Avala-Gurayya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 351
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Avala-Gurayya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 351
File number(s): MLG 495 of 2018 Judgment of: JUDGE BURCHARDT Date of judgment: 16 May 2022 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – sole ground of application misconceiving what Tribunal actually decided – ground not made out in any event – Tribunal’s reasoning detailed and clearly justifying conclusions reached – no jurisdictional error – application dismissed. Legislation: Federal Circuit Court of Australia Act 1999 (Cth)
Migration Act 1958 (Cth),
Migration Legislation Amendment (Temporary Skilled Shortage Visa and Complimentary Reforms) Regulations 2018
Migration Regulations 1994
Cases cited: Craig v South Australia (1995) 184 CLR 163, 175 Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 11 May 2022 Place: Melbourne The Applicant: The Applicant is self-represented Advocate for the Respondents: Mr Simpson Solicitor for the Respondents: Clayton Utz ORDERS
MLG 495 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RISHI AVALA-GURAYYA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
16 MAY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application dated 27 February 2018 be dismissed.
3.The applicant pay the costs of the first respondent fixed in the sum of $7,467.
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).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTION
By application dated 27 February 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 February 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Temporary Business Entry (Class UC) (Subclass 457) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The application should be dismissed.
BACKGROUND
This background is gleaned from the Minister’s submissions together with my examination of the materials in the court book and those documents that have been filed in this Court.
The applicant, Rishi Avala-Gurayya, a male citizen from Maurtius, now aged 38 years, applied for the visa as the subject of a nomination made by his sponsor, Ibrahim Brothers Pty Ltd ATF. The Ibrahim Brothers (Ibrahim Brothers), a hospitality company which trades as Max Bar and Restaurant and listed his nominated occupation as a cook.
On 29 October 2015, the applicant lodged the visa to then Department of Immigration and Border Protection (Department) attaching certificates, including those issued by All Australian Training, being an Australian Qualifications Framework Certificate III and Certificate IV in Commercial Cookery. On the same day the Department acknowledged the receipt of lodgement of the application
On 3 December 2015, the Department transmitted a request to the applicant for more information in respect to his visa application. On 11 February 2016, a representative of the applicant transmitted to the Department documentation to support the applicant’s visa application.
At the time of the Minister’s decision, a criterion to be met for the grant of the subject visa was contained in cl 457.223(4)(da) of Sch 2 of the Migration Regulations 1994 (Regulations), which reads:
Standard business sponsorship
(4)The applicant meets the requirements of this subclause if:
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation;
It may be noted that on 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skilled Shortage Visa and Complimentary Reforms) Regulations 2018 which removed subclass 457 from the class of skills visas. The transitional provisions provide that the relevant criteria continue to apply to an application made prior to 18 March 2018, which includes the applicant's application: cl 6702(2)(c) of Sch 13 of the Regulations.
On 15 March 2016, the Minister made a decision to refuse to grant the visa. The decisional record of the Minister’s delegate (CB59-63) found the applicant did not meet the requirement in cl 457.223(4)(da) of the Regulations, as the applicant did not have the skills, qualifications and employment background (including at least 3 years relevant experience) necessary to perform the tasks of the nominated occupation.
On 29 March 2016, the applicant applied to review the delegate’s decision.
By letter dated 31 January 2017, the Tribunal invited the applicant to provide, inter alia, information so to meet the requirements of cl 457.223(4)(da).
On 14 February 2017, the applicant's representative provided email submissions and supporting documentation, including a copy of the applicant's CV; a reference letter from Mohamed Ibrahim, the director of Ibrahim Brothers; a reference letter from Nick Pistikakis, the executive chef at Max Bar and Restaurant; and photographs of the applicant purportedly working at Max Bar and Restaurant (CB91-117). The submissions did assert (CB91) “Our client has continuously worked for the current employer for more than 3 years.”
On 11 May 2017, the applicant's representative provided further email submissions and supporting documentation, statutory declarations from Mr Pistikakis and co-workers, and payslips for August 2015, September 2015, and May 2016 (CB144-170).
On 28 March 2017, the Tribunal invited the applicant to attend a hearing for his application for merits review, scheduled 12 May 2017, to give evidence and present arguments.
The applicant attended the hearing and gave evidence along with Mr Ibrahim, and Mr Pistikakis. During the hearing, the Tribunal invited the applicant to comment, pursuant to s 359AA of the Act, on various inconsistencies in the evidence in respect to his training and qualifications. The applicant indicated that he wished to respond in writing to the invitation made by the Tribunal.
On 19 May 2017, the applicant's representative provided post-hearing submissions, details regarding the registration of All Australian Training, and a further statutory declaration from Mr Pistikakis (CB175-182).
On 23 May 2017, the Tribunal transmitted to the applicant a request, as mentioned during the hearing, for the applicant to provide PAYG summaries Max Bar and Restaurant had issued to the applicant for the 2013 to 2015 financial years. The Tribunal requested the applicant provide this information by 26 May 2017, after which it would make its decision. However, no information was received by the applicant or their representative.
TRIBUNAL’S DECISION
On 16 February 2018, the Tribunal made a decision affirming the decision to refuse the application. In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons); a copy of which were provided to the applicant on 19 February 2018.
While the Tribunal accepted the applicant’s Certificate III and Certificate IV qualifications were not excluded from the scope of cl 457.223(4)(d), the Tribunal found that the All Australian Training qualifications should be given little weight when assessing whether the applicant had the skills, qualifications, and employment background necessary to perform the tasks of the nominated occupation of cook (CB243):
134.Accordingly, against a backdrop where the applicant chose to pay $4000 for an recognition of prior learning assessment when he could have chosen a less expensive pathway and given the concerns outlined above in respect of the applicant's résumé, work reference and photographs that purportedly formed the basis of the recognition of prior learning assessment undertaken by All Australian Training, the Tribunal is not persuaded that the assessment that took place was particularly vigorous in checking the applicant's skills as a 'Cook'.
135.In addition, after factoring in that the qualifications issued to the applicant in 2015 were entirely based on this recognition of prior learning assessment, rather than a combination of partial recognition of prior learning and the completion of formal vocational units of competency, the Tribunal does not agree that it should give weight to the applicant's 2015 Certificate III and IV qualifications from All Australian Training. In this case, based upon the whole of the evidence before it, the Tribunal considers it appropriate to give little weight to these qualifications for the purposes of the 'qualifications' element of paragraph 457.223(4)(da).
Further, the Tribunal was not satisfied, in the absence of objective material, the applicant’s experience as a cook amounted to three years’ relevant experience (CB244-245):
141.The Tribunal has also considered whether any work experience the applicant has had in Australia demonstrates the required ANZSCO skill level for a cook'. In this case, the applicant gave evidence that the only experience he had in Australia as a cook had been at the Max Bar Restaurant.
142.In assessing whether the applicant's on-the-job training at Max Bar Restaurant demonstrates that he possesses the relevant ANZSCO skill level for a 'Cook' (ANZSCO Code 351411) the Tribunal has considered the statutory declarations attesting to the applicant's skills as a cook from his work-based colleagues. In addition to Mr Pistikakis and Mr Ibrahim, these included Mr K. A. Gupta (chef), Mr M. Gullemat (venue manager), Mr P. Edmonds (head waiter), Mr C. Sanghui (floor manager), Mr A. Alkhatib (waiter) and Mr J. Mari Miranda (chef) all of whom have some association with Max Bar Restaurant. The Tribunal also acknowledges that each of these deponents made positive comments about the applicant's skills as a cook, having known him for periods ranging from 11 months to 2 ½ years.
143.However, in terms of the skill level set out in ANZSCO Code 351411, at least three years of relevant experience may substitute for a formal Certificate III qualification including two years relevant experience, or a Certificate IV qualification.
144. Accordingly, it was for this reason the Tribunal requested the provision of the PAYG summaries Max Bar Restaurant had issued to the applicant for the 2013, 2014 and 2015 financial years, as this would have objectively confirmed the actual duration of the applicant's employment in this business.
145. Yet, despite undertaking to do so following the hearing and a follow-up request from the Tribunal on 23 May 2017, in circumstances where a long-standing business like Max Bar Restaurant should be able to readily provide such information, neither Mr Ibrahim nor the applicant provided this information to the Tribunal.
146. The Tribunal has had regard to the applicant's 2016 PAYG summary, which indicated gross payments of $22,403 for the applicant during the 2015/16 financial year. At the hearing the applicant explained that this fell short of the full-time wage he had been offered in this business because it reflected his part-time hours.
147. However, apart from this PAYG summary, the applicant has not provided any other documentary evidence that would objectively confirm he had been employed as a cook, or the number of hours he had worked, with Max Bar Restaurant since June 2013.
148. As a result, notwithstanding the positive statements from the applicant's colleagues, Mr Pistikakis and Mr Ibrahim regarding the applicant's skills as a cook, the absence of what should be readily available PAYG summaries for the applicant from 2013 to 2015 does not assist the Tribunal to form a positive view about his claimed on-the job experience at Max Bar Restaurant.
149. Accordingly, the Tribunal gives greater weight to the applicant's failure to provide his PAYG summaries from 2013 to 2015 over the written statements of support from Max Bar Restaurant and all those associated with it. The Tribunal is therefore not satisfied that the evidence before it supports a finding that the applicant has had approximately 4 IA years relevant work experience as a cook at Max Bar Restaurant at the time of decision.
JUDICIAL REVIEW
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
GROUNDS OF REVIEW
The applicant’s sole (hand-written) ground of review reads:
1.The member considered irrelevant facts in making decision. My certificate was issued by government registered college. They had to follow procedure. The Member decided that my certificate was not credible because the college was not registered for funding. The funding and the credibility of the certificate are two different things.
It should be noted that the applicant filed no written submissions. When the matter was heard at court his short oral submissions, to the effect he thought he had the skill and experience to perform as a cook, and was trying to support his application, did not advance the matter. As Counsel for the Minister correctly submitted, these matters are simply merits review.
CONSIDERATION
The ground of application, unfortunately but understandably given the applicant’s self-representation, misconceives and misrepresents the nature of the Tribunal’s decision. The Tribunal was well aware of the fact that All Australian Training was registered for government subsidies in New South Wales. It was not however registered in Victoria. The Tribunal relevantly said however at paragraphs 109-110 (CB240):
However, the Tribunal considers this submission to be misconceived, as it accepts that All Australian Training is a registered training organisation and that it issued the Certificate Ill and IV hospitality qualifications to the applicant in 2015.
Rather, the issue for the Tribunal is that it is not persuaded that it should assign greater weight to this evidence for the purposes of paragraph 457.223(4)(da) for the following reasons.
Those reasons are detailed, cogent and lengthy (paragraphs 111-133). They included a conflict in the evidence of Mr Pistikakis and the applicant as to whether there was any off site formal classes for the certificate Ill and IV qualifications and the fact the applicant said (paragraph 128 CB242) “these qualifications were issued on the basis of the recognition of prior learning assessment completed by All Australian Training having regard to his resume, photographs and work reference.”
The Tribunals summation at paragraphs 134-135 (already referred to above) was as follows
Accordingly, against a backdrop where the applicant chose to pay $4000 for an recognition of prior learning assessment when he could have chosen a less expensive pathway and given the concerns outlined above in respect of the applicant's resume,.work reference and photographs that purportedly formed the basis of the recognition of prior learning assessment undertaken by All Australian Training, the Tribunal is not persuaded that the assessment that took place was particularly vigorous in checking the applicant's skills as a 'Cook'.
In addition, after factoring in that the qualifications issued to the applicant in 2015 were entirely based on this recognition of prior learning assessment, rather than a combination of partial recognition of prior learning and the completion of formal vocational units of competency, the Tribunal does not agree that it should give weight to the applicant's 2015 Certificate Ill and IV qualifications from All Australian Training. In this case, based upon the whole of the evidence before it, the Tribunal considers it appropriate to give little weight to these qualifications for the purposes of the 'qualifications' element of paragraph 457.223(4)(da).
The findings set out above were in my view entirely open to the Tribunal on the material and show the nuanced way (as the first respondent submitted) in which the Tribunal approached this aspect and indeed all other aspects of the matter.
The Tribunal gave detailed consideration to the applicant’s on the job training and work experience at paragraph 136 and following of the decision. On a fair reading it seems to me that perhaps the most critical aspect of the matter was the failure of the applicant to provide the PAYG records for the applicant for the 2013, 2014 and 2015 years which would objectively confirmed the actual duration of his employment. Perhaps the critical paragraphs are at paragraphs 145-149 where the Tribunal said (again repeating the extracts already set out):
Yet, despite undertaking to do so following the hearing and a follow-up request from the Tribunal on 23 May 2017, in circumstances where a long-standing business like Max Bar Restaurant should be able to readily provide such information, neither Mr Ibrahim nor the applicant provided this information to the Tribunal.
The Tribunal has had regard to the applicant's 2016 PAYG summary, which indicated gross payments of $22,403 for the applicant during the 2015/16 financial year. At the hearing the applicant explained that this fell short of the full-time wage he had been offered in this business because it reflected his part-time hours.
However, apart from this PAYG summary, the applicant has not provided any other documentary evidence that would objectively confirm he had been employed as a cook, or the number of hours he had worked, with Max Bar Restaurant since June 2013.
As a result, notwithstanding the positive statements from the applicant's colleagues, Mr Pistikakis and Mr Ibrahim regarding the applicant's skills as a cook, the absence of what should be readily available PAYG summaries for the applicant from 2013 to 2015 does not assist the Tribunal to form a positive view about his claimed on-the job experience at Max Bar Restaurant.
Accordingly, the Tribunal gives greater weight to the applicant's failure to provide his PAYG summaries from 2013 to 2015 over the written statements of support from Max Bar Restaurant and all those associated with it. The Tribunal is therefore not satisfied that the evidence before it supports a finding that the applicant has had approximately 4 ½ years relevant work experience as a cook at Max Bar Restaurant at the time of decision.
It is readily apparent in my view that this finding was well open to the Tribunal on the material before it. It could not be challenged as illogical or made without evidence or contradictory to uncontested evidence.
The first respondent’s written submissions additionally and correctly point out the applicant did not establish that the Tribunal’s decision was one at which no rational or logical decision-maker could have arrived at on the same evidence (paragraphs 25 – 31, written submissions);
A decision will not be illogical or irrational simply because one logically open conclusion has been preferred over another.
For the following reasons, it is submitted that it was logically and rationally open to the Tribunal to place little weight on the All Australian Training qualifications.
First, the ground is inaccurate in asserting the Tribunal found the All Australian Training qualifications to not be "credible". The authenticity of the qualifications or certificates was not in issue. The issue for the Tribunal was the weight which it should assign to the qualifications as evidence of whether the applicant had the necessary skills, qualifications, and employment background for the purposes of cl 457.223(4)(da) (T[109]-[110]). It was plainly open to the Tribunal to engage in such a weighing process: MIAC v SZJSS (2010) 243 CLR 154, [33].
Second, the Tribunal did not simply afford the All Australian Training qualifications less weight "because" All Australian Training was not registered for government subsidies in Victoria. The reasoning was more nuanced. The Tribunal found the applicant was "less than convincing" at the hearing regarding his reasons for pursuing recognition of prior learning through a more expensive registered training organisation, when he could have gone to a government subsidised registered training organisation at less expense (T[111]). This logically supported the Tribunal being unable to place "greater weight" on the qualifications, within the context of its other findings set out below (T[110], [113]).
In any event, it is not illogical, or irrational, to have regard to whether an educational organisation is approved to provide government subsidised recognition of prior learning assessments, when assessing the weight to be given to a qualification based on solely on recognition of prior learning.
Third, these findings regarding funding were only one strand supporting the Tribunal's ultimate decision to afford little weight to the All Australian Training qualifications. The more pressing concerns were that the qualifications were (T[134]-[135]):
(a) on the applicant's evidence, issued solely on the basis of documents with which the Tribunal had concerns, being his CV, work reference and photographs;
(b)also on the applicant's evidence, issued without any onsite assessment of his abilities as a cook; and
(c)based entirely on the recognition of prior learning assessment, and not a combination of prior learning and the completion of formal vocational units of competency.
Each of these matters logically supported the Tribunal's decision to place little weight on the All Australian Training qualifications. The Tribunal aptly describes the fact that the applicant paid $4,000 for that recognition of prior learning assessment at an organisation not registered for government funding, when he could have chosen a less expensive pathway, as a "backdrop" to the above concerns (T[134]).
All of these submissions are in my view correct.
CONCLUSION
In my opinion the Tribunal’s decision read fairly and as a whole shows a comprehensive and detailed consideration of the matters that the applicant and his representatives have put before the Tribunal member. Not only does the expressed ground of application comprehensively in my view fail to engage with what the Tribunal actually decided, it is clear that the Tribunal’s decision is not vitiated by jurisdictional error. Indeed I would go further and say that the Tribunal’s conclusions in the face of the matters placed before the Tribunal member were well and truly open to be made.
There is no reason why costs should not follow the event and the Minister’s application for costs on scale will be made.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 16 May 2022
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