Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1731
•1 December 2020
FEDERAL COURT OF AUSTRALIA
Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1731
Appeal from: Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 3427 File number: NSD 2025 of 2019 Judgment of: ALLSOP CJ Date of judgment: 1 December 2020 Catchwords: MIGRATION – appeal from judgment of the Federal Circuit Court of Australia – judicial review of a decision of the Administrative Appeals Tribunal affirming refusal of Skilled (Provisional) (Class VC) Temporary Graduate (Subclass 485) visa – whether Tribunal decision affected by jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 31, 48, 49, 63, 65, 189, 351, 501, 501A, 501B
Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 (Cth)
Migration Regulations 1994 (Cth) rr 2.03, 2.26B, cll 485.223, 485.224
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 42 Date of hearing: 6 November 2020 Counsel for the First Appellant: The appellant appeared in person Solicitor for the Second Respondent: Mr A Gardner of MinterEllison ORDERS
NSD 2025 of 2019 BETWEEN: NAZANIN AMINI
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ALLSOP CJ
DATE OF ORDER:
1 DECEMBER 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
This is an appeal from the decision of a judge of the Federal Circuit Court in Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor & Anor [2019] FCCA 3427 dismissing the appellant’s application for judicial review of a decision of the second respondent (Tribunal) which affirmed an earlier decision of a delegate of the first respondent (Minister) not to grant the appellant a Skilled (Provisional) (Class VC) Temporary Graduate (Subclass 485) visa pursuant to s 65 of the Migration Act 1958 (Cth).
Factual background
The appellant is a citizen of the Islamic Republic of Iran. She first entered Australia on a student visa in 2014. She satisfied the course requirements for the degree of Masters of Engineering Management at the University of Technology Sydney in 2016 and then completed a Diploma in Leadership and Management in 2017. Prior to coming to Australia, she completed an undergraduate degree in Computer Hardware Technology Engineering in 2013 in Iran.
On 16 October 2017, the appellant lodged an application for a Skilled (Provisional) (Class VC) Temporary Graduate (Subclass 485) visa in the Graduate Work stream (AB: 21-32). In her visa application form, the appellant declared her nominated skilled occupation as Electronics Engineer. This was chosen from a drop down box online immediately adjacent to the alternative choice of Engineering Technologist. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) code for that occupation is 233411. As specified in legislative instrument Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 (Cth), made under regulation 2.26B of the Migration Regulations 1994 (Cth), the relevant assessing authority for that skilled occupation is Engineers Australia.
With her visa application, the appellant provided a copy of a receipt issued by Engineers Australia for a “Migration Skills Assessment Competency Demonstration Report” (Competency Demonstration Report) dated 11 October 2017 (AB: 52) as evidence of an application for a skills assessment for her nominated occupation by the relevant assessing authority as required for the grant of this visa under cl 485.22 of the Migration Regulations, the specific requirements of which I will return to in a moment.
On 10 November 2017, the appellant then provided to the Department of Immigration and Border Protection (Department) a copy of a Competency Demonstration Report issued by Engineers Australia dated 1 November 2017 (AB: 67). Relevantly, the Competency Demonstration Report contained a suitable skills assessment for the occupation of Engineering Technologist (ANZSCO 233914) but not for her nominated occupation of Electronics Engineer.
On 27 November 2017, a delegate of the Minister refused the appellant’s application for a Skilled (Provisional) (Class VC) Temporary Graduate (Subclass 485) visa in the Graduate Work stream. The delegate relevantly found that whilst the appellant had provided evidence of a suitable skills assessment by the relevant assessing authority, that suitable skills assessment was not in the skilled occupation nominated by her at the time of her application for the visa. On that basis, the delegate found that the appellant did not satisfy the criteria for the grant of the visa stipulated in cl 485.224(1) of the Migration Regulations (AB: 80-82).
Relevant statutory provisons
Section 31(1) of the Migration Act states that there are to be prescribed classes of visas. Section 31(3) of the Migration Act further states that the regulations may prescribe criteria for a visa or for visas of a specified class.
For this purpose, r 2.03(1)(a) of the Migration Regulations states that the prescribed criteria for the grant to a person of a visa of a particular class are (inter alia) the primary criteria set out in a relevant Part of Schedule 2 to the Regulations.
Clause 485.22 of Schedule 2 to the Migration Regulations duly sets out the primary criteria for a Subclass 485 visa in the Graduate Work stream, being the visa for which the appellant as applied. Relevantly, the primary criteria include those set out in cl 485.223 and 485.224(1).
Clause 485.223 stipulates as follows:
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.
Clause 485.224 stipulates as follows:
(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.
Relevantly, r 2.26B(1) of the Migration Regulations states that the Minister may, by instrument in writing, specify a person or body as the relevant assessing authority for a skilled occupation for the purposes of a migration skills assessment. Regulation 2.26B(2) states that the standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.
As set out above, legislative instrument IMMI17/072 duly stipulates that the relevant assessing authority for appellant’s nominated skilled occupation of Electronics Engineer is Engineers Australia.
Tribunal decision
On 29 November 2017, the appellant applied to the Tribunal for a review of the delegate’s decision (AB: 83-87).
On 25 June 2018, the appellant appeared unrepresented at a hearing before the Tribunal to give evidence and present arguments (AB: 107-110). Among other things she submitted as evidence the results of an “Informal Review” of her skills assessment by Engineers Australia dated 13 April 2018. Relevantly, that review upheld the original decision made by the authority on 1 November 2017 noting that the appellant was ‘lacking the required academic knowledge in the electrical engineering field’ and that she ‘ha[d] not demonstrated sufficient competencies in this nominated occupation field’ (being that of Electronics Engineer) (AB: 111-112). Whether those conclusions arose in part or in whole because of the refusal to recognise the engineering degree from the university at which the applicant studied is not clear.
On 29 June 2018, the Tribunal affirmed the decision of the delegate not to grant the appellant the relevant visa.
In its statement of decision and reasons, the Tribunal stated the question before it as being whether the appellant satisfied cl 485.223 and 485.224 of the Migrations Regulations, being among the primary criteria for the grant of a Subclass 485 visa in the Graduate Work stream (AB: 116 [6]). To answer that question the Tribunal considered the relevant legislative provisions and materials before it, including the additional evidence submitted by the appellant as set out above (AB: 115-118).
The Tribunal found that the criteria set out in cl 485.223 were indeed satisfied (AB 116-117 [7]-[11]). However, it found that the criteria set out in cl 485.224 were not (AB: 117 [12]-[16]).
In respect of the former finding, the Tribunal’s reasons were stated as follows (AB: 116-117 [7]-[11]):
Clause 485.223 requires that, when the visa 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’.
The term ‘skilled occupation’ has the meaning given by r.1.15I of the Regulations: r.1.03 of the Regulations. An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available – for which the number of points available; and, it is applicable to the person in accordance with the specifications of the occupation. The term ‘relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations: r.103 of the Regulations. In this case, the relevant legislative instrument is IMMI 17/072.
Having reviewed [the appellant]’s Subclass 485 visa application in the Department’s file, the Tribunal is satisfied that she nominated the occupation of Electronics Engineer. This is a specified skilled occupation for the purposes of IMMI 17/072. For that occupation, the relevant assessing authority is Engineers Australia.
At the time she lodged her application in the Graduate Work stream, [the appellant] responded ‘Yes’ to the question as to whether she had applied for a skills assessment. Furthermore, she indicated that she applied for a skills assessment to Engineers Australia on 11 October 2017 and provided the relevant receipt number.
Accordingly, as [the appellant]’s Subclass 485 visa application, was accompanied by evidence of an application for a skills assessment for her nominated skilled occupation by a relevant assessing authority, she satisfied the requirements of cl.485.223 of Schedule 2 to the Regulations.
In respect of the latter, the Tribunal’s reasons were stated as follows (AB: 117 [12]-[16]):
Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation…
As noted in the delegate’s decision, on 10 November 2017, [the appellant] provided the Department with a favourable skills assessment for General Skilled Migration Purposes from Engineers Australia dated 1 November 2017. However, the assessment was not in her nominated occupation of Electronics Engineer: it was issued in respect of the occupation of Engineering Technologist. The assessment states it is based on [the appellant]’s tertiary engineering qualifications obtained both in Iran and Australia.
During the hearing, [the appellant] told the Tribunal that she had applied to Engineers Australia for a review of its skills assessment made 1 November 2017. She provided the Tribunal with a copy of the review issued by Engineers Australia dated 13 April 2018. The letter from Engineers Australia concludes that its original decision made on 1 November 2017 is correct and that, accordingly, she has skills suitable for Australian migration purposes in the occupation of Engineering Technologist.
In the circumstances, the requirements of cl 485.224 of Schedule 2 to the Regulations are not met. The Tribunal explained to [the appellant] that it has no discretion and must apply the law. [The appellant] stated she understands the Tribunal’s position in this regard but, nonetheless, ‘feels it is unfair’ as she clearly has recognised qualifications in engineering and will now have to independently pursue a points-tested permanent residence visa application. She added that she is in the process of collating requisite documentation to pursue this pathway.
On the basis of the above findings, the Tribunal finds that [the appellant] does not satisfy the criteria for the grant of a Subclass 485 visa.
Having found that the appellant did not satisfy this primary criteria for the grant of the visa, the Tribunal affirmed the decision of the Minister’s delegate to refuse her a Skilled (Provisional) (Class VC) Temporary Graduate (Subclass 485) visa (AB: 117 [16]).
Application for judicial review
By application filed on 24 July 2018, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. In that application, the appellant pleaded two grounds of review (reproduced as stated therein) (Judgment: [6]):
The tribunal committed jurisdictional error because regardless of the result of Engineers Australia’s Assessment and regardless of nominant occupation, I’m still qualified as an Engineer and I studied in this country for a while as an Engineer. It should be law/way to give me permission to re-apply/re-submit the application for graduate Work Stream Visa.
Moreover, my application were well-documented & it was strong enough to get the approval on graduate visa, the only reason was the difference between the skilled assessment receipt & the result of the assessment.
On 28 November 2019, the appellant appeared unrepresented before a hearing where the primary judge invited her to make submissions in support of her application for judicial review. The primary judge’s reasons relevantly include the following remarks as to oral submissions made by the appellant (Judgment: [6]-[8]):
The applicant confirmed that she had no further documents to provide to the Court and that she continued to rely on the grounds of her application, filed on 24 July 2018…
I invited the applicant to say whatever she wished in support of her application. The applicant conceded that “the law was the law” and that she understood that the distinction drawn by the Tribunal in relation to her assessment as an Engineering Technologist as opposed to an Electronics Engineer. The applicant said she understood that in those circumstances, she was outside the relevant mandatory criteria. The applicant also understood and agreed with the submissions of the first respondent.
The applicant then requested the Court to enable her to have a further assessment. I explained that the Court does not have power to grant her that relief. The only relief this Court can grant is to remit the matter to the Tribunal for a decision to be made according to law if the Court is satisfied that the decision is affected by a jurisdictional error.
Both the appellant and the Minister then agreed that, in the circumstances, the Court could adopt verbatim the Minister’s submissions which were as follows (Judgment: [9]) (emphasis in original):
Consideration
17. 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 [Minister] 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 [sic] 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 not be 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.
The primary judge then stated: ‘Those submissions are correct and I agree with them in their entirety.’ (Judgment: [10]). On that basis, following conclusion of the hearing he held that the Tribunal’s decision was without jurisdictional error and dismissed the appellant’s application with costs, providing ex tempore reasons which were later reduced to writing (AB: 121-127).
The appellant now appeals that decision to this Court.
The appeal
In her notice of appeal dated 6 December 2019, the appellant pleaded four grounds of review (reproduced as stated therein):
1.The Federal Circuit Court committed jurisdictional error, since regardless of the result of Engineer Australia’s assessment and regardless of my nominated occupation I am still qualified as an Engineer and I have got my master degree in Australia, with an Engineer background.
2.I believe there should be a law/legislation/way to permitted me to re-apply / re-submit my application for Graduated Work Stream Visa.
3.Moreover, my application for Graduated Work Stream Visa was well documented and it was strong enough to get the approval on Graduate Visa. The only reason was the difference between the skill assessment receipt and the result of the assessment.
4.I respect the law and decision that has been made. However I think the order that has been made doesn’t need to be refusal in grant the visa.
No written submissions were filed by the appellant. However, at the hearing on 6 November 2020, she was invited to say whatever she wished in support of her application. As in the Court below, she expressed that she respected the Tribunal decision and was not seeking to impugn its correctness in law. Rather, she sought to draw the Court’s attention to a “mistake” that she had made on her visa application.
As described at the outset of these reasons, the appellant had in her application declared her nominated skilled occupation to be that of Electronics Engineer. It was only after submitting that application that the appellant received a suitable migration skills assessment — albeit in the alternative skilled occupation of Engineering Technologist and not the occupation of Electronics Engineer as nominated on her application. Having not received a suitable migration skills assessment for the skilled occupation specifically nominated in her application, her application was rejected. However, having received a positive skills assessment in the alternative skilled occupation, she had sought review of the decision in the belief that there must be some way to amend her application and have it dealt with appropriately in the alternative occupation of Engineering Technologist.
The Minister relied on his written submissions dated 12 August 2020 and submitted that the appeal should be dismissed with costs for the following reasons.
First the Minister noted that grounds one to three were raised below before the Federal Circuit Court. He submitted that when read together, the grounds allege that the Tribunal committed jurisdictional error because, regardless of the result of the relevant assessing authority, the appellant was “still qualified as an engineer”, she studied as an engineer in Australia, and her application was both 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 (RS: [19]).
The Minister submits that the primary judge was correct to dismiss grounds one to three for the reasons given. He pointed out the appellant’s concession that “the law was the law”, that she understood that she was outside the relevant mandatory criteria for the visa, and that she had agreed with the submissions of the first respondent in the proceedings before the primary judge (AB: 125 at [7]). As set out above, the primary judge proceeded to reproduce the relevant paragraphs of the Minister’s submissions in her judgment and concluded that such submissions were correct and agreed with them in their entirety. Accordingly, the Minister submits that the Tribunal correctly applied the law in assessing the appellant’s review application for the same reasons provided in the Minister’s submissions in the Court below and as accepted by the primary judge (RS: [21]).
Secondly, as to ground four the Minister submits that this ground is a statement that the appellant respects the law and the decision that has been made and does not constitute a proper ground of review (RS: [23]).
In light of the surrounding circumstances illuminated by the applicant in her oral submissions the Court requested that the Minister, through his Department, consider whether the appellant could lawfully and appropriately make an application to amend her existing application, or withdraw it and substitute another, or whether she could pursuant to a discretion be permitted to file another application in the occupation of Engineering Technologist.
By letter dated 13 November 2020, the solicitor for the Minister duly wrote to the appellant advising her as follows. The Migration Act and Migration Regulations do not allow a visa applicant to amend their application once it has been validly lodged and decided. A valid application for a visa must be considered and decided unless it is subject to the limitation provisions in s 63 or withdrawn pursuant to s 49 of the Migration Act. Although the Migration Act permits a visa applicant to withdraw their application, this ceases to be available once a decision has been made on the application. In the result, there is no legislative mechanism that would enable the appellant to change her nominated skilled occupation. Where a visa applicant has skills relevant to more than one occupation on the Skilled Occupations List, the visa applicant must decide which of those occupations he or she will nominate as the nominated occupation before applying for the visa.
Moreover, the appellant was advised that a non-citizen in the migration zone who does not hold a substantive visa and, after last entering Australia, was refused a visa for which they applied, other than a refusal of a bridging visa or a refusal under s 501, 501 or 501B of the Migration Act, may only apply for a further visa of a class prescribed and not for a visa of any other class: s 48(1) of the Migration Act. There is no discretion in the Migration Act to waive this statutory bar on a further application for a visa of a kind that is not prescribed.
However, the letter otherwise drew the appellant’s attention to the Minister’s personal discretionary power under s 351 of the Migration Act. Pursuant to that power:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
The letter advised the appellant as to how she may formalise a request to the Minister under that section by reference to the particular circumstances of her case.
I turn now to consideration and disposition of the appellant’s judicial review application and then will return to say something more about the Minister’s s 351 power below.
Consideration and disposition of the appeal
The appellant has raised no ground of error in the decision of the Federal Circuit Court or Tribunal. The problem here is the inflexibility of the Act and regulations subject to s 351. The Minister’s submissions should be accepted. The appeal must be dismissed.
It is not the usual position that the Court would raise s 351 and express any view about its exercise. The Court has no authority to direct or order its exercise or non-exercise in any particular way or for any particular reason. However, it is not inappropriate that in a case such as this attention should be drawn to the consequences of the inflexibility of the Act. Ms Amini is an intelligent and articulate engineering graduate. She came to this country to enhance her qualifications, which she did by gaining a Masters in Engineering Management. She added to the life of this country. She wishes further to develop her skills. For her to do so would be likely to advance the life of this country. She speaks perfect English. If she had known of the views of Engineers Australia she could have chosen Engineering Technologist in the drop box. She did not. Now, she must leave Australia in order to make another application for a visa, if that is within her resources. If Ms Amini had known of the view of Engineers Australia she could have asked for the correct visa. Now she must undergo the expense and difficulty of leaving the country to make an application. She also faces the possibility of undergoing the indignity of immigration detention by force of s 189.
Of course the discretion is for the Minister, but Ms Amini appears an intelligent and capable person who could contribute to the life of this country. I would, most respectfully, urge the Minister to consider the operation of s 351.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop. Associate:
Dated: 1 December 2020
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