not applied for a skills assessment at the time he made his application. The submissions asserted that the applicant made an honest mistake by selecting the Graduate Stream as he was a recent graduate with no work experience and got confused between the terms “Graduate” and “Post-Study Work Stream” (CB-73). The submissions also submitted that the applicant satisfied all the primary criteria for the Post-Study Work Stream.
The Tribunal recorded at paragraph 9 (CB-73):
The applicant confirmed that he made the subclass 485 visa application online by himself as he could not afford to pay for a migration agent. He selected the Graduate stream because he had just graduated and did not have work experience, so this seemed to be the most appropriate stream. He did not appreciate the significance of the different legal criteria in the Graduate and Post-Study Work Streams until his visa was refused and he consulted his present migration agent. There was no communication from the Department in between when he made the online visa application and when he received the refusal decision. He noted that if he had been made aware that there was a problem because he had not applied for a skills assessment, he would have withdrawn the application, got the skills assessment and reapplied. However, now he could not do so because s 48 of the Act prevented him from doing so.
The Tribunal discussed with the applicant that it was still required to consider whether the applicant met the requirements of clause 485.223 and its preliminary view that the applicant could not be considered against the requirements of the Post-Study Work stream as item 1229(3)(j) of schedule 1 to the regulations permitted an applicant to nominate only one stream to which his or her Subclass 485 visa related.
The Tribunal however noted at paragraph 17 (CB-75):
As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of clause 485.223.
The Tribunal went on at paragraph 19 to note in relation to the possible assessment of the applicant of the applicant against the Post-Study Work Stream:
However, the Tribunal is of the view that it is not possible for the applicant to be considered against the Post-Study Work stream. This is because item 1229(3)(j) of Schedule 1 to the regulations permits the applicant to nominate only one stream to which subclass 485 visa application relates. As noted above, the applicant nominated the Graduate Work stream. From the Tribunal’s view, he therefore cannot now be validly assessed against the Post-Study Work stream.
Accordingly, the Tribunal reaffirmed the decision of the delegate. The Tribunal was not without sympathy for the applicant whom it was noted would appear to satisfy the Post-Study Work Stream criteria in clause 485.231 (and indeed had done so prior to the original application that has given rise to this proceeding). The Tribunal noted the possibility that the applicant and his agent might make application to the Minister pursuant to section 351 of the Act.
The Oral Submissions Made
Both parties have filed written submissions but while I have regard to those they have, in my view, been subsumed to an extent by the oral submissions made.
The Applicant’s Oral Submissions
What follows is taken from my notes. Counsel for the applicant submitted that the issue was whether the Tribunal was on notice that the applicant had an Australian Master’s degree. He was eligible for the Post-Study Stream which did not require an assessment at the time of application. The applicant provided his degree at the hearing and had noted his qualification at court book 9 in his original application. The Tribunal has a duty to act fairly and should have directed the applicant to the Post-Study Stream.
Counsel referred to the requirement of procedural fairness in administrative law decisions subject only to clear words of a statute and referred to Kioa v West (1985) 159 CLR 550, and Western Australian authority, in this regard. The applicant had spent $50,000 obtaining his Master’s degree. This was part of an overarching student revenue generated to Australia’s benefit. Counsel submitted there was a duty to take into account relevant considerations and referred to the Minister v Peko-Wallsend (1986) 162 CLR 24. The Tribunal was on notice of the applicant’s qualifications but failed to take them into account. Counsel referred to regulation 485 and repeated that the applicant held qualifications to meet the Post-Study Stream in clause 485.231. The Tribunal could have had regard to this. It was open to the Tribunal to seek further information in section 359 and it was submitted that there was nothing in the legislation that says an applicant could not change their application.
To the extent that the PAM Schedules of the Department were to the contrary effect these were simply Government policy. Counsel referred to the analogous position under VCAT legislation in relation to guardianship and brought to the Court’s attention the fact that amendment up to and including by oral application at hearing was permitted. Human beings should be treated with dignity. The applicant came to Australia in 2014 and completed his Master’s degree in 2016. His fees were $60,000. It was a simple clerical error. The result if allowed to stand was egregious. The Government owed a duty of care to treat the applicant with procedural fairness. Regulation 1229(3)(j) did not prohibit amendment of the application.
Counsel referred to the decision of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774 (“Singh”). The applicant made his section 485 visa application incorrectly. Singh was a distinguishable case. The Tribunal had powers pursuant to section 349(2) and could vary the decision of the delegate and should have done so.
The Submissions of the Respondent
Counsel took the Court to court book 1 where the applicant had indicated “no” in answering whether he had a skills assessment. He had also isolated the Graduate Work Stream. Counsel referred to the important note to which I have referred at court book 9. The delegate had refused the application because the applicant did not meet the relevant criterion. The Tribunal had accepted that the applicant met the Post-Study Stream. There was no application in the Post-Study Work Stream before the Tribunal. Counsel referred in detail to the decision of Rangiah J in Singh to which I shall return. Counsel submitted shortly that the Tribunal had no power to consider the Post-Study Stream in the circumstances.
In reply counsel repeated that the application was for a class of visa, a VC visa. It was open to the Tribunal to amend the application to that more appropriate to the applicant’s qualifications and to enable him to enter the Post-Study Stream.
The Decision of the Federal Court in Singh
I have obviously read the decision of Rangiah J in Singh. I respectfully refer to and adopt the entirety of his Honour’s reasoning. His decision is of course binding on me unless the decision can properly be distinguished. While counsel for the applicant did submit that Singh was distinguishable I was unable to discern quite why this was so. I would refer to the following relevant extracts of Singh itself.
At paragraphs [5] and [6] his Honour noted that the applicant had applied for a Skilled (Provisional) (Class VC) Subclass (Temporary Graduate) visa and that the applicant’s application was for the Graduate Work Stream. As paragraph [6] notes:
The appellant’s evidence was that his intention was to apply for the Post-Study Work stream but that he erroneously applied for the Graduate Work stream
His Honour noted at paragraph [7] that the relevant form had the same question as applied in this case, namely, “Have you applied to the relevant assessing authority for an assessment of your skills for your nominated skilled occupation”, and that the applicant, as in this case, had said “no”. At paragraph [8] his Honour recorded that the applicant in that case, exactly the same as the applicant in this case, had left the date of the skills assessment and reference/receipt number for the assessment blank. His Honour noted that the delegate had refused the application (paragraph [9]) on the same footing as had occurred here namely the failure to meet the criteria at clause 485.223. His Honour considered the legislative scheme in considerable detail at [35] and following. I respectfully adopt by reference what his Honour had to say. It is sufficient to note that at [66] – [69] his Honour said:
In this case, the appellant made a valid application for a visa in the class described as Skilled (Provisional) (Class VC). The particular visa he applied for within that class was a “Subclass 485 (Temporary Graduate) in the Graduate Work stream visa”. The applicant did not satisfy the criterion in cl 485.223 in Sch 2 for that visa. Accordingly, the Minister was required to refuse to grant the particular visa that was the subject of the application.
Under 65(1) of the Act, the Minister’s power is to consider whether the criteria for the particular visa that was the subject of a valid application is satisfied and grant or refuse to grant that visa. The Minister has no power to grant a visa that was not applied for. The appellant made no application, valid or otherwise, for a “Subclass 485 (Temporary Graduate) in the Post-Study Work stream” visa. Therefore the Minister had no power to grant that visa.
The Tribunal only has authority to review the decision made by the Minister, and it has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister. The position was stated by Finkelstein J in Hayman at [22], and endorsed by Merkel J in Minister for Immigration & Multicultural Affairs v “A” as follows:
The Tribunal is in no better position than the Minister as regards a decision under review. It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision. In addition, for the purposes of its review, the Tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision. But the Tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker (citations omitted).
I have concluded that the Minister could not have granted a visa in the Post-Study Work stream as no application had been made for such a visa. The Tribunal had no greater power. The Tribunal would have been required to affirm the Minister’s decision because the appellant had not satisfied 485.223 and could not have granted any other visa. Even if the Tribunal erred in deciding to affirm the decision under 362B(1C)(b) of the Act, in failing to reinstate the application under section 362B(1C)(a), the error made no difference to the ultimate outcome. Therefore the Tribunal’s error was not jurisdictional.
It should be noted that at [63] his Honour said of clause 1229(3)(j):
Clause 1229(3)(j) of Sch 1 of the Regulations required that an application for a Skilled (Provisional) (Class VC) visa must, “nominate only one stream to which the application relates”. The appellant complied with the form by nominating one stream, the Graduate Work stream.
It should be noted that his Honour at [70] to [73] had expressed sympathy with the appellant’s confusion with the application process and observed at [73]:
The position is particularly egregious for the appellant who claims that he satisfied the criteria for a Post-Study Work stream visa (and the Minister has not contended to the contrary). The difficulties with the form do not assist the applicant in the appeal.
Consideration
Regrettably for the applicant the answer to this case is all too simple. The applicant applied for a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream albeit that he could have applied in the Post-Study Work stream. He did not and clearly never did meet the requirement in the Graduate stream of having a skills assessment at the time of the application. Pursuant to the regulations his application required him to nominate one or other of the two streams. Inevitably no application in the Post-Study Work stream was ever before the Tribunal. The delegate and the Tribunal were clearly correct to find that the applicant did not meet the prescribed criteria in clause 485.223 for a skills assessment. The Tribunal was well aware of and paid proper regard to the applicant’s submissions which, it must be noted, did not really, in many ways, engage with the statutory scheme. Indeed, the same could, in my view, be said of the submissions made before the Court. It is true of course that the Tribunal did not permit the applicant to, as it were, substitute a Post-Study Work stream application and of course this produces a very damaging result for the applicant. The Tribunal however clearly had no power to do so. The reasoning of Rangiah J in Singh is dead on point and is entirely against the outcome for which the applicant contends. It is a decision of the Federal Court and is binding on me and I am of course bound to follow it. In the circumstances it is absolutely clear that while at one level of analysis the applicant has been hardly done by, that is of no assistance to him, as was the case in Singh. The application must be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 5 March 2021
3
3
2