Franco v Minister for Immigration

[2013] FCCA 1723

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRANCO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1723

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled visa – assessment of the applicant’s skills by an assessment authority a time of decision criterion – refusal of the Tribunal to await that assessment – whether the refusal was unreasonable considered.

Legislation:

Migration Act 1958 (Cth), ss.359, 363
Migration Regulations1994

Dranichnikov v Minister for Immigration [2003] HCA 26
Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZIAI (2009) 259 ALR 429

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration (2005) 228 CLR 294

Applicant: CARLOS HENRIQUE FERREIRA FRANCO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2792 of 2012

Judgment of: Judge Driver

Hearing date: 25 October 2013

Date of Last Submission: 29 November 2013

Delivered at: Sydney

Delivered on: 13 December 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S Cirillo

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application as amended on 10 May 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2792 of 2012

CARLOS HENRIQUE FERREIRA FRANCO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 25 October 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Franco) a Skilled (Provisional) (Class VC) visa. 

2. Mr Franco, a national of Brazil, first entered Australia in 2008 on a student visa.  On 22 December 2010, he applied for a Skilled (Provisional) (Class VC), Subclass 485 (Skilled – Graduate) visa.  On 17 February 2012 a delegate of the Minister refused to grant Mr Franco a visa on the basis that Mr Franco did not satisfy clause 485.221 of Schedule 2 of the Migration Regulations 1994 (Regulations) because the delegate was not satisfied that Mr Franco’s skills had been assessed as suitable for his nominated occupation by the relevant assessing authority.

3. On 2 March 2012, Mr Franco applied to the Tribunal for review of the delegate’s decision and appeared before the Tribunal on 20 June 2012.  On 25 October 2012, the Tribunal affirmed the decision of the delegate.

4. By way of an amended application filed on 10 May 2013, Mr Franco seeks orders in the nature of certiorari and mandamus in relation to the Tribunal’s decision.  In support of his amended application, Mr Franco relies on an affidavit he made on 10 May 2013 (affidavit).

Statutory regime

1. In order to be granted a subclass 485 visa, Mr Franco, at the time of the decision, needed to satisfy a primary criterion prescribed by clause 485.221 of Schedule 2 to the Regulations, which required his skills to have been assessed by the relevant assessing authority as suitable for that occupation.

2. Regulation 1.03 of the Regulations provides that the term “relevant assessing authority” means a body or person specified under regulations 2.26B.  Regulation 2.26B in turn provides that the Minister may specify by an instrument in writing, a person or body as the relevant assessing authority.  Legislative Instrument IMMI 12/068 provides that for the occupation of “Advertising Specialist”, the relevant assessing authority is Vocational Education Training Assessment Services (VETASSESS).

Background

1. The following statement of background facts is derived from the submissions of the parties.

2. On 22 December 2010, Mr Franco applied for a Skilled (Provisional) (Class VC), Subclass 485 (Skilled – Graduate) visa, nominating the occupation of “Advertising Specialist” and indicated that he applied for a skills assessment from 16 December 2010 from VETASSESS in respect of his nominated occupation and provided the reference/receipt number for the skills assessment[1].

   [1] court book (CB) 8; 106 [13]

3. On 11 January 2012, the delegate wrote to Mr Franco to request that he provide the skills assessment for his nominated occupation[2].  Mr Franco did not comply with this request[3]. 

   [2] CB 33-38

   [3] CB 68; 106 [14]

4. Mr Franco appeared at the Tribunal hearing on 20 June 2012.  During the course of hearing, the Tribunal informed Mr Franco of the requirement under clause 485.221.  In response Mr Franco said that he did not have a positive skills assessment for his nominated occupation, but would finish his study and re-apply for another skills assessment[4]. 

   [4] CB 106 [16]

5. On 20 July 2012, the Tribunal received from Mr Franco evidence that on 19 July 2012 Mr Franco completed his application to VETASSESS for assessment of his skills for his nominated occupation[5].

   [5] CB 100; 106 [16]

6. On 28 August 2012, Afroza Hayat, who had been assigned to do so by the Tribunal member, contacted Mr Franco to enquire about the status of the skills assessment.  The next day, Mr Franco returned this call and advised that he would send it to the Tribunal as soon as he received it.  The detail of this conversation is recorded in a file note made by Afroza Hayat in the document entitled “Task Details 786426” which is marked as annexure “C” to the affidavit (file note).

7. The file note records that Afroza Hayat phoned the applicant again on 2 October 2012 by stating:

   The applicant called back, he said that he has not received the skills assessment result from VETASSESS yet, I have asked him to contact VETASSESS and get back to the tribunal with any evidence stating that he has a pending skills assessment with VETASSESS as it is now more than two months that he was supposed to provide the information to the Tribunal. He said he will contact them and will try to send something to the Tribunal. AH 2/10/2012

8. As at 8 October 2012, Mr Franco had still not provided information relating to the status of his skills assessment to the Tribunal.  On that date, the Tribunal wrote to Mr Franco to advise that the skills assessment had not been provided to date and that the Tribunal would proceed to make a decision on Mr Franco’s application for review on or before 25 October 2012[6]. 

   [6] CB 102

9. On 25 October 2012, the Tribunal concluded that it was not satisfied on the evidence before it that Mr Franco’s skills have been assessed as suitable by the relevant assessing authority for his nominated occupation[7].  The Tribunal also found that Mr Franco did not satisfy the requirements of any other visa, including a subclass 487 visa.

   [7] CB 107 [19]

The judicial review application

1. These proceedings began with a show cause application filed on 29 November 2012.  Mr Franco now relies upon an amended application filed on 10 May 2013.  There are three grounds in that application:

   1. The second respondent’s decision was affected by jurisdictional error as it failed to allow a reasonable period for the applicant’s application for a skills assessment to be resolved by the relevant skills assessing authority.

   Particulars:

   The second respondent failed to take into account a relevant consideration, namely, discussions which took place between it and the applicant on 2 October 2012 in deciding firstly, whether to allow more time for that purpose; secondly, whether to decline the review application; thirdly, whether to appoint a further hearing date and fourthly, whether to use its powers under s.359 of the Migration Act 1958 to obtain information directly from VETASSESS.

   2. The second respondent failed to exercise its jurisdiction in that it failed to consider whether to appoint a further hearing date after 2 October 2012 or whether to use its powers under s.359 of the Migration Act 1958 to obtain information directly from VETASSESS.

   3. The second respondent denied the applicant procedural fairness and acted unfairly in misleading the applicant at the hearing to believe he could await the outcome from VETASSESS and then refusing without a further hearing to await the outcome from VETASSESS.

   Particulars:

   By proceeding to make a decision so quickly after 2 October 2012 the second respondent deprived the applicant of any real opportunity to lodge the said outcome once he obtained it and in consequence, the applicant was denied procedural fairness.

2. I have before me as evidence the court book filed on 9 January 2013.  I also received Mr Franco’s affidavit made on 10 May 2013, to which are annexed documents relevant to the judicial review application.  During the course of the trial of the matter on 25 October 2013, Mr Franco tendered, and I received, additional documents[8] which assumed some significance.

   [8] Exhibit A1

3. Counsel for both parties prepared written submissions before trial.  Mr Franco was, however, unrepresented at the trial of the matter.  He and counsel for the Minister made oral submissions. 

4. In the light of the additional evidence presented at the trial of this case, I gave the parties the opportunity to file additional submissions directed to the Court’s discretion to withhold relief in the event that jurisdictional error had been established.  Both parties made further submissions after the trial.

Consideration

1. Mr Franco’s amended application sets out three grounds of review contending that the Tribunal committed jurisdictional error in proceeding to make a decision on the review application without the results of Mr Franco’s VETASSESS application.  The grounds, though repetitive, when read together with Mr Franco’s submissions, appear to allege three errors:

   a)that the Tribunal erred by declining to allow Mr Franco further time, or a “reasonable period” so as to allow a “real opportunity” to provide evidence of his skills assessment;

   b)that the Tribunal failed to consider whether to use its powers under s.359 of the Migration Act 1958 (Cth) (Migration Act) to obtain information directly from VETASSESS; and

   c)that the Tribunal misled the applicant to believe that the Tribunal would not make a decision on Mr Franco’s application for review without the outcome of the VETASSESS application.

Did the Tribunal act unreasonably?

1. Mr Franco’s submissions rely on the decision of Minister for Immigration v Li[9] in which the High Court considered the principles applying to the exercise of discretionary powers by administrative decision-makers.  In Li, a favourable skills assessment from the relevant assessing authority was a necessary condition of the grant of the kind of visa which Ms Li sought.  However, the Minister’s delegate refused to grant her a visa because the skills assessment that she had obtained was based on information that was not genuine.  Ms Li applied for a review by the Tribunal of the delegate’s refusal.  After her hearing before the Tribunal, Ms Li received a second skills assessment, but one which was unfavourable.  On 21 December 2009 her migration agent wrote to the Tribunal advising that the skills assessment contained fundamental errors and that on this basis Ms Li had applied to the assessing authority for a review of its assessment and requested that the Tribunal await the finalisation of the skills assessment application before making a decision.  In its reasons on 25 January 2010, the Tribunal refused this request, stating that it considered that Ms Li had been provided with “enough opportunities” and that the Tribunal was “not prepared to delay any further”. The Tribunal affirmed the delegate’s decision, finding that Ms Li did not meet the relevant visa criterion because the first skills assessment was affected by fraud.  The High Court (French CJ, Hayne, Kiefel, Bell and Gageler JJ) unanimously held that the Tribunal should have granted the adjournment sought.

   [9] [2013] HCA 18; (2013) 297 ALR 225

2. On a cursory examination, this case appears stronger than Li.  Mr Franco had not relied on any bogus documents to support his visa application and he appears to have explained to the Tribunal, at the hearing conducted by the Tribunal on 20 June 2012, his difficulties in aligning his studies with the skills assessment he sought.  At [16] of its reasons the Tribunal said[10]:

   The applicant provided to the Tribunal evidence of his study.  The Tribunal discussed with the applicant the requirements of cl.485.221.  The applicant said that he did not have the skills assessment for his nominated occupation.  He said that when he made the application, he also applied to VETASSESS and a few months later he received advice that he could not be assessed as an advertising specialist.  He withdrew his visa application and applied for the student visa so that he could continue his studies but there was some misunderstanding with Immigration, so that his student visa and not his subclass 485 visa, was withdrawn.  He put his VETASSESS assessment on hold so that he could continue with his study and be reassessed.  He is about to finish his study and he believes he now has enough subjects to reapply.  The Tribunal granted the applicant more time to provide evidence of his skills assessment.  On 20 July 2012 the applicant provided to the Tribunal evidence of having made the application to the VETASSESS for the assessment of his skills. As the applicant had not provided the results of that application, on 8 October 2012 the Tribunal wrote to the applicant informing him that it intended to proceed to the decision on his application on or after 25 October 2012.  To date, the applicant has not provided evidence that his skills had been assessed by the relevant assessing authority for the nominated occupation.

   [10] CB106-107

3. The simple facts were that Mr Franco had sought an assessment of his skills from a prescribed assessment body and was waiting for it.  He had no control over the timing of that assessment.  There is nothing in the court book to suggest that Mr Franco was in any way engaged in delay.  On those simple facts it seems extraordinary that the Tribunal would refuse to await the assessment of VETASSESS and would proceed to make a decision without it.

4. The affidavit of Mr Franco discloses that he obtained the favourable skills assessment that he sought from VETASSESS on 14 December 2012.  My initial reaction was that it seemed unreasonable for the Tribunal to refuse to wait for and obtain that assessment, especially in circumstances where the delay was not something Mr Franco was responsible for or had any control over, and where the assessment authority was one prescribed by the Commonwealth itself. 

5. The facts that emerged at the trial of this matter, however, provide a basis for distinguishing this case from Li.  First, although not mentioned in the Tribunal decision, the court book discloses[11] that the Tribunal had sought evidence of the VETASSESS skills assessment (or at least the application to it) by 20 July 2012.  Mr Franco provided the evidence of his application to VETASSESS to the Tribunal on that day[12]. Whether or not that information stimulated the Tribunal to exercise its discretion under s.363(1)(b) of the Migration Act in favour of Mr Franco, it is plain that the Tribunal accepted that it should not proceed immediately to a decision. The affidavit of Mr Franco discloses two conversations between him and a Tribunal officer on 28 August 2012 and 2 October 2012 concerning the status of the VETASSESS assessment. The second conversation (on 2 October 2012) is noteworthy in that Mr Franco is recorded as having told the Tribunal officer that he had not received his skills assessment result from VETASSESS at that time. As will appear from the discussion below about the Court’s discretion to refuse relief, that statement was untrue.

   [11] CB 99

   [12] CB 100-101

6. The Tribunal officer asked Mr Franco to contact VETASSESS and get back to the Tribunal with any evidence stating that he had a pending skills assessment with VETASSESS as it was now “more than two months that he was supposed to provide the information to the Tribunal”.  That may be taken to have been a reference to the 20 July deadline imposed at the Tribunal hearing.  The request in those terms is very curious as the Tribunal knew, or should have known, that that request had already been met by the due date.  It is possible that the tribunal officer was prescient or that the Tribunal knew more about the status of Mr Franco’s VETASSESS assessment than has been revealed, but that is pure speculation.

7. Mr Franco did not provide anything further to the Tribunal.  This stimulated the Tribunal to write to him by letter dated 8 October 2012 in the following terms[13]:

   [13] CB 102

   Dear Mr Ferreira Franco

   REQUEST FOR INFORMAITON – MR CARLOS HENRIQUE FERREIRA FRANCO

   I am writing about the application for review made by you in relation to a decision to refuse to grant a Skilled (Provisional) (Class VC) visa.

   The Tribunal requested you to provide the skills assessment in June 2012.  The skills assessment has not been provided to date.  The Tribunal now intends to proceed to the decision on your application for review on or after 25 October 2012.

   If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 361 969.  For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

8. Importantly, Mr Franco did not respond to that letter.  He did not seek any more time to obtain the VETASSESS assessment, neither did he provide to the Tribunal anymore information about the status of that assessment.  Mr Franco was invited to telephone the Tribunal and it was plainly open to him to make a request for more time if he felt he needed it.  He did not do so. 

9. These facts provide a basis for distinguishing this case from Li.  Unlike in Li, the Tribunal received no request from Mr Franco to refrain from making a decision for a specific purpose[14].  Mr Franco now contends that this purpose would have been to continue to await the outcome of his skills assessment application, but this was not a reason obvious to the Tribunal in the absence of a communication to that effect from Mr Franco.  After receiving the 8 October 2012 notification that the Tribunal sought to finalise the application for review, and, especially after the 2 October 2012 conversation evidenced in the file note, it was incumbent upon Mr Franco to at least satisfy the Tribunal that he still pressed his skills assessment application and considered it to be evidence that he still sought to place before the Tribunal for the purpose of his review application.  In the absence of that information from Mr Franco, the Tribunal’s conduct to proceed to make a decision on the review did not lack an “evident and intelligible justification”[15].

   [14] cf Li (2013) 297 ALR 225 at [76] per Hayne, Kiefel and Bell JJ

   [15] Li at [76] per Hayne, Kiefel and Bell JJ

Was the Tribunal required to contact VETASSESS?

1. Section 359(1) of the Migration Act, relied upon by Mr Franco, simply permits the Tribunal to “get any information that it considers relevant” and only mandates the Tribunal’s consideration of that information if it obtains such information. Therefore, while s.359(1) gives the Tribunal a wide discretionary power to investigate an applicant's claims, it does not impose upon the Tribunal a general duty to make such inquiries[16]. Where the Tribunal does not make its own inquiries, such an omission could only constitute jurisdictional error if it means that constructively, the Tribunal failed to exercise its jurisdiction[17]. 

   [16]Minister for Immigration v SZGUR (2011) 241 CLR 594 at [20]

   [17]Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ

1. If Mr Franco had contacted the Tribunal in response to its letter dated 8 October 2012, requesting more time to obtain the VETASSESS assessment, and explaining his own difficulties in obtaining that assessment in a timely fashion, this case would, in my view, had been on all fours with Li.  In those circumstances, it would in my view have been unreasonable for the Tribunal to make its decision without either seriously considering that request on its face or contacting VETASSESS to obtain more information about the status of the assessment.  However, in circumstances where Mr Franco made no response to the Tribunal’s letter, there was no obligation on the Tribunal to make its own enquiries. 

Did the Tribunal mislead Mr Franco? 

1. It cannot be said that, in circumstances where the Tribunal indicated in the 28 August 2013 and 2 October 2013 telephone conversations that it was relying on Mr Franco for information about his skills assessment and where he received the 8 October 2012 letter, he was misled by the Tribunal. 

Discretion to refuse relief

1. Relief under s.75(v) of the Constitution is discretionary[18].

   [18]Dranichnikov v Minister for Immigration [2003] HCA 26 at [33] per Gummow and Callinan JJ and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and [52] per Gaudron and Gummow JJ.

2. In SAAP v Minister for Immigration[19] McHugh J said at [80]:

   The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome. (footnotes omitted)

   [19] (2005) 228 CLR 294

3. If I am wrong in my finding that the Tribunal did not fall into the error identified by the High Court in Li, I would refuse relief in the exercise of the Court’s discretion.  That is because, as Mr Franco himself disclosed at the trial of this matter, he withheld relevant information from the Tribunal.  Exhibit A1 comprises the following original documents:

   a)a letter from VETASSESS to Mr Franco dated 31 July 2012 attaching the results of his skills assessment from VETASSESS;

   b)a qualifications assessment from VETASSESS (which was favourable) dated 31 July 2012 for the nominated occupation of media producer; and

   c)an original Change of Occupation Request form completed by Mr Franco and dated 13 November 2012.

4. What these documents reveal is that Mr Franco had a problem that he did not disclose to the Tribunal.  He had obtained a favourable skills assessment from VETASSESS but not for the occupation that supported his visa application.  This was a continuation of problems Mr Franco had experienced earlier in his visa application history.  The problem was aligning his studies to the correct skills which could then be assessed.  Mr Franco conceded in argument that he did not disclose the VETASSESS skills assessment to the Tribunal as it did not support his review application.  It seems that he was at a loss to know what to do with it.  It was only after he received the Tribunal decision that he acted appropriately to make the change of occupation application to VETASSESS which resulted in the favourable assessment for the correct occupation he ultimately received in December 2012. 

5. If Mr Franco had been open and honest with the Tribunal, in particular in response to its letter of 8 October 2012, he would have had a good case for asking the Tribunal to defer making a decision until he had had a reasonable opportunity to correct the situation by making his change of occupation request.  He did not do so.  Unfortunately, for him, he was, in my view, the primary author of his own misfortune in the outcome he received from the Tribunal.  That outcome is extremely unfortunate.  It lies in the Minister’s hands to resolve the problem should he be minded to do so.

6. I will hear the parties as to costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 December 2013