Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2019] FCCA 3427

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMINI v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2019] FCCA 3427

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.474

Applicant:

NAZANIN AMINI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2042 of 2018

Judgment of:

Judge Emmett

Hearing date:

25 November 2019

Date of Last Submission:

25 November 2019

Delivered at:

Sydney

Delivered on:

25 November 2019

REPRESENTATION

Applicant:

Appeared in person

Solicitor for the Respondents:

Mr John Tsaousidis
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2042 of 2018

NAZANIN AMINI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By application filed on 24 July 2018, the first respondent seeks judicial review of a decision of the Administrative Appeals Tribunal, dated 2 July 2018 (“the Tribunal”).
The applicant confirmed that she attended a directions hearing before a registrar of this Court on 16 August 2018, on which occasion she was given leave to file and serve an amended application, any further evidence, and submissions in support. The applicant was also provided with the contact details of legal services providers and translating and interpreting services, should she require them.
The applicant was unrepresented before the Court this morning.
I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider her claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision of the Tribunal was made according to law. I explained that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision was affected by a mistake that goes to its jurisdiction. I explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself establishes such a mistake, and that if the findings and conclusions of the Tribunal were open to it, then the fact that the applicant may disagree with the result is not sufficient to establish jurisdictional error.
The first respondent has accurately summarised the background of this material and the Tribunal’s decision as follows:
“Background
2. The applicant is a female citizen of Iran who applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa in the Graduate Work stream on 16 October 2017.2
3. In her visa application form, the applicant declared that her nominated skilled occupation was Electronics Engineer (ANZSCO 233411). The relevant assessing authority for this skilled occupation was Engineers Australia as specified in the legislative instrument IMMI 17/072…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amini v Minister for Immigration, Citizenship, Migrant Servi...

Details

AGLC: AMINI v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3427
Case: [2019] FCCA 3427
Decision Date: 25 November 2019

CaseChat Overview and Summary

The applicant, a citizen of Iran, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her Skilled (Provisional) (Class VC) (Subclass 485) visa application. The applicant had nominated Electronics Engineer as her skilled occupation but provided a skills assessment from Engineers Australia for the occupation of Engineering Technologist. The delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the visa on the basis that the skills assessment was not for the nominated occupation, a requirement under clause 485.224 of the Migration Regulations 1994.

The AAT was required to determine whether the applicant satisfied the primary criteria for the visa, specifically clauses 485.223 and 485.224 of the Regulations. Clause 485.223 required evidence of an application for a skills assessment for the nominated occupation, while clause 485.224 mandated that the applicant's skills must have been assessed by a relevant authority as suitable for that nominated occupation. The AAT had found that the applicant satisfied clause 485.223 by providing evidence of her application for a skills assessment.

The court found that the AAT had correctly applied the law. While the applicant had applied for a skills assessment for Electronics Engineer, the assessment provided by Engineers Australia, and confirmed by an informal review, found her skills suitable for the occupation of Engineering Technologist, not Electronics Engineer. The AAT correctly concluded that this did not satisfy clause 485.224, as the assessment was not for the nominated occupation. The court noted that the AAT had no discretion to waive this criterion, and the applicant's disagreement with the legislative requirements did not constitute an error on the part of the Tribunal. The application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The first respondent has accurately summarised the background of this material and the Tribunal’s decision as follows:“Background2. The applicant is a female citizen of Iran who applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa in the Graduate Work stream on 16 October 2017.23. In her visa application form, the applicant declared that her nominated skilled occupation was Electronics Engineer (ANZSCO 233411). The relevant assessing authority for this skilled occupation was Engineers Australia as specified in the legislative instrument IMMI 17/072 made under regulation 2.26B.4. With her visa application, the applicant provided the details and a copy of a receipt issued by Engineers Australia dated 11 October 2017 as evidence of her application for an assessment of her skills for the nominated skilled occupation by a relevant assessing authority in satisfaction of clause 485.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).5. On 10 November 2017, the applicant provided to the Department a positive skills assessment result dated 1 November 2017, issued by Engineers Australia for the occupation of Engineering Technologist (ANZSCO 233914).6. On 27 November 2017, a delegate of the first respondent refused to grant the visa because the applicant did not satisfy clause 485.224(1) of the Regulations as the skills assessment in which the applicant was assessed as suitable was not in the skilled occupation nominated in the visa application, that of Electronics Engineer. Clause 485.224 of Schedule 2 to the Regulations relevantly provided: (1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.7. On 29 November 2017, the applicant applied to the AAT for a review of the delegate's decision.8. One 25 June 2018, the applicant appeared before the AAT. The applicant submitted to the AAT the results of an Informal Review conducted by Engineers Australia, dated 13 April 2018, which concluded that she lacked the required academic knowledge in the electrical engineering field and had not demonstrated sufficient competencies in this nominated field.9. The AAT affirmed the decision of the delegate not to grant the applicant the visa on 29 June 2018.The decision of the Tribunal10. The AAT stated at [6] that the issue in the present case was whether the applicant met clauses 485.223 and 485.224 which were primary criteria for the grant of a Subclass 485 visa in the Graduate Work Stream.11. At [7]-[11], the AAT considered the relevant legislative provisions and the material before it including evidence from the applicant to find that that the applicant satisfied clause 485.223:11.1 The AAT noted that the applicant's nominated occupation as per her visa application was Electronics Engineer which was a skilled occupation specified in IMMI 17/072. IMMI 17/072 also specified that the relevant assessing authority for this occupation was Engineers Australia: [9].11.2 The AAT noted that in her visa application, the applicant had responded 'Yes' to the question regarding whether she had applied for a skills assessment and provided the receipt number of that application and the date that application was made, being 11 October 2017, [10].11.3 The AAT found at [11] that the applicant's visa application was accompanied by evidence of an application for a skills assessment for her nominated skilled occupation by a relevant assessing authority as required under clause 485.223.12. At [12]-[15], the AAT considered the relevant legislative provisions and the material before it including evidence from the applicant to find that the applicant did not meet the requirements of clause 485.224:12.1 The AAT noted the favourable skills assessment for General Skilled Migration purposes from Engineers Australia which the applicant provided to the Department on 10 November 2017 was for the occupation of Engineering Technologist, not Electronics Engineer. The AAT further noted that the assessment stated it was based on the applicant's tertiary engineering qualifications obtained both in Iran and Australia: [13].12.2 At the hearing, the applicant told the AAT that she had applied to Engineers Australia for a review of its skills assessment and provided a copy of the review result issued by Engineers Australia dated 13 April 2018. The AAT noted the conclusion of Engineer Australia in its review result letter that its original decision of 1 November 2017 was correct and the applicant had skills suitable for Australian migration purposes in the occupation of Engineering Technologist: [14].12.3 Accordingly, the AAT found at [15] that the applicant did not meet the requirements of clause 485.224.12.4 The AAT noted at [15] that it explained to the applicant that it had no discretion and must apply the law. It further noted the applicant's response which was that she understood the AAT's position but nonetheless felt it was unfair as she clearly had recognised qualifications in engineering and will now have to independently pursue a points-tested permanent residence visa application for which she was currently in the process of preparing the requisite documentation.13 Having considered all of the material before it, the AAT found at [16] the applicant did not satisfy the criteria for the grant of a Subclass 485 visa and affirmed the delegate's decision.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Both the applicant and the first respondent agreed that, in the circumstances, the Court could adopt without further paraphrasing the submissions provided by the first respondent as follows:“Consideration17. The grounds of the application when read together allege that the AAT committed jurisdictional error because regardless of the result of the relevant assessing authority, the applicant was "still qualified as an engineer", she studied as an engineer in Australia and her application was well-documented and strong enough for a visa grant. She also argues that there should be a law permitting her to reapply or resubmit her application for the visa.18. The first respondent submits that the AAT has correctly applied the law in assessing the applicant's review application:18.1 The Act prescribes classes of visas for which specific criteria for grant of the visa are set out in Schedule 2 of the Regulations (see section 31(3) of the Act and regulation 2.03 of the Regulations). For a Skilled (Provisional) (Class VC) (Subclass 485) visa, the relevant criteria are set out under Part 485 of Schedule 2 of the Regulations. For the Graduate Work stream of the visa, the applicant must satisfy each of the primary criteria set out under Part 485.22.18.2 The AAT identified at [6] that the relevant issue in the present case was whether the applicant satisfied the criteria in clauses 485.223 and 485.224.18.3 Based on the material before it, the AAT found that the applicant satisfied clause 485.223: [7]-[11].18.4 With regard to clause 485.224, subclause (1) required that the applicant’s skills for her nominated skilled occupation had been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.18.5 At [8], the AAT correctly identified the relevant legislative instrument which specified the skilled occupation and the relevant assessing authority.18.6 However, critically for the applicant, her skills assessment and the subsequent review letter issued by the Engineers Australia stated that her skills were suitable for the occupation of Engineering Technologist, not her nominated occupation of Electronics Engineer. In other words, her skills were assessed to be not suitable for her nominated occupation.18.7 The AAT correctly found that the applicant did not meet clause 485.224.19. To the extent that the applicant expresses disagreement with the requirements of clause 485.224 or suggests that she should be granted the visa despite not satisfying this criterion, this is not capable of establishing any error on the part of the AAT. The AAT had no discretion to waive that criterion or to find that the visa should be granted in circumstances where it was not satisfied.” Those submissions are correct and I agree with them in their entirety. The Tribunal noted in its decision record that it had explained to the applicant that it had no discretion and must apply the law, in circumstances where the evidence in support of her application to the Tribunal was that she had skills suitable for Australian migration purposes in the occupation of “Engineering Technologist”. The applicant’s nominated occupation was “Electronics Engineer”. In the circumstances, it was open to the Tribunal to find that the occupation of “Engineering Technologist” did not satisfy the criteria required for a nominated occupation of “Electronics Engineer”.