Duraisamy v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1201
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duraisamy v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1201
File number: PEG 157 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 22 December 2023 Catchwords: MIGRATION – Skilled Independent visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s findings were based on “no evidence” – whether the Tribunal erred in finding that the first applicant could not satisfy cl 189.224(1) in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the conduct of the applicants’ representative amounted to fraud on the Tribunal – meaning and effect of Ministerial intervention – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 5, 92, 93, 94, 95, 96, 350, 351 & 476 and Part 5
Migration Regulations 1994 (Cth), regs 1.15F & 2.26AC; cll 189.214, 189.224, Part 189 and subdivision 189.22 in Schedule 2 and Schedule 6D
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 110 Date of hearing: 16 August 2023 Place: Perth Applicants: Applicants appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 157 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GOKUL DURAISAMY
First Applicant
MAIVIZHI BHUVANESWARAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application (as amended on 2 June 2023) be dismissed.
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 KENDALL:
BACKGROUND
The first applicant is a citizen of India (Court Book (“CB”) 2-3). He first arrived in Australia in 2009 as the holder of a student visa (CB 8 & 193).
The first and second applicants were married in November 2013 (CB 2 & 4)
The second applicant is also a citizen of India (CB 3-5). She first arrived in Australia in June 2014 as the holder of a tourist visa. She had travelled to Australia to visit her husband, the first applicant (CB 39).
On 3 January 2018, the first applicant was invited by the first respondent (the “Minister”) to apply for a Skilled Independent (Permanent) (Class SI) (Points-Tested) (Subclass 189) visa (the “visa”) (CB 190) (the “Minister’s invitation letter”). That invitation letter stated that the first applicant required at least 70 points (CB 113 & 196 and Affidavit of Georgina Roberta Ellis affirmed and filed on 23 December 2022 (the “Ellis affidavit”), p 8) in order to satisfy cl 189.224(1) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”).
On or about 19 January 2018, the first applicant applied for the visa (CB 1-14 &190). The second applicant was included in that visa application as a member of the first applicant’s family unit (CB 3-5). In his visa application, the first applicant indicated that his nominated occupation was an “ICT Business Analyst” (CB 7). The first applicant provided a number of supporting documents with his visa application (relating to both himself and the second applicant) (CB 15-26). The first applicant also nominated an immigration consultant in India (“another person”) as the authorised recipient for information related to his visa application (the “representative”)) (CB 6).
On or about 20 May 2018, the applicants provided further materials to the then Department of Immigration and Border Protection (the “Department”) in support of the visa application (including completed “Form 80 – Personal particulars for assessment including character assessment” and “Form 1221 – Additional personal particulars information” documents for each of the applicants) (CB 31-86).
On 11 February 2019, the Department wrote to the first applicant (through his representative) requesting more information in relation to his visa application (CB 92-98). In particular, the Department requested evidence of employment and competent English and evidence of a specialist education qualification.
The Department’s letter relevantly stated (transcribed verbatim) (CB 95):
Evidence of specialist education qualification:
To qualify for tht 5 points for Specialist Educaioin Qualification an applicaiton is required to proivde evidence that they have either competed:
a doctorate (PhD) degree or
a Masters Degree by ResearchThe documents provided indicate that you have completed a Masters by coursework degree.
As such you would not qualify for the 5 points.
Evidence of employment:
Please provide further evidence of Australian employment for the period of 5 years claimed at [the employer], ie selected payslips, bank statements and superannuation documents for a 5 year period from February 2012.
Evidence of competent English:
Please send your PTE results to DHS (see attachment).
On or about 12 February 2019, the first applicant provided a letter from his employer confirming work experience since 20 February 2012 (CB 99).
On 16 February 2019, the applicants’ representative notified the Department that they had submitted further documents in support of the visa application through their “immi account” (CB 104).
On 4 April 2019, a delegate of the Minister refused to grant the applicants the visas
(CB 112-126). The delegate noted that the first applicant’s “assessed score on 25 March 2019 [was] 65 points and the qualifying score [was] 70 points” (CB 113). On that basis, the delegate was not satisfied that the first applicant met the criteria set out in cl 189.224 in Schedule 2 of the Regulations. The Court notes that the delegate’s decision incorrectly references cl 189.214 in Schedule 2 of the Regulations. The Court considers this error to be typographical in nature as the extract of the clause reproduced in the reasons is the provision set out in cl 189.224 in Schedule 2 of the Regulations (CB 113 & 124).
On 8 April 2019, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 127-129). The applicants again nominated their representative to assist with the Tribunal review (CB 128).
On 14 July 2020, the first applicant completed and signed a “Change of Contact Details” form indicating that all future correspondence should be sent to him directly and withdrawing his authorisation to have his representative receive correspondence on his behalf (CB 155-156).
On 11 April 2022, the Tribunal wrote to the first applicant (via email) and invited the applicants to attend a hearing (by video conference) before the Tribunal on 29 April 2022 (CB 167-171).
On 26 April 2022, the Tribunal notified the applicants that the hearing had been postponed and would now take place on 13 May 2022 (by video conference) (CB 177-180).
The applicants appeared before the Tribunal on 13 May 2022 to give evidence and present arguments (CB 190).
On 28 July 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 189-196).
On 15 August 2022, the applicants sought judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is eight pages long and spans 58 paragraphs.
The Tribunal began by explaining that the first applicant had been invited to apply for the visa on 3 January 2018 and had submitted his visa application on 19 January 2018 (nominating the skilled occupation of ICT Business Analyst). The Tribunal also noted that a delegate of the Minister had refused to grant the applicants the visas because the first applicant did not satisfy the “points test criterion” (as set out in cl 189.224 in Schedule 2 of the Regulations) (at [1]-[2]).
The Tribunal confirmed that the applicants appeared at a Tribunal hearing before it on 13 May 2022 and noted that, due to the COVID-19 pandemic, the hearing was conducted via video link (at [3]-[4]).
The Tribunal then identified that the issue before it was whether the first applicant satisfied the points test criterion – which required that the first applicant’s score be no less than both the score identified in the Minister’s invitation letter and the “qualifying score”. This meant that the first applicant’s score needed to be equal to or more than the applicable pass mark set by the Minister. The Tribunal acknowledged that it was required to consider the first applicant against the items prescribed in Schedule 6D of the Regulations and noted that the applicable pass mark to be used was that which was most favourable to the first applicant (at [6]-[7]).
The Tribunal then considered whether the first applicant had the qualifying score by assessing the first applicant against the factors in Schedule 6D of the Regulations. Relevantly, the Tribunal determined as follows:
(a)Part 6D.1 – Age qualifications: an applicant may be entitled to points if they were aged between 18 and 44 years (at the time of Minister’s invitation letter). The first applicant was 30 years old at the time of invitation and was thus entitled to 30 points (at [9]-[10]);
(b)Part 6D.2 – English language qualifications: an applicant may be entitled to points based on their level of English competency (at the time of Minister’s invitation letter). The first applicant provided a Pearson Test of English Academic report dated 4 July 2017 indicating he achieved “competent English” at the time of application (having obtained 68 for listening, 64 for reading, 66 for speaking and 73 for writing). The first applicant was entitled to no points (needing either “superior English” to obtain 20 points or “proficient English” to obtain 10 points) (at [11]-[14]);
(c)Part 6D.3 – Overseas employment experience qualifications: an applicant may be entitled to points if (at the time of Minister’s invitation letter) they had been employed outside of Australia in their nominated skilled occupation (or a closely related skilled occupation) in the 10 years immediately prior. The first applicant made no claim to be eligible for any points for overseas employment and none were awarded (at [15]-[17]);
(d)Part 6D.4 – Australian employment qualifications: an applicant may be awarded points if they have been employed in Australia in the nominated occupation (or a closely related skilled occupation) in the 10 years prior to being invited to apply for the visa. The first applicant provided the Department with evidence of employment as a Business Analyst for five years (from February 2012 to August 2017) and, at the time of the Tribunal’s decision, had continued to work in that position. He was therefore entitled to 15 points (on the basis of at least 60 months of Australian skilled employment experience in the 10 years prior to the Minister’s invitation letter), subject to the consideration of Part 6D.5 below (at [18]-[22]);
(e)Part 6D.5 – Aggregating points for employment experience qualifications: an applicant who is entitled to more than 20 points on the basis of holding qualifications in Parts 6D.3 and 6D.4 may be awarded points under this part. The first applicant was only entitled to 15 points (under Part 6D.4) and thus was not entitled to points under Part 6D.5 (at [23]-[34]);
(f)Part 6D.6 – Australian professional year qualifications: an applicant may be awarded points if they have completed a professional year (being a course specified in a legislative instrument) in Australia in the nominated occupation (or a closely related skilled occupation). The first applicant made no claim to have completed such a qualification and was thus not entitled to any points (at [25]-[27]);
(g)Part 6D.7 – Educational qualifications: an applicant may be entitled to points if (at the time of invitation) they meet the requirements for a specified Australian or overseas qualification (having regard to reg 2.26AC(5) of the Regulations, which includes recognition of the qualification by a relevant assessing authority). On the basis of the first applicant’s skills assessment, the applicant was entitled to 15 points for the award of a bachelor degree “of a recognised standard” (at [28]-[31]);
(h)Part 6D.7A – Specialist educational qualifications: an applicant may be awarded points if (at the time of invitation) they met the requirements for the award of a masters degree by research or a doctoral degree. The Tribunal explained that the first applicant had provided evidence of a Masters of Information Technology and Masters of Information Technology – Masters of Business Administration undertaken between July 2010 and October 2011. The Tribunal noted that the delegate had awarded the first applicant no points in this regard because the Masters degrees were completed by course work (rather than by research). The Tribunal also noted that the first applicant had been upset at the Tribunal hearing because he had achieved the qualifying score to pass the points test, however, because of the incorrect information provided by his representative, his assessed score was recorded as 70 points. Notwithstanding his disappointment, the first applicant indicated to the Tribunal that he understood he was not entitled to any points in this regard (and was not awarded any) (at [32]-[36]);
(i)Part 6D.8 – Australian study qualifications: an applicant may be awarded points if (at the time of invitation), they met the Australian study requirement. The first applicant evidenced completion of a Masters of Information Technology and thus met the Australian study requirement (set out in reg 1.15F in the Regulations) and was awarded 5 points (at [37]-[39]);
(j)Part 6D.9 – Credentialled community language qualifications: points may be awarded to an applicant if they hold a qualification (awarded or accredited by a specified body) in a particular language. The first applicant did not claim to have any qualification meeting those requirements and was not entitled to any points (at [40]-[42]);
(k)Part 6D.10 – Study in designated regional area qualification: an applicant may be entitled to points if, at the time of invitation, the applicant met the Australian study requirement and lived and studied in a designated regional area. The first applicant did not claim to have undertaken any study in regional Australia and was thus not entitled to any points (at [43]-[44]);
(l)Part 6D.11 – Partner qualifications: an applicant may be entitled to points depending on their partner’s circumstances (including demonstrating competent English). The first applicant’s wife (the second applicant) is an Indian citizen, was an applicant for the same visa subclass but was not invited to apply for the visa and did not meet the required level of “competent English” (as prescribed by the Regulations). The first applicant was not entitled to any points under this part (at [45]-[48]);
(m)Part 6D.12 – State or Territory nomination qualifications: an applicant may be entitled to points in certain circumstances if they were invited to apply for a Subclass 190 visa. The first applicant was not invited to apply for such a visa and thus was not entitled to any points (at [49]); and
(n)Part 6D.13 – Designated regional area nomination or sponsorship qualifications: an applicant may be entitled to points in certain circumstances if they were invited to apply for either a Subclass 489 or Subclass 491 visa. The first applicant was not invited to apply for those visas and, as such, was not entitled to any points (at [50]).
The Tribunal provided a summarised table of the first applicant’s assessed score and confirmed that the total score was 65 points. The Tribunal noted that the requisite qualifying score to pass the points test was 60, which the first applicant achieved (at [51]-[53]).
The Tribunal then explained that there was a further requirement that an applicant achieve the score stated in the invitation to apply and noted that the Minister’s invitation letter in this matter stated a score of 70 points. The Tribunal found that the first applicant had not achieved the score stated in the Minister’s invitation letter and, as suih, did not satisfy cl 189.224 in Schedule 2 of the Regulations (at [54]-[55]).
The Tribunal also found that the second applicant did not meet the requirements for the grant of the visa (at [56]).
The Tribunal explained that it had no discretion to waive the requirements of cl 189.224 in Schedule 2 of the Regulations or to consider any discretionary factors and ultimately affirmed the delegate’s decision refusing to grant the applicants the visas (at [57]-[58]).
RELEVANT LEGISLATIVE PROVISIONS
Before considering the applicants’ application for judicial review, it is useful to first set out some of the legislative provisions applicable in this matter.
As noted above, the first applicant in this matter applied for a Subclass 189 visa in the
“Points-tested stream”. The criteria for the grant of a Subclass 189 visa are set out in Part 189 in Schedule 2 of the Regulations.
Subdivision 189.22 in Schedule 2 of the Regulations contains the primary criteria for the grant of a Subclass 189 visa in the “Points-tested stream”. Relevant to this matter are the following clauses:
189.221
The applicant was invited, in writing, by the Minister to apply for the visa.
…
189.224
(1)The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.
(2)The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.
Note:Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.
…
Sections 92 to 96 of the Act explain the operation of the “points” system in relation to particular classes of visas (usually general skilled migration visas) which require an applicant to achieve a “qualifying” score based on particular attributes and qualifications set out in Schedule 6D of the Regulations (as provided by reg 2.26AC of the Regulations).
The Minister sets the “applicable pool mark” and a “applicable pass mark” in relation to these types of visas by way of a legislative instrument pursuant to s 96 of the Act.
Section 5 of the Act defines the terms “applicable pool mark” and “applicable pass mark” as follows:
applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.
applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.
The Minister is required to assess the applicant against each of the prescribed attributes and issue a points score: s 93 of the Act. That assessment will determine whether an applicant achieves:
(a)the pass mark or higher (resulting in the visa application continuing to be considered for approval);
(b)the pool mark or higher (resulting in the application being placed into the pool for a specified period of time); or
(c)less than the pool mark (resulting in the visa application being refused).
The Minister is not prevented from setting a pool mark and a pass mark that is equal: s 96(5) of the Act.
The relevant legislative instrument in force at the time the first applicant applied for the visa was Migration Act 1958 - Specification - Pass Marks And Pool Marks In Relation To Applications For General Skilled Migrations Visas (Classes VE, VC, VF, VB, SI, SN and SP) - IMMI 12/017 (“IMMI 12/017”).
That instrument was replaced by Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2018 (“IMMI 18/067”) which commenced on 1 July 2018 and was in force at the time of the delegate’s decision.
IMMI 18/067 was later replaced by Migration (LIN 19/210: Pool and Pass Marks for General Skilled Migration Visas) Instrument 2019 (“LIN 19/210”) which commenced on 16 November 2019 and was in force at the time of the Tribunal’s decision (and at the time of these reasons).
Section 350 of the Act determines which legislative provisions the Tribunal should have regard to in reviewing the assessment of an applicant’s score made under s 93 of the Act and relevantly provides as follows:
350 Review of assessments made under section 93
(1)In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:
(a)the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(b)the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.
(2)In determining whether the regulations mentioned in paragraph (1)(a) or (1)(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the Tribunal may have regard to are:
(a)in relation to regulations covered by paragraph (1)(a)—the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and
(b)in relation to regulations covered by paragraph (1)(b)—the applicable pass mark and the applicable pool mark that applied at the time the decision is made by the Tribunal about the assessment.
IMMI 12/017, IMMI 18/067 and LIN 19/210 all provide both a pool mark and pass mark of 60 points for a Subclass 189 visa.
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicants on 15 August 2022) contains one ground of review, as follows (without alteration):
1.My humble request to consider the file to grant the PR visa for my family. At the time of application the pass mark was 60 points, my assessed score under the points system is 65 points (Legislative Instrument IMMI 12/017 achieved the qualifying score to pass the points test).
On 21 October 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The applicants first appeared before this Court on 2 June 2023. They did so without legal representation. The first applicant told the Court that he would speak on behalf of himself and his wife. The second applicant told the Court that she was happy for her husband to do so.
The Court confirmed that the first applicant had received copies of the Court Book and Minister’s written submissions.
The Court noted that the application for judicial review filed by the applicants only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Court explained this oversight to the applicants and made an order amending the application for judicial review to include the seeking of a writ of mandamus. This is now the preferred approach in this Court when seeking to assist unrepresented applicants: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 at [25]-[35].
The Court also raised a concern with the parties at the hearing in relation to the Tribunal’s assessment of the Minister’s invitation letter dated 3 January 2018 (referenced in the Tribunal’s decision). The Court determined that further submissions were required and made orders requiring the Minister to file any evidence and further written submissions in that regard by 7 July 2023. The applicants were also given an opportunity to file any evidence or written submissions in reply by 4 August 2023. The hearing was also adjourned.
The Minister filed an affidavit of Benjamin Amir Blair Mayne (affirmed on 6 July 2023) (the “Mayne affidavit”) and further written submissions with the Court on 6 July 2023. The applicants did not file any further materials.
Any concerns arising from the Minister’s invitation letter will be considered below.
The matter came before this Court again on 16 August 2023. The applicants appeared in person, without legal representation. The first applicant again spoke on behalf of himself and the second applicant.
The materials before this Court included the application for judicial review and supporting affidavit filed by the applicants on 15 August 2022, a Court Book numbering 198 pages (marked as Exhibit 1), the Ellis affidavit, written submissions filed on behalf of the Minister on 16 May 2023, the Mayne affidavit and further written submissions from the Minister filed on 6 July 2023.
The applicants’ sole ground of review is not particularised. This is not uncommon when applicants appear without legal assistance.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard practice of this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that when his representative submitted the expression of interest, the required score was 60 points. He explained that his representative submitted the expression of interest with a point score of 70. However, the first applicant only achieved a score of 65 points. The first applicant stressed that, in his view, he is qualified for the visa, he had more points than the minimum required and ought to have been granted the visa. He told the Court that if he were to re-apply now (five years later), he may not achieve the same point score due to his age. The first applicant also told the Court that if he knew his representative was not going to submit his application properly, he would have done the paperwork himself and he would have had his permanent residency by now.
The first applicant’s oral submissions, to the extent that they point to any jurisdictional error, will be considered below.
CONSIDERATION
The Minister’s invitation letter
Before considering the concerns raised by the applicants in this matter, the Court will first address a concern the Court raised with the Minister at the first hearing in this matter in relation to the Minister’s invitation letter.
As outlined above, one of the criterion for the grant of the visa the subject of this review is that the applicant be invited to apply for the visa. This requirement stems from the provisions set out in subdivision 189.22 in Schedule 2 of the Regulations (containing the primary criteria for the grant of a Subclass 189 visa in the “Points-tested stream”).
In particular, the Court notes the following requirement:
189.221
The applicant was invited, in writing, by the Minister to apply for the visa.
…
As explained above, the Court raised a concern with the parties at the first hearing held in this matter in relation to the Minister’s invitation letter. In particular, the Court noted that no copy of the Minster’s invitation letter was included in the Court Book and it was unclear whether the Tribunal had a copy of that letter before it when conducting its review.
The Court determined that further submissions and evidence were required and made orders requiring the Minister to file any evidence and further written submissions in that regard by 7 July 2023. The applicants were also given an opportunity to file any evidence or written submissions in reply (by 4 August 2023).
Further written submissions and the Mayne affidavit were filed on behalf of the Minister on 6 July 2023. The applicants did not provide any additional material to the Court.
The Minister’s further written submissions make it clear that a copy of the Minister’s invitation letter was not before the Tribunal (at [6] in written submissions filed on behalf of the Minister on 6 July 2023).
The Minister submitted, however, that a copy of Departmental ICSE notes (annexed to the Mayne affidavit) were digitally transferred to the Tribunal (on 12 April 2019) for the Tribunal’s review of the applicants’ matter (at [6] in written submissions filed on behalf of the Minister on 6 July 2023).
The Departmental ICSE notes relevantly provide as follows (Mayne affidavit, pp 10 & 39):
-------------------------------------------------
INVITATION -
Invitation Points: 70
Invitation Date: 03/01/2018
Lodgement Date:
-------------------------------------------------
The extract above, taken from the Departmental ICSE notes (which were before the Tribunal) indicate that the Minister’s invitation letter was issued on 3 January 2018 and that the qualifying points score included in that invitation letter was 70 points.
It is well established that the Tribunal is only empowered to make a determination regarding a relevant state of satisfaction where such a determination is based on findings or inferences of fact that are supported by probative material and logical grounds: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [40], citing SZMDS at [37]-[42].
That necessary evidence may be either direct or found in material which permitted the decision-maker to reasonably infer that the fact existed: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [39]-[41].
The Minister submits (and the Court agrees) that the Departmental ICSE notes and the extract above contained sufficient information to allow the Tribunal to infer that the Minister’s invitation letter sent to the first applicant (on 3 January 2018) included a qualifying score of 70 points.
The Court also notes that the first applicant did not dispute that the letter in fact contained a score of 70 points. In fact, the first applicant confirmed (in oral submissions before this Court) that his representative had (incorrectly) submitted an expression of interest on his behalf which included a proposed point score of 70 points (instead of 65 points).
The Court also notes that a “no evidence” challenge to a finding of the Tribunal cannot succeed where there is some evidence before the Tribunal to support such a finding. In that regard, it is noted that a challenge of that sort will fail in circumstances where “even a skerrick of evidence appears”: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59].
The Court is satisfied that there was sufficient evidence (by way of the Departmental ICSE notes) for the Tribunal to infer that the Minister’s invitation letter sent to the first applicant (on 3 January 2018) included a qualifying score of 70 points. Further, that evidence meets the minimum threshold required to meet a “no evidence” challenge.
No error arises in this regard.
Grounds of review
As outlined above, the applicants’ judicial review application contains one ground of review, as follows (without alteration):
1.My humble request to consider the file to grant the PR visa for my family. At the time of application the pass mark was 60 points, my assessed score under the points system is 65 points (Legislative Instrument IMMI 12/017 achieved the qualifying score to pass the points test).
The applicant here essentially takes issue with the Tribunal’s finding that he did not achieve the necessary score for the grant of the visa and appears to suggest that the Tribunal’s assessment of the applicant’s score was incorrect.
The Court disagrees for the reasons that follow.
As outlined above, in order for the first applicant to be granted the visa, he was required to meet the criteria set out in subdivision 189.22 in Schedule 2 of the Regulations (containing the primary criteria for the grant of a Subclass 189 visa in the “Points-tested stream”).
Of particular relevance to this matter and the applicants’ grounds of review is the following clause:
189.224
(1)The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.
(2)The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.
Note:Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.
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Here, the first applicant was invited (on 3 January 2018) to apply for the visa (CB 190 and the Mayne affidavit, pp 10 & 39). That invitation letter stated that the first applicant needed a qualifying score of at least 70 points (CB 113 & 196 and Mayne affidavit, pp 10 & 39).
The Tribunal assessed the first applicant’s points score under the points system as being 65 points (at [52]).
As set out above, the relevant legislative instrument in force at the time the first applicant applied for the visa was IMMI 12/017. That instrument was replaced by IMMI 18/067, which commenced on 1 July 2018 and was in force at the time of the delegate’s decision. IMMI 18/067 was later replaced by LIN 19/210 which commenced on 16 November 2019 and was in force at the time of the Tribunal’s decision (and at the time of these reasons).
As outlined above, s 350 of the Act provides that the Tribunal should have regard to the Regulations which are most favourable to an applicant (whether that is the legislative provisions in force at the time of the visa application or the time of the Tribunal’s decision).
Here, the point score under the relevant legislative instruments remained the same from the time the first applicant applied for the visa through to the time of the Tribunal’s decision. That point score was 60 points.
The applicant is therefore correct in that he met the minimum qualifying score of 60 points to satisfy cl 189.224(2) in Schedule 2 of the Regulations.
What the applicant has not appreciated, however, is that he was also required to satisfy the requirements of cl 189.224(1) in Schedule 2 of the Regulations. As set out above, cl 189.224(1) in Schedule 2 of the Regulations requires that the applicant’s assessed score is not less than the score stated in the invitation to apply for the visa.
Here, the Tribunal assessed the applicant’s score at 65 points and the Minister’s invitation letter included a qualifying score of 70 points (Mayne affidavit, pp 10 & 39).
Unfortunately, the first applicant’s assessed score is less than the score included in the Minister’s invitation letter. Clause 189.224(1) in Schedule 2 of the Regulations is a mandatory requirement for the grant of the visa and the Tribunal had no discretion to waive the requirements for or consider any discretionary factors.
The Tribunal was therefore correct to find that the first applicant cannot satisfy cl 189.224(1) in Schedule 2 of the Regulations and, on that basis, was not eligible to be granted the visa.
No jurisdictional error arises in relation to ground one.
Oral submissions
The first applicant’s oral submissions before this Court raised some concerns about the points scored and required for the grant of the visa and concerns with the conduct of his representative in assisting with his visa application.
The concerns raised in relation to the Tribunal’s assessment of the necessary score for the grant of the visa have been addressed above (in the Court’s consideration of ground one).
The Court will now address concerns raised by the first application in relation to the claimed conduct of his representative.
As outlined above, the first applicant was concerned that the representative had “not submitted his application properly” and had miscalculated the points that the first applicant was likely to be able to achieve (resulting in the score of 70 being included in the Minister’s invitation letter rather than the 65 points the first applicant was actually able to achieve).
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
There is no evidence that this is what occurred in this matter. Here, the first applicant’s concerns appear to relate to either the way in which his representative calculated his potential points score or the way in which the representative completed his visa application. Unfortunately for the applicants, negligence, incompetence or bad advice (while always unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
It cannot be said, on the material before the Court, that the applicant’s migration agent conducted a “fraud” on the Tribunal. What the first applicant described here is, at its highest, negligence or incompetence. The Court makes no findings about the applicants’ representative in this regard.
In the context of this matter, the most appropriate course of action is for the applicants to raise their concerns with the appropriate regulatory authority – being the Office of the Migration Agents Registration Authority.
No jurisdictional error arises in this regard.
MINISTERIAL INTERVENTION
The circumstances of this matter are most unfortunate.
The first applicant in this matter did not meet the required score in the Minister’s invitation letter. The first applicant is of the view that this was due to an error in point calculation by his representative (when submitting an expression of interest on behalf of the first applicant).
As outlined above, however, the first applicant did meet the requisite score for the grant of the visa (as set out in the relevant legislative instruments and the Regulations).
It would appear to this Court that the strict (but necessary) application of the relevant legislation and a possible calculation error on the part of the applicants’ representative have disadvantaged an applicant who otherwise would have had the necessary point score for the grant of a Subclass 189 visa.
The Court also notes that the first applicant is a skilled Business Analyst and was valued by his employer for more than 10 years.
The Court draws the applicants’ attention to the Minister’s discretionary powers pursuant to s 351(1) of the Act. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicants’ visas, and that decision has been upheld on review, the Minister has a statutory discretion to substitute a more favourable decision.
The Court encourages the first applicant to seek Ministerial intervention in relation to this matter.
CONCLUSION
The application for judicial review filed by the applicants on 15 August 2022 (and amended on 2 June 2023) and the first applicant’s oral submissions have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 22 December 2023
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