GHIMIRE v Minister for Home Affairs

[2019] FCCA 316

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHIMIRE & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 316

Catchwords:
MIGRATION – Application for visa – asserted that incorrect stream applied for – request that further information be furnished within a specified time pursuant to s. 359 of Migration Act – failure to satisfy criteria – application for review without merit and dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 359, 359(2), 359C, 360(3), 363A

Migration Regulations 1994, rr.485.223, 485.311

Cases cited:

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

Minister for Immigration and Citizenship v SZMDS (2010) 240
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

First Applicant: NEHA KUNWAR GHIMIRE

Second Applicant: PUKAR GHIMIRE

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 579 of 2018

Judgment of: Judge Egan

Hearing date: 22 January 2019

Date of Last Submission: 22 January 2019

Delivered at: Brisbane

Delivered on: 22 January 2019

REPRESENTATION

Applicant: Self-Represented

Counsel for the Respondent: Mr A. Psaltis

Solicitors for the Respondent: Clayton Utz

ORDERS

IT IS ORDERED THAT:

1. The application for review filed on 14 June 2018 be dismissed.

2. The applicants pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 579 of 2018

NEHA KUNWAR GHIMIRE

First Applicant

PUKAR GHIMIRE

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of Nepal. They applied for skilled (provisional) (class VC) visas pursuant to Section 65 of the Migration Act 1958 (Cth) (‘the Act’) on 18 August 2017. On 2 September 2017 the applicants provided the department with a notification of having given an incorrect answer, by which they stated that they wished to correct an answer in their application, to change their application from a graduate work-stream to a post-study work-stream.

2. On 28 September 2017 a delegate of the Minister refused the applicants’ application for the visa. One of the reasons for declination of the application was non-satisfaction of the clause 485.223 criteria of schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). It was also indicated by the delegate that at the time of making an application, it was a requirement for the applicants to choose a stream under which to apply, and that there was no provision in the Regulations to change the stream of the 485 visa application once lodged.

3. On 16 October 2017 the applicants lodged an application for review of the delegate’s decision. On 16 March 2018 the Administrative Appeals Tribunal (‘the Tribunal’) sent a letter to the applicants inviting them pursuant to Section 359 of the Act to provide “information that demonstrates that you meet all the requirements of clause 485.223 of schedule 2 of the Migration Regulations” by 3 April 2018. The letter, relevantly, set out as an attachment clause 485.223 of schedule 2 of the Regulations, that letter also indicating as follows:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Act to appear before us to give evidence and present arguments.

4. On 22 April 2018 the applicants sent an email to the Tribunal attaching statutory declarations which indicated that they had only become aware of the Tribunal’s email dated 16 March 2018 when they checked the Junk mailbox for their email address on 20 April 2018, and that they had mistakenly applied for a graduate work-stream visa when they had intended to apply for a post-study work-stream visa. 

5. On 18 May 2018 the Tribunal affirmed the decision of the delegate to refuse the application for the visa.  On 14 June 2018 the applicants sought judicial review of the decision of the Tribunal handed down on 18 May 2018.  There are three grounds of the application for review.  Those grounds are as follows. 

   1. The Second Respondent made jurisdictional error by failing to afford the Applicants procedural fairness by providing them with the opportunity to submit further material or argument.

   2. The Second Respondent made jurisdictional error by failing to consider the exercise of discretion under section 359 of the Migration Act 1958 in circumstances where the Applicants had provided an explanation for the failure to supply requested information within the time originally specified under section 359 of the Migration Act 1958.

   3. The Second Respondent erred at [7] of its decision record in unreasonably exercising (or failing to exercise) a discretion which it accepted that it had.

   4. The Second Respondent made jurisdictional error by applying or failing to distinguish Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

6. The decision of the Tribunal was clear and concise. In [2] of its reasons the Tribunal found that the criteria for the grant of a subclass 485 visa as set out in schedule 2 of the Regulations had not been met by either applicant. In this case, relevantly, the delegate had refused to grant the visas because the first-named applicant did not satisfy 485.223 of schedule 2 to the Regulations.

7. The Tribunal found in [3] of its reasons that the applicant’s visa application was not accompanied by evidence that she had applied for an assessment of her skills for the nominated skill occupation by a relevant assessing authority, as required by the criteria. Clause 485.223 of schedule 2 to the Migration Regulations provided as follows:

   485.223

   When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

8. The Tribunal also – in [5] of its reasons – wrote to the applicant pursuant to Section 359(2) of the Act, inviting the applicant to provide information in writing concerning the meeting of the criteria as set out in clause 485.223 of schedule 2. A request for a response by 3 April 2018 was made. The applicants did not provide the relevant information within the prescribed period, and no extension of time for the provision of such information was granted.

9. In [7] of its reasons the Tribunal found that in such circumstances, section 359C of the Act relevantly applied, and that pursuant to section 360(3) of the Migration Act, the applicants were not entitled to appear before the Tribunal; further, the Tribunal found that the effect of section 363A of the Act was that if an applicant had no entitlement to a hearing, the Tribunal had no power to permit him or her to appear. The Tribunal relied upon the decision of the Full Court of the Federal Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40, which is a case directly on point to the present.

10. The Tribunal decided to proceed to a decision without taking further steps to obtain any further information.  The Tribunal then, relevantly, assessed whether the applicants had appropriately applied for a relevant skills assessment from a relevant assessing authority.  In [13] of its reasons the Tribunal noted that when the female applicant made her application for a visa, she declared on the form that she had not applied for a skills assessment with a relevant authority in her nominated skilled occupation of a registered nurse (aged care) (254412).

11. At [14] of its reasons the Tribunal properly found that it did not have power to rule on, or set aside, reference to the incorrect stream and replace it with the correct stream, as had been asserted by the applicants as being the mistake made by them in filling out the application for visa form. At [16] of its reasons the Tribunal found that the female applicant did not satisfy the requirements of clause 485.223 of schedule 2 to the regulations. It accordingly affirmed the decision of the delegate under review.

12. Because the primary applicant (the female applicant) did not satisfy the subclass 485 visa criteria, the Tribunal at [18] of its reasons also found that the secondary applicant (the female applicant’s husband) did not satisfy the relevant clause 485.311 criteria, which, relevantly, required as a precondition that the member of the family unit, in this case the female applicant, satisfied the primary criteria for the grant of a subclass 485 visa.  The Tribunal found that therefore the male applicant was also not entitled to the grant of a visa. 

13. No jurisdictional error has been demonstrated on the part of the Tribunal.  None of the grounds of the application for review have any merit.  Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal in this case. [1]

    [1]        See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240

    CLR 611 at [130].

14. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification as such concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    ...

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

15. The application for review is without merit and is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  12 February 2019