Bussa v Minister for Immigration & Anor
[2019] FCCA 655
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUSSA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 655 |
| Catchwords: MIGRATION –Application for judicial review – graduate work visa – skills assessment – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.54, 55, 56 Migration Regulations 1994, cl.485.223. |
| Cases cited: Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 Anand v Minister for Immigration & Citizenship [2013] FCA 1050; (2013) 215 FCR 562 Nguyen v Minister for Immigration & Anor [2016] FCCA 1523 |
| Applicant: | VINCENT PRANAY BUSSA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2469 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 7 September 2017 and 18 December 2018 |
| Date of Last Submission: | 18 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello appearing pro-bono |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2469 of 2016
| VINCENT PRANAY BUSSA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for judicial review of a decision of the Administrate Appeals Tribunal (‘the Tribunal’) dated 26 October 2016. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Temporary Graduate (Graduate Work) (Subclass 485) visa under the Migration Act 1958.
The Applicant is a citizen of India who arrived in Australia in 2011 on a student visa. On 19 August 2015 the Applicant applied for a subclass 485 visa, and was required to meet cl.485.223 of the Migration Regulations 1994 which relevantly provided (at the time of the application) as follows:
485.223 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.
The decision of the delegate on 27 January 2016 (at p.2, Court Book p.44) provides the following summary:
On 19 August 2015, you lodged your application for a VC-485 Skilled Graduate visa where you stated your nominated occupation was Electronics Engineer, ANZSCO Code 233411.
In that application, on 19 August, you answered “No” to the question “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?”
On 26 October 2015, you were requested by the Department to provide a skills assessment, or evidence that you had applied for a skills assessment, from the relevant assessing authority, showing that your skills have been assessed as suitable for your nominated occupation. The assessing body for your occupation is Engineers Australia.
On 5 December 2015, you provided a receipt from, Engineers Australia, dated 3 November 2015, confirming you had made payment for a skills assessment on that date.
As you did not apply for a skills assessment prior to lodging your application for a VC485 visa, you do not meet the requirements of Regulations 485.223.
The applicant sought review with the Tribunal. The Tribunal was also not satisfied the applicant met reg.485.223, as the visa application was not accompanied by a skills assessment from a relevant assessing authority. The Tribunal’s decision was brief:
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 January 2016 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).
2. At the hearing on 26 October 2016 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION
3. Based on the evidence before me, including oral evidence given at the hearing, I am not satisfied that you meet the regulation 485.223 because, when you applied for this visa on 19 August 2015 you have not provided, or that application was not accompanied by the evidence that you applied for skill assessments for your nominated occupation by a relevant assessing authority. You have also told me that the skills assessment application lodged on 5 December 2015 was subsequently refused, and that you were banned for 12 months from reapplying for skills assessment because of substantial amount of plagiarism that was discovered by the Institute for Engineers. So, based on all of that evidence, I am affirming the decision made by the Department not to grant you subclass 485 visa.
DECISION
The Tribunal affirms the decision under review.
Grounds of Application
On 11 November 2016, the applicant applied to this Court for judicial review of the Tribunal’s decision.
Whilst the applicant’s application set out 18 paragraphs in the section headed ‘Grounds of Application’, the case was ultimately argued by Counsel for the applicant on the basis of two substantive issues.
Issue 1
The first issue is whether or not the applicant could rely upon a previous application for a skills assessment (made on 29 January 2014) which had been refused by the Skills Assessment Authority prior to completing the current visa application. In the visa application form the applicant referred to this much earlier skills assessment application at p.11, although had answered ‘no’ to the question of whether or not he had applied for a skills assessment on p.1.
The operation of the relevant visa condition was recently discussed in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 where Tracey J said (at [16]):
16. The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.
17. The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.
…
23. Nor is assistance provided to the appellant by ss 54, 55 and 56 of the Act, on which he relies. Section 54 requires the Minister, when considering an application for a visa, to have regard to all of the information provided in the application. The delegate and the Tribunal did so in this case. The relevant information was that no application had been made, at that time, for a skills assessment. Section 55 of the Act provides that, until the Minister has made a decision on the application, an applicant can provide additional relevant information to which the Minister must have regard in making the decision. Evidence of the fact that the applicant had obtained a positive skills assessment after the application had been lodged would not be relevant information for the purposes of cl 485.223. Section 56 confers a discretion on the Minister to obtain further information which he or she considers relevant. This section has no application for the same reason that s 55 does not assist the appellant.
Having regard to the purpose of the Regulation, as discussed in Khan’s Case, it would be illogical to interpret the provision as being satisfied by a skills assessment that had been refused prior to the application being made. Clearly the provision contemplates a pending skills assessment as a skills assessment that had been refused could not support the grant of a visa, nor would the refusal be likely to change in the foreseeable future without a further skills assessment.
In the circumstances, I am not persuaded that this argument can succeed.
Issue 2
The second ground that was argued was based on the operation of sections 54 to 56 of the Act, which are in the following terms:
54. Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
55. Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
56. Further information may be sought
(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified
Counsel developed the argument on the basis that the application included everything that is provided or given to the Minister up to the point at which the decision is made. Subsequent to lodging the application the applicant applied for a skills assessment in November 2015 and provided that to the Department in December 2015. Thus, it is argued, at the time of the decision there was a valid application.
As Counsel stated in submissions, that argument runs contrary to Khan’s Case. Counsel raised the argument so as to preserve the potential appeal rights in this regard. For the reasons set out in Khan’s Case this ground must be refused.
The final argument was based upon an interpretation of the words “accompanied by” with respect to the provision. In two earlier single-Judge decisions, one by Katzmann J in Anand v Minister for Immigration & Citizenship [2013] FCA 1050; (2013) 215 FCR 562 and one by Burchardt J in Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, their Honours both concluded that the term “accompanied by” did not require the document to be provided together with the application, and that some flexibility was contemplated. This approach was not approved in Khan’s Case, which concluded that the clause required an objective temporal test: see [14] of Khan’s Case. The period of time between lodging the visa application and providing a properly-made application for a skills assessment was far too long to come within the terms “accompanied by” even on the approach taken by Katzmann J and Burchardt J.
In the circumstances the application cannot succeed on the grounds that were pressed by Counsel.
The other matters raised by the applicant in his application were not grounds for judicial review, in that much of the information is setting out facts and circumstances. To the extent that there are arguable grounds in them they can be deal with briefly:
a)Paragraphs 3 and 7 assume that there is a test for exceptional circumstances when a criteria is not satisfied, however no such test applies in this case.
b)
c)The claim in paragraph 5 that it was “unfair” for the delegate to refuse his application without considering the matter in more depth cannot succeed. The delegate did deal with the matter in sufficient depth for the issues before the delegate which were determinative of the matter, as did the Tribunal, albeit that those reasons were brief.
d)In paragraph 6, the applicant complains that due to difficulties with his first skills assessment he was not permitted to apply for a further year, and that this prevented him from applying for a skills assessment closer to the time of his visa application. This is not a basis for concluding that the visa application meets the criteria in the Act.
e)In paragraph 10, the applicant complains that the Tribunal did not give him enough time to provide his submissions to the member, however he had adequate time to provide material with his application to the Tribunal, and no further material would have been relevant to this narrow issue of law.
The balance of the matters do not appear to raise matters that would result in arguable case for judicial review in the context of this case.
Conclusion
In the circumstances no arguable ground has been raised. I therefore dismiss the application.
At the hearing it was argued that costs would follow the event at scale and I so order.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 15 March 2019
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