Ankush v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 364
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ankush v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 364
File number: DNG 15 of 2022 Judgment of: JUDGE YOUNG Date of judgment: 19 April 2023 Catchwords: MIGRATION – application for review of a decision of the AAT to affirm a decision to refuse a provisional class VC visa – where the applicant failed to show that his skills for his nominated profession had been assessed by a relevant authority – where the applicant failed to satisfy a mandatory criterion for the visa – where there was a statutory rule change applying to visas applied for after the applicant made his application - where the Tribunal offered the applicant oral reasons for its decision – where the applicant claimed there had been procedural unfairness – the court satisfied there was no procedural unfairness and the grounds are not made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 368D
Migration Regulations 1994 (Cth) r 485-224
Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 21 April 2023 Place: Darwin Solicitor for the Applicant: Self- Represented Litigant Counsel for the Respondent: Ms Vanderwolf Solicitor for the Respondent: Clayton Utz ORDERS
DNG 15 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANKUSH
Applicant
AND: MINISTER FOR IMMIGRATION, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
21 APRIL 2023
THE COURT ORDERS THAT:
1.The Application filed 21 July 2022 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Young
This is an application for judicial review of an oral decision made by the Administrative Appeals Tribunal on 21 June 2022 to affirm a decision of the Minister's delegate to refuse the applicant a skilled provisional class VC visa. The background to the matter is that on 29 September 2018 the applicant applied for such a visa. The profession or skill to which the applicant's visa related was that of a chef.
Under Regulation 485.224 of the migration regulations applying at that time, evidence that the applicant's skills for the nominated skilled occupation had been assessed in the previous three years by a relevant assessing authority as suitable for that occupation was required. The applicant was unable to provide such an assessment and the application for the visa was refused. The decision was not a discretionary one, but in view of the applicant's failure to satisfy a mandatory criterion for the visa, the application was necessarily rejected. The Tribunal explained those reasons in an oral decision to the applicant.
The application for judicial review outlines three grounds of review and I will summarise them rather than repeat the entirety of them. The first ground contains in substance a recitation of the background of the applicant, which is not relevant for present purposes, but in ground 1 the applicant concluded by asserting that the review either failed to address relevant considerations or failed to engage with his submissions in order to provide a meaningful review, and also that there had been a rule change. It is rather a mixed ground, but doing the best I can, I will deal with the matters there.
I should deal first of all with one of the complaints that is also raised, which is that the applicant was deprived of procedural fairness by the Tribunal's decision to simply give oral reasons for its decision. There is a statutory justification for that course in section 368D of the Migration Act which provides that a Tribunal may adopt that course, subject to certain necessary elements being satisfied. There is no indication that those elements were not satisfied. On the contrary, having read the transcript of the hearing produced by the Minister, I am satisfied that those elements were satisfied.
It is also the case that the section provides that an applicant may seek to have reasons provided in writing on application and there is no indication that the applicant made such an application so I am not satisfied that there is any procedural unfairness arising from that. In relation to another point that the applicant makes, which is that the Tribunal in its hearing in June 2022 overlooked a rule change taking effect from 11 March 2019, the Minister submits, and I accept this submission, that that rule change in the relevant statutory instrument is expressed in terms to apply only to applications made from or after 11 March 2019, and the criterion applying to the applicant's application was relevantly that a suitable skills assessment was required to be provided at the time of the application, notwithstanding that the subsequent instrument removed that requirement.
In relation to ground 2, it is asserted that the Tribunal failed to acknowledge that the applicant had applied for a skills assessment prior to lodgement of the application, and indeed, as he said, had deliberately chosen not to provide it, and the reason for that is evidently the one given to me by the applicant today – that is, that the assessment was not one of suitability. It is clear from reading the transcript of the Tribunal's reasons that it was aware of that factor because the applicant’s agent had told the Tribunal that he had made the application but that he had decided not to provide it, as I say, for the reason that was explained today, which was that it was not suitable and would not satisfy the criteria.
Ground 3 is a general statement relating to a lack of natural justice or procedural fairness, and relates to the oral reasons which I have just referred to. The applicant also said that he was unable to adequately put his case forward as he was "too stressed, nervous, and did not think he needed to record the hearing by taking notes during the hearing". For reasons I have given, I am not satisfied that there was any relevant unfairness in the way the hearing was conducted and I note from the transcript that Mr Ankush was assisted by someone who is recorded in the transcript as being an advisor, which I take to be a reference to a migration agent.
The fourth ground relates to an assertion by the applicant that the Tribunal failed to consider compelling circumstances for the applicant to remain in Australia, including his family circumstances, which I have no doubt are of great importance. However, the Tribunal member was not required to consider the applicant's family circumstances in the absence of the applicant's inability to satisfy a mandatory criteria for the grant of the visa, so that ground is not to the point. In relation to ground 5, there is no indication of how the decision was irrational or lacked an evident and intelligible basis. On the contrary, I am satisfied that it had a rational basis. In the circumstances, the application is dismissed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young. Associate:
Dated: 19 April 2023
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