Chitrakar v Minister for Immigration and Border Protection
[2016] FCA 29
•2 February 2016
FEDERAL COURT OF AUSTRALIA
Chitrakar v Minister for Immigration and Border Protection [2016] FCA 29
Appeal from: Chitrakar v Minister for Immigration & Anor [2014] FCCA 2846 File number: NSD 1364 of 2014 Judge: COLLIER J Date of judgment: 2 February 2016 Catchwords: MIGRATION – appeal – whether appellant satisfied Schedule 6B or Schedule C of the Migration Regulations 1994 (Cth) – Tribunal overlooked critical evidence – appeal allowed Legislation: Migration Regulations 1994 (Cth) Pt 885 of Sch 2, Sch 6B, Sch 6B.5, Sch 6C Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Citizenship v SZRKT (2013) 302 ALR 572
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Date of hearing: 24 August 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: Mr JR Young Solicitor for the Appellant: G&S Law Group Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1364 of 2014 BETWEEN: PRAMOND CHITRAKAR
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
24 AUGUST 2015
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court of Australia made on 5 December 2014 be set aside, and in place of those orders the decision of the Migration Review Tribunal made on 9 September 2013 is quashed and the matter remitted to the Administrative Appeals Tribunal for further hearing according to law.
3.The first respondent is to pay the costs of the appellant in this Court and the Federal Circuit Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an appeal from a decision of the Federal Circuit Court of Australia in which the Court dismissed an application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had affirmed the decision of a delegate of the Minister to refuse to grant the appellant a Skilled (Residence) (Class VB) visa (visa).
Background
The background facts are not contentious, and are set out in the decision of the primary Judge at [4]-[7].
The appellant is a citizen of Nepal who applied for the visa on 23 December 2011. The delegate of the Minister refused to grant the visa on 31 January 2013. The appellant applied for review to the Tribunal on 15 February 2013, and attended a hearing of the Tribunal on 27 August 2013.
The relevant visa is in the nature of a permanent visa available to eligible overseas students who have Australian qualifications or work experience in Australia.
A valid application for a Subclass 885 visa required an applicant to nominate a “skilled occupation” (as defined in reg 1.151) in his or her application. The criteria for the visa are set out in Pt 885 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). As the primary Judge explained:
6.Clause 885.221 of the Regulations required that the applicant achieve a certain “qualifying score” assessed under s. 92 to s. 96 of the Act, as at the time of the Tribunal’s decision. The Tribunal was required to conduct a “points assessment” derived as against certain elements as set out at Sch. 6B to the Regulations. If the applicant did not meet the qualifying score as derived from Sch. 6B to the Regulations, the Tribunal was required to conduct another assessment as against the elements at Sch. 6C to the Regulations.
The Tribunal found that the appellant did not achieve the points in either Sch 6B or Sch 6C of the Regulations, and accordingly did not satisfy cl 885.221 of the Regulations. A key finding of the Tribunal which lead the Tribunal to conclude that the appellant did not achieve sufficient points under either Sch 6B or Sch 6C was that it was not satisfied that the appellant had been employed by Ash Information Technology Solutions (Ash) in his nominated skilled occupation for a closely related skill occupation (Tribunal decision record [18]-[20]). In written submissions the appellant focused primarily on this issue.
Decision of the Tribunal
In seeking to satisfy Sch 6B the appellant nominated his skilled occupation as that of a Systems Analyst. Relevantly the Tribunal observed:
14.The applicant claimed on the application form that he was employed for Siddhiganesh Computer Institute and Desktop Publishing in Nepal from 7 September 2001 until 15 December 2006. He also indicated on the application form that he was employed for 12 months in Australia, but provided no details of employment or the name of his employer. The applicant claimed at the hearing that his employment in Australia was for a computer company, Ash Information Technology Systems, from January 2010 to mid April/May 2011. The applicant has also provided a statutory declaration and a supporting document relating to his claimed employment for Ash Information Technology Solutions.
15.The requirement in Part 6B.4 is that the applicant has been employed in his nominated skilled occupation, a closely related skilled occupation or a skilled occupation for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made. The relevant period for assessment is, therefore, 23 December 2007 to 22 December 2011. As the applicant’s claimed employment for Siddhiganesh Computer Institute and Desktop Publishing was from 7 September 2001 until 15 December 2006, the Tribunal is not satisfied that the applicant’s employment for this company establishes that he was employed in his nominated occupation.... for a period totalling at least 36 months in the 48 months immediately before the day on which the application was lodged.
16.The applicant’s claimed employment for Ash Information Technology Solutions was for approximately 15 months. The Tribunal is, therefore, also not satisfied that the applicant’s claimed employment in Australia is for a period totalling 36 months in the past 48 months immediately before the day on which the application was made.
As the Tribunal was not satisfied that the applicant had been relevantly employed for a period totalling at least 36 months in the 48 months immediately before the day on which the application was lodged, the Tribunal found that no points should be awarded in respect of Pt 6B.4 of Sch 6B to the Regulations.
In relation to Sch 6B.5 the Tribunal considered at length the question whether the appellant had been employed by Ash. The Tribunal concluded:
20.The Tribunal has had regard to the applicant’s claims relating to his employment for Ash Information Technology Solutions. However, the Tribunal is not satisfied on the basis of the evidence before it that the applicant was employed for Ash Information Technology Solutions in his nominated skilled occupation or a closely related skilled occupation. The Tribunal does not accept that the applicant would be unaware he was required to lodge a tax return or pay individual tax and that he would be unable to provide any supporting documentation such as financial records or taxation records regarding his employment if he had been genuinely employed for that company. The Tribunal also considers it adverse that the applicant did not provide any details of this employment on the application form and no supporting documents were provided to the Department. The Tribunal is not satisfied that a document headed Ash Information Technology Systems establishes that the applicant was employed by that company in any capacity or that he was employed in his nominated skilled occupation or a closely related skilled occupation. As discussed at the hearing, the Tribunal also considers it unlikely that Indian companies were outsourcing to an Australian company where they were required to pay higher fees to Australian workers. The Tribunal considers that the applicant’s evidence at the hearing in relation to this issue was vague and unpersuasive and does not accept his explanation at the hearing. The Tribunal is also not satisfied that the fact that Mr Shrestha may have met the applicant for lunch on some days establishes that he has any knowledge of the applicant’s claimed employment. The Tribunal is, therefore, not satisfied that Mr Shrestha’s evidence assists the Tribunal to be satisfied of the applicant’s employment, particularly given that Mr Shrestha did not know the name of the company or the period of the applicant’s employment. Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant was employed in Australia in his nominated skilled occupation or a closely related skilled occupation for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made. The Tribunal finds that no points are awarded for item 6B51 of Part 6B.5 of Schedule 6B.
Proceedings in the Federal Circuit Court
The application for review of the decision of the Tribunal in the Federal Circuit Court was based on several grounds, which fell into two broad categories. First, the appellant claimed that the Tribunal failed to have regard to relevant evidence, namely:
·forms 80 and 1121 submitted by the appellant at the time of the application detailing his employment with Ash;
·the appellant’s evidence that he had been informed by the Department of Fair Trading that Ash had collapsed;
·the detailed written material relating to his employment with Ash;
·the evidence of Mr Shrestha, and whether it was corroborative of the appellant’s evidence; and
·taxation evidence given by the appellant.
Second, the appellant claimed that the decision of the Tribunal was unreasonable or capricious in that:
·it found that the appellant had provided no details of his employment with Ash on his application form, when in fact the appellant had provided such information in separate forms submitted with the application form;
·the Tribunal made unsupported or stereotypical assumptions in assuming that Indian companies would not use Australian businesses to provide information technology services overseas.
In rejecting the first group of grounds of review, the primary Judge found, in summary:
·it is the case, as the Minister submitted, that the two additional forms containing information concerning the appellant’s employment with Ash were submitted to the delegate some two months after the making of the application after the delegate requested further information;
·the appellant’s argument that the Tribunal overlooked this information because the subsequent forms were part of the application process does not assist him because the Tribunal was entitled to view “the application form” as being separate to the subsequently lodged forms, even if in some broader sense they were part of the “application process” (at [25]);
·there was nothing further in the documents lodged, after the lodgement of the application form, than what the Tribunal understood to be the extent of the appellant’s claim;
·the Tribunal is not required to refer to every piece of evidence before it;
·the appellant has not shown that the relevant assertions in the two documents were not considered by the Tribunal;
·the appellant’s claim that the Tribunal treated his claim concerning employment with Ash as a “late claim” is not a fair reading of the Tribunal’s reasons. The Tribunal found against the appellant because, inter alia:
1.It did not accept the appellant’s contentions concerning the taxation arrangements between him and Ash.
2.A document considered by the Tribunal under the letterhead of Ash made no reference to the appellant’s employment.
3.The Tribunal found the appellant’s oral evidence unpersuasive.
·contrary to the submission of the appellant, the Tribunal did not overlook evidence;
·as was clear from the transcript of the Tribunal proceedings, the Tribunal did not misconstrue the appellant’s evidence in respect of his satisfaction of taxation obligations;
·in relation to the evidence of Mr Shrestha, the Tribunal reasoned that, given the limitation of that evidence, it could not be satisfied that the evidence was of assistance to it in resolving the issue before it.
In relation to the appellant’s claim that the decision of the Tribunal was unreasonable, the appellant explained his complaint as being that the Tribunal focused only on the comparative rates of pay and whether Indian IT companies would outsource to Australian companies. The primary Judge said:
49.The Tribunal did not find (at [20] at CB 159 to CB 160) that Indian companies would not out source work to Australia, but rather, on a more nuanced evaluation of the applicant’s evidence, that it was “unlikely” that they would do so where comparative pay rates were higher in Australia.
50.As the Minister submitted, reasonable minds could differ about this reasoning. However, in these circumstances, it cannot be said to be unreasonable or illogical ...
51.When regard is had to the fact that this was just one of many elements in the Tribunal’s relevant analysis, it cannot be said to make other Tribunal’s ultimate decision illogical or irrational ...
His Honour dismissed the application with costs.
Appeal to the Federal Court
The appellant appealed from the decision of the primary Judge on the following grounds:
1.His Honour Judge Nicholls erred by not finding that the Second Respondent’s reasoning in relation to claims made in the application process was unfairly literal.
2.His Honour Judge Nicholls erred by not finding that the Second Respondent had overlooked critically important evidence.
3.His Honour erred by not finding that the decision of the Second Respondent was unreasonable.
At the hearing before me both the applicant and the Minister were represented by Counsel.
The submissions of Counsel for the appellant focused on whether the Tribunal had overlooked relevant and critical material in the terms explained by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179, the Full Court of this Court in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 and Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 302 ALR 572. In my view, in this case, the Tribunal did overlook relevant and critical material – namely that the material of the appellant concerning his employment with Ash and was submitted on separate forms, before the delegate made the original decision the subject of the Tribunal’s review. I do not agree with the nuanced interpretation given to the relevant events by the learned primary Judge.
It appears from [20] of the Tribunal’s reasons that the Tribunal assumed that there was no material before the delegate referable to the appellant’s claimed employment by Ash. This was simply not the case. Not only did the Tribunal form the view that the appellant’s claim concerning his employment with Ash was a late claim – which it was not – but that view clearly adversely coloured the Tribunal’s view of the appellant’s credibility in the Tribunal. While this was only one factor in the Tribunal’s decision to refuse the appellant’s visa application, it was an important factor in the Tribunal’s broader conclusion that the appellant was not employed by Ash at the critical time for the purposes of Sch 6B of the Regulations.
It follows that the second ground of appeal has merit, and it is appropriate to allow the appeal on this basis, with costs.
Otherwise, and in the interests of completeness, I note that:
·the first ground of appeal is not only vague, but in my view fails to point to either jurisdictional error in the Tribunal or appellable error in the Court below; and
·the reasoning of the primary Judge at [46]-[51] of the primary judgment, in respect of the appellant's claim that the decision of the Tribunal was unreasonable, discloses no error. It follows that the third ground of appeal cannot be sustained.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 1 February 2016
0
3
1