Chintalapudi v Minister for Immigration & Anor [2014] FCCA 2770

[2015] FCA 129

FEDERAL COURT OF AUSTRALIA

Chintalapudi v Minister for Immigration and Border Protection [2015] FCA 129

Citation:	Chintalapudi v Minister for Immigration and Border Protection [2015] FCA 129
Appeal from:	Chintalapudi v Minister for Immigration & Anor [2014] FCCA 2770
Parties:	KIRAN KUMAR REDDY CHINTALAPUDI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & MIGRATION REVIEW TRIBUNAL
File number:	SAD 317 of 2014
Judge:	PERRY J
Date of judgment:	25 February 2015
Catchwords:	MIGRATION – Whether jurisdictional error in Court below – Where appellant concedes that criteria in cl 485.214 of the Migration Regulations 1994 (Cth) has not been met – Where the invitation to appear before the Migration Review Tribunal is limited to appearance by telephone or by physical attendance in another State – Observations on whether such an invitation complies with s 360, Migration Act 1958 (Cth)
Legislation:	Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 65(1)(b) 360, 366 Migration Regulations 1994 (Cth) Legislative Instrument IMMI 11/068 Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas Migration Regulations 1994 (Cth) reg 1.03, 1.15I, 2.26B, Sch 2 cl 485.214
Cases cited:	Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Date of hearing:	25 February 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr P d’Assumpcao
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 317 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	CHINTALAPUDI Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	PERRY J
DATE OF ORDER:	25 FEBRUARY 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs to be agreed or assessed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 317 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	CHINTALAPUDI Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	PERRY J
DATE:	25 FEBRUARY 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1.               INTRODUCTION

1. This is an appeal from the decision of the Federal Circuit Court given on 11 November 2014 dismissing the appellant’s application for judicial review from a decision of the Migration Review Tribunal (the Tribunal).  In its decision, the Tribunal had affirmed the decision of the delegate of the Minister refusing the grant of a Skilled (Provisional) (Class VC), subclass 485 (Skilled-Graduate) visa (the skilled visa) to the appellant.

2. In the Court below, the appellant conceded that there was no error in the Tribunal’s decision but submitted that he wanted more time to satisfy the requirements for the grant of the skilled visa.  The Court below also addressed each of the grounds contained in his application and found no error in the Tribunal’s decision.  I can see no error in the decision of the Court below.  Furthermore, notwithstanding some concerns as to the adequacy of the invitation to appear before the Tribunal, they could not have occasioned any injustice in the circumstances of this case.  The appeal must be dismissed with costs.

   2.               BACKGROUND

3. The appellant is a citizen of India.  He applied for the skilled visa on 31 March 2012.  In his visa application form, he nominated the occupation of “Business Machine Mechanic” but did not state that he had applied for a skills assessment by an assessing authority.  That part of the form which requested a date for the skills assessment and a reference/receipt number was left blank.

4. On 14 November 2012, the delegate refused the appellant’s application under s 65(1)(b) of the Migration Act 1958 (Cth) (the Migration Act) on the basis that he had failed to satisfy a primary criterion for the grant of a 485 visa, namely, clause 485.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). That criterion had to be satisfied at the time that the visa application was made. Clause 485.214 required at the relevant time that the Minister must be “satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.”  By virtue of regulations 1.15I and 1.03, an occupation is a “skilled occupation” if (relevantly) it is specified by the Minister in an instrument in writing as a skilled occupation. The “relevant assessing authority” is a person or body specified by the Minister in an instrument under regulation 2.26B of the Regulations. Under the applicable legislative instrument, being IMMI 21/068, Business Machine Mechanic is a specified skilled occupation for which the relevant assessing authority specified is Trades Recognition Australia.

5. On 28 November 2012, the appellant applied to the Tribunal for review of the delegate’s decision.

6. On 11 September 2013, the Tribunal wrote to the appellant at his address in South Australia from its Victorian Registry inviting the appellant to appear pursuant to s 360 of the Act. The letter relevantly stated that:

   You are invited to appear before the Tribunal, by telephone, to give evidence and present arguments relating to the issues in your case. The Tribunal has arranged a hearing for:

   Date:     11 October 2013
   Time:   2:00pm (VIC time)       1.30pm (SA time)

   By phone:The member who will conduct the hearing will phone you from Melbourne when the hearing is ready to start. If this is likely to be delayed by more than 30 minutes, an officer will phone you.

   The number the Tribunal has for you is [redacted]. Please advise if this is not the correct number or if you would prefer the Tribunal to call you on another number.

   Location of member:

   Level 10 120 Spencer St Melbourne VIC   3000

   If you wish to attend at this location in person please contact us as soon as possible.

   (emphasis in the original)

7. The letter therefore conveyed that the options available to the appellant were to attend before the Tribunal by telephone or to attend for the hearing at the member’s location in Melbourne.

8. The letter also drew the appellant’s attention to the deficiency in his evidence which formed the basis on which the delegate had refused his application and gave him an opportunity to remedy that deficiency, stating that:

   The Tribunal notes that to date you have not presented evidence that your skills have been assessed by the relevant assessing authority for your nominated skilled occupation. Please provide evidence that your skills have been assessed by the relevant assessing authority for your nominated occupation at (or before) hearing. Please note that if you are unable to provide the relevant evidence, the Tribunal will require good reason to grant you additional time to obtain it.

9. The hearing took place as scheduled on 11 October 2013, with the Tribunal apparently calling the appellant on his mobile phone.  The Tribunal hearing record states that it commenced at 2:52 PM and closed at 3:08 PM. This accorded with the appellant’s recollection that the hearing took about 15 minutes.

10. On 10 January 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a skilled visa. The critical findings appear in the Tribunal’s reasons as follows:

    6. In the visa application the applicant indicated his nominated occupation to be Business Machine Mechanic and the relevant assessing authority to be TRA (Trades Recognition Australia). The applicant also indicated that he had not applied to a relevant assessing authority for a skills assessment.

    7. At the hearing the applicant confirmed that he had not applied for a skills assessment at the time he applied for the visa. He also confirmed that he applied for a Subclass 485 visa only and that he did not hold any passport other than his India passport.

    8. The applicant told the Tribunal that when he completed the studies that he undertook in Australia he did not have an employed position at sufficiently high a level (such as supervisor) as would enable him to apply for a skills assessment. He commenced his employment and was told that his employer would increase the level of his duties. He was working hard to win that promotion and he asked the Tribunal to take that matter into consideration. The applicant confirmed specifically that he had not applied for or obtained an assessment of his skills as a Business Machine Mechanic (the nominated occupation specified in the visa application) or as a Business Manager (the occupation that he told the Tribunal that he actually wished to pursue). The applicant mentioned incidentally that in 2009 or thereabouts he had obtained an assessment of his skills for the occupation of Cook.

    9. The applicant has not provided any evidence that at the time he applied for the visa he had applied for a skills assessment for his nominated skilled occupation.

    10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. As such, the Tribunal found that:

    16. The applicant indicated in the visa application and confirmed at the hearing that at the time he applied for the visa he had not applied for a skills assessment for his nominated occupation. The applicant told the Tribunal of his reasons for that but, clearly, the specific requirements of cl.485.214 have not been met.

    17. The Tribunal therefore finds that the applicant does not satisfy the requirements of cl.485.214.

    3.               CONSIDERATION

12. The sole ground of appeal stated in the notice of appeal is:

    I been trying to get my english exam and the skill assessment for getting the visa but the Court is look at only from migration review Tribunal

13. As such, the notice of appeal does not identify any comprehensible error in the decision of the Federal Circuit Court including in its consideration of the Tribunal’s decision.

14. The appellant has very properly accepted before the Tribunal and in the proceedings for judicial review that he did not have the skill assessment necessary to satisfy the primary criterion in cl 485.214. In those circumstances, the Minister correctly submitted that the decision-maker had no discretion to grant the visa but was required by s 65(1)(b) of the Migration Act to refuse the application. There is, therefore, no error in the Tribunal refusing the grant of the visa on this ground.

15. The appellant’s oral submissions focused upon his need to undertake more work to obtain his visa and the difficulties that he confronted in obtaining that work without that visa.  These matters unfortunately go only to the merits of the decision by the Tribunal to refuse him a visa.  They do not afford a basis on which the Federal Circuit Court on judicial review or this Court on appeal could find the Tribunal’s decision invalid.

16. In this regard, as the Minister submitted, neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal’s decision to refuse to grant a visa to the appellant.  The jurisdiction of the Federal Circuit Court is limited to a consideration only of the legality of the decision by the Tribunal to refuse to grant the appellant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth), this Court is required to consider whether there is error in the decision of the Court from which the appeal is brought. As such, I am equally constrained from embarking upon a consideration of the merits of the appellant’s claims.  In short, neither this Court nor the Federal Circuit Court has power to undertake a review of the merits of the Tribunal’s decision.

17. Finally, while it is not apparent that the appellant had raised the issue in the Court below, the appellant submitted that he had difficulties in expressing himself by reason of the Tribunal’s hearing being held by telephone and that he might have been able to convince the Tribunal if he had been able to appear face-to-face.  In this regard, counsel for the Minister confirmed that the Migration Review Tribunal had a Registry in Adelaide, notwithstanding that the invitation to appear before the Tribunal on 11 September 2013 was sent from the Victorian Registry of the Tribunal.  Furthermore, as I have observed, the letter gave the appellant the options only of attending by telephone (which was presented in bold and upfront as the preferred option) or attending at the member’s location in Melbourne, Victoria.

18. Section 360 of the Act imposes an obligation upon the Tribunal to invite an applicant to appear where it cannot decide the review in the applicant’s favour on the basis of the material before it. This was clearly the view that the Tribunal reached in extending the invitation to the appellant here. The words “to appear before the Tribunal” suggest that they are intended to refer to an invitation to an applicant to physically appear before it. As the appellant submitted, there may be a significant qualitative difference in a hearing which is attended by an applicant in person as opposed to one in which the applicant attends only by telephone. This may be particularly so where matters of credit are or become an issue.

19. This would seem to be recognised in s 366(1) which empowers the Tribunal to “allow” an appearance by an applicant before the Tribunal by telephone, but does not appear to enable the Tribunal to require that a hearing be held otherwise than in person.  As counsel for the Minister submitted, the provision would seem to be facilitative.  Section 366 relevantly provides that:

    (1)       For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

    (a)       telephone; or
    (b)       close – circuit television; or
    (c)       any other means of communication.

20. Nonetheless, a concern may arise as to compliance with s 360 of the Migration Act where a visa applicant is offered the option of a hearing only in a location which is distant from the visa applicant’s residence, notwithstanding that the Tribunal has a Registry which is significantly closer to where the applicant resides. Questions might also arise as to the reasonableness of such an invitation depending on the circumstances. For example, as I raised in arguendo with counsel for the Minister, such an issue might arise if a visa applicant in Adelaide were given the option of attending by telephone or appearing in person before the relevant decision-making body in Darwin, notwithstanding that the decision-making body had a Registry in Adelaide. However these are issues which must await another day as in the present case the appellant accepts that he cannot satisfy the criteria for the visa he seeks. No injustice, therefore, has been occasioned by the Tribunal’s refusal to grant that visa irrespective of any deficiencies in the invitation to appear.

21. For these reasons, the appeal must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Associate:

Dated:        25 February 2015