ACHCHIGE v Minister for Immigration

[2017] FCCA 675

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACHCHIGE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 675

Catchwords:
MIGRATION – Temporary graduate visas – in circumstances where the Applicant failed to meet the relevant requirements specified in cl.485.224 of sch.2 to the Migration Regulations 1994 (Cth) for the class of visa – whether the Tribunal was empowered and thereby required to exercise its discretion having regard to the Applicant’s circumstances – held no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), cl.485.224, 485.311, sch.2

First Applicant: MADARI ANUSHA THALAGALA THALAGALA ACHCHIGE

Second Applicant DON GAYAN WANIGASEKARA DISANAYAKA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1495 of 2014

Judgment of: Judge Jones

Hearing date: 15 February 2017

Date of Last Submission: 15 February 2017

Delivered at: Melbourne

Delivered on: 15 February 2017

REPRESENTATION

Solicitors for the Applicants: Mr Gordon

Counsel for the Respondents: Mr Hosking

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application for judicial review filed 24 July 2014 be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1495 of 2014

MADARI ANUSHA THALAGALA THALAGALA ACHCHIGE

First Applicant

DON GAYAN WANIGASEKARA DISANAYAKA
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and Background

1. This is an application for judicial review of a decision of the then Migration Review Tribunal, made on 30 June 2014, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicants Temporary Graduate (Class VC Subclass 485) visas (“the visas”).

2. By way of background, the Applicants are citizens of Sri Lanka. On 29 August 2013, they applied for the visas in the Graduate Work stream, as is apparent from the application forms (CB 1-14). The First Applicant (“the Applicant”) applied on the basis that she satisfied the primary criteria for the grant of the visa. The Second Applicant applied on the basis that he was a member of the family unit of the Applicant and, therefore, satisfied the secondary criteria for the grant of the visa.

3. At the relevant time, sub-cl.485.224(1) of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”) provided that it was a primary criterion for the grant of a subclass 485 visa in the Graduate Work stream, that:

   1. The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation.

4. In her application, the Applicant nominated the skilled occupation as a “welfare centre manager” (CB 12). The relevant assessing authority for the occupation was the Vocational Education Training and Assessment Services, otherwise known as “VETASSESS”. The Applicant’s first application indicated that she had undertaken a skills assessment by VETASSESS on 28 August 2013. Indeed, the Applicant sought the assessment (CB 24), however, as will become apparent, she had not provided a copy of the skills assessment. On 21 November 2013, the Department of Immigration and Border Protection (“the Department”) wrote to the Applicant requesting that she provide additional information, including “a certified copy of [her] Skills Assessment issued by the relevant skills assessment body” (CB 42).

5. The Department requested that this be provided within 28 days of the date of the correspondence (CB 32). The Applicant did not respond to this request and the Department proceeded to make its decision on 27 March 2014. The delegate found that the Applicant had not provided evidence that the Applicant’s skills had been assessed by a relevant assessing authority as suitable for her nominated skilled occupation (CB 56). On this basis, the delegate found that, firstly, the Applicant had not met the requirements of cl.485.224 of sch.2 to the Regulations and, consequently, the Second Applicant had not met the requirements of cl.485.311 of sch.2 to the Regulations (CB 57).

6. The Applicants applied to the Tribunal for review of the delegate’s decision on 15 April 2014 (CB 87). On 15 May 2014, the Applicants were invited by the Tribunal to appear before it on 13 June 2014 to give evidence and present arguments (CB 99). Relevantly, in that correspondence, the Tribunal said the following (CB 99):

   The Tribunal notes that to date you have not presented evidence that your skills have been assessed by the relevant assessing authority for your nominated skilled occupation. Please provide evidence that your skills have been assessed by the relevant assessing authority for your nominated occupation at (or before) hearing. Please note that if you are unable to provide the relevant evidence, the Tribunal will require good reason to grant you additional time to obtain it.

Tribunal Decision

1. On 13 June 2014, the Applicants appeared before the Tribunal with her registered migration agent and with the assistance of a Sinhalese interpreter. At the hearing, the Applicant did not provide evidence that her skills had been assessed by VETASSESS. She advised the Tribunal that her application for a skills assessment had been unsuccessful (CB 116 at [12]). She said, however, that she hoped to obtain employer sponsorship for a visa, but had been unsuccessful thus far. She also explained to the Tribunal that her husband’s current employer was looking to sponsor him, however, this would not occur until the next financial year.

2. The Tribunal noted that it had provided the Applicant with further time to clarify her position (CB 116 at [13]). However, there was no further information provided by the Applicant or her agent on her behalf. The Tribunal then proceeded to make its decision.

3. On 30 June 2014, the Tribunal affirmed the delegate’s decision, on the basis that the Applicant’s skills have not been assessed by a relevant assessing authority as suitable for her nominated skilled occupation and that, consequently, it found that the Applicant had not met the requirements of cl.485.224 of sch.2 to the Regulations. The Tribunal found that, as a result, the Second Applicant had not met the requirements of clause 485.311 of schedule 2 to the Regulations (CB 116 at [14]-[18]).

Judicial Review

1. On 24 July 2014, the Applicants applied to this Court for judicial review of the Tribunal’s decision, and set out the following grounds for review:

   1. Migration Review Tribunal erred in law when exercising its discretion to affirm the decision not to grant the applicant subclass 185 visa in that it did not regard to all the relevant circumstances, including department’s policy guidelines and Migration Regulations 1994, specially part 485 of schedule 2.

   2. Migration Review Tribunal erred in law in failing to consider all the circumstances of the applicant and her partner.

2. The Applicants are represented. Written submissions were not provided by the Applicants, in accordance with the Orders of the Registrar made 5 November 2014, setting directions for this trial. Mr Gordon, who appears on behalf of the Applicants, provided an explanation for this which I find unnecessary to recite. I accepted his explanation. Mr Gordon relied on oral submissions which were, in essence, that the Tribunal failed to take into account, at paragraphs [12] and [13] of its decision, the circumstances before it, which were contained in paragraph [12] of its decision record. That paragraph, as I have just indicated, included the following record by the Tribunal:

   a)that the Applicant advised at the hearing that her skills assessment application had been unsuccessful.  There is no dispute about that;

   b)she said she was hopeful of gaining employer sponsorship, but had so far been unsuccessful; and

   c)the explanation by her representative that her husband’s current employer was looking to sponsor him, however, that this would not happen until the new financial year.

3. I clarified with Mr Gordon whether the argument of the Applicants was that, although the Applicant conceded and does not dispute that she did not satisfy the criteria she was required to satisfy under sub-cl.485.224(1) of sch.2 to the Regulations, the Tribunal had reposed in it a discretion and had erred in not considering the circumstances of the Applicant, and that error amounted to jurisdictional error. Mr Gordon confirmed that this was the gist of the Applicant’s submission.

Consideration

1. The Applicants’ application for judicial review does not give rise to jurisdictional error and does not do so for the following reasons.

2. Firstly, as the Minister has pointed out in the written submissions filed on 10 September 2015, s.65 of the Migration Act 1958 (Cth) (“the Act”) requires, amongst other things, that the Tribunal be satisfied in respect of criteria applicable to visa, and if it is not so satisfied, then as stated under sub-s.65(1)(b) of the Act, the Tribunal must refuse to grant the visa. There is no discretion reposed in any decision-maker, whether it is a delegate or the Tribunal. In this case, we are considering the Tribunal’s decision. The Tribunal correctly noted the relevant statutory provisions and I have cited those already. The Tribunal noted that, the only question before it was whether there was evidence before it that the Applicant had been assessed by the relevant assessing authority, and that she had the relevant skills assessment. The Applicant stated at the hearing that she did not.

3. Under those circumstances, where there was no evidence before the Tribunal, the only decision open to the Tribunal was to refuse the grant of the visa. The Tribunal had no discretion reposed in it once it was satisfied that the Applicant did not meet the applicable criteria, and consequently, its decision is correct.

4. There is a reference in the grounds of review to Departmental policy, but the case law in relation to Departmental policy is well settled. The Tribunal did not refer to Departmental policy in its decision. I am not sure if there was one applicable in this case, but, in any event, to the extent that that Departmental policy was inconsistent with the statutory provisions, then it would give way to those provisions and any conflict could not amount to jurisdictional error. The Tribunal’s decision that the Applicant did not meet the criteria contained in cl.485.224 of sch.2 to the Regulations was correct and its decision that, consequently, the Second Applicant did not meet the requirements of cl.485.311 of sch.2 to the Regulations was, likewise, correct.

Conclusion

1. Those are the reasons for my decision that these grounds for judicial review do not give rise to jurisdictional error. Consequently, I will make Orders dismissing the application for judicial review filed 24 July 2014 and requiring the Applicants to pay the First Respondent’s costs in the fixed sum of $7,206.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  5 April 2017