Gutha v Minister for Immigration

[2014] FCCA 2101

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUTHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2101

Catchwords:
MIGRATION – Application for judicial review – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1986) 162 CLR 24

Applicant: SUDHAKAR RAO GUTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 235 of 2014

Judgment of: Judge McGuire

Hearing date: 9 September 2014

Date of Last Submission: 9 September 2014

Delivered at: Melbourne

Delivered on: 16 October 2014

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: N/A

Counsel for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 12 February 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 235 of 2014

SUDHAKAR RAO GUTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to the Migration Act 1958 (Cth) (“The Act”) seeking that an order that the decision of the Migration Review Tribunal (“the Tribunal”) made 15 January 2014 be quashed.

2. The only ground of the application filed 12 February 2014 is:

   I am not satisfied with decision taken by the MRT. Therefore I want to appeal against this decision in the Federal Court.

3. The applicant filed two affidavits on 12 February 2014 and 6 June 2014.

4. The applicant appeared unrepresented. He confirmed that he did not require the assistance of an interpreter.

5. The first respondent was represented by counsel and sought an order dismissing the application on the grounds that the Tribunal’s decision is not affected by jurisdictional error.

6. The applicant is a 28 year old citizen of India.

7. On 8 November 2010 the applicant made application for a Skilled (Provisional) (Class VC) Visa (“the visa”). He nominated his skilled occupation as “graphic pre-press trade worker”.

8. On 28 March 2012 the minister’s delegate refused the grant of the visa relying on the applicant not having met all of the criteria for the grant of the visa specifically the applicant had failed to respond to requests for additional information made 7 December 2011, 16 January 2012, and 27 January 2012. The delegate’s decision advised the applicant (CB 121):

   As you failed to respond to the Department’s communication or provide evidence to support your application, you have not demonstrated that you have a suitable skills assessment for your nominated occupation. As the requirements are not met, I have not assessed the application further.

9. The delegate proceeded to an assessment for alternate visa sub class. The application did not particularise any sub class of the visa.

10. The applicant applied to the Tribunal for a merits review on 16 April 2012. His application attached a copy of the delegate’s decision and reasons. The applicant in his application provided an address for correspondence and service being Unit-2, 21/22 Esther Court, Seabrook, Melbourne, VIC, 3028.

11. By letter of the 17 April 2012 (CB 144) the Tribunal wrote to the applicant inviting the applicant to provide material or written arguments.

12. On 5 April 2013 the applicant advised a change of address to 1/5 Addison Street, Riverside, Tasmania, 7250. That change of address was later confirmed by telephone.

13. On 3 October 2013 the Tribunal corresponded with the applicant by registered post noting that the applicant had not submitted any evidence that his skills had been assessed as suitable by the relevant assessing authority for his nominated skilled occupation. The letter explained that such information was relevant to the review and required by the Regulations. An invitation was rendered for the applicant to comment or respond by 28 October 2013.

14. On 21 October 2013 the applicant requested and was granted an extension of time to provide the requisite documents. The applicant was given until 18 November 2013 to provide evidence of skills assessment.

15. The applicant did not respond or offer comment.

16. The Tribunal affirmed the delegate’s decision not to grant the visa on 15 January 2014. In its reasons at [14] and [15] and [16] the Tribunal said:

    The Tribunal notes that the invitation to comment on adverse information under section 359A and to provide information under subsection 359(2) of the Act in this case was sent to the last address for service provided by the applicant in connection with the application for review. The tribunal also has evidence indicating the date of dispatch in accordance with section 379A of the Act.

    as the applicant failed to give the information and to comment upon the adverse information before the time for giving it had ,passed subsections 359C(1)and (2) of the Act apply and the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, as subsection 359C(1) and (2) apply to the applicant, subsection 360(3) states that he is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a person to do something he or she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

    In addition, the Tribunal has had regard to the fact that the Courts have held that where an applicant fails to respond to a written invitation to comment upon adverse information, or to provide information, within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.

17. The Tribunal proceeded to its consideration of claims and evidence. It noted and took into account the following:

    a)That the application was for a subclass 485 visa and that the applicant must have applied for a skills assessment for his nominated skill occupation and being assessed as suitable for that occupation;

    b)That the applicant nominated an occupation of “graphic pre-press tradesperson” which is a specified skilled occupation;

    c)That at the time of its decision the Tribunal had not been provided with any evidence of a skills assessment;

    d)Noted that the applicant had sought an extension of time of 45-60 days on 21 October 2013 in that he had applied for a provisional skills assessment on that same day;

    e)Noted that it had granted the extension of time until 18 November 2013 but that at the date of the Tribunal decision the applicant had not provided the requested information;

    f)Had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship confirming that the Tribunal is not required to indefinitely defer its decision-making processes. Further the Court noted that the applicant had been aware of the basis of the delegate’s refusal for some 22 months. The Tribunal determined not to further extend time;

18. The Tribunal concluded that the applicant’s skills had not been assessed suitable for his nominated skill occupation by the relevant assessing authority. It followed that he did not satisfy the requirements of sub clause 485.221(1) and does not meet the requirements of clause 485.221. Hence, the Tribunal found that the applicant does not satisfy the criteria for the grant of a subclass 485 visa and affirmed the decision of the delegate.

Application before this court

1. The application is not particularised and does not argue any jurisdictional error in the Tribunal. The applicant simply says in his application that he is not satisfied with the decision.

2. In his second affidavit filed 6 June 2014 the applicant submits some evidence as to English language skills. That evidence was not put to the Tribunal but, in any event, does not appear to have any nexus to the Tribunal’s determination.

3. The issue before the Tribunal was a discrete one in that should the Tribunal not be satisfied that the applicant met the requisite visa criteria then it was obliged to affirm the delegate’s decision refusing the grant of the visa.  Such a conclusion was clearly open to the Tribunal and inevitable given the lack of material before it and the chronology set out above.

4. It is clear that the applicant misunderstands the role of this Court and seeks yet a further review on the merits of his application. This is not the role of the Court which is concerned only as to whether or not the Tribunal’s decision is affected by jurisdictional error[1].

   [1] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1986) 162 CLR 24 at 40

5. I am satisfied that the applicant was afforded procedural fairness or natural justice within the context of Part V, Division V of the Act. I accept the submissions of counsel for the Respondent that the Tribunal:

   (a) Correctly articulated the applicable legal framework CB 165 [14] – [17] and CB 166-167 [19] –[26];

   (b) gave proper consideration to the material before it: CB164A [4], CB165[9] and CB166-167[24] – [28]; and

   (c) discharged its obligation of procedural fairness: CB164A [7]-CB165[17], and CB166-167 [26]-[29]

6. The Tribunal was not obliged to conduct a hearing. The applicant was not entitled to appear before the Tribunal by reason of his failure to provide the information sought in the s359 request or to respond to the s359A invitation.

7. The Tribunal considered whether it should have granted a further adjournment. To my mind it determined properly that it should not, taking into account the chronology above but again this is a course which was certainly open to the Tribunal. It is noteworthy that the applicant has attempted to adduce some further evidence but not the evidence and information sought by the Tribunal.

8. Although the applicant does not raise the issue and it is of no impact, counsel for the minister properly raised an incorrect statement of fact in the Tribunal’s letter of 23 October 2013 (CB 161) to the applicant and in its decision at [10] (CB 165). The Tribunal had offered 28 days for response to invitations under ss359 or ss359A. The prescribed period had been 28 days but was reduced to 14 days after amendments of 1 July 201. Nevertheless, the reference to 18 November as the final date for response is correctly calculated. Such an error is not material to the Tribunal’s determination.

Conclusion

1. I am satisfied that the Tribunal’s decision was open to it. The applicant had not provided information to satisfy the criteria for the grant of the visa. For the reasons set out above the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  16 October 2014