ALI v Minister for Immigration

[2019] FCCA 1094

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1094

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the second respondent (Tribunal) affirming decision not to grant applicant Skilled (Provisional) (Class VC) (Graduate work stream) visa (Skilled visa) – whether Tribunal made a jurisdictional error in proceeding on the basis that there was no provision for the Tribunal to take into account extenuating circumstances when considering whether the applicant satisfied the requirement that the application for such visa be accompanied by evidence that an application for a skills assessment had been made – whether Tribunal made a jurisdictional error by concluding that the application for a Skilled visa was not accompanied by evidence that the applicant had applied for a skills assessment – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.1.15I, Schedule 2, cl.485.223

Cases cited:

Anand v Minister for Immigration and Citizenship [2013] FCA 1050

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

Applicant: SALMAN ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3058 of 2016

Judgment of: Judge Manousaridis

Hearing date: 26 April 2018

Date of Last Submission: 26 April 2018

Delivered at: Sydney

Delivered on: 2 May 2019

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Ms S Strugnell of Minter Ellison

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3058 of 2016

SALMAN ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Provisional) (Class VC) (Graduate work stream) visa (Skilled visa).

Background

1. To have been entitled to a Skilled visa the applicant had to satisfy, among other things, the criteria specified in cl.485.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provides:

   When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority.

2. “Skilled occupation” is defined in reg.1.15I(1) of the Regulations as follows (emphasis in original):

   A skilled occupation, in relation to a person, means an occupation of a kind:

   (a)that is specified by the Minister in an instrument in writing to be a skilled occupation; and

   (b)if a number of points are specified in the instrument as being available--for which the number of points are available; and

   (c)   that is applicable to the person in accordance with the specification of the occupation.

3. On 30 August 2015 the applicant applied for a Skilled visa.[1] In that part of his form of application that asks: “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?” the applicant responded “No”.[2] The applicant completed that part of the form of application that appears under the heading: “Applicant skills assessment” as follows:[3]

   Nominated Occupation                Developer Programmer

   Name of assessing authority       Australian Computer Society

   Date of Skills Assessment            29 AUG 2015

   Reference/Receipt number          AB007

   [1] CB1-14

   [2] CB1

   [3] CB12

4. By letter dated 12 October 2015 a delegate of the Minister requested the applicant provide additional information within 28 days, including a “Receipt and Outcome—Skills assessment—Colour/Certified Copy”.[4] The applicant responded by email sent on 2 November 2015 in which he stated as follows (errors in original):[5]

   I need further time frame to provide you additional documents due to some family problems which has slowed down my ability to response and act on time. Meanwhile, I will send you what I have collected so far. Please see the attachment with this email. All documents has been verified by my local JP at Mt Druitt.

   [4] CB24

   [5] CB31

5. On 5 November 2015 the delegate sent an email to the applicant notifying him that a number of documents, including the “Skills Assessment”, are “outstanding and due on 9 November 2015”.[6] The applicant responded by email sent on 10 November 2015. The applicant attached a number of documents to that email, and requested “a few more days to finalize [sic] my medical tests as I have been going through a family problem and wasn’t ready to do medical yet due to the stress and panic.”[7] On 10 November 2015 the delegate sent the applicant the following email:[8]

   [6] CB45

   [7] CB46

   [8] CB74

   Following on from our conversation this morning, this is a courtesy email to advise that at time [sic] you applied for your visa application we did not receive your Skills Assessment receipt for your nominate [sic] occupation of Developer Programmer from the Australian Computer Society as stated in your application.

   You advised that you have not yet applied for your Skills Assessment outcome.

6. On 10 November 2015 the applicant provided the delegate with “the skill [sic] assessment receipt”, stating that he had forgotten to attach it in his previous email.[9] The receipt to which the applicant referred was one purportedly issued by “ACS Australian Computer Society” (ACS).[10] The document expresses thanks “for your skills application”, noting that it “has been submitted”, and provides a reference number. On the same day the delegate sent an email to the applicant stating there was “no date on this Skills Assessment receipt”.[11] The delegate requested the applicant provide to the delegate by “close of business” the “Skills Assessment receipt for application for a Skills Assessment outcome ensuring the date of application for the skills assessment is stated on the receipt of application which is a requirement at time of application”.[12]

   [9] CB75

   [10] CB76

   [11] CB77

   [12] CB77

7. The applicant sent a further two emails to the delegate on 10 November 2015. In his first email the applicant said he did not get any other receipt “through my email from ACS”, and that he will call ACS to see if they could re-send a copy of the invoice for him to send to the delegate.[13] In his second email, the applicant said that “due to the family issues” he was “stressed out and didn’t pay attention to my credit card balance” which led to “late payment approval”.[14] The applicant attached a document which appears to have been issued by ACS headed “In Progress”. Next to the words “Date Received” there is printed “2015-11-10-10:54:00”.[15] Towards the bottom of the document, the following is stated:

   Your online application has been received by the ACS and is in the progress of being allocated to progress to the next stage.

   [13] CB78

   [14] CB80

   [15] CB81

8. On 12 November 2015 the delegate refused to grant the applicant a Skilled visa because the applicant lodged a skills assessment after the applicant applied for the Skilled visa and, for that reason, the applicant did not satisfy cl.485.223 of Schedule 2 to the Regulations.

The Tribunal’s reasons

1. The Tribunal considered that the question before it was whether the applicant met the requirements of the primary criteria for the granting of a Skilled visa, which included cl.485.223 of Schedule 2 to the Regulations.

2. The Tribunal noted that:[16]

   a)cl.485.223 of Schedule 2 to the Regulations requires that when an application is made it is accompanied by evidence that the applicant has applied for an assessment of the applicant’s skills for the “nominated skilled occupation” by a “relevant assessing authority”;

   b)the definition of “skilled occupation” and “relevant assessing authority” has the meaning given by reg.1.15I to the Regulations;

   c)in his application for a Skilled visa the applicant nominated the occupation “Development Programmer” which is a specified skilled occupation, the relevant assessing authority for which is the ACS;

   d)in his online visa application form, the applicant indicated he had not applied to a relevant assessing authority for an assessment of his skills in his nominated occupation, although the applicant also indicated the date of skills assessment was 29 August 2015, and provided a reference number;

   e)the ACS issued a skills assessment on 11 March 2016 indicating that the applicant’s skills assessment had been assessed as suitable for the occupation of Development Programmer, but that the ACS also indicated that it received the application for assessment on 10 November 2015;

   f)at the hearing before the Tribunal the applicant and his wife provided details of the applicant’s personal circumstances which included having to travel to his home country for several months because his grandmother was ill, and also because of his getting married there; and

   g)the Tribunal explained to the applicant at the hearing there is no provision in cl.485.223 of Schedule 2 to the Regulations that permits the Tribunal to take into account any extenuating circumstances where the requirements of that clause have not been met.

   [16] CB155-156

3. The Tribunal next noted that the evidence before the Tribunal indicates that the applicant applied to the ACS on 10 November 2015 which is well after the date the applicant applied for the Skilled visa. In those circumstances, the Tribunal found that when the application was made, the applicant had not made an application for a skills assessment. And acknowledging that the applicant now had a suitable skills assessment for his nominated skilled occupation from the relevant assessing authority, the Tribunal was not satisfied that when the applicant applied for a Skilled visa, that application was accompanied by evidence that the applicant had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority.

Grounds of application

1. The applicant’s grounds of application are as follows (errors in original):

   1. The Administrative Appeal Tribunal (Tribunal) wilfully ignored relevant material in a way that affected the exercise of powers vested in it that amounted to an error of law.

   Particulars

   The Tribunal did not properly consider information provided in relation to my skills assessment as required by cl.485.223 of the Migration Regulations 1994.

   2. With regard to the 1 above, the Tribunal made a jurisdictional error, having no power to make the decision invalid by an error of law.

2. The applicant, who is not legally represented, also relies on an affidavit he made on 31 May 2017. The applicant there deposed that his application for a Skilled visa was refused by the Tribunal in circumstances where the applicant produced evidence that “due to personal circumstances, family pressure and stress I couldn’t pay attention to any communication between me and the DIBP and I had to go overseas (Pakistan)”. The applicant also refers to the Department of Immigration and Border Protection (Department) having granted the applicant a different subclass visa. The applicant further deposed that the ACS assessed the applicant as having suitable skills, that the applicant provided the assessment to the Tribunal, but the Tribunal did not consider the applicant’s evidence and circumstances carefully. The applicant further deposed that the Tribunal’s decision lacked fairness, consistency, and rationality, and that the Tribunal failed in its duty to uphold the applicant’s legitimate expectation by intentionally choosing to ignore material relevant to the applicant’s matter, including mistakes made by the Department “on multiple occasions”.

3. At the hearing before me the applicant also tendered a statutory declaration which I marked MFI 1. In that statutory declaration the applicant says that the Tribunal informed the applicant that he should seek an expert opinion. On the basis of that suggestion, the applicant says that sometime in 2017 (I cannot decipher the hand written date contained in the statutory declaration) he contacted an officer of the Department who advised the applicant he could apply for a Skilled visa while in Australia, but that advice was wrong because the applicant does not hold a substantive visa.

4. At the hearing before me, I informed the applicant that the matters the applicant set out in the statutory declaration and what the applicant said to me about those matters, were not relevant to the issues I had to consider. I informed the applicant that the Tribunal was of the view that the requirement that the applicant provide evidence that an application for a skills assessment had been made by the time the applicant had applied for the Skilled visa was one that had to be complied with and, if it had not been complied with then there is nothing the Department or the Tribunal could do about that, however compelling the reasons the applicant might have for not satisfying the condition. I informed the applicant that the question I have to decide is whether the Tribunal was incorrect, and I invited the applicant to make submissions about that. The applicant did not advance any submissions on that question.

5. I do not accept the applicant’s claims that the Tribunal failed to take into account information relating to the applicant’s circumstances, or any other information the applicant provided to the Tribunal. As I have already noted, the Tribunal referred to the applicant and his wife providing evidence about the applicant’s circumstances, to other matters such as the correspondence that preceded the delegate’s decision not to grant the Skilled visa, to the applicant’s having applied for a skills assessment on 10 November 2015, and also to the ACS assessing the applicant as having suitable skills. The Tribunal, however, found that those circumstances were not relevant to whether cl.485.223 of Schedule 2 to the Regulations were satisfied; and that is because it was of the view that there is no provision in that clause that permits the Tribunal to take into account extenuating circumstances – that is, circumstances that reasonably explain an applicant’s failure to provide evidence of having applied for a skills assessment at the time an applicant applies for a Skilled visa application, or which reasonably explain the applicant’s failure to apply for a skills assessment at the time of application. The Tribunal was correct in so finding.

6. The Minister referred to Anand v Minister for Immigration and Citizenship,[17] noting that it was there suggested that there may be some flexibility in terms of the temporal connection between when the evidence of an application for a skills assessment was provided and when the application for a skills assessment was made. The Minister submitted that even if it accepted that the notion of an application for a visa being accompanied by evidence of an application for a skills assessment imports a degree of flexibility, such flexibility is to be measured in days, not in terms of the two and a half months that passed between the day on which the applicant applied for a Skilled visa and the day on which the applicant applied for a skills assessment. I agree with that submission.

   [17] [2013] FCA 1050

7. In any event, the Full Federal Court examined the notion of “accompanied by” as that expression is contained in cl.485.223 in Khan v Minister for Immigration and Border Protection. Tracey J (with whose reasons Charlesworth and Derrington JJ agreed) said:[18]

   The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

   The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

   The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.

   [18] [2018] FCAFC 85, [15]-[17]

8. The Tribunal was correct to find that the applicant did not satisfy cl.485.223 of Schedule 2 to the Regulations.

9. That, finally, leaves the matters stated in the applicant’s statutory declaration. As I informed the applicant, the dealings the applicant had with the Department after the Tribunal hearing are not relevant to whether the Tribunal made any jurisdictional error in affirming the delegate’s decision not to grant the applicant the Skilled visa.

Conclusion and disposition

1. The Tribunal made no jurisdictional error. I propose, therefore, to order that the application be dismissed. I propose to deal with the question of costs at the time I pronounce my order.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 2 May 2019