Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2020] FCA 1731

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:

  1. 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

  2. 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.

  3. 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…

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AGLC
Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1731
Case
[2020] FCA 1731
Decision Date

CaseChat Overview and Summary

The appellant in this case sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) affirming the refusal of a Skilled (Provisional) (Class VC) Temporary Graduate (Subclass 485) visa. The appellant, who had applied for the visa, argued that the AAT had erred in its decision-making process. The case was heard by the Federal Circuit Court of Australia, which upheld the AAT's decision. The Federal Court of Australia was subsequently asked to review the decision of the Federal Circuit Court.

The primary legal issue before the court was whether the AAT's decision was affected by jurisdictional error. The appellant contended that the AAT failed to consider the refusal to recognise her engineering degree from the university at which she studied, which may have contributed to the conclusion that she did not have the required academic knowledge and competencies in the field of electrical engineering. The appellant argued that this failure constituted a jurisdictional error, rendering the AAT's decision invalid.

The court dismissed the appeal and held that there was no jurisdictional error in the AAT's decision. The court found that the AAT had properly considered the evidence presented by the appellant, including the results of the "Informal Review" by Engineers Australia, and had correctly concluded that the appellant did not satisfy the criteria set out in clause 485.224 of the Migration Regulations. The court held that the appellant had failed to provide evidence of a suitable skills assessment in her nominated occupation of Electronics Engineer, as required by clause 485.224(1) of the Migration Regulations. As a result, the court found that the AAT's decision was not affected by jurisdictional error.

The court dismissed the appeal and ordered that the appeal be dismissed with costs. This decision reinforces the importance of providing accurate and relevant evidence to support a visa application and the need for applicants to meet the specific criteria set out in the Migration Regulations.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.