Gandham v Minister for Immigration - [2016] FCCA 1445

FEDERAL CIRCUIT COURT OF AUSTRALIA

GANDHAM v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1445

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) subclass 485 (Skilled Graduate) visa – applicant failed to provide a skills assessment by a relevant assessing authority – Tribunal requested evidence of skills assessment – not provided – Tribunal proceeded to make decision without affording applicant an opportunity to appear – procedure mandated by legislation.

Legislation:
Migration Act 1958 (Cth), ss.359, 359C(1), 360(1), (2), (3) and 363A
Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth), cls.485.221, 485.224 of Sch.2

Cases cited:
SZGJO v Minister for Immigration and Citizenship [2005] FMCA 1349
SZGJO v Minister for Immigration and Citizenship [2006] FCA 393
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413, [2010] FCAFC 40

Applicant:

INDIRA PRIYADARSHINI GANDHAM

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 2367 of 2014

Judgment of:

Judge Riley

Hearing date:

6 June 2016

Date of last submission:

6 June 2016

Delivered at:

Melbourne

Delivered on:

6 June 2016

REPRESENTATION

Counsel for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the first respondent:

Julia Lucas

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

DISMISSAL

The application filed on 24 November 2014 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,700.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2367 of 2014

INDIRA PRIYADARSHINI GANDHAM

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Migration Review Tribunal. The applicant applied on 4 February 2011 for a Skilled (Provisional) (Class VC) subclass 485 (Skilled Graduate) visa.
The delegate of the Minister refused the visa because the applicant did not satisfy clause 485.224 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). That clause required the applicant to comply with public interest criterion 4020. That criterion required that there be no evidence that the applicant had given the Minister information that was false or misleading in a material particular. The delegate found that the applicant had included in her application a Trades Recognition Australia (“TRA”) reference number which was false, and TRA had never provided the applicant with a skills assessment. The delegate found that the applicant did not have a valid skills assessment. As a valid skills assessment was a requirement for the visa, and as the applicant had not provided any reason for waiving public interest criterion 4020, the delegate refused the application.
The applicant then sought review by the Tribunal. The Tribunal sent the applicant a letter, dated 15 May 2014, which:
a)asked the applicant to provide evidence that:
i)as at the date of the visa application, the applicant had applied for a skills assessment; and
ii)her skills had been assessed as suitable by a relevant assessing authority; and
b)asked the applicant to comment on information that:
i)TRA had no record of giving the applicant a skills assessment; and
ii)documents showed that the file relating to the applicant had been found in the office of S & S Migration, which had been found to have lodged visa applications containing false or misleading information.
The applicant replied to that letter. She said that she had applied for a work visa through S & S Migration, and she offered to obtain a skills assessment if she were given sufficient time. The applicant did not provide evidence that she had applied for a skills assessment at the time she lodged her visa application and did not provide evidence that her skills had been assessed as suitable by a relevant assessing authority. Indeed, she has not provided a skills assessment at any time. She asked the court today if she could have further time to provide one.
The Tribunal apparently did not invite the applicant to appear before it. The Tribunal’s reasons for decision do not explain why that course was taken. However, the Minister has said that, given that the Tribunal sought information under s.359 of the Migration Act 1958 (“the Act”) that was not provided by the applicant, the Tribunal was not permitted to give the applicant a hearing under s.360 the Act.
Section 359 of the Act permits the Tribunal to seek certain information. Subsection 359C(1) of the Act provides that, if a person is invited in writing under s.359 to give information and the person does not do so before the specified time has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.
Subsection 360(1) of the Act requires the Tribunal to invite the applicant to appear before the Tribunal. However, s.360(2) of the Act provides that s.360(1) of the Act does not apply if s.359C(1) of the Act applies to the applicant. In this case, s.359C(1) of the Act did apply to the applicant because she had not provided information within the requisite time. Subsection 360(3) of the Act then provides that, if s.360(2) of the Act applies, the applicant is not entitled to appear before the Tribunal.
Further, s.363A of the Act provides that if a person is not entitled under a provision of the Act to do something, the Tribunal does not have power to permit the person to do that thing. That means that, as the applicant was not entitled to appear before the Tribunal, the Tribunal was not permitted to invite the applicant to appear before it. That construction of the relevant sections has been upheld by the Full Court of the Federal Court in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, particularly at paragraph 26.
The Tribunal considered that the first question was whether the applicant had made a valid visa application in circumstances where she, in effect, claimed that she had not given any consent specifically to a subclass 485 visa application being made on her behalf.
The Tribunal considered the decision of this court in SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1349, where it was held that, in similar circumstances, the applicant had lodged a valid visa application because he had been indifferent to the content of the application, provided that he obtained a protection visa. That judgment was upheld on appeal in SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393.
The Tribunal considered that the present case was not dissimilar. The Tribunal said that the applicant had asked S & S Migration to lodge an application for a work visa, and the applicant had been indifferent to how the migration agent secured that visa. In these circumstances, the Tribunal considered that the visa application was valid.
The Tribunal also noted that cl.485.221 of Schedule 2 to the Regulations required, at the time of decision, that the applicant’s skills had been assessed by a relevant assessing authority as suitable for the nominated skilled occupation. The applicant had nominated the occupation of cook. The Tribunal considered that the applicant had nominated the occupation of cook even if she had no personal knowledge of that.
The Tribunal noted that the relevant assessing authority was TRA. The Tribunal noted that TRA had confirmed that the details provided by the applicant in her application did not correspond with any record held by TRA. The Tribunal accepted the information from TRA and concluded that the applicant had not provided the necessary skills assessment.
The Tribunal also noted that the applicant had had a considerable period of time to provide the skills assessment. The Tribunal’s letter asking for the skills assessment was sent to the applicant on 15 May 2014, and the Tribunal did not make a decision until 27 October 2014. The applicant’s application for the visa was lodged on 4 February 2011.
The Tribunal noted that there was no relevant TRA skills assessment before it and consequently affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 (Skilled Graduate) visa.
The applicant has not been represented in this court. She filed her application on 24 November 2014. Her grounds of application were as follows (errors in original):
1.For insufficient time
2.The evidence was correct and legetimate.
3.And I did not falsify information.
4.Not given the chance for hearing.
Respected Sir/Ma’am,
I am applicant, Ms. Indira Priyadarshini Gandham. and my son, Timothy Gandham.
MRT case no. 1404551
DIBP References BCC2011/65854
Decision: The Tribunal affirms the decision not to grant the Skilled (Provisional) (Class VC) Visas.
Sir, further in the Afidavit, I would proceed to explain my contention, respected Sir/Ma’am.
To the extent that the applicant has said that she did not have sufficient time, the chronology for this matter does not support that claim. Her application was lodged on 4 February 2011, when the TRA assessment reference should have been correctly provided by her. The matter was not decided by the Tribunal until 27 October 2014, more than three and a half years later. It is difficult to see how it could properly be said that the applicant had insufficient time.
To the extent that the applicant said that she did not falsify information, that may be so. However, under s.98 of the Act, a non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
That applies in the present case, where the applicant asked S & S Migration to obtain a work visa for her and was then, as the Tribunal found, indifferent to precisely how that was done. Essentially, S & S Migration filled in the application form on the applicant’s behalf with false information, being a reference number to a TRA assessment that did not exist. Although the Tribunal did not expressly rely upon s.98 of the Act, it clearly applies. Moreover, the reasoning that the Tribunal followed, relying on SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs, has clearly been upheld by the Federal Court and is an available basis to support the Tribunal’s decision.
To the extent that the applicant said that she was not given the chance for a hearing, as already explained, by failing to provide information requested by the Tribunal, the applicant was deprived by the Act of the opportunity for a hearing. There is no error in this regard.
The applicant also supported her application with an affidavit, wherein she stated she would “provide the evidence, over a period of time”. However, she did not do so and still has not done so. She also said that she had searched for someone to sponsor her but could not find anyone, except at “enormous expense”.
One way or another, it is clear that the applicant was not in a position to obtain a TRA skills assessment. She said so herself to the court today. It is difficult to see how anything stated in the affidavit could constitute a jurisdictional error.
Before the court today, the applicant raised matters which could best be described as matters going to merits review. The applicant described the history of her application. However, there is nothing in the applicant’s description that suggests that there has been any jurisdictional error in this case.
The applicant again asked the court today for more time and said that she could try to obtain a TRA skills assessment now, although she conceded that she had a problem in that she could not find a job. It seems that these matters again are going to merits review.
It seems to me that, in all the circumstances of this case, there is no other conclusion that the Tribunal could have come to. The applicant simply did not satisfy the requirements of the visa for which she applied. Consequently, the Tribunal had no option but to affirm the delegate’s decision.
I can see no jurisdictional error in the Tribunal’s decision or decision-making process. Even if there were such an error, the applicant still has the insurmountable problem that she does not fulfil the criteria for the visa she sought. As such, it would be futile to remit the matter to the Tribunal. For these reasons the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 14 June 2016